People v. Lockett CA2/8

Filed 12/18/20 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, B296211
Plaintiff and Respondent, (Los Angeles County.
Super. Ct. No. BA474653)
v.
TRAMEL SYLVESTER LOCKETT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Gustavo N. Sztraicher, Judge. Affirmed in part
and reversed and remanded.
Robert Booher for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Colleen M.
Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________
Tramel S. Lockett pleaded no contest to one count of theft
of a vehicle and was sentenced to a five-year term, including a
one-year enhancement under Penal Code section 667.5,
subdivision (b).1 The trial court issued a restitution order of
$25,000 to compensate the victim for the diminished value of the
vehicle. On appeal, Lockett contends this court should strike the
one-year prior prison term enhancement in light of the enactment
of Senate Bill No. 136 (SB 136). (Stats. 2019, ch. 590 § 1.) He
also asserts the trial court erred when it ordered $25,000 in
restitution. We reverse and remand to the trial court with
directions to strike the one-year term imposed for the section
667.5, subdivision (b) prior prison term enhancement.
Thereafter, the prosecution may agree to reduce the sentence by
one year or withdraw from the plea agreement. The trial court
may also withdraw its prior approval of the plea agreement.
We otherwise affirm the judgment.
FACTS
Lockett drove a used 2012 Bentley GT convertible off the
lot of Phillips Auto dealership without permission. The vehicle
was recovered six days later. Lockett pleaded no contest to
driving a vehicle without consent (Veh. Code, § 10851, subd. (a))
and admitted he suffered a prior prison term (§ 667.5, subd. (b))
and a prior strike (§§ 667, subds. (c), (e)(1) & 1170.21, subd.
(c)(1)). In presenting the plea agreement to the trial court, the
prosecutor calculated the sentence as follows: “The disposition is
for the mid-term of Count 2, which is two years, and that’s being
multiplied by two to give you four years, and then plus one year
for your [prison prior for burglary (§ 459)], to be a total of five
1 All subsequent section references are to the Penal Code
unless otherwise specified.
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years’ state prison.” The trial court approved the plea and
sentenced Lockett accordingly.
At the subsequent restitution hearing, the parties
stipulated to actual damages in the amount of $2,450. Phillips
Auto also claimed an additional loss of value in the amount of
$25,000. A Phillips Auto employee testified the Bentley had a
book value of $110,000 prior to the theft. He further testified the
theft had to be reported to Carfax, and a theft recovery on Carfax
diminishes the value of the vehicle by 25 to 30 percent because
buyers are typically less inclined to purchase a high-end car that
has been stolen due to concerns the car could have been damaged.
Lockett argued the loss in value was unsubstantiated and
presented a copy of the police report indicating there was no
damage to the car. Lockett further advised the court that at the
time of the hearing, the dealership had listed the car on its
website for $99,960. The court credited the employee’s testimony,
finding “it is reasonable to conclude that the car has [a]
diminished value of $25,000, given the theft,” and ordered a total
restitution amount of $27,450: $2,450 for the stipulated damages
and $25,000 for the loss in value to the car.
Lockett appealed.
DISCUSSION
I. The Case Is Remanded To Strike the One-Year
Enhancement and Permit the People To Either
Accept a Reduced Sentence or Withdraw From the
Plea Agreement
The parties agree, as do we, that SB 136 applies
retroactively to Lockett’s case because his prior prison term was
not for a sexually violent offense, and his case was not yet final
when the amendment took effect on January 1, 2020. (In re
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Estrada (1965) 63 Cal.2d 740; People v. Matthews (2020) 47
Cal.App.5th 857, 864–865 (Matthews); § 667.5, subd. (b) [one-year
prior prison term enhancement imposed only if the prior term
was served “for a sexually violent offense”]; see Stats. 2019,
ch. 590 § 1.) The parties, however, disagree as to the proper
disposition in this case.
In his opening brief, Lockett urges us to strike the
enhancement but leave intact the remainder of the sentence.
