People v. Zito

• Decision Date: 03 August 1992
• Docket Number: Nos. H008846,H009462,s. H008846
• Citation: 8 Cal.App.4th 736,10 Cal.Rptr.2d 491
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Rocco ZITO, Defendant and Appellant. In re David Rocco ZITO, On Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 491

10 Cal.Rptr.2d 491

8 Cal.App.4th 736

The PEOPLE, Plaintiff and Respondent, v. David Rocco ZITO, Defendant and Appellant In re David Rocco ZITO, On Habeas Corpus.

Nos. H008846, H009462.

Court of Appeal, Sixth District, California.

Aug. 3, 1992.

As Modified on Denial of Rehearing Aug. 13, 1992.

Review Denied Nov. 16, 1992.

E. Evans Young, Oakland, Under Appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan and George F. Hindall, III, Deputy Attys. Gen., for plaintiff and respondent.

ELIA, Associate Justice.

David Rocco Zito owned an automobile body shop in Mountain View, California. He was a participant in a scheme to embezzle money from the California State Automobile Association (CSAA). By the time CSAA discovered the scheme, $386,390.32 had already been embezzled.

Zito was charged with conspiracy to commit grand theft (current Pen.Code, § 182, subd. (a)(1)); grand theft (Pen.Code, §§ 484/487, subd. 1); and failure to file a tax return. (Rev. & Tax.Code, § 19406.) Also alleged was an enhancement for a loss greater than $100,000. (Pen.Code, § 12022.6, subd. (b).) According to the information, the events giving rise to the charges occurred between November 22, 1988 and April 30, 1990.

Zito pleaded no contest to grand theft and failure to file a tax return. He admitted the enhancement. The trial court sentenced him to 4 years in state prison. Zito was also ordered to pay $300,000 in direct restitution and a $10,000 restitution fine. (Gov.Code, § 13967.)

On appeal, Zito challenges the restitution order. He argues that the order: (1) violated the ex post facto prohibition; (2) did not identify the losses involved; (3) did not reflect whether CSAA had been reimbursed by its insurer for its losses; (4) exceeded the amount allowed under Government Code section 13967; and (5) improperly made appellant and his codefendant jointly and severally liable for the restitution. Zito also petitions for a writ of habeas corpus, alleging that his counsel was ineffective and that the restitution order violated the ex post facto prohibition. We affirm the judgment of conviction and remand the case for a restitution hearing. The petition for a writ of habeas corpus is denied.

Discussion

A. Ex Post Facto

Zito argues the restitution order violated the ex post facto prohibition because it applied current law to pre-1990 crimes. For reasons we shall explain, we conclude the matter must be remanded for a restitution hearing so that the trial court can determine which crimes or losses occurred before 1990.

In Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434, the California Supreme Court considered whether provisions of Proposition 115 could be applied to crimes committed before the measure's effective date. The Supreme Court decided that proposition provisions which defined conduct as a crime, increased punishment, or eliminated a defense, could not be applied to crimes committed before the measure's effective date. This was because such retrospective application would violate the rule against ex post facto legislation. (Id. at p. 298, 279 Cal.Rptr. 592, 807 P.2d 434.)

Government Code section 13967 authorizes the trial court to require that a defendant pay restitution. ¹ Section 13967 describes two types of restitution. These are direct restitution to the victim and a restitution fine. Before 1990, the direct restitution and restitution fine could not exceed a total of $10,000, regardless of the number of victims or counts involved. ² (People v. Blankenship (1989) 213 Cal.App.3d 992, 999, 262 Cal.Rptr. 141; People v. Frey (1989) 209 Cal.App.3d 139, 142-143, 256 Cal.Rptr. 810.) Effective January 1, 1990, section 13967 was amended to permit direct restitution, in lieu of all or a portion of the restitution fine, "in the amount of the losses, as determined." (Gov.Code, § 13967, subd. (c).)

In this case, the crimes or losses occurred between November 22, 1988 and April 30, 1990. As to the pre-1990 losses, the rule against ex post facto legislation would apply so long as restitution is characterized as "punishment."

