Filed 8/16/16 In re Martinez 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




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




In re MICHELLE LYNN MARTINEZ,                                                                C077712

                   On Habeas Corpus.                                            (Super. Ct. Nos. 10F3962,
                                                                               10F2930, 10F3974, 10F4734)




         As part of a negotiated plea bargain to resolve four pending criminal cases,
petitioner Michelle Lynn Martinez pleaded no contest to burglary, a vandalism count was
dismissed, and she did not agree to a Harvey waiver.1 In these habeas corpus
proceedings, she contends the order to pay a landlord restitution for the damage to his
property was unauthorized, and her lawyers at trial and on appeal were constitutionally
ineffective for failing to challenge the order because there was no evidence the economic
loss sustained by the landlord was the result of her criminal conduct. Although victims of
crime in California enjoy a constitutional right to restitution, detailed in statute and
zealously protected by the judiciary, the record supports petitioner’s claim that there is no



1   People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

                                                             1
causal connection between the conduct underlying the burglary and the economic loss the
property owner suffered. Thus, we set aside the restitution order.
                                          FACTS
Substantive Facts
       Because petitioner entered a negotiated plea agreement, the facts are taken from
the transcript of the preliminary hearing and the probation report. Justin Spencer and
Shawn Myers rented a house from Gaylen Eslinger in Shasta County. Fearful that
petitioner was going to kill Spencer because petitioner believed Spencer had stolen a
large amount of money from her, Spencer and Myers vacated the house for a couple of
months in the fall of 2009. On November 24, 2009, their friend, Susan Gilbert, was
packing their personal belongings when four trucks pulled up to the house. Gilbert called
the police and told them “there were people there vandalizing the residence and causing a
disturbance.” She provided two license plate numbers, one registered to petitioner and
another to her husband. She left the residence as soon as the disturbance began. She was
too afraid to meet with the investigating police officer and provided no information apart
from her initial phone report. She did not testify at the preliminary hearing.
       The reporting officer did not meet with Spencer and Myers until January 14, 2010.
They eventually reported a loss of $24,120 in stolen and damaged personal property and
furniture. Myers stated that the stolen property included the landlord’s washer and dryer.
In the backyard the officer observed broken cabinets, boxes of clothing strewn about, and
mattresses flipped over. Inside, she testified, there was “damage done to . . . walls [and]
floors.” Drywall was torn off the walls, the carpets were torn up, and the vents were torn
out of the floorboards. At that time, Eslinger provided an estimate of approximately
$7,000 in damages. The probation officer wrote, “The home sustained extensive damage
to walls, windows, flooring, ductwork, and doors.” Eslinger ultimately lost four months’
rent while the repairs were being completed and requested $11,181.00 in restitution.



                                             2
Procedural Facts
       The felony complaint in Shasta Superior Court case No. 10F3962 charged
petitioner in count 1 with first degree residential burglary as follows:
       “Defendant(s)
       “Michelle Lynn Martinez,
       “On or about the 24th day of November, 2009, willfully and unlawfully entered an
inhabited dwelling house and trailer coach and inhabited portion of a building occupied
by Justin Spencer and Shawn Myers, with the intent to commit larceny and any felony.”
       In count 2, the complaint further charged her with vandalism as follows:
       “Defendant(s)
       “Michelle Lynn Martinez,
       “On or about the 24th day of November, 2009, did maliciously and unlawfully
deface with graffiti and other inscribed material, damage, and destroy house damaged
including walls, carpeting, vents, real and personal property which belonged to Gaylin
[sic] Eslinger, in the amount of four hundred dollars ($400.00) and more.”
       She was also charged with receiving stolen property in February 2010 and various
enhancements not relevant to the issues before us.
       On September 20, 2010, petitioner entered a no contest plea to first degree
residential burglary as alleged in count 1. The factual basis for her plea is found in the
preliminary hearing transcript filed on August 31, 2010. Pursuant to her plea agreement,
the vandalism count was dismissed. On November 2, 2010, the court imposed the 11-
year aggregate sentence as contained in the plea agreements for the four cases; various
fines, fees, and assessments; and ordered the payment of restitution in amounts to be
determined. Petitioner filed a notice of appeal on November 29, 2010, in case
No. C066838 and an amended notice of appeal on January 4, 2011, and requested a
certificate of probable cause. The request was denied on November 30, 2010.



