Filed 1/30/14 P. v. Hurth CA1/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,                                   A135072

v.                                                                   (Solano County
MAURICE PIERRE HURTH,                                                Super. Ct. No. FCR288339)
         Defendant and Appellant.

THE PEOPLE,
     Plaintiff and Respondent,                                       A137357
v.
MAURICE PIERRE HURTH,                                                (Solano County
                                                                     Super. Ct. Nos. FCR288339)
         Defendant and Appellant.

                                                   INTRODUCTION
         These consolidated appeals arise from defendant Maurice P. Hurth’s conviction of
felony vandalism (Pen. Code, § 594, subd. (a)).1 In appeal No. A135072, he contends the
trial court abused its discretion in denying a mistrial after the victim, Hanif Adisa, in
violation of an in limine ruling, briefly alluded in his testimony to defendant’s alleged
commission of an unrelated “home invasion.” In appeal No. A137357, Hurth contends
the trial court abused its discretion in the amount of restitution ordered following
revocation of his probation and sentencing. We conclude there was no abuse of
discretion and affirm defendant’s conviction and the restitution order.

         1
             All further statutory references are to the Penal Code unless otherwise indicated.

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                                      BACKGROUND
       In November 2010, Hanif Adisa and Tamica Darnes dated for three weeks. They
remained in contact. Within several months, defendant had developed a relationship with
Darnes and in February 2011, he began harassing Adisa, warning him to “leave my bitch
alone.”
       On April 22, 2011, Darnes called Adisa and asked him to drive to her house.
Adisa assumed Darnes wanted him to take her someplace, as she had asked for rides
before. When Adisa arrived, he pulled into the driveway and called Darnes on her cell
phone to let her know he was outside. Instead of Darnes, defendant walked out and
approached the car. Adisa rolled down his window, and defendant asked Adisa who he
was there to see, to which Adisa did not reply. Darnes then opened the front door of the
house, and defendant walked up to speak with her. Adisa could not hear their
conversation, and Darnes shortly told Adisa to leave. When Adisa saw defendant pick up
a large rock, approximately six to eight inches in diameter, he began backing his car out
of the driveway. Defendant threw the rock, which struck the rear window of Adisa’s car,
shattering it and denting the window frame. Adisa parked the car, stepped out of it, and
shut the door. When he shut the door, the rear window broke completely.
       In November, Adisa testified at a preliminary hearing against defendant and
referred to a “home invasion” robbery defendant had committed. Thereafter, defendant
and Darnes called Adisa. Defendant said, “hey, nigga, I got some news for you.”
Darnes, in turn, threatened, “if [he] continued to prosecute [defendant] then [Adisa’s]
place would be shot up.” Adisa told Darnes he was going to get a restraining order
against her, and that he already had one against defendant. Adisa then told the police
about the phone call.
       The Solano County District Attorney then filed an information charging defendant
with one count of vandalism over $400 and one count of dissuading a witness from
prosecuting a crime.
       Before trial, defendant made an in limine motion “to prohibit the prosecutor and
his witnesses from offering testimony that Mr. Hurth has been to prison or is or has been


                                             2
on parole or mentioning other alleged criminal conduct.” The motion claimed Adisa’s
statement at the preliminary hearing that defendant had “committed [a] home invasion
robbery in March 2011[was] . . . highly prejudicial to Mr. Hurth.” The motion asked the
court to order “the prosecutor to explicitly admonish Mr. Adisa not to testify about these
subject matters.” The court granted the motion, ordering the prosecutor to “caution [his]
witnesses not to offer up that Mr. Hurth has been to prison or on parole or anything like
that.” A week later, the judge who was going to preside over the trial revisited the in
limine ruling and ruled “commenting on prison or parole . . . far outweighs the probative
value of the testimony; and, therefore, I am going to direct . . . the district attorney to
instruct Mr. Adisa . . . to refrain from bringing it up there.”
       At trial, the prosecutor asked Adisa if he had told police he was “afraid of Mr.
Hurth” or if he was “concerned that Mr. Hurth would follow through about the threat
given to [him]” Adisa replied, “Well, I said—I think I said that I was concerned because
of his threats before, and he had in, um, March called . . . .” Defense counsel objected
“this goes into one of the Court’s pretrial rulings.” The objection was overruled. The
prosecutor then continued by asking, “[y]ou said you were concerned because of what
reason?” Adisa responded “Yes, in March, um, allegedly a home invasion was, uh,
committed by Hurth.” Defense counsel immediately objected and moved to strike the
answer, stating “[l]ack of personal knowledge, 352, and relevance.” The court sustained
the objection. Adisa continued to testify that defendant had made “many threats,” to
which defense counsel also objected. The court overruled this objection, and Adisa
continued to testify he was concerned because of the “many threats that [he] had received
since February and the type of threats. . . .”
       Following the prosecution’s case, defendant moved for a mistrial. After hearing
argument, the trial court observed “[o]bviously it shouldn’t have been said. That’s why
the objection was sustained and the testimony stricken.” The court concluded, “I
certainly don’t think it reaches the level of a mistrial” and denied the motion.
       Trial continued, and the jury found defendant guilty of count one, vandalism
(§ 594, subd. (a)), but not guilty of count two, dissuading a witness from prosecuting a