In these circumstances, we believe that this characterization of restitution is appropriate. In People v. Walker (1991) 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861, the California Supreme Court stated, "[a]lthough the purpose of a restitution fine is not punitive, we believe its consequences to the defendant are severe enough that it qualifies as punishment...." (Id. at p. 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861.) Although Walker considered this issue in a different context--with respect to violation of plea bargains--we believe the same analysis applies here. Just as a plea bargain violation may have a severe impact upon a defendant, imposition of a restitution fine may also have a serious effect. Indeed, this case is an apt example. If pre-1990 law applies, restitution is limited to $10,000. If post-1990 law applies, appellant may be required to pay the "amount of the losses, as determined" which in this case is $300,000--a far greater amount.

Having decided that restitution constitutes punishment for these purposes, it follows that the ex post facto prohibition applies and therefore restitution may not exceed a total of $10,000 as to the pre-1990 losses. However, it is not clear which losses occurred before 1990. For this reason, Zito asks that the matter be remanded for a restitution hearing so that the date of the losses may be determined.

Even though the People agree with our conclusion that applying amended section 13967 to pre-1990 losses would violate the ex post facto prohibition, they argue that it is Zito's responsibility to demonstrate which losses occurred before 1990. Because Zito did not make this showing, the People contend the issue is waived.

We disagree. Although Zito should have raised this issue below, his failure to do so does not amount to a waiver. " 'It is well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court.' This rule also applies to sentences which are unauthorized because of an error in the matter of restitution." (People v. Rivera (1989) 212 Cal.App.3d 1153, 1163-1164, 261 Cal.Rptr. 93, quoting People v. Benton (1979) 100 Cal.App.3d 92, 102, 161 Cal.Rptr. 12; see also People v. Rowland (1988) 206 Cal.App.3d 119, 126-127, 253 Cal.Rptr. 190.) Accordingly, we conclude the matter must be remanded for a restitution hearing so that the trial court can determine which losses occurred before 1990.

B. Identity and Amount of Losses

Zito contends that the trial court failed to identify and specify the amount of the victim's losses. The record reveals the following. At the sentencing hearing, Zito introduced evidence to support his probation request. He also challenged the probation officer's report in several respects. However, Zito did not present any evidence concerning the amount of the victim's loss, or request a hearing on the amount of the restitution. (§ 13967, subd. (c).) When the court imposed $300,000 in direct restitution, Zito did not object. Unlike the ex post facto issue, which involved the trial court's power to impose the restitution aspect of the sentence, this issue concerns the identity and specificity of the losses involved. Because it is a purely factual issue, it is susceptible of waiver. For this reason, Zito's failure to object means the issue is waived. (People v. Geddes (1991) 1 Cal.App.4th 448, 457-458, 1 Cal.Rptr.2d 886; People v. Goulart (1990) 224 Cal.App.3d 71, 83-84, 273 Cal.Rptr. 477.)

C. Insurance

The probation officer's report indicated that the victim's aggregate loss from the thefts was $386,390.32. The report also stated that the victim "is insured by a bonding company and has a $50-100,000 deductible policy." The report did not indicate whether the victim had been reimbursed for any of its loss pursuant to the policy. The probation officer recommended direct restitution "as determined by the Court."

In People v. Williams (1989) 207 Cal.App.3d 1520, 255 Cal.Rptr. 778, the court discussed the effect of insurance upon a restitution order. The court concluded that "A restitution order under Government Code section 13967, subdivision (c) may not exceed the victim's losses, defined as 'any expenses for which the victim has not and will not be reimbursed from any other source.' (Gov.Code, § 13960, subd. (d)." (Id. at p. 1524, 255 Cal.Rptr. 778.) According to Williams, a victim whose insurer has already reimbursed it for its losses cannot recover again through direct restitution under section 13967, subdivision (c). Although we agree with this analysis, and although the probation report indicates that CSAA may have received compensation from its insurer for its losses, Zito failed to raise this issue when the trial court imposed restitution. Zito's failure to object means that the issue has been waived. (People v. Geddes, supra, 1 Cal.App.4th at p. 457, 1 Cal.Rptr.2d 886.)

D. Section 13967, Subdivision (a)

Zito also argues that the trial court erred in imposing a $10,000 restitution fine under section 13967, subdivision (a). The People agree. Section 13967, subdivision (c), permits direct restitution, in lieu of all or a portion of the restitution fine under subdivision (a). (Gov.Code, § 13967, subd. (c).) Accordingly, once the trial court ordered $300,000 in direct restitution, it was prohibited from ordering Zito to pay a $10,000 restitution fine.

E. Joint and Several Liability

Zito argues that the trial court erred in making him and his codefendant jointly and severally liable for the $300,000 in direct restitution. At the codefendant's sentencing...