People v. Nystrom
| Decision Date | 30 June 1992 |
| Docket Number | No. D013876,D013876 |
| Citation | 7 Cal.App.4th 1177,10 Cal.Rptr.2d 94 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Ronald Glen NYSTROM, Defendant and Appellant. |
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Keith I, Motley and Esteban Hernandez, Deputy Attys. Gen., for plaintiff and respondent.
The court sentenced defendant Ronald Glen Nystrom to state prison for the lower term of two years after he pleaded guilty to a charge of auto theft (Veh.Code, § 10851, subd. (a)) and ordered him to pay $12,866 to the victim. Nystrom challenges this restitution order on a variety of grounds. We strike the reference to Penal Code section 2085.5 and as modified affirm the judgment.
On August 23, 1990, about 8:30 a.m. the police received a report of a burglary at Goldbank Motors in San Diego. A glass window to the owner's office had been broken and a lock to the garage door had been pried off. The following were reported missing: cash of about $8,000 from a car sale the previous day which was kept in a desk drawer; a cash box containing about $1,200; another cash box containing about $6,000; a briefcase holding Arizona car titles and dealer work sheets; and a 1985 Audi 5000S.
While officers were still at the burglary scene, the police received a call from a gas station attendant in Pacific Beach regarding an intoxicated male in a car at his station. En route to the gas station the officers learned the car was reported as stolen. The car turned out to be the Audi taken from Goldbank Motors, and the intoxicated male was Nystrom. The police found $1,151 in Nystrom's possession. Nystrom had damaged the car in a hit-and-run accident.
Nystrom argues the direct restitution order must be stricken because he was not advised direct restitution, as opposed to a restitution fine, was a potential consequence of his guilty plea.
The plea bargain form provides in part:
On its face, section 8b(h) necessarily encompasses both types of restitution: "restitution" as referring to direct restitution and/or a "restitution fine". Common sense indicates that the form would not have included both terms to refer only to a restitution fine. We believe Nystrom was afforded sufficient notice that one of the consequences of his plea could be direct restitution.
In any event, the Supreme Court's recent decision in People v. Walker (1991) 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861 makes clear that in the absence of a violation of the plea bargain, the court's failure to properly advise a defendant that restitution is a possible consequence of a guilty plea will not require relief unless the defendant objected to the restitution order at sentencing and can show prejudice as a result of the incomplete admonition. (Id. at pp. 1022-1023, 1029, 1 Cal.Rptr.2d 902, 819 P.2d 861.) Here, Nystrom raised no objection and the plea form specified a maximum fine of $20,000. (See ante, p. 96.) As was the case in Walker, the defendant has no basis for complaint where the total monetary liability (the combined amount of fines and restitution) does not exceed the maximum of which the defendant was advised. (See Walker, supra, 54 Cal.3d at p. 1029, 1 Cal.Rptr.2d 902, 819 P.2d 861.)
The reasoning of Walker also requires that we reject Nystrom's alternate contention that the amount of restitution must be reduced because the plea form specified a $10,000 maximum. He argues that even though the 1989 amendment to Government Code section 13967, subdivision (c) removed the dollar restriction on direct restitution, section 8b(h) of the plea agreement form he signed continues to reflect the dollar limitation "($100-$10,000)" for both direct restitution and a restitution fine. ( Ante, p. 96.) Read as a whole, however, the form advised Nystrom that his maximum monetary liability might be as much as $30,000 ($20,000 penalty fine plus $10,000 restitution and/or restitution fine) in addition to a prison term. His failure to object to the amount of restitution and the lack of prejudice preclude his complaining about the $12,866 restitution order at this juncture.
Nystrom next asserts the trial court improperly ordered the victim be given the $1,100 seized from Nystrom without holding a hearing on whether this money belonged to the victim. He relies exclusively on People v. Chabeear (1984) 163 Cal.App.3d 153, 209 Cal.Rptr. 218 as authority for the proposition that a defendant must be given notice and an opportunity to be heard before any money seized from him In Chabeear, the police seized money from a defendant during an arrest and search of his residence. The defendant was later convicted of a Health and Safety Code violation pursuant to a negotiated plea that dismissed a robbery charge. Before defendant's sentencing, the robbery victim claimed money was taken from him during the robbery. The court followed the probation officer's recommendation by reimbursing the victim with the money seized by the police. On appeal, the court reversed the order releasing the funds because the defendant was not afforded notice and an opportunity to be heard in opposition to the victim's claim. (Id. at p. 155, 209 Cal.Rptr. 218.)
can be released to a victim. His reliance on Chabeear, however, is misplaced.
Nystrom contends the same principles apply here: he should have been afforded notice and a hearing before the seized money was released to the victim. In contrast to Chabeear, however, the court in this case had already entered a valid restitution order as part of the negotiated plea. There was, therefore, no question that the victim was entitled to the money and it was unnecessary to prove that the money seized from Nystrom actually belonged to the victim. (See Chabeear, supra, 163 Cal.App.3d at p. 155, 209 Cal.Rptr. 218 [].) Nystrom was not entitled to notice and another hearing before the court ordered payment of restitution from available funds.
Nystrom also contends the restitution award must be reduced by the money the victim could have collected from his auto insurance company if he had filed an insurance claim for the damage to the Audi. He concedes there is no case law to support this proposition but argues by analogy the rule applicable to...
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