People v. Truong CA4/1 ( 2020 )


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  • Filed 12/23/20 P. v. Truong CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                          D077376
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. SCD279053)
    CODY TRUONG,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Francis M. Devaney, Judge. Affirmed.
    Shaghayegh Dinata-Hanson, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
    Rogers and Kristen Kinnaird Chenelia, Deputy Attorneys General, for
    Plaintiff and Respondent.
    The District Attorney charged Cody Truong with evading an officer
    with reckless driving (Veh. Code, § 2800.2, subd. (a); count 1); two counts of
    resisting an executive officer (Pen. Code,1 § 69; counts 2, 3); two counts of
    vandalism over $400 (§ 549, subd. (a)(b)(1); counts 4, 5); harm to or
    interference with a police animal (§ 600, subd. (a); count 6); three counts of
    battery (§ 242; counts 7, 11, 12); unlawfully taking and driving a vehicle
    (Veh. Code, § 10851, subd. (a); count 8); receiving/withholding a stolen vehicle
    (§ 496, subd. (d); count 9); hit and run driving (Veh. Code, § 20002, subd. (a);
    count 10); and two counts of vandalism under $400 (§ 594, subd. (a)(b)(2)(A);
    counts 13, 14). It was further alleged that Truong had served a prior prison
    term (§§ 667.5, subd. (b), 668).
    Truong pled guilty to evading an officer with reckless driving (count 1);
    resisting an officer (count 2); misdemeanor harm or interference with a police
    animal (count 6); and unlawfully taking and driving a vehicle (count 8), in
    exchange for a stipulated sentence of three years four months in prison and
    dismissal of the remaining charges. He also pled guilty to vandalism in a
    separate case for an agreed, eight-month sentence. The agreement included
    a Harvey2 waiver.
    Per the plea agreement, the court sentenced Truong to prison for four
    years. In a subsequent restitution hearing, the court ordered Truong to pay
    restitution to the City of San Diego (City) in the amount of $4,514.88 for
    damaging a patrol car.3
    Truong appeals, contending the restitution award as to the City was
    unauthorized under section 1202.4. We affirm.
    1     Statutory references are to the Penal Code unless otherwise specified.
    2     People v. Harvey (1979) 
    25 Cal.3d 754
    .
    3    The court also ordered Truong to pay restitution to another victim in
    the amount of $1,306. Truong does not challenge this portion of the order.
    2
    FACTUAL BACKGROUND
    Because Truong pled guilty, both parties rely on the probation report
    for the facts of Truong’s underlying crimes. Based on their agreement as to
    the facts and as a matter of convenience, we adopt the facts as set forth in the
    respondent’s brief.
    On October 17, 2018, at approximately 7:30 p.m. the victim, S.T.,
    arrived at his home after work and was approached by his roommate outside
    the residence. His roommate told him that his son/defendant, Cody Truong,
    was extremely intoxicated and that he attempted to fight others inside their
    residence. Truong’s father went inside the residence and told Truong, “Son, I
    think it’s time to go to sleep now.”
    Truong became angry at his father’s request and proceeded to pace
    back and forth inside the residence. Truong then went outside in the
    backyard and threw something at the glass sliding door. Truong’s father
    heard the item strike the sliding door and asked Truong if he was okay.
    Truong responded by forcibly using his own head to strike his father in the
    face (dismissed count 7).
    His father was bleeding and ran outside to the front of the residence for
    safety, with Truong chasing after him. Truong’s father jumped on the bed of
    his work truck that was parked outside and called the police. He grabbed a
    rake and then stood on the roof of the truck to get away from Truong. Truong
    threw a bungy type cord at the left side of his father’s face and ear causing
    him to fall into the bed of the truck. Truong jumped on the bed of the truck
    and continued to punch his father in the chest and head area (dismissed
    counts 11-12). Truong’s father attempted to distance himself from Truong,
    and Truong shattered the driver’s side window of his father’s Range Rover
    (dismissed count 13), broke the mailbox (dismissed count 14), and punched a
