People v. Truong CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.
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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
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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.
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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
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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
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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.
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(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
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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.
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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
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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.
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