Filed 8/20/20 P. v. Chun CA2/1
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION ONE


THE PEOPLE,                                                B295207

         Plaintiff and                                     (Los Angeles County
         Respondent,                                       Super. Ct. No. TA145852)

         v.

TONY SANGHYUN CHUN,

         Defendant and
         Appellant.


      APPEAL from an order of the Superior Court of Los
Angeles County, Connie R. Quinones, Judge. Affirmed.
      Mary Jo Strnad, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
                 ____________________________
      Tony Chun pled no contest to a single count of grand theft
(Pen. Code, § 487, subd. (a)).1 As part of his sentence, the trial
court ordered Chun to pay restitution to his former employer,
Hyundai Shipping U.S.A. (Hyundai), in the amount of $7,736.23.
Chun argues that Hyundai was not the victim of his crime, and
separately that the amount of restitution the trial court ordered
constitutes an abuse of discretion. He also contends that he was
deprived of effective assistance of counsel at his restitution
hearing. We affirm the trial court’s restitution order.

                         BACKGROUND
      Hyundai receives at its Rancho Dominguez facility
merchandise purchased online from U.S. companies by
consumers located overseas. Hyundai opens the boxes it receives
to verify that customers’ orders are correct (cross-checked against
invoices Hyundai receives for merchandise it is to ship), logs the
merchandise into its computer, reseals the boxes, and prepares
them to be shipped. Once a week, Hyundai places the
merchandise in a shipping container, which is then picked up and
delivered to the Port of Long Beach to be shipped.2
      Hyundai hired Chun in December 2017 to handle
merchandise from the time Hyundai received it until Chun
loaded it into the shipping container. At the beginning of
January 2018, however, Hyundai began receiving complaints
from customers that the merchandise they ordered was missing.
By watching security camera footage showing him removing
items from boxes, placing it in his pockets or a bag, and leaving

      1   Further statutory references are to the Penal Code.
      2Hyundai’s manager testified that shipping a container to
South Korea takes 20 days.




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the facility with the items, Hyundai discovered that Chun had
been stealing the items. Police found some of the items
customers reported missing at Chun’s home.
        At Chun’s restitution hearing, Hyundai’s manager, Richard
Yun, identified a list from a police report of 34 items Chun took.
Yun testified that the list attached the police report consisted of
items for which Hyundai had reimbursed customers’ purchase
price based on the invoices in Hyundai’s computer system. The
amount Hyundai reimbursed customers based on missing
purchases was $7,736.23. Yun testified that he also paid
customers “about $3,000” to compensate for delayed delivery of
their merchandise, but decided not to include in his restitution
claim “the money we paid to the customers for the delay of the
delivery.”
        On cross-examination, Yun identified five items from the
list of stolen items that police recovered from Chun’s home and
returned to Hyundai. Yun testified that Hyundai had already
paid customers the invoice value for the items by the time the
police returned them, and the items could not be shipped to
customers or otherwise used by Hyundai because the original
packaging was damaged.
        Based on Yun’s testimony, which the trial court found
credible, the trial court ordered Chun to pay Hyundai $7,736.23
in restitution. The trial court expressly declined to reduce the
amount by $1,632.97—the value of the five items police returned
to Hyundai. And although it was not an amount Hyundai
requested, the trial court stated on the record that it was “not
going to grant the request for the $3,000 for the customer service
fees [Hyundai] paid to keep [its] business reputation.”




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     Chun timely requested a certificate of probable cause to
appeal the restitution order, and the trial court granted Chun’s
request.

                            DISCUSSION
       Chun challenges the trial court’s order on several grounds.
First, Chun argues that Hyundai was not the “victim” for
purposes of section 1203.1, but was merely a third party standing
in the shoes of customers, who were Chun’s victims. Second,
Chun contends that the restitution order created an “improper
windfall” for Hyundai in two ways. Chun argues that the trial
court should have awarded a replacement value of the
merchandise Chun stole, rather than the full retail value, and
that awarding restitution for the stolen merchandise that was
recovered was “redundant compensation.” Chun next contends
that the record contains insufficient evidence to support the
restitution order because Hyundai only established the full retail
value of the property Chun took, rather than its replacement
value. Finally, Chun contends his was deprived of effective
assistance of counsel because his trial counsel did not make
“obvious meritorious objections” and request an offset of the
restitution award for the value of the items police recovered from
Chun’s home and returned to Hyundai. We disagree with each of
Chun’s arguments.
   A. Identity of the “Victim”
       “[I]n 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).)