                                              3
       After the notice of appeal was filed in case No. C066838, a restitution hearing was
held on January 13, 2011. Petitioner objected to any award of restitution to Eslinger,
claiming any restitution was “largely the result of mistakes made and errors and
omissions by her attorneys.” The court ordered petitioner to pay $13,246.18 in restitution
based on additional receipts for repairs that were submitted after the probation report was
drafted.
       Appointed counsel filed an opening brief in case No. C066838 on February 1,
2011, pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
       On February 3, 2011, in case No. C067322, petitioner filed a notice of appeal and
request for certificate of probable cause in pro. per. regarding the restitution order of
January 13, 2011. In her notice of appeal, she challenged her plea and the order for
victim restitution. In her request for a certificate of probable cause, she wrote: “I have
reason to believe I was ordered victim restitution in this by error. The name of the victim
I was ordered to pay restitution to was not a victim listed in my accusatory pleading nor
was there an ammended [sic] filing. Also, victim restitution was not part of the plea-
bargain nor was vandalism a charge that I agreed to plea [sic] to. I also have a letter
signed by the actual victim of this actual case which I have only recently received which
would exonerate me from liability. Attached is a copy of a letter from Justin Spencer.”
The request for a certificate of probable cause was denied the same day.
       On February 8, 2011, petitioner filed an amended notice of appeal and request for
certificate of probable cause in case No. C067322 based on a “[d]enial of Marsden
Hearing” and a “[d]enial to withdraw plea.” In her request for a certificate of probable
cause, she again objected to the restitution order payable to Gaylen Eslinger for the same
reasons she articulated in the first notice of appeal, filed February 3, 2011. The request
was denied.
       On February 25, 2011, petitioner filed a supplemental brief in case No. C066838.
We affirmed the judgment without mention of her challenge to the restitution order,

                                              4
based primarily on her failure to obtain a certificate of probable cause. (People v.
Martinez (Apr. 12, 2011, C066838) [nonpub. opn.].)
       On September 7, 2011, appointed counsel filed an opening brief in case
No. C067322 pursuant to Wende, supra, 25 Cal.3d 436. On September 30, 2011,
petitioner filed, in pro. per., a supplemental brief in that case. She reiterated her objection
to the restitution order to pay damages to Gaylen Eslinger. She wrote: “In Shasta
County case No. 10F3962, appellant pled no contest to the charge of Penal Code 459, as
alleged in count 1 of information in this case. Alleged victims for this charge were Justin
Spencer and Shawna Meyers [sic].
       “In count 2 of the same case, appellant was charged with Penal Code 594(B)(1)
but said charge was dismissed.
       “At the restitution hearing, restitution was ordered to Gaylin [sic] Eslinger,
property owner of damaged house relating to the vandalism charge.” Again, we affirmed
the judgment without addressing her challenge to the restitution order. We concluded,
“Defendant fails, however, to raise any claim of error in her supplemental brief.”
(People v. Martinez (Apr. 20, 2012, C067322) [nonpub. opn.].)
       On October 17, 2012, petitioner filed a petition for writ of habeas corpus in Shasta
County Superior Court. The court denied the petition, explaining: “[O]n January 13,
2011, the Petitioner was present at the restitution hearing in which the Court ordered
$13,246[.]18 to be paid to Gaylen Eslinger, the property owner of the dwelling place
which is the subject of the Burglary in the First Degree to which Petitioner entered a plea
of no contest on September 20, 2010. As such, Mr. Eslinger is an appropriate person to
receive restitution for the damages caused by/during the commission [of the] criminal
violation.”
       Petitioner now petitions this court for a writ of habeas corpus, alleging ineffective
assistance of trial and appellate counsel in failing to challenge the restitution order.



                                               5
                                        DISCUSSION
                                               I
                           Restitution: The Substantive Claim
       Petitioner’s inadequacy of counsel claim turns on whether there is merit to her
challenge to the restitution order since she can demonstrate prejudice, a necessary
element of her constitutionally ineffective assistance of counsel argument, only if the
restitution order is unauthorized or improper. We therefore begin with the dispositive
question of law—did petitioner’s criminal conduct result in Gaylen Eslinger’s economic
losses to his property? Our review is de novo. (People v. Walker (2014)
231 Cal.App.4th 1270, 1275 (Walker).)
       Victims of crime in California have a constitutional right to restitution. Article I,
section 28 of the California Constitution provides: “(A) It is the unequivocal intention of
the People of the State of California that all persons who suffer losses as a result of
criminal activity shall have the right to seek and secure restitution from the persons
convicted of the crimes causing the losses they suffer.
       “(B) Restitution shall be ordered from the convicted wrongdoer in every case,
regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.”
(Cal. Const., art. I, § 28, subd. (b)(13)(A), (B).)
       The Legislature, as directed by the people, has enacted a statutory scheme to
effectuate a victim’s constitutional right to restitution. Penal Code section 1202.4 begins
emphatically: “It is the intent of the Legislature that a victim of crime who incurs an
economic loss as a result of the commission of a crime shall receive restitution directly
from a defendant convicted of that crime.” (§ 1202.4, subd. (a)(1).) “Thus, the language
of California Constitution article I, section 28, subdivision (b) grants the right to receive
restitution for losses resulting from the crime of which the defendant was convicted.
Implementing that right, section 1202.4 requires a defendant to pay restitution for losses



