People v. Yanez, E013882

• Court: California Court of Appeals
• Writing for the Court: McKINSTER; HOLLENHORST, Acting P.J., and RICHLI
• Citation: 46 Cal.Rptr.2d 1,38 Cal.App.4th 1622
• Parties: , 95 Cal. Daily Op. Serv. 7947, 95 Daily Journal D.A.R. 13,585 PEOPLE of the State of California, Plaintiff and Respondent, v. Benjamin Miguel YANEZ, Defendant and Appellant.
• Docket Number: No. E013882,E013882
• Decision Date: 03 August 1995

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46 Cal.Rptr.2d 1 38 Cal.App.4th 1622, 95 Cal. Daily Op. Serv. 7947, 95 Daily Journal D.A.R. 13,585 PEOPLE of the State of California, Plaintiff and Respondent,
v.
Benjamin Miguel YANEZ, Defendant and Appellant. No. E013882. Court of Appeal, Fourth District, Division 2, California. Aug. 3, 1995.
Certified for Partial Publication ^*.
Review Denied Oct. 26, 1995.

[38 Cal.App.4th 1624] Steven Schorr, La Jolla, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Keith I. Motley, Supervising Deputy Attorney General, and Anne Marie Urrutia, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

McKINSTER, Associate Justice.

Raising a variety of sentencing errors, a criminal defendant appeals from the judgment entered after he pleaded guilty to receiving stolen property. Finding merit in some of his contentions, we reverse part of the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A felony complaint charges the defendant with violating Penal Code section 496 ¹ by receiving and holding a 1978 Chevrolet El Camino, knowing the vehicle to be stolen. The defendant pleaded guilty on the condition that he would be placed on probation.

In her report, the probation officer stated that the defendant said that he had bought the car from someone he had met at a wrecking yard. The defendant is also reported to have admitted that, because he did not get a pink slip from the seller, he switched the license plates and Vehicle Identification Number (VIN) from another El Camino he owned to the stolen vehicle. He also installed new wheels and tires and had the car repainted.

[38 Cal.App.4th 1625] The probation officer also included evidence that the "high Blue Book price" for a

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well-equipped 1978 El Camino in "top shape" was $4,100. Based on that information, the probation officer recommended that the defendant be ordered to pay restitution to the victim in an amount of $4,100.

At the sentencing hearing, the trial court, inter alia, ordered the defendant to pay probation supervision fees of $250, found that a motor vehicle was involved in the crime, and set a date for a hearing to determine the amount of restitution to be paid.

At the subsequent hearing, the victim offered evidence in support of her restitution claim totaling $8,018.11. In particular, she asked for (1) $5,677.24 to cover a long list of repairs, including a new paint job and replacement of the dash which was split when the VIN was switched, (2) $1,685.15 to replace tires, wheels, a floor mat, and jumper cables, (3) $318.59 for tools, and (4) $337.13 for spare parts which had been in the vehicle when stolen but which were missing when it was recovered.

The defendant countered that when he bought the car, there were no tools or other items of personal property in it. He also argued that, in view of the value of the car, the victim's restitution claim was too high.

As a condition of probation, the trial court ordered the defendant to pay a total of $7,302.18 in restitution to the victim.

CONTENTIONS

The defendant contends that the amount of restitution to the victim is too high, that the trial court failed to consider the defendant's ability to pay when setting the amount of the restitution and the probation supervision fees, and that the trial court erred in finding that a vehicle had been used to commit the crime. (A final contention, that the trial court failed to award credits for time served, was...