People v. Lockett CA2/8

Filed 5/13/22 P. v. Lockett CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B313308
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA474653)
v.
TRAMEL SYLVESTER LOCKETT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Gustavo N. Sztraicher, Judge. Reversed and
remanded.
Robert Booher, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Defendant Tramel Sylvester Lockett appeals from an order
denying his post-sentencing motion to modify restitution, Penal
Code section 1202.4, subdivision (f)(1).1 He contends that
intervening events since the restitution amount was originally
set show that a reduction in the award is necessary to align it
with the victim’s actual losses. We, and the People, agree.
We reverse and remand for further proceedings.
BACKGROUND
In January 2019, Defendant drove a used 2012 Bentley
automobile off the sales lot of Phillips Auto without permission.
The vehicle was recovered six days later. Defendant pleaded no
contest to driving a vehicle without consent. (Veh. Code, § 10851,
subd. (a).) In February 2019, the trial court sentenced him to a
prison term and further ordered him to pay restitution to Phillips
Auto in the amount of $27,450. Of this amount, $2,450 was
stipulated as actual damages to the vehicle. The remaining
$25,000 was the trial court’s estimate of lost value based on
testimony from a Phillips Auto employee that the vehicle had to
be reported as stolen to CARFAX, which would reduce the value
of the vehicle by 25 to 30 percent. At the time of the original
restitution hearing, Defendant was under the impression that the
vehicle had not been sold, as it was listed on the Phillips Auto
website for $99,960.
Defendant appealed both his sentence and the restitution
order. In an unpublished decision, People v. Lockett (Dec. 18,
2020, B296211 [nonpub. opn.]), we remanded with instructions to
modify the sentence but found no abuse of discretion in fixing the
amount of the restitution award.
1 Undesignated statutory references herein are to the Penal
Code.
2
In June 2021, Defendant moved the trial court to modify
the restitution order based on new facts, namely that the vehicle
sold on February 20, 20192 for $103,3753—more than its
advertised price—without any report of the theft having been
made to CARFAX. The trial court denied the motion on the basis
that it had already decided the matter and this court had
affirmed, apparently accepting the prosecution’s assertion that
law of the case doctrine barred further review.
This timely appeal followed.
DISCUSSION
We have jurisdiction to consider Defendant’s appeal of the
post-judgment restitution order pursuant to section 1237,
subdivision (b). (People v. Weatherton (2015) 238 Cal.App.4th
676, 680, fn. 5.) As both parties agree, we review a trial court’s
restitution order for abuse of discretion. (People v. Giordano
2 We do not have before us the transcript of the February
2019 restitution hearing. However, we note that it was
scheduled for February 21, 2019, and counsel for the Appellant
represents that it occurred on that date. This is the day after
DMV records show that the vehicle was sold. If this timeline is
correct, it is unfortunate that the representative for Phillips Auto
failed to notify the trial court at the restitution hearing that the
vehicle had been sold without any report of theft having been
made to CARFAX. We acknowledge Defendant’s request that we
take judicial notice of the record in the prior proceeding,
including the transcript of the initial restitution hearing.
Because it is unnecessary to our disposition of the matter, we
deny Defendant’s request.
3 While this is the amount recited in Defendant’s trial
motion, supporting DMV documents variously show the sale price
as this price or the advertised sale price of $99,980.
3
(2007) 42 Cal.4th 644, 663.) “When . . . a trial court’s decision
reflects an unawareness or misunderstanding of the full scope of
its discretion, the court has not properly exercised its discretion
under the law.” (Yost v. Forestiere (2020) 51 Cal.App.5th 509,
530.)
Such is the case here. The trial court incorrectly concluded
that our affirmance of its original restitution order precluded it
from considering Defendant’s motion to modify the order.
Section 1202.4, subdivision (f)(1), provides that a court may
modify the amount of restitution ordered on the motion of any
interested party. This authority permits a trial court to modify a
restitution order when presented with changed circumstances.
(See, e.g., People v. Jennings (2005) 128 Cal.App.4th 42, 58-59
[interpreting § 1202.4, subd. (f)(1) to permit a defendant to seek a
reduction in the victim restitution order to account for payments
by his insurer to the victim in settlement of a civil action].) When
this court affirmed the trial court’s original calculation of the
restitution award, it placed no limit on the trial court’s and
interested parties’ statutory authority to revisit the proper
amount of restitution pursuant to section 1202.4, subdivision
(f)(1).
Notably, the law of the case doctrine invoked by the
prosecution and which the trial court apparently found
controlling “governs only the principles of law laid down by an
appellate court, as applicable to a retrial of fact, and it controls
the outcome on retrial only to the extent the evidence is
substantially the same.” (People v. Boyer (2006) 38 Cal.4th 412,
442, superseded by statute on another ground.) Here, the trial
court was presented with new evidence that the basis for the
claimed loss—theft reporting to CARFAX consequent to
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Defendant’s actions—never materialized. The theft was never
reported to CARFAX; hence the loss that the victim’s
representative testified would stem from that reporting could not
have occurred.
While it would be most expeditious for us to strike the
component of the loss based on the false CARFAX reporting
premise, remand is most appropriate under the circumstances.
(See F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16 [“If the record
affirmatively shows the trial court misunderstood the proper
scope of its discretion, remand to the trial court is required to
permit that court to exercise informed discretion with awareness
of the full scope of its discretion and applicable law”].) The
parties are free to stipulate to a new restitution amount if there
is no dispute about the calculation.
We therefore remand to the trial court to modify the
restitution amount to “ ‘a dollar amount that is sufficient to fully
reimburse the victim . . . for every determined economic loss
incurred as the result of the defendant’s criminal conduct’ ”
(§ 1202.4, subd. (f)(3)), and which does not “provide the victim
with a windfall.” (People v. Chappelone (2010) 183 Cal.App.4th
1159, 1172.)
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DISPOSITION
The restitution order of the trial court is reversed.
We remand for further proceedings in accordance with this order.
*
HARUTUNIAN, J.
We concur:
STRATTON, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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