                                               6
resulting from the criminal conduct supporting the crimes of which the defendant was
convicted.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1247 (Lai).)
       Petitioner raises two red herrings. Both can be summarily dismissed. First, she
argues the court improperly considered the conduct underlying the dismissed vandalism
count to justify the restitution when she had not entered a Harvey waiver. Second, in a
somewhat related claim, she suggests she was denied due process because Eslinger was
not named as a victim of the residential burglary count, but only as a victim of the
vandalism count, which was dismissed. Neither argument has merit.
       It is true, as petitioner alleges, that in the absence of an express waiver, the trial
court cannot utilize a defendant’s conduct in committing a dismissed charge as a basis for
a sentence on the counts that were not dismissed. (Harvey, supra, 25 Cal.3d 754.)
Harvey waivers apply to restitution orders. But as the Attorney General points out, the
trial court ordered defendant to pay Eslinger restitution as a victim of the burglary, not
because he was a victim of the alleged vandalism. For purposes of restitution, Eslinger,
the property owner, is clearly a victim because he incurred substantial economic losses.
The fact that he did not have a possessory right to occupy the premises has no bearing on
his right to restitution under the expansive constitutional guarantee to victims of crime
that they enjoy a right to restitution for the losses they sustain.
       Nor is there any merit to petitioner’s contention that the restitution order is
unlawful because Eslinger was not named as a victim of the burglary. As the court in
Walker stated succinctly: “Whether these potential victims were specifically named in
the charging document is irrelevant. Section 1202.4 imposes no such duty to name, and
judicially imposing such a duty would make a victim’s entitlement to restitution turn on
the happenstance of whether the prosecutor located or named that victim before the
defendant pled or was convicted. Such absurd results are to be avoided.” (Walker,
supra, 231 Cal.App.4th at p. 1276.)



                                               7
       The scope of the court’s authority to impose restitution depends on whether the
defendant is placed on probation or sentenced to jail or prison. A court can order
restitution to a victim as a condition of probation, whether or not the defendant was
convicted of the underlying crime. (People v. Percelle (2005) 126 Cal.App.4th 164, 179
(Percelle).) “This greater latitude to impose restitution arises from the purpose of
probation to foster rehabilitation [citation] as well as from the defendant’s consensual
decision to forgo imprisonment in favor of probation and its potentially more onerous
conditions.” (Walker, supra, 231 Cal.App.4th at p. 1274.)
       Where, as here, however, the defendant is sentenced to state prison, the court has
no authority to transgress the statutory boundary on restitution. The economic loss
suffered by the victim must have been incurred “as the result of the defendant’s criminal
conduct.” (Pen. Code, § 1202.4, subd. (f)(3).) “The issue is only whether, in addition to
paying restitution for losses caused by the conduct for which he was convicted, a
defendant sentenced to state prison must also pay restitution for losses caused by conduct
for which he was not convicted. Precluding restitution for such nonadjudicated conduct
does not undermine the purpose of article I, section 28, subdivision (b), or the policies
supporting restitution. It simply implements the plain meaning of those provisions in
nonprobation cases, unexpanded by the greater scope of restitution available through a
probationary grant.” (Lai, supra, 138 Cal.App.4th at p. 1249.) Thus, defendant’s
criminal conduct must be the cause in fact and the proximate cause of the victim’s
economic losses. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321-1322
(Holmberg); People v. Jones (2010) 187 Cal.App.4th 418, 425 (Jones).)
       Several cases help to explain the meaning of causation in restitution cases
involving a defendant sentenced to state prison. In People v. Scroggins (1987)
191 Cal.App.3d 502 (Scroggins), the defendant pleaded guilty to receiving stolen
property. Despite never being charged with any burglaries, the defendant was ordered to
pay restitution to the burglary victims. (Id. at pp. 504, 506.) The Court of Appeal