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       Chun contends that his victims were Hyundai’s customers,
and not Hyundai. He compares Hyundai to an insurer who has
paid an insurance claim for a loss caused by a criminal
defendant. Chun’s argument is based on People v. Birkett (1999)
21 Cal.4th 226 (Birkett). Chun argues that the Supreme Court
concluded an insurer had no standing to claim restitution under
the restitution statute because the insurance company was not
the defendant’s “victim,” but rather was claiming as an entity
that had “stepped into the [victim’s] shoes.” We review statutory
language de novo. (Barajas v. Appellate Division of Superior
Court (2019) 40 Cal.App.5th 944, 951.)
       Contrary to Chun’s assertion here, Birkett analyzed
statutory language and arrived at its conclusion based on the
restitution statute’s plain language. “We therefore conclude that
by its plain terms,” the Supreme Court stated, “the 1994
mandatory restitution scheme excluded reimbursing insurers,
claiming in that capacity, as ‘direct victim[s]’ entitled to
restitution from an adult probationer.” (Birkett, supra, 21
Cal.4th at p. 234, italics added.)
       Hyundai was not an insurer. Hyundai took possession of
products in their original packaging and shipped those products
to the purchaser. If a product were to go through that process in
the normal course of business, Hyundai would not pay a customer
the full retail value of the product the customer received—the
customer would have simply received the product it paid for. To
the contrary, Hyundai presumably would be paid some fee for its
service. Because Chun stole products from Hyundai’s facility,
however, Hyundai was out-of-pocket for the full retail value—the
cost to replace the stolen goods—for 34 items Chun stole.
Hyundai is not in the business of insuring others for goods they




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have purchased. Hyundai is in the business of delivering those
goods, and when Hyundai is unable to deliver those goods,
Hyundai presumably must replace them. Chun caused Hyundai
to violate its direct obligations to its customers, and Chun cost
Hyundai the value of those violations. Far from being expressly
excluded from the statute’s plain language, Hyundai is one of
Chun’s direct victims—entitled to restitution according to section
1202.4, subdivision (f). (See Birkett, supra, 21 Cal.4th at p. 232,
fn. 6.)
    B. Amount of Restitution
        “[W]e review the trial court’s restitution order for abuse of
discretion.” (People v. Giordano (2007) 42 Cal.4th 644, 663
(Giordano).) “ ‘[T]he court’s discretion in setting the amount of
restitution is broad, and it may use any rational method of fixing
the amount of restitution as long as it is reasonably calculated to
make the victim whole. [Citations.]’ [Citations.] ‘There is no
requirement the restitution order be limited to the exact amount
of the loss in which the defendant is actually found culpable, nor
is there any requirement the order reflect the amount of damages
that might be recoverable in a civil action. . . .’ ” (People v.
Millard (2009) 175 Cal.App.4th 7, 26-27 (Millard).)
        “While we review all restitution orders for abuse of
discretion, we note that the scope of a trial court’s discretion is
broader when restitution is imposed as a condition of probation.
[Section] 1203.1, subdivision (j) expressly grants trial courts
broad discretion in imposing conditions of probation. As [our
Supreme Court] has held, ‘[a] condition of probation will not be
held invalid unless it “(1) has no relationship to the crime of
which the offender was convicted, (2) relates to conduct which is
not in itself criminal, and (3) requires or forbids conduct which is