Under this scenario, Lockett’s sentence would be reduced to four
years. The People oppose this disposition. They argue this court
may not unilaterally lessen Lockett’s punishment because it was
the result of a negotiated plea agreement. While they agree the
trial court must strike the one-year enhancement under SB 136,
they argue the district attorney must be allowed to either accept
the reduced sentence or withdraw from the plea agreement.
In his reply brief, Lockett acknowledges the People’s position and
agrees the matter should be remanded for resentencing. He
asserts his subsequent exposure on remand must be limited to a
term of five years, however, leaving his original plea agreement
intact. According to Lockett, this disposition “restores to the
prosecution the benefits for which it bargained while at the same
time not depriving appellant of the bargain to which he remains
entitled.” Two months after briefing was completed and two
weeks prior to oral argument, we received a letter brief from
Lockett advising us he intends to revert to his initial position in
the opening brief that the enhancement should simply be
stricken. Notwithstanding Lockett’s changing position, we are
persuaded by the People’s argument.
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Because this presents a pure question of law, we review the
issue de novo. (People v. Rells (2000) 22 Cal.4th 860, 870.) The
first published case to address the impact of SB 136 on a sentence
that is the result of a plea bargain was Matthews, supra, 47
Cal.App.5th at page 869. Matthews held a trial court lacks the
power to alter a sentence imposed pursuant to a plea agreement
in which the parties agreed to specific sentences “except to
eliminate enhancements affected by Senate Bill No. 136.” (Id. at
p. 866.) The court reasoned “the purposes of Senate Bill No.
136 . . . would be frustrated if the trial court were allowed to
unilaterally alter agreed-to terms of a plea agreement after
striking enhancement sentences as required by Senate Bill No.
136.” (Id. at p. 868.) Matthews thus “conclude[d] the trial court
cannot, in striking the enhancements invalidated by Senate Bill
No. 136 . . . , reconsider other aspects of the sentences Matthews
and the People specifically agreed to under the plea agreements.”
(Id. at p. 869.)
Six months after Matthews, the Fifth District published
People v. Hernandez (2020) 55 Cal.App.5th 942 (Hernandez),
review filed Nov. 23, 2020. Hernandez agreed with Matthews
that SB 136 required the prior prison term enhancement be
stricken even when it is part of a negotiated plea bargain.
(Hernandez, supra, at p. 960.) Hernandez conducted an extensive
review of relevant Supreme Court authority, including People v.
Stamps (2020) 9 Cal.5th 685 (Stamps), which the high court
published after Matthews and addresses the impact Senate Bill
No. 1393—which gives a trial court discretion to strike a serious
felony enhancement pursuant to section 667, subdivision (a)—has
on a sentence that is the result of a plea agreement. (Stamps,
supra, 9 Cal.5th at pp. 692, 701–703.) Following the disposition
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in Stamps, Hernandez held that once the enhancement is
stricken or dismissed, the prosecution must be allowed to
withdraw from the plea agreement, and the trial court may
withdraw its approval of the plea agreement. (Hernandez, supra,
55 Cal.App.5th at p. 960.) Hernandez found “there is no evidence
the Legislature intended Senate Bill 136 to permit the trial court
to unilaterally modify a plea agreement once the prior prison
term enhancements are stricken.” (Id. at p. 958.)
We agree with Hernandez that remand for resentencing is
appropriate where the sentence is a result of a plea agreement.
Hernandez provides an extensive review of the legislative history
of SB 136 and relevant Supreme Court and Court of Appeal cases
that “address[] the impact of amendments or repeals of statutes,
either by the legislative or initiative process, that had provided
for sentences that were part of a plea agreement for a specified
sentence.” (Hernandez, supra, at 949.) We need not repeat
Hernandez’s well-reasoned analysis here.
We remand the matter to the superior court with directions
to strike the one-year prior prison term enhancement under
section 667.5, subdivision (b). Thereafter, the People may agree
to the reduced sentence or withdraw from the plea agreement.