                                             8
reversed even though restitution had been ordered as a condition of probation and
therefore the court had much broader discretion. “The court did not conclude—nor from
this record could it have—that Scroggins was responsible for these other losses that it
ordered paid.
       “In short, the instant restitution order has no relationship to the crime for which
Scroggins was convicted, and we can find no relationship between it and the potential for
a ‘salutary’ rehabilitative effect it could have on the defendant.” (Scroggins, supra,
191 Cal.App.3d at p. 506.)
       In the nonprobation context, “a restitution order is not authorized where the
defendant’s only relationship to the victim’s loss is by way of a crime of which the
defendant was acquitted.” (Percelle, supra, 126 Cal.App.4th at p. 180.) In other words,
“when a defendant is sentenced to state prison, [Penal Code] section 1202.4 limits
restitution to losses caused by the criminal conduct for which the defendant was
convicted.” (Lai, supra, 138 Cal.App.4th at p. 1249.) In Lai, therefore, the Court of
Appeal reversed a restitution order to pay for fraudulently obtained governmental aid
before the charged period. (Ibid.)
       In People v. Woods (2008) 161 Cal.App.4th 1045 (Woods), the defendant was
convicted as an accessory after the fact to murder and ordered to pay restitution to the
family of the murder victim. (Id. at p. 1047.) Reversing the restitution order, the court
explained: “The Attorney General argues that a conviction of being an accessory after
the fact ‘has sufficient nexus to the victim’s economic loss so as to render that loss “a
result of the defendant’s conduct . . .” under Penal Code section 1202.4, subdivision (f).’
We disagree. As we acknowledged in In re I.M., a charge of being an accessory after the
fact is ‘based on conduct taking place only after the loss was sustained.’ (In re I.M.
[(2005)] 125 Cal.App.4th 1195, 1208, italics added.) Instead, we agree with the court in
Lai that section 1202.4 limits the scope of victim restitution to the operative crime that
resulted in the loss. [Citation.] Here, the loss to the Mascarenas family occurred because

                                              9
of the murder committed by Saucer. Defendant was not convicted as a coconspirator or
as an aider or abettor to the murder itself. Thus his criminal conduct did not cause the
loss for which compensation was sought.” (Woods, at p. 1052.)
       Restitution orders withstood serious challenges in Holmberg, supra,
195 Cal.App.4th 1310 and Walker, supra, 231 Cal.App.4th 1270 based on close
examinations of proximate causation and accurately depicting the scope and meaning of
the conduct of the defendants. In Holmberg, the defendant pleaded no contest to one
count of concealing stolen property and one count of using an altered, stolen, or
counterfeit access card. (Holmberg, at p. 1315.) Several businesses had been burglarized
and their computers, hard drives, CPU chips, memory chips, monitors, backup drives, a
coffeemaker, compact discs, and credit cards were found in the defendant’s possession.
(Id. at p. 1314, fn. 2.) Relying on Scroggins, supra, 191 Cal.App.3d 502 and the
principles stated above, the defendant argued his conduct (receiving stolen property) was
not a proximate cause of the victims’ losses. (Holmberg, at pp. 1317-1318.) The court
disagreed.
       The “substantial factor” test is used in California to determine proximate
causation. The substantial factor standard is broad and requires only that the contribution
of the cause be more than negligible or theoretical. Moreover, there can be multiple
causes that can combine and cause injury. (Holmberg, supra, 195 Cal.App.4th at
pp. 1321-1322.) Thus, Holmberg’s restitution order was upheld because by holding on to
the property and knowing it was stolen, the defendant’s conduct was a concurrent cause
of the victims’ losses and a substantial factor in causing their damages. (Id. at pp. 1323-
1324.) Moreover, the trial court carefully included only those losses attributable to the
defendant’s conduct. (Id. at p. 1324.)
       Similarly, in Walker, supra, 231 Cal.App.4th 1270, the defendant also claimed the
trial court exceeded its authority by imposing restitution for crimes of which he was not
convicted. In Walker, the defendant pleaded no contest to four counts of driving under