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not reasonably related to future criminality. . . .” ’ ” (Giordano,
supra, 42 Cal.4th at p. 663, fn. 7.) “ ‘ “[T]he granting of probation
is not a right but a privilege, and if the defendant feels that the
terms of probation are harsher than the sentence for the
substantive offense[,] he is free to refuse probation.” [Citations.]
Because a defendant has no right to probation, the trial court can
impose probation conditions that it could not otherwise impose,
so long as the conditions are not invalid under the three
[previously listed] criteria.’ ” (Ibid.)
        “The word ‘loss,’ within the meaning of section 1202.4,
‘ “ ‘ “must be construed broadly and liberally to uphold the voters’
intent.” [Citation.] Because the statute uses the language
“including, but not limited to” these enumerated losses, a trial
court may compensate a victim for any economic loss which is
proved to be the direct result of the defendant’s criminal
behavior, even if not specifically enumerated in the statute.’ ”
[Citations.] “The only limitation the Legislature placed on victim
restitution is that the loss must be an ‘economic loss incurred as
the result of the defendant’s criminal conduct.’ ” ’ ” (People v.
Garcia (2010) 185 Cal.App.4th 1203, 1215.)
        We first address Chun’s contention that the trial court’s
restitution order awards Hyundai an “improper windfall.” Chun
argues that the award overcompensates Hyundai in two ways.
First, Chun contends that awarding full retail value to Hyundai
rather than some lesser replacement value is the equivalent of
awarding Target, to use Chun’s example, the full retail value of
goods an employee stole rather than the cost to Target to replace
the goods. (See People v. Chappelone (2010) 183 Cal.App.4th
1159, 1178-1179 (Chappelone).)




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       Chun’s argument ignores that the replacement cost to
Hyundai of the goods Chun stole is the full retail value of the
goods. Hyundai is not in the same business as Target—buying
and re-selling “mass-produced consumer goods that Target sold
in abundance.” (Chappelone, supra, 183 Cal.App.4th at p. 1179.)
To be sure, the trial court’s award was based entirely on the cost
to Hyundai of the goods Chun stole, and not on some amount that
Hyundai might have received if it had those goods available to
resell. The amount of restitution here was based specifically and
expressly on the goods’ replacement value.
       We are no more persuaded by Chun’s second “improper
windfall” argument. Police retrieved five items from Chun’s
apartment and returned them to Hyundai—with damaged
packaging. Hyundai had already reimbursed customers for the
stolen goods, and Hyundai was not in a position to simply re-
place the stolen goods into the stream of commerce. The amount
Hyundai paid for the goods is the amount Chun’s crime cost
Hyundai, regardless of whether Hyundai eventually received any
of the items back. (See Birkett, supra, 21 Cal.4th at p. 229
[restitution is based on the full amount of the loss, “without
regard to full or partial recoupments from other sources except
the Restitution Fund”].)
       The record demonstrates that the trial court’s restitution
order is “reasonably calculated” to make Hyundai whole. (See
Millard, supra, 175 Cal.App.4th at p. 26.) And the evidence in
the record—Yun’s testimony and a list of items Chun stole
together with the amounts Hyundai paid to replace those goods—
is sufficient to support the trial court’s order setting the amount
of restitution.




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   C. Ineffective Assistance of Counsel
       “To otherwise demonstrate ineffectiveness of counsel,
defendant must show that counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms [citation], and that a reasonable probability
exists that, but for counsel’s unprofessional errors, the result
would have been different.” (People v. Farnam (2002) 28 Cal.4th
107, 148.) A “court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant . . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”
(Strickland v. Washington (1984) 466 U.S. 668, 697; accord, In re
Fields (1990) 51 Cal.3d 1063, 1079.)
       Based on our conclusions that Hyundai was one of Chun’s
victims and our disagreement with Chun’s assertions that the
trial court’s restitution order constituted an improper windfall for
Hyundai, we find no prejudice to Chun from the errors he alleges
his attorney made at the restitution hearing.




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                          DISPOSITION
      The trial court’s restitution order is affirmed.
      NOT TO BE PUBLISHED




                                            CHANEY, J.

We concur:



             ROTHSCHILD, P. J.



             SINANIAN, J.*




      *Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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