    3
    hole in the wall located in the bathroom. The total estimated cost to repair
    the property damage was approximately $2,000.00.
    Police arrived on scene and attempted to contact Truong standing
    outside of the residence on the front lawn. However, Truong flipped them off
    with both of his middle fingers and got into one of his father’s work vehicles
    (2001 Toyota Tundra) and drove off with the headlights off (count 8 &
    dismissed count 9). The officers initiated a traffic stop, but he failed to yield
    and a vehicle pursuit ensued. The pursuit lasted 28 minutes and covered the
    neighborhoods of Tierrasanta, Kearny Mesa, Mira Mesa, Sorrento Mesa, and
    Sorento Valley (count 1).
    During the pursuit, Truong collided with a patrol vehicle and failed to
    stop (count 10). Ultimately, Truong drove over police spike strips and into a
    dead-end street where he crashed the truck directly into S.W.’s residential
    fence line (count 5), whereby the vehicle became inoperable (dismissed
    count 4). Truong then exited the vehicle and attempted to flee on foot.
    K9 officers, Sergeant Resch and Officer Harrison, were immediately
    behind Truong when he crashed into the fence. Officer Harrison deployed his
    police service canine “Kubo” after giving commands for Truong to stop. The
    police service canine secured two bites on Truong but was unable to subdue
    him. Truong had the canine pinned down by his neck and one of his legs and
    proceeded to punch him five to ten times hitting him in the head and face
    area (count 6).
    Sergeant Resch and Officer Harrison moved in to restrain Truong from
    attacking the police canine and to take him into custody. Truong violently
    resisted and punched the officers several times in the face with a closed fist.
    Truong punched Sergeant Resch several times, hitting his left eye once
    resulting in a small laceration to his left eyelid and soreness to his left brow.
    4
    Officer Harrison sustained a small laceration across the top of his nose. The
    police canine “Kubo” suffered an injury to his left paw as he was limping at
    the scene (count 2 & dismissed count 3).
    Truong was ultimately subdued and placed into the WRAP, a
    maximum restraint device. After being cleared from the hospital, he was
    transported and booked into county jail. He did not submit a statement
    following his arrest.
    S.T. sustained several visible scratches to his right forearm and upper
    left back area. He also complained of pain to his mouth area and refused
    medical attention.
    S.W.’s cost to repair the fence was estimated at $1,306.00.
    DISCUSSION
    Truong challenges the trial court’s ordered restitution to the City,
    arguing that it was unauthorized under section 1202.4 because the damage to
    the patrol car did not occur as a result of the hit and run charge (count 10)
    and the City was not the direct victim of the crime. We disagree.
    Truong’s plea agreement included a Harvey waiver wherein Truong
    agreed, “The sentencing judge may consider my prior criminal history and
    the entire factual background of the case, including any unfiled, dismissed or
    stricken charges or allegations or cases when granting probation, ordering
    restitution or imposing sentence.” On January 8, 2020, the trial court
    sentenced Truong to the stipulated four-year prison term. The trial court
    also scheduled a status hearing to review restitution.
    On January 29, 2020, the parties returned for a restitution hearing.
    Truong’s counsel stated at the outset of the restitution hearing, “My
    understanding is that we have agreed to the stipulated restitution amount.”
    The prosecutor agreed, “That’s correct, your Honor. It’s set for restitution
    5
    review. I filed the motion with this Court, provided documentation to the
    Court and Counsel. There’s two copies of a proposed order, and we’re
    stipulating to those amounts.” Based on this, the trial court ordered in
    relevant part, “restitution in the amount of $4,514.88 to the City of San
    Diego . . . .” Truong’s counsel made no objection.
    Where a victim suffers economic losses as a function of a defendant’s
    actions that resulted in his or her conviction, a trial court must require the
    defendant to make restitution as part of the sentence. (People v. Phu (2009)
    
