Filed 7/29/14 P. v. Arnott 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)




THE PEOPLE,                                                                                  C074275

                   Plaintiff and Respondent,                                      (Super. Ct. Nos. 11F2332,
                                                                                    11F7992, & 13F0495)
         v.

PAUL C. ARNOTT,

                   Defendant and Appellant.




         In February 2013 defendant Paul C. Arnott entered no contest pleas in three
superior court cases. In case No. 11F2332, he pleaded to forgery (Pen. Code, § 470,
subd. (d))1 and identity theft (§ 530.5). In case No. 11F7992, he pleaded to failure to
appear in court on the previous case. (§ 1320, subd. (b).) In case No. 13F495, he pleaded
to evading the police with disregard for public safety. (Veh. Code, § 2800.2.) Defendant
admitted that he committed the evading offense while released from custody in the two


1   Undesignated statutory references are to the Penal Code.

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previous cases. (§ 12022.1.) He also admitted having served a prior prison term.
(§ 667.5, subd. (b).) In exchange, two misdemeanor counts and four prison term
allegations were dismissed. Defendant entered a Harvey2 waiver for restitution in an
unfiled matter.3
        Defendant was sentenced to prison for seven years four months, awarded 83 days’
custody credit and 83 days’ conduct credit, ordered to pay various fines and fees, and
ordered to make restitution to his victims including $1,677.45 to the Shasta County
District Attorney Bad Check Unit (DA).
        Defendant contends, and the People concede, the victim restitution award to the
DA is improper because the DA was not the direct victim of any of defendant’s crimes.
The concession moots defendant’s alternative claim that his trial counsel rendered
ineffective assistance by failing to object to the award to the DA. We modify the
judgment to order restitution to the direct victims of defendant’s conduct.
                                           FACTS
        Because defendant’s contentions relate solely to the issue of victim restitution in
the unfiled matter that is the subject of his Harvey waiver, the facts of the three filed
cases are not at issue and need not be set forth in this opinion.4




2   People v. Harvey (1979) 25 Cal.3d 754.
3 We granted defendant’s motion to augment the record with the investigative report in
the unfiled matter, No. 11-22248.
4 The minute order, the original abstract of judgment, and the amended abstract of
judgment incorrectly attribute this restitution to filed case No. 13F495.

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       In the unfiled matter, defendant passed the following nonsufficient funds checks:

     Number         Payee                               Date             Amount

     102            Farmer’s Market               09/13/2011          97.01

     121            Farmer’s Market               09/19/2011          60.91

     140            Sunshine Market               09/26/2011          32.56

     150            Costco                        10/05/2011          266.82

     133            Top’s Market                  09/24/2011          48.49

     135            Top’s Market                  09/25/2011          64.84

     93             Winco Foods                   07/10/2012          168.29

     147            Food Maxx                     06/29/2012          167.81

     122            Food Maxx                     06/29/2012          186.52

                                      DISCUSSION
                      The Victim Restitution Award Must be Modified
       Defendant contends the DA is not a direct victim of the offenses at issue in the
unfiled matter. As a remedy, defendant argues that the award of $1,677.45 to the DA
must be stricken.
       The People concede that the DA is not a direct victim and that the award to the
DA is not proper, but they claim the proper remedy is to modify the judgment to award
restitution to the direct victims in the amounts shown in the above table. We agree with
the People.
                                       Background
       As part of the negotiated plea, defendant entered a Harvey waiver for restitution in
an unfiled matter reflected in Shasta County District Attorney investigative report no. 11-
22248. At the February 2013 change of plea hearing, the prosecutor referred to the
investigation of the unfiled matter, which had revealed that defendant had written two


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bad checks totaling $157.92. Attendant administrative, bank, and diversion fees were
$180. In an October 2011 letter, the DA had demanded that defendant make an
immediate payment of $337.92.
       On March 14, 2013, the DA sent defendant an updated letter reiterating the two
bad checks and adding seven more bad checks; this letter demanded payment of
$1,677.45, consisting of $1,093.25 in bad checks, $84.20 in bank fees, and $450 in
administrative fees.
       The probation report filed March 19, 2013, recommended that defendant be
“ordered to pay $1,677.45 to the Shasta County District Attorney’s Bad Check Unit
regarding the unfiled case pertaining to Shasta County District Attorney’s Investigative
report # 11-22248.” At sentencing, the trial court followed this recommendation.
Neither counsel pointed out that the DA was not a direct victim. The minute order and
the amended abstract of judgment reflect that the court ordered restitution to the DA.
                                           Analysis
       “Section 1202.4 declares ‘the intent of the Legislature that a victim of crime who
incurs any economic loss as a result of the commission of a crime shall receive restitution
directly from any defendant convicted of that crime.’ [Citation.] Accordingly, with
specified exceptions, ‘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 . . . .’ [Citation.] Absent extraordinary and
compelling reasons [citation], restitution ‘shall be of a dollar amount that is sufficient to
fully reimburse the victim or victims for every determined economic loss incurred as the
result of the defendant’s criminal conduct’ [citation], and must include, but is not limited
to, such costs as the value of stolen or damaged property, as determined by repair or
replacement value [citation], medical expenses [citation], and ‘[w]ages or profits lost due
to injury incurred by the victim’ [citation].



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       “For purposes of section 1202.4, a ‘victim’ is defined to include, among others,
the actual victim’s immediate surviving family [citation], as well as specified relatives of
the actual victim, and present and certain former members of the victim’s household, who
sustained economic loss as a result of the crime [citation]. A ‘victim’ also includes ‘[a]ny
corporation, business trust, estate, trust, partnership, association, joint venture,
government, governmental subdivision, agency, or instrumentality, or any other legal or
commercial entity when that entity is a direct victim of a crime.’ [Citation].
       “The case law has ascribed a precise meaning to the phrase ‘direct victim,’ as that
phrase has appeared in several restitution statutes. Thus, it is established that a statute
‘permitting restitution to entities that are “direct” victims of crime [limits] restitution to
“entities against which the [defendant’s] crimes had been committed”–that is, entities that
are the “immediate objects of the [defendant’s] offenses.” [Citation.]’ [Citations.]”
(People v. Runyan (2012) 54 Cal.4th 849, 856.)
       In this case, the parties agree that the DA was not the immediate object of any of
defendant’s bad check offenses; rather, the immediate objects were the vendor payees set
forth in the above table. (Cf. People v. Martinez (2005) 36 Cal.4th 384, 393-394 [state
agency that cleaned up the defendant’s methamphetamine laboratory was not a direct
victim of his offense].) Because the trial court had no jurisdiction to award victim
restitution to the DA, its order may be corrected on appeal notwithstanding the lack of
contemporaneous objection. (People v. Scott (1994) 9 Cal.4th 331, 354.)
       The correction proposed by defendant--the simple striking of the restitution order--
would leave the vendor victims without any restitution and confer an undeserved windfall
upon defendant. The People objected to that windfall in their respondent’s brief, and
defendant has elected not to file a reply brief. We modify the judgment to order
restitution to the direct victims of defendant’s conduct.




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       There is no contention that the bank fees and administrative fees demanded in the
DA’s letters were owed to direct victims of defendant’s offenses. We have no occasion
to consider that issue.
                                     DISPOSITION
       The judgment is modified to award victim restitution to the entities named in the
above table in the amounts shown therein. As so modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment and to forward a
certified copy to the Department of Corrections and Rehabilitation.


                                            BLEASE                    , J.


We concur:


         RAYE                     , P. J.


         DUARTE                   , J.




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