The court may also withdraw its prior approval of the plea
agreement. (Hernandez, supra, 55 Cal.App.5th at p. 960; see
Stamps, supra, 9 Cal.5th at pp. 707–708.)
II. The Trial Court Did Not Abuse Its Discretion to
Award Restitution In the Amount of $25,000
Lockett next asserts the trial court abused its discretion
when it ordered $25,000 in restitution to be paid to Phillips Auto.
According to Lockett, that amount is entirely speculative because
it is unsupported by the evidence. We disagree.
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A. Governing Law
“It is the intent of the Legislature that a victim of crime
who incurs any economic loss as the result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime.” (§ 1202.4, subd. (a).) To achieve this
goal, the trial court has broad discretion to order restitution so
that every victim is fully compensated for their loss. (People v.
Giordano (2007) 42 Cal.4th 644, 654 (Giordano).) The victim
must make a prima facie showing of economic loss caused by the
defendant’s criminal act that establishes the amount claimed by
a preponderance of the evidence. (People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542 (Gemelli).) The trial court may rely solely
on the victim’s statement to assess the loss of value to the stolen
or damaged property. (Id. at p. 1543; see People v. Keichler
(2005) 129 Cal.App.4th 1039, 1045 [a property owner’s statement
about the value of the property is sufficient to make a prima facie
showing of economic loss].) “Once the victim makes a prima facie
showing of economic losses incurred as a result of the defendant’s
criminals acts, the burden shifts to the defendant to disprove the
amount of losses claimed by the victim.” (Gemelli, supra, at
p. 1543.)
We review a trial court’s restitution order for an abuse of
discretion. (Giordano, supra, 42 Cal.4th at p. 663.) “No abuse of
discretion will be found where there is a rational and factual
basis for the amount of restitution ordered.” (Gemelli, supra, 161
Cal.App.4th at p. 1542.)
B. The People Made a Prima Facie Showing
We are persuaded by Gemelli, supra, 161 Cal.App.4th 1539,
the trial court had a rational and factual basis to order $25,000 in
restitution in this case. In Gemelli, the trial court based a
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restitution order on a handwritten statement from the burglary
victim and the probation officer’s recommendation, which was
based solely on the victim’s statement. (Id. at p. 1544.) The
victim’s statement listed individual repair and labor costs
incurred as a result of the burglary that totaled $7,073. (Ibid.)
Although the victim’s list was self-generated and uncorroborated
by receipts or other documentation, the court found the list was
credible and constituted sufficient evidence to make a prima facie
case for the claimed damages. (Ibid.)
As in Gemelli, the trial court here based its decision solely
on the victim’s statements regarding the loss in value. Long, the
dealership’s employee, estimated a theft would diminish the
value of a high-end car by 25 to 30 percent. He further testified
the theft “has to be disclosed” to a potential buyer, and that
Carfax is the “first thing [buyers] pull when they look at Ferraris
or high-end vehicles . . . . If there’s fire, theft, or anything, . . . it
just kills the car.” Long explained people are less likely to
purchase high end cars that have been stolen and recovered due
to concern that the vehicle has been damaged. Following
Gemelli, the trial court did not abuse its discretion to credit
Long’s testimony and find the People made a prima facie showing
the value of the $110,000 car was diminished by $25,000 as a
result of the theft.
Lockett relies on People v. Vournazos (1988) 198 Cal.App.3d
948 (Vournazos) to argue that Long’s testimony was insufficient
to make a prima facie showing. We are not persuaded. Like
other courts before us, we reject the implication in Vournazos
that more than a victim’s statement of loss is required to
establish loss. (In re. S.S. (1995) 37 Cal.App.4th 543, 547
[declining to follow Vournazos because the property owner’s
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statement should constitute sufficient evidence of value]; People
v. Foster (1993) 14 Cal.App.4th 939, 946 [rejecting the reasoning
in Vournazos].)
