Filed 7/20/16 P. v. Johnson CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                             C080019

                   Plaintiff and Respondent,                                   (Super. Ct. Nos.
                                                                             CM037307, CM042994)
         v.

SHANADOA WAYNE JOHNSON,

                   Defendant and Appellant.




         On appeal, defendant Shanadoa Wayne Johnson challenges the victim restitution
award entered by the trial court in association with defendant’s plea of no contest to
charges of theft from an elder and grand theft by false pretenses. We will modify the
judgment to reduce the victim restitution award.




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                  FACTUAL AND PROCEDURAL BACKGROUND

       Defendant offered to pave the driveway of the victim, 91-year-old Richard
Millington, for $1,800.1 Based on this agreement, Millington wrote an initial check to
defendant in the amount of $1,280 (check No. 1) to purchase materials, which
defendant’s father (codefendant) cashed. The next day, defendant returned to
Millington’s house to begin work and asked Millington for an additional check in the
amount of $2,400 to pay for materials and labor, which Millington provided (check
No. 2). Within 30 minutes of receiving that check, defendant returned to Millington’s
home, informed Millington that the bank could not cash that check because of an error,
and that a new check would be needed in the same amount. Millington wrote another
check in the amount of $2,400 (check No. 3) and called his bank to stop payment on the
prior check (check No. 2). Shortly thereafter, Millington received a telephone call from a
check cashing business asking for his authorization to cash a check in the amount of
$2,400 to defendant’s father. Assuming the check being presented was the most recent
one (check No. 3), Millington provided his authorization to the check cashing business.

       A few days later, defendant completed the project at Millington’s home, and
calculated the final price for the project. Defendant’s father demanded that Millington
pay an additional $4,800, which Millington refused to do, claiming he had already paid in
full. When defendant returned, he threatened to sue Millington if he did not pay, so
Millington wrote an additional check in the amount of $1,500 (check No. 4). About a
week later, the check cashing business called Millington claiming he owed them $2,400
because he authorized payment on a canceled check (check No. 2). So, Millington wrote
a check to the check cashing business in the amount of $2,400 (check No. 5).




1 This factual summary is drawn from the probation report. (Defendant expressly
stipulated in the trial court to use of the probation report for a factual basis for his plea.)


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       An investigator determined Millington had paid a total of $7,580 as a result of this
sophisticated scheme employed by defendant and his father. An assistant vice president
of the bank provided copies of five checks that were written against Millington’s account
to defendant, his father, and the check cashing business. The total amount of these five
checks was $9,980. The value of the work done, as reported in the probation report, is
$331. The probation report indicates Millington requested restitution in the amount of
$9,569. However, his itemized statement of loss presented to the probation department
lists a loss in the amount of $7,580.

       In case No. CM042994, defendant pleaded no contest to theft from an elder (Pen.
Code, § 368, subd. (d)),2 obtaining money by false pretenses (§§ 487, 532, subd. (a)), and
contracting without a license (Bus. & Prof. Code, § 7028, subd. (a)). Based on this plea,
the trial court found defendant in violation of his probation in cases Nos. CM036696 and
CM037037. In the cases here—Nos. CM037037 and CM042994—the trial court
sentenced defendant to a cumulative county jail term of five years four months. The trial
court also imposed statutory fines and fees, and ordered defendant to pay victim
restitution to Millington in the amount of $9,569.

                                        DISCUSSION

       Defendant challenges the trial court’s award of victim restitution to Millington,
claiming it is premised on a calculation error. The People claim defendant forfeited this
contention, and even if it was not forfeited, the calculation was not erroneous. Defendant
argues that the contention is not forfeited because the sentence is unauthorized, and if it is
forfeited trial counsel rendered ineffective assistance by failing to object. We conclude
the contention was forfeited, but that the victim restitution award must be reduced to




2 Undesignated statutory references are to the Penal Code.


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$7,249 because it was erroneous as awarded, and trial counsel rendered ineffective
assistance by failing to object to the victim restitution award.

1.0    Forfeiture

       “An objection to the amount of restitution may be forfeited if not raised in the trial
court. ‘The unauthorized sentence exception is “a narrow exception” to the waiver
doctrine that normally applies where the sentence “could not lawfully be imposed under
any circumstance in the particular case . . . .” [Citations.] The class of nonwaivable
claims includes “obvious legal errors at sentencing that are correctable without referring
to factual findings in the record or remanding for further findings.” ’ ” (People v. Garcia
(2010) 185 Cal.App.4th 1203, 1218.) However, “ ‘[c]laims of error relating to sentences
“which, though otherwise permitted by law, were imposed in a procedurally or factually
flawed manner” are waived on appeal if not first raised in the trial court.’ ” (Ibid., italics
omitted.) “The appropriate amount of restitution is precisely the sort of factual
determination that can and should be brought to the trial court’s attention if the defendant
believes the award is excessive.” (Garcia, at p. 1218.) Here, defendant’s contention that
the restitution award was erroneous is not a legal question but one challenging the trial
court’s factual finding. Accordingly, the claim is forfeited.

