People v. Herbert CA4/1

Filed 12/7/20 P. v. Herbert 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D075698, D076472
Plaintiff and Respondent,
v. (Super. Ct. No. SCN376313)
DAVID C. HERBERT,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court of San Diego
County, Carlos O. Armour, Judge. Affirmed.
Janice R. Mazu, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury convicted David C. Herbert of five counts of animal cruelty (Pen.
Code,1 § 597, subd. (a); counts 1, 3, 4, 5, and 6); first degree burglary (§ 459;
1 Statutory references are to the Penal Code unless otherwise specified.
count 2); animal abuse and neglect (§ 597, subd. (b); count 7), and four counts
of vandalism (§ 597, subd. (a)(b)(2)(A); counts 8, 9, 10, and 11). The jury also
found true that, as to count 3, Herbert used a dangerous and deadly weapon
(§§ 1192.7, subd. (c)(23) and 12022, subd. (b)(1)).
The court sentenced Herbert to prison for nine years eight months.
The court subsequently held a restitution hearing and awarded victim
restitution in the amount of $13,970.
Herbert appeals the order awarding $13,970 in victim restitution,
arguing the court abused its discretion in awarding such an amount. We
affirm.
FACTUAL BACKGROUND
Because Herbert is not challenging his conviction under any counts, we
eschew the traditional discussion of the underlying facts of his offenses. That
said, we briefly discuss the underlying crimes relating to the family to which
the court awarded the challenged restitution amount.
The P. Family had two dogs—Lala, a female golden mix, and Prince, a
male toy poodle. Lala was an emotional support animal to one of the
P. Family children. On May 30, 2017, two days after the P. Family moved
into the house next to Herbert’s home, Michelle P. returned home from work
and her dogs were missing. Michelle located Prince at her neighbor’s house.
Her neighbors said both dogs were running around the street earlier that
morning, and they placed the dogs back in the P. Family’s yard but later
discovered Prince running around by himself. Lala has never been found.
Michelle testified about the stress her children have suffered as a result of
the incident.
Video surveillance showed Lala last outside the P. Family’s yard at
11:10 a.m. At 11:23 a.m., the video showed Herbert’s car leaving the street.
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A zoomed-in still photo from the video showed the image of a dog’s face in the
window of Herbert’s car.
A search of Herbert’s car revealed the presence of Lala’s blood. A
baseball bat in Herbert’s house had a drop of blood with Lala’s DNA on it.
DISCUSSION
Herbert contends the trial court abused its discretion when it ordered
victim restitution in favor of the P. Family in the amount of $13,970. We
reject this contention.
On July 26, 2019, the trial court held a restitution hearing during
which Michelle testified about the expenses her family incurred as a result of
Herbert’s crimes. The P. Family’s restitution claim was based solely on out-
of-pocket expenses and cash losses. Michelle testified that before moving out
of the Oceanside residence, the family incurred a $450 expense to have the
home’s carpets shampooed, a $400 expense to hire a cleaning person, and a
$150 expense to have the yard cleaned. The family also incurred a $1,000
expense for rental, mileage, and gas for a U-Haul and trailer used to move
out of the four-bedroom Oceanside residence and to a new five-bedroom
residence approximately 35 miles away, a $500 expense for movers for two
days at $125 a day each, and a $3,300 expense for a CubeSmart storage space
in Vista for a period of 20 months at $165 per month. The family also
incurred a $4,800 expense due to a rent increase of $200 more per month
after moving out of the Oceanside residence. Michelle testified that the
family incurred a $1,610 expense for 2,000 copies of fliers announcing their
lost dog, at $0.80 each. The P. Family paid cash for the movers, and for the
carpet, house, and yard cleaners. Finally, Michelle testified that the family
incurred $1,760 in lost wages to take time looking for their dog and attend
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court proceedings. The total restitution amount requested by the P. Family
was $13,970.
On August 16, 2019, Herbert filed a motion challenging the P. Family’s
restitution claim. Herbert supported his arguments with a declaration from
his counsel and exhibits attached to that declaration. Specifically, Herbert
argued that the P. Family’s U-Haul rental claim of $1,000 was unreasonable
and countered the family’s claim with evidence that the Oceanside U-Haul
rental company advertises its largest truck rental—advertised as sufficient to
move a 3-4 bedroom home—at $149 per day, and a trailer for $77 per day, for
a total of $226 per day for both a truck and a trailer. He also argued that the
P. Family’s storage unit claim of $3,300 (20 months at $165 per month) was
unreasonable and countered the family’s claim with evidence that CubeSmart
in Vista, the same storage facility the P. Family used, charges $133 per
month for an eight feet by 10 feet (8’ x 10’) unit, and $99.75 if booked online.