C. Lockett Did Not Effectively Rebut the Claimed
Amount
Once Phillips Auto made a prima facie showing of its
claimed economic loss, the burden shifted to Lockett to rebut the
validity of the amount claimed. (People v. Fulton (2003) 109
Cal.App.4th 876, 886.) Lockett presented a police report that
stated “there was no damage to the car when it was recovered.”
He argued that although there may have been some scratches on
the car, the damage was not significant enough for the police
officer to note, and thus, it was unlikely that the value of the car
was diminished by $25,000. The court did not find this evidence
persuasive because a police officer “does not necessarily have the
expertise in looking at a car of that value and determining what
specific damages were sustained by that vehicle.”
Again, Gemelli, supra, 161 Cal.App.4th 1539 is illustrative.
In Gemelli, the defendant was a former employee of the
restaurant she had robbed, and she attempted to dispute the
credibility of the victim’s list based on her knowledge of the
victim’s business practices. The court found the defendant’s
testimony “did not effectively rebut” the claimed economic losses
because she did not present evidence that directly contradicted
the amounts. (Id. at p. 1544.)
Similarly, Lockett’s evidence pertaining to the extent of
damages to the car did not directly rebut Long’s testimony that
the mere fact a car has been stolen greatly diminishes its value.
The trial court was entitled to credit Long’s testimony regarding
the loss in value while placing less emphasis on the police report.
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(See People v. Tabb (2009) 170 Cal.App.4th 1142, 1153
[credibility determinations are for the trier of fact, and “we do not
reweigh or reinterpret” the evidence on appeal, “we only
determine whether there is sufficient evidence to support the
inference drawn by the trier of fact”].)
We reject Lockett’s reliance on People v. Valenti (2016) 243
Cal.App.4th 1140, 1182 (Valenti) to argue that the restitution
amount was “entirely speculative.” Valenti is distinguishable
because, in that case, the trial court awarded noneconomic
restitution to victims of continuous child sexual abuse. (Ibid.)
On appeal, the court concluded that there was no rational basis
to support the $50,000 amount awarded to each child victim
because the trial court “did not find facts, cite reliable evidence,
or even explain how it arrived at the amount of restitution for
each victim.” (Id. at p. 1183.) Thus, the court reversed the
restitution awards and remanded for a new hearing. (Id. at p.
1184.)
Lockett argues the amount of loss is speculative because he
presented evidence the dealership relisted the Bentley for nearly
$100,000, which is approximately $10,000 less than its value
prior to the theft. Lockett also claims there was no evidence the
dealership had actually reported the car stolen by the time of the
restitution hearing, despite having had many weeks to do so.
He argues that this “actively contradict[s] the dealership’s claim
of loss.”
We repeat the long-established rule that credibility
determinations are for the trier of fact, and “we do not reweigh or
reinterpret” the evidence on appeal, “we only determine whether
there is sufficient evidence to support the inference drawn by the
trier of fact.” (People v. Tabb, supra, 170 Cal.App.4th at p. 1153.)
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Here, the record shows the trial court asked Long what he
believed the car would realistically sell for in light of the relisted
price, and Long replied he believed the car would probably sell for
“between 75 and 85 [thousand dollars].” Long further testified
“[the theft] has to be disclosed” to a potential buyer. Long’s
testimony provides a rational basis to support the conclusion that
Lockett’s criminal act diminished the value of the Bentley by
$25,000. The trial court was entitled to discredit contrary
evidence. The trial court did not abuse its discretion to order
restitution in the amount of $25,000.
DISPOSITION
The matter is remanded to the trial court with directions to
strike the one-year term imposed for the section 667.5,
subdivision (b) enhancement. Thereafter, the People may agree
to modify the bargain to reflect the downward departure in the
sentence or withdraw their assent to the plea agreement.
Further, the court may withdraw its prior approval of the plea
agreement. We otherwise affirm the judgment.
BIGELOW, P. J.
We Concur:
STRATTON, J. WILEY, J.
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