                                             10
the influence (DUI) causing injury. (Walker, supra, 231 Cal.App.4th at p. 1273.) The
trial court ordered him to pay restitution to two victims who had been named in the
charging document and two victims who had not been named. (Ibid.) Like petitioner, he
challenged the restitution order as to the two victims who had not been named even
though he conceded they had been involved in the accident he caused. (Ibid.)
       Focusing on the specific conduct of which the defendant stood convicted, the court
examined what conduct is encompassed by the crime of DUI causing injury. The court
concluded, “Because there was only one instance of driving under the influence—and
because Defendant entered a plea to that instance—the losses suffered by any of the
persons in the vehicles involved in that instance are losses arising out of ‘the criminal
conduct for which the defendant has been convicted.’ [Citation.] . . . [¶] . . . [¶] We
accordingly hold that a court may impose restitution for all victims of a single incident of
DUI causing injury for which the defendant is convicted and sentenced to prison, whether
or not those victims are named in the charging document.” (Walker, supra,
231 Cal.App.4th at pp. 1275-1276.)
       Petitioner contends the restitution order cannot stand because her criminal conduct
did not actually or proximately cause the property owner’s economic losses. She argues
the order to pay restitution to Eslinger was analogous to the restitution orders overturned
in Scroggins, Jones, and Woods. She emphasizes that she pleaded no contest to burglary,
not vandalism, and that it was the unidentified persons who vandalized Eslinger’s
property who caused his economic losses. The Attorney General, on the other hand,
maintains that the property owner is a victim of the burglary as well, and petitioner, by
entering a no contest plea, admitted she caused the damages to any of the victims of the
burglary. An examination of the record in this case belies the Attorney General’s
argument that any plea to a burglary charge, despite the nuanced evidence of defendant’s
actual conduct, justifies restitution.



                                             11
       It bears repeating that contrary to petitioner’s position in these proceedings, the
mere fact that Eslinger was not named in the complaint as a victim of the burglary did not
foreclose the trial court from ordering restitution to him. Walker soundly rejects that
contention. But we conclude there must be some evidence that petitioner’s conduct
proximately caused the property owner’s losses. Here there is just no evidence in the
preliminary transcript, the probation report, or the hearing during which her plea was
accepted that her criminal conduct caused the losses. There is no question the property
owner sustained substantial damages, but the record does not support an implied finding
that it was petitioner who caused those damages.
       We begin with the only witness, Susan Gilbert. Gilbert would not cooperate with
the investigation of the burglary, nor did she testify at the preliminary hearing. Thus, the
only evidence in the record is what she reported in her initial call to the police and in one
follow-up conversation. Gilbert provided very little information about petitioner other
than to name her as one of the intruders and to provide a license plate number that
confirmed she owned one of the trucks that appeared at the residence on the evening of
November 24, 2009. She did not state that petitioner damaged any of the property. In
fact, Gilbert stated that she (Gilbert) left right away. There simply was no evidence,
beyond the plea itself, that petitioner committed larceny or any other felony against
Eslinger once she entered the residence.
       Justin Spencer and Shawn Myers were the targets of the burglary. When
interviewed about six weeks after the burglary, Spencer told the investigator that he
believed petitioner had planned to kill him. Spencer and Myers had vacated the premises
out of fear. They reported stolen property that was taken from the residence and later
found in petitioner’s possession. Myers also stated that Eslinger’s washer and dryer were
stolen. But Eslinger did not report damages for a washer and dryer, and neither one was
found in petitioner’s possession.



                                             12
       It is significant that the police investigator did not survey the damage to the house
until six weeks after the reported vandalism. As a consequence, there is no evidence as to
what damage actually occurred on November 24, 2009, and additional damage could
have been done by others in the intervening days.
       We agree with petitioner there is absolutely no evidence that she aided and abetted
or conspired with others to cause Eslinger’s losses. The only evidence is that she was
present at the residence and she stole Spencer and Myer’s property. This evidence is
consistent with her no contest plea to count 1 in the complaint in which she was charged
with burglary for entering their residence to commit larceny or another felony. Perhaps,
as the Attorney General argues, in most cases a plea to a burglary charge would be an
admission that a defendant caused the victim’s damages. But given the specificity of her
plea and the utter lack of any evidence that it was petitioner, either alone or in
combination with the other intruders, who damaged the property, we cannot say
Eslinger’s economic losses were the result of petitioner’s criminal conduct.
                                              II
       Petitioner, unlike her trial and appellate lawyers, exhibited extraordinary diligence
in challenging the restitution order. As outlined in our factual statement, she raised the
issue over and over again—in the notice of appeal, in requests for certificates of probable
cause, in the supplemental briefs she filed in pro. per. following her lawyer’s Wende
briefs, in correspondence with her lawyer, and in her petition to the trial court for a writ
of habeas corpus. Even her lawyer reported to the trial court that petitioner did not
believe the restitution order was authorized. Despite her persistence in raising the issue,
her lawyers did not raise, argue, or challenge the restitution order. The Attorney General
would not hold the lawyers accountable; rather, she contends the issue is untimely and
should have been resolved on direct appeal. We disagree. Moreover, any procedural
missteps are an integral part of petitioner’s ineffective assistance of counsel claim. We
turn first to the law governing her ineffectiveness claim.