Finally, Herbert argued that the P. Family’s claim of $1,610 for 2,000 flyers
at $0.80 each was unreasonable and countered the family’s claim with
evidence that the Kinkos/FedEx in Vista charged $0.30 each for 2,000 color
copies for a total price of $606.80. Accordingly, Herbert argued that the
P. Family’s restitution claim should be limited to $11,768. Thus, the
difference between what the P. Family requested and what Herbert claimed
was owed amounts to $2,202.
On August 20, 2019, the parties reconvened on the restitution matter,
but they did not present any further evidence or argument. The court
explained its reasoning when awarding the P. Family restitution:
“So we’re here today. Michelle . . . testified last time we
were in court. She testified under oath. Gave an amount of
$13,970 as to the full request for restitution under the
criminal court. I allowed some time for the defendant to
respond to that amount. You have done so, [Herbert’s
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counsel]. And I have reviewed your request to have the
Court consider somewhat alternative amounts based on
your research and review of storage facilities, trucking
companies, et cetera.
“Having reviewed your submitted numbers, I’m still
inclined to grant the request as she has made. And I think
that she justified the amount. Not that your amounts are
in any way not accurate. But like anything else, you can go
out and get figures that are probably substantially higher
than what she got and figures substantially lower than
what she got. But the question for me is, were her figures
reasonable? And I find that they were reasonable and not
excessive and within the scope of what somebody would
normally be paying.
“And the nature of the request that she had, which was
Court’s Exhibit 1, for the last hearing on July 26th carpet
cleaning, house cleaning, yard cleaning, rental and mileage
for a U-Haul truck and trailer, meant to help move, storage
for an extended period of time, fliers for the lost dog, the
fact that she had to pay higher rent to move out.
And I’ll point out this was an emergency move out of her
residence. So she really didn’t have a lot of time, as
somebody would normally have, to find comparable
residence paying the same amount or less amount of rent.
Brought the subtotal to $12,210. Lost wages $1,760. For a
total of $13,970. Unless anybody else wants to argue
further it’s going to be the Court’s order that that be paid
out of the bail money.”
Herbert’s counsel declined the court’s offer to argue the issue further.
The rights of crime victims to “full restitution” for losses caused by the
crimes of others are contained in the California Constitution Article I,
section 28, subdivision (b)(13)(B), and Penal Code section 1202.4,
subdivisions (f)(3)(D)-(E). We review trial court decisions granting restitution
under the abuse of discretion standard of review. (Luis M. v. Superior Court
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(2014) 59 Cal.4th 300, 305.) We will not overturn a restitution order where
there is a rational, factual basis for the order. (People v. Riddles (2017) 9
Cal.App.5th 1248, 1252.)
Where the restitution order is based upon factual findings, we review
such findings under the substantial evidence standard. Under that standard,
we review the entire record, drawing all reasonable inferences in favor of the
trial court’s decision. We do not make credibility decisions or reweigh the
evidence. We determine only whether there was sufficient evidence from
which a reasonable judge could make such findings. (People v. Millard (2009)
175 Cal.App.4th 7, 26; People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.)
Uncorroborated testimony, if credible, may support restitution unless the
testimony is inherently improbable or inherently incredible. (People v. Panah
(2005) 35 Cal.4th 395, 489.)
Corroboration of a victim’s testimony regarding restitution is not
generally required. The presence or absence of corroboration can certainly
impact the court’s assessments of the credibility of the testimony. But
corroboration is not a requirement for the acceptance of such evidence.
(People v. Gemelli (2008) 161 Cal.App.4th 1539, 1544.)
Here, Herbert essentially argues that the trial court abused its
discretion in awarding the P. Family restitution in the amount it requested
because Herbert “largely refuted the victims’ claims by presenting compelling
evidence that the [P. Family’s] unsubstantiated claims were far, far higher
than the advertised charges of the very vendors they claimed to have used.”
In this sense, Herbert is arguing that the evidence he presented was more
persuasive than that offered by Michelle. Put differently, Herbert is merely
asking this court to reweigh the evidence and determine that his evidence
conclusively establishes the amount of restitution owed to the P. Family.
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This is not our role in reviewing an order awarding victim restitution. (See
People v. Millard, supra, 175 Cal.App.4th at p. 26; People v. Thomas, supra,
15 Cal.App.5th at p. 1071.)
Michelle testified under oath regarding her family’s out of pocket
expenses and lost income attributable to Herbert’s crimes. Herbert’s counsel
cross-examined Michelle. There is no indication in the record that Michelle
testified as to facts or subjects outside her personal knowledge. And Herbert
also was given the opportunity to present evidence to challenge Michelle’s
claims on the amount of victim restitution owed. The court, hearing the
testimony and considering the evidence offered, found the victim restitution
amount requested reasonable. There is nothing in the record that leads us to
believe the superior court’s determination was irrational or without a factual
basis. (See People v. Riddles, supra, 9 Cal.App.5th at p. 1252.)
In short, the record before us establishes a rational basis for the
restitution order, which is supported by substantial evidence. The court did
not err.
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DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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