Filed 12/17/18
                    CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     SECOND APPELLATE DISTRICT

                               DIVISION SIX


THE PEOPLE,                                  2d Crim. No. B288448
                                          (Super. Ct. No. 17F-04735)
     Plaintiff and Respondent,             (San Luis Obispo County)

v.

BRET ARTHUR ERICKSON,

     Defendant and Appellant.


      An appellate court’s holding arises from the facts and the
application of statutory and case law. Whether a holding will
apply to the facts of a future case is seldom absolutely certain.
As this case demonstrates, appellate court decisions turn on a
majority’s reasoned legal analysis of what it considers to be a
reasonable application of the law under the particular
circumstances of the case.
      Bret Arthur Erickson appeals from a restitution order after
he pled guilty to one count of grand theft. (Pen. Code, § 487,
subd. (a).) 1 The trial court placed him on probation and ordered
him to pay restitution in the amount of $4,015.44 to compensate

        1 All    statutory references are to the Penal Code.
the victim for wire he stole. 2 Erickson contends the trial court
erred when it ordered him to pay the full value of the wire and
allowed his victim to retain some of the wire recovered by police.
We disagree and affirm the restitution order.
            FACTUAL AND PROCEDURAL HISTORY
      Erickson stole 520 feet of underwater copper wire from
Four Sisters Ranch winery. The winery used the wire in one of
its wells. After Erickson’s arrest, police recovered and returned
two pieces of the wire―one 264 feet long, the other 32 feet long—
to the winery. Because the wire could not be spliced, it was
unusable in the winery’s 500-foot-plus-deep wells.
      An owner of the winery testified that it would cost
$4,015.44 to replace the 520-foot length of wire. The trial court
ordered Erickson to pay that amount. It permitted the winery to
retain the two pieces of wire that the police returned.
                              DISCUSSION
      In 1982, California voters declared the right of crime
victims to receive restitution directly from those convicted of the
crimes they suffered. Legislative enactments provided that a
crime victim shall receive restitution from the perpetrator.
(§ 1202.4; see People v. Giordano (2007) 42 Cal.4th 644.) Our
colleagues in People v. Chappelone (2010) 183 Cal.App.4th 1159,
1172 (Chappelone) set out the relevant portions of section 1202.4,
subdivision (a)(1) that the victim of a crime who suffers economic
loss as a result of that crime shall receive restitution from the
defendant convicted of that crime. “Subdivision (f) of section
1202.4 states that . . . ‘in every case in which a victim has


      2 Therestitution order includes an additional $652.36 that
Erickson does not contest.


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suffered economic loss as a result of the defendant’s conduct, the
court shall require that the defendant make restitution to the
victim . . . in an amount established by court order, based on the
amount of loss claimed by the victim . . . or any other showing to
the court.’” (Chappelone, at p. 1172.)
       Erickson contends the trial court erred when it ordered him
to pay restitution for the full value of the wire he stole and
permitted the winery to keep the portions of wire returned to it.
He relies on Chappelone, supra, 183 Cal.App.4th 1159.
       A restitution order should compensate a victim for actual
losses. (Chappelone, supra, 183 Cal.App.4th at p. 1172.) But it
should not overcompensate a victim with a windfall award.
(Ibid.) We review the trial court’s restitution order for abuse of
discretion. (Id. at p. 1173.) The court abuses its discretion if its
restitution order rests on a “demonstrable error of law.” (In re
S.S. (1995) 37 Cal.App.4th 543, 550.)
       In Chappelone, the trial court ordered the defendants to
pay restitution for the value of merchandise investigators
recovered and returned to the Target store from which it was
stolen. (Chappelone, supra, 183 Cal.App.4th at p. 1170.) But “a
victim is not entitled to restitution for the value of property that
was returned to [them], except to the extent there is some loss of
value to the property.” (Id. at p. 1180.) Target was not allowed a
windfall by receiving restitution based on the stolen
merchandises’ retail price, instead of the wholesale price. Under
the unusual facts of Chappelone, the Court of Appeal held that “it
was an abuse of discretion to award Target the value of the
merchandise and the merchandise.” (Id. at p. 1181, original
italics.) Instead, the court should have either “allowed Target to
retain the goods and ordered [the] defendants to pay for the



                                 3
diminution in value” or “ordered [the] defendants to pay Target
for the value of the goods when stolen and then given the
merchandise to defendants for disposal to offset the amount they
owed Target.” (Id. at pp. 1181-1182.)
       Erickson wants the victim winery to sell the wire it cannot
use and give him a credit, or return the wire to him, so he can
defray some of the restitution he is ordered to pay. Our standard
of review is abuse of discretion. The trial court considered
Chappelone and made a reasoned explanation why Chappelone
does not compel the result Erickson urges.
       The trial court found there is a distinction between
disallowing a victim to overprice the value of what is stolen and
foisting upon the victim the burden of returning to the defendant
property that is of no value to the victim, but could be of value to
the defendant. The trial court may have decided this case
differently. But the court did not abuse its discretion in deciding
as it did. The thrust of Chappelone is that the victim is not
entitled to a windfall.
       We disagree with the dissent’s position that the victim was
in a better position than before the theft occurred. Before the
theft, the copper wire was part of a functioning system. The
restitution order directs that defendant pay for the wire. The
victim was in a far less favorable condition than before the theft
occurred. Further hearings only serve to further victimize the
victim.
       To read Chappelone as requiring the court to grant all
defendants in all circumstances a partial reward for their
wrongdoing perverts a basic tenant of our system of justice: a
wrongdoer should not profit from his or her wrongdoing. The
criminal law does not contemplate a reward for criminal



                                 4
behavior. True, Erickson suffered a conviction, but that does not
necessarily justify allowing him to keep the fruits of his ill-gotten
gains. Such a standard rule would sanction the concept that in
some cases crime pays―a little bit.
                           DISPOSITION
      We affirm the restitution order.
      CERTIFIED FOR PUBLICATION.




                                      GILBERT, P. J.

I concur:



            PERREN, J.




                                  5
TANGEMAN, J.:
      I dissent. The majority opinion recognizes that “it [is] an
abuse of discretion to award [the victim] the value of the
merchandise and the merchandise.” (People v. Chappelone (2010)
183 Cal.App.4th 1159, 1181 (Chappelone).) Yet that is precisely
what the trial court did. Erickson properly requested that since
he was ordered to pay for 520 feet of new copper wire, either the
used wire should be released to him or, alternatively, the value of
the used wire should be deducted from the restitution award.
Chappelone compels this result.
      The purpose of restitution is to make the victim whole, not
to confer a windfall. (Chappelone, supra, 183 Cal.App.4th at p.
1172.) Erickson can, and should, be required to pay for all
damages suffered by the victim. But he should not be compelled
to put the victim in a better position than existed before the theft
occurred. Doing so does not “reward” criminal behavior. I would
vacate the trial court’s restitution order and remand for a hearing
to determine whether and to what extent the wire returned to the
victim had value in the open market, and deduct that amount, if
any, from the restitution order.
      CERTIFIED FOR PUBLICATION.



                                     TANGEMAN, J.




                                 1
                   Jacquelyn H. Duffy, Judge

           Superior Court County of San Luis Obispo

                ______________________________


     Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Scott A. Taryle, Supervising Deputy Attorney
General, Rene Judkiewicz, Deputy Attorney General, for Plaintiff
and Respondent.