    179 Cal.App.4th 280
    , 283.) A victim’s restitution right is to be broadly and
    liberally construed. (Ibid.)
    Section 1202.4 subdivision (f), provides that, “in every case in which a
    victim has suffered economic loss as a result of the defendant’s conduct, the
    court shall require that the defendant make restitution to the victim or
    victims in an amount established by court order.” (See People v. Martinez
    (2017) 
    2 Cal.5th 1093
    , 1098 (Martinez) [“Application of these provisions
    depends on the relationship between the victim’s loss and the defendant’s
    crime.”].)
    The court may only impose restitution for economic losses incurred “as
    a result of” the defendant’s criminal conduct. (§ 1202.4, subd. (f).) In other
    words, restitution may be imposed in such cases only to the extent the
    defendant’s criminal conduct played a “substantial factor” in causing the
    victim’s economic loss. (People v. Holmberg (2011) 
    195 Cal.App.4th 1310
    ,
    1321-1324 [victim losses were the direct result of the burglary, and the
    defendant’s possession of the stolen property was also a substantial factor in
    causing the victim’s loss].) To be a substantial factor, the defendant’s
    criminal conduct must be more than a “trivial or remote” factor contributing
    6
    to the victim’s loss, but it need not be the “sole” cause of the loss. (People v.
    Sanchez (2001) 
    26 Cal.4th 834
    , 845; People v. Fromuth (2016) 
    2 Cal.App.5th 91
    , 101.)
    We review a trial court’s restitution order for an abuse of discretion.
    (People v. Giordano (2007) 
    42 Cal.4th 644
    , 663.) In doing so, we draw all
    reasonable inferences in favor of the trial court’s order and will affirm it if
    there is substantial evidence to support it. The statute does not require “any
    particular kind of proof” and “[n]o abuse of discretion will be found where
    there is a rational and factual basis for the amount of restitution ordered.”
    (People v. Gemelli (2008) 
    161 Cal.App.4th 1539
    , 1542-1543.)
    “[W]hen the legal basis for a restitution award is under challenge,” this
    court independently reviews “the legality of the restitution award in light of
    the applicable statutes and any relevant decisional law.” (People v. Brunette
    (2011) 
    194 Cal.App.4th 268
    , 277; People v. Williams (2010) 
    184 Cal.App.4th 142
    , 146 [“[W]hen the propriety of a restitution order turns on the
    interpretation of a statute, a question of law is raised, which is subject to de
    novo review on appeal”].)
    Truong challenges the restitution award to the City on two grounds.
    First, he urges us to follow Martinez, supra, 
    2 Cal.5th 1093
     and conclude
    count 10 for hit and run could not give rise to a restitution award in favor of
    the City. However, Martinez does not support Truong’s position in the
    instant matter. In fact, it supports the People’s argument that restitution
    was authorized.
    In Martinez, the defendant was convicted of violating Vehicle Code
    section 20001, often referred to as the “hit and run statute.” (Martinez,
    supra, 2 Cal.5th at p. 1097.) The defendant was ordered to pay the victim
    injured in the accident $425,654.63 as restitution for the victim’s injuries.
    7
    (Ibid.) Our high court addressed whether the restitution award was
    authorized under the statutes requiring a convicted felon to pay restitution
    for economic loss the victim incurred “ ‘as a result of the commission of a
    crime’ ” (§ 1202.4, subd. (a)(1)) or “ ‘as the result of the defendant’s criminal
    conduct’ ” (§ 1202.4, subd. (f)(3)). (Martinez, at pp. 1097-1098.) In doing so,
    the court explained that a Vehicle Code section 20001 violation is “ ‘more
    accurately described as fleeing the scene of an injury accident.’ ” (Martinez,
    at p. 1102.) As such, the court rejected the direct restitution award,
    concluding that restitution for injury arising out of a violation of Vehicle Code
    section 20001 is limited to the “losses resulting from the defendant’s crime:
    that is, flight from the scene of the accident without identifying himself or
    herself, rendering aid, or otherwise fulfilling the statutory requirements.”
    (Martinez, at p. 1107.) Further, the court emphasized “[s]ection 1202.4 does
    not, however, permit courts to order direct victim restitution for losses that
    occur as a result of an underlying accident that involves no criminal
    wrongdoing.” (Ibid.; see id. at p. 1103 [“Restitution for losses incurred ‘as a
    result of the commission of a crime’ (§ 1202.4, subd. (a)) includes losses
    incurred as a result of the defendant’s unlawful flight from the scene of the
    accident in which he or she was involved, but not losses solely as a result of
    the accident itself.”].)
    Here, Truong asserts that he is in the same situation as the defendant
    in Martinez. Accordingly, he argues that the court could not have ordered
    victim restitution for the damage to the patrol car for his violation of Vehicle
    8
    Code section 20002.4 However, as the People point out, in Martinez, the
    court was only concerned with the violation of Vehicle Code section 20001.
    Here, Truong was charged with and pled guilty to more than a hit and run