                                              13
       A claim of ineffective assistance of counsel requires a showing that “(1) counsel’s
performance was deficient, falling below an objective standard of reasonableness under
prevailing professional norms; and (2) the deficient performance resulted in prejudice.”
(People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.) The requisite prejudice
can be established where “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.” (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674].)
       We began with a discussion of the merits of petitioner’s challenge to the
restitution order to determine whether the lawyers’ collective failure to pursue the claim
resulted in prejudice. As explained at length above, petitioner was right—the restitution
order was unauthorized because her criminal conduct did not cause the $13,246.18
Eslinger sustained in economic damages. Thus, on the merits there is no question that
petitioner was prejudiced by her lawyers’ persistent refusal to challenge the order. The
lawyers’ failure to assert the issue, particularly in light of petitioner’s ongoing requests to
do so, falls below an objective standard of reasonableness under prevailing professional
norms. We cannot imagine a tactical reason for failing to raise an issue that would save
an indigent prisoner over $13,000.
       Although the lawyers were either ignorant of or wrong about the law (People v.
Jenkins (1975) 13 Cal.3d 749, 753-754), the Attorney General would excuse them on
procedural grounds and hold petitioner responsible for her lawyers’ shortcomings. In
other words, the Attorney General would have us dismiss the petition because the
challenge comes too late or the issue should have been decided on direct appeal.
Ironically, it was petitioner who attempted to challenge the order at each step in the
process, and it was the lawyers who failed or refused to raise the challenge. As a result,
the procedural hurdles the Attorney General argues should block petitioner’s habeas
corpus proceedings before us are, we believe, part and parcel of her ineffectiveness claim.

                                              14
       For surely petitioner cannot be punished for her lawyers’ hesitancy when she
pursued the restitution challenge with such resolve and consistency. She raised it in a
notice of appeal, in both requests for a certificate of probable cause, and in both
supplemental briefs after her lawyers ignored the restitution challenge and filed Wende
briefs. Four months after her second appeal became final in June 2010 she filed a
petition in the superior court. Hampered by lack of time and resources, the only available
redress she did not attempt was in filing a petition for rehearing in this court or a petition
for review before the California Supreme Court. But her lawyer had erroneously advised
her there was no authority to support her position. We conclude that from the inception,
petitioner insisted the restitution order was illegal and urged her appointed attorneys to
litigate the issue, and thereafter she acted with all the diligence the circumstances
surrounding her incarceration permitted. We agree with petitioner that if there were any
minor delays or missteps along the way, they were either trivial or petitioner has shown
good cause because she was adrift in prison, alone and forced to single-handedly pursue
legal redress for the unlawful restitution order. (In re Robbins (1998) 18 Cal.4th 770,
780-781; In re Saunders (1970) 2 Cal.3d 1033, 1040-1041.)
       Alternatively, the Attorney General argues that petitioner already raised the issue
in her direct appeal and has simply “repackaged” it as ineffective assistance of counsel.
She therefore insists that habeas corpus relief is foreclosed. As pointed out above,
however, petitioner’s claim regarding the illegal order necessarily hinges on her claim of
ineffective assistance of counsel. To the extent the Attorney General is also arguing that
petitioner should have raised the issue on direct appeal, that is precisely the crux of her
ineffective assistance of counsel claim in these proceedings. Additionally, since we have
concluded that the restitution order was illegal and violated the causation requirements of
Penal Code section 1202.4, subdivision (f), it was an unauthorized sentence that may be
attacked at any time. (People v. Smith (2001) 24 Cal.4th 849, 852.) For all these reasons,



                                              15
as well as in the interest of justice, we conclude there is no procedural bar to petitioner’s
claim of ineffective assistance of counsel.
                                      DISPOSITION
       The restitution order to pay Gaylen Eslinger the sum of $13,246.18 is set aside.



                                                             RAYE               , P. J.



We concur:



         HOCH                , J.



         RENNER              , J.




                                              16