2.0    Ineffective Assistance of Counsel

       Despite forfeiture of the claim, we must determine whether, as defendant
contends, counsel was ineffective in failing to object to the restitution award. We
conclude counsel did render ineffective assistance by failing to object to the amount of
victim restitution awarded to Millington because it is incorrectly calculated to award
duplicative restitution for a check that was canceled and, had counsel brought this to the
attention of the trial court, the award would have been reduced.




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       To establish a claim of ineffective assistance of counsel, defendant must prove that
(1) trial counsel’s representation was deficient because it fell below an objective standard
of reasonableness under prevailing professional norms, and (2) the deficiency resulted in
prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; see Strickland v.
Washington (1984) 466 U.S. 668, 686-687 [80 L.Ed.2d 674].) “Prejudice is shown when
there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (People v. Williams (1997)
16 Cal.4th 153, 215.)

       Section 1202.4 states, in relevant part, “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, based on the amount of loss claimed by the victim or victims or any other showing
to the court.” (§ 1202.4, subd. (f).) Thus, restitution is meant to reimburse victims but
not to overcompensate them. (Id., subd. (f)(3); People v. Chappelone (2010)
183 Cal.App.4th 1159, 1172.) A victim’s testimony, claim, or statement demonstrating
his loss is prima facie evidence of the loss. (People v. Millard (2009) 175 Cal.App.4th 7,
26.) It is then incumbent on the defendant to present evidence challenging that claimed
amount. (Ibid.) The trial court must calculate the victim restitution award by employing
“ ‘a rational method that could reasonably be said to make the victim whole, and may not
make an order which is arbitrary or capricious.’ ” (Chappelone, supra, at p. 1172.)

       Here, Millington wrote five separate checks: four to defendant and/or his father
(checks Nos. 1, 2, 3, and 4), and one to the check cashing business (check No. 5).
However, Millington canceled or stopped payment on one of the checks (check No. 2) he
wrote to defendant and/or defendant’s father before the funds were withdrawn from his
account. Indeed, it is because the check cashing business was unable to collect from


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Millington’s bank for this canceled check (check No. 2) that he was obliged to write a
separate check to the check cashing business to fulfill that debt (check No. 5). Had
Millington not successfully canceled payment of the $2,400 check (check No. 2), there
would have been no reason for the check cashing business to seek payment from
Millington directly (check No. 5): They would have collected from Millington’s bank
upon presentation of the check defendant and/or his father presented to the check cashing
business (check No. 2). Thus, even though Millington wrote five separate checks, all of
which were likely presented to his bank for payment, only four were actually withdrawn
from his account (checks Nos. 1, 3, 4, and 5). Millington did not suffer a separate
economic loss relative to the canceled check (check No. 2) because that loss was suffered
via the check written to the check cashing business (check No. 5), which is already
accounted for in the calculation. Therefore, it was error for the canceled check (check
No. 2) to be included in the calculation of Millington’s loss.

       Under prevailing professional norms, a competent defense counsel would have
noticed that the recommended restitution award included the $2,400 from both the
canceled check (check No. 2) and the check written to the check cashing business (check
No. 5) to compensate it for its loss relative to that canceled check. (See People v. Le
(2006) 136 Cal.App.4th 925, 935-936 [counsel ineffective in failing to object to fine
calculation].) While the scheme employed by defendant and his father involved a
moderate level of sophistication, a reading of the probation report makes clear that the
probation department miscalculated the restitution award in a manner that resulted in
Millington’s being overcompensated for his loss. Further, the victim’s own statement of
loss, included as an attachment to the probation report, listed the amount of loss at
$7,580. This was a clear signal to defense counsel that there was an issue with the
separate and greater calculation contained in the probation report. We cannot conceive of
any tactical reason for counsel’s failure to object. Accordingly, we conclude that trial



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counsel’s performance in this regard was deficient. Moreover, had counsel objected, it is
certainly “reasonably probable” the trial court would have reduced the victim restitution
award to compensate Millington only for the amount of the four checks actually
withdrawn from his account (checks Nos. 1, 3, 4, and 5), less the value of the work
performed ($331). Therefore, defendant was prejudiced by counsel’s failure to object.

                                      DISPOSITION

       The judgment is modified to reduce the victim restitution award to Milligan to
$7,249. As modified, the judgment is affirmed.

       Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), the
clerk of this court is ordered to forward a copy of this opinion to the State Bar upon
finality of this appeal.3 Further, pursuant to Business and Professions Code section
6086.7, subdivision (b), the clerk of this court shall notify defendant’s trial counsel that
the matter has been referred to the State Bar.


                                                            BUTZ                , Acting P. J.

We concur:


      MURRAY                 , J.


      DUARTE                 , J.




3 Business and Professions Code section 6086.7, subdivision (a)(2) requires the court to
notify the State Bar “[w]henever a modification or reversal of judgment in a judicial
proceeding is based in whole or in part on the misconduct, incompetent representation, or
willful misrepresentation of an attorney.” (Italics added.)


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