    violation. Indeed, Truong pled guilty to recklessly evading a police officer
    with wanton disregard for safety, in violation of Vehicle Code section 2800.2,
    subdivision (a). That subdivision prohibits the flight from or attempts to
    elude a pursuing law enforcement officer when “the pursued vehicle is driven
    in a willful and wanton disregard for the safety of persons or property.” (Veh.
    Code, § 2800.2, subd. (a).) In the instant matter, Truong led officers on a
    28 minute pursuit, during which, he “collided with a patrol car and failed to
    stop.” Further, Truong was acting erratically, damaging his father’s
    property, and hitting his father. He refused to comply with instructions from
    the police, stole his father’s car, and led officers in a vehicle pursuit. This
    reckless conduct was a substantial factor in the collision. Restitution in favor
    of the City therefore was authorized. (See People v. Holmberg, supra, 195
    Cal.App.4th at pp. 1321-1324; People v. Sanchez, supra, 26 Cal.4th at p. 845;
    People v. Fromuth, supra, 2 Cal.App.5th at p. 101.)
    Moreover, Martinez supports victim restitution under the facts of the
    instant matter. As the California Supreme Court noted, “victim restitution is
    available when the victim’s losses are caused by conduct that does, in fact,
    constitute a crime.” (Martinez, supra, 2 Cal.5th at p. 1105.) The court
    4     The fact that Truong was charged with a violation of Vehicle Code
    section 20002 and the defendant in Martinez was charged with a violation of
    Vehicle Code section 20001 is not of the moment. The former involves a
    defendant leaving the scene of an accident where only property is damaged.
    (See Veh. Code, § 20002, subd. (a).) The latter concerns a defendant leaving
    the scene of an accident in which someone (besides the defendant) is injured.
    (See Veh. Code, § 20001, subd. (a).) The criminal act in both statutes is
    fleeing the scene of the accident.
    9
    further observed that “a court may order restitution for the losses incurred as
    a result of the mean by which the defendant committed the offense.” (Id. at
    pp. 1105-1106.) Here, part of Truong’s offense of recklessly evading a police
    officer with wanton disregard for safety involved him crashing into a patrol
    car. Martinez does not prohibit a court from awarding victim restitution
    based on Truong’s criminal conduct resulting in damage to the patrol car.
    (Id. at p. 1106 [“So, for example, if a burglar breaks a window to enter a
    home, he or she may be ordered to pay for the broken window in victim
    restitution, even though the burglary statute requires the prosecution to
    prove only that the defendant entered the house with the intent to commit a
    felony. (See Pen. Code, § 459.) If the burglar happens to have committed the
    prohibited entry by some means that causes damage to the home, a trial
    court certainly can—and must—take the damage into account in ordering
    restitution under section 1202.4, subdivision (f).”].)
    Second, Truong argues the restitution award to the City was not
    authorized because the City is not a “direct victim” of the crime. To this end,
    he argues the damage to the patrol car was simply a cost the City incurred in
    the course of the police performing its duty to investigate a criminal activity,
    and thus, the City cannot be considered a direct victim for purposes of victim
    restitution. We reject this contention.
    Section 1202.4, subdivision (k)(2), defines victim to include any
    “government, governmental subdivision, agency, or instrumentality, or any
    other legal or commercial entity when that entity is a direct victim of a
    crime.” As our Supreme Court observed, however, “ ‘public agencies are not
    directly “victimized” for purposes of restitution under Penal Code
    section 1202.4 merely because they spend money to investigate crimes or
    10
    apprehend criminals.’ [Citation.]” (People v. Martinez (2005) 
    36 Cal.4th 384
    ,
    393, fn. 1.) Here, the damage to the patrol vehicle was not incurred during
    the regular performance of an officer’s duties. Even though the City could
    not be compensated for the cost of gasoline or the personnel costs of the
    pursuit, Truong’s collision with the patrol car was not during the regular
    course of duties. (See People v. Rugamas (2001) 
    93 Cal.App.4th 518
    , 521-523
    [medical costs of treating defendant not ordinary law enforcement cost]; In re
    Johnny M. (2002) 
    100 Cal.App.4th 1128
    , 1134 [labor costs outside of regular
    duties].) Truong’s criminal conduct in willfully evading law enforcement
    officers included colliding with the patrol car. The officer would not have had
    damage to his vehicle but for Truong’s criminal behavior. As the owner of the
    patrol car, the City was the direct victim of Truong’s criminal conduct.
    For the above reasons, the restitution award to the City was
    authorized.
    DISPOSITION
    The order is affirmed.
    HUFFMAN, Acting P. J.
    WE CONCUR:
    HALLER, J.
    GUERRERO, J.
    11
    

Document Info

Docket Number: D077376

Filed Date: 12/23/2020

Precedential Status: Non-Precedential

Modified Date: 12/23/2020