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crime (§ 136.1, subd. (b)(2)). On March 13, 2012, the trial court suspended imposition of
sentence and placed defendant on three years formal probation, subject to numerous
terms and conditions, including serving 270 days in county jail.
       Six months later, on September 11, 2012, the district attorney filed a new
information which also served as a notice of probation violation. Two weeks later an
amended information was filed, charging defendant with possession of contraband/illegal
substances (methamphetamine) in a jail facility (§ 4573.6) and alleging a prior strike
(§ 1170.12, subds. (a)–(d)) and two prior prison terms (§ 667.5, subd. (b)).
       On October 29, as part of a global disposition, defendant admitted violating his
probation in the vandalism case by “failing to obey all laws.” The trial court then
terminated probation and sentenced defendant in both the new methamphetamine case
and the vandalism case. As to the latter, defendant was sentenced to two years in state
prison, to run concurrently with his sentence in the drug case. The court struck the strike
and stayed execution on the two prison priors.
       Two weeks later, on November 14, the trial court held a restitution hearing.
Defendant waived his appearance. The victim, Adisa, testified, recounting what had
occurred, that he had paid $693.40 to have the back window replaced, and that he had
obtained two estimates to repair the damage to the car (specifically, the back window
frame). The first, for $1,896.94, was for repair that entailed removing and reseating the
rear window to insure no leakage. The second, for $992.93, was for an attempted repair
without removal of the window. The body shop providing this estimate made clear it
could not guarantee the window would not leak, and if it did, there would be a need for
additional work.
       The prosecution argued Adisa was entitled to a total of $2,590.34 in restitution to
have all the repairs done “correctly.” Defense counsel argued Adisa would receive a
“windfall” if the amount was above the lower repair estimate of $992.93. He asserted
that if the more problematic repair effort failed, Adisa could seek additional restitution
for further repair work. The trial court awarded $2,590.34—$693.40 for the cost of
repairing the rear window and $1,896.94 “to do a proper repair on the body of the car.”


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                                         DISCUSSION
The Mistrial Motion
       A motion for mistrial “is directed to the sound discretion of the trial court. We
have explained that “ ‘[a] mistrial should be granted if the court is apprised of prejudice
that it judges incurable by admonition or instruction. [Citation.] Whether a particular
incident is incurably prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions.’ ” (People v. Jenkins
(2000) 22 Cal.4th 900, 985–986; see also People v. Lightsey (2012) 54 Cal.4th 668, 718.)
“We review a trial court’s ruling on a motion for mistrial for abuse of discretion.
[Citation.] Such a motion should only be granted when a defendant’s ‘chances of
receiving a fair trial have been irreparably damaged.’ [Citation.]” (People v. Valdez
(2004) 32 Cal.4th 73, 128.)
       Even assuming Adisa’s mention of the “home invasion” violated the trial court’s
in limine ruling, there was no resulting prejudice to defendant. Adisa’s statement, one
line amidst nearly two-hundred pages of testimony, was fleeting. (See, e.g., People v.
Bolden (2002) 29 Cal.4th 515, 554–555 [upholding denial of mistrial motion, finding it
“doubtful that any reasonable juror would infer from the [witness’s] fleeting reference to
a parole office that defendant had served a prison term for a prior felony conviction”].)
Further, defendant immediately objected, the trial court sustained it, and, at the close of
evidence, the court further instructed the jury: “If I sustained an objection, you must
ignore the question . . . . If I ordered the testimony stricken from the record, you must
disregard it and must not consider that testimony for any purpose.” When a trial court
sustains defense objections and admonishes the jury to disregard particular comments, we
must assume the jury followed the court’s admonition and prejudice was avoided.2 (See
People v. Bennett (2009) 45 Cal.4th 577, 612 [“We assume the jury followed the


       2
          That the court did not, upon sustaining the objection, immediately admonish the
jurors to disregard the statement, does not vitiate the assumption the jurors followed the
instructions given at the close of evidence and thus did not consider the testimony as to
which the objection was sustained.


                                               5
admonition and that prejudice was therefore avoided.”]; see also People v. Yoder (1979)
100 Cal.App.3d 333, 338 [“We must also assume that the jurors are intelligent persons
and capable of understanding and correlating all jury instructions which are given.”].)
       Accordingly, defendant has not shown his chances of receiving a fair trial were
irreparably damaged, and we conclude the trial did not abuse its discretion in denying his
motion for mistrial. For the same reasons, “we reject defendant’s contentions that the
trial court . . . impaired his right to due process of law or to an impartial jury.” (People v.
Jenkins, supra, 22 Cal.4th at p. 986.)
The Restitution Order
       Section 1202.4 governs restitution in criminal cases. (§ 1202.4) The term “loss”
as used in the statute is to be “broadly and liberally” construed. (People v. Phu (2009)
179 Cal.App.4th 280, 283 (Phu).) 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.” (People v. Moore (2009)
177 Cal.App.4th 1229, 1232.) Accordingly, the trial court has broad discretion in
choosing a method for calculating restitution, as long as the method is rationally designed
to determine the victim’s economic loss. (See People v. Maheshwari (2003)
107 Cal.App.4th 1406, 1409–1410.) “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. Carbajal (1995) 10 Cal.4th 1114, 1121.) The
victim’s assessment of economic loss is prima facie evidence of loss for the purposes of
restitution. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) Once the victim
makes a prima facie showing, the burden shifts to the defendant to establish that the
amount of loss is less than that claimed by the victim. (People v. Taylor (2011)
197 Cal.App.4th 757, 761.)
       On appeal we presume a restitution award is correct. (People v. Giordano (2007)
42 Cal.4th 644, 666.) The amount of restitution ordered will not be reversed on appeal
absent an abuse of discretion. Thus, while the trial court may not make an order that is


                                               6
arbitrary or capricious, the order must be affirmed if there is any factual and rational basis
for the amount awarded. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320; Phu,
supra, 179 Cal.App.4th at p. 284.)
       Defendant’s quarrel with the restitution order is with the award of the higher
estimated amount for the repair of the window frame. He contends Adisa should have
been required to try the less costly repair first, and if unsuccessful, to return to the court
for additional restitution. Defendant cites no case holding that a victim must be put to the
inconvenience of first trying a problematic repair, rather than just having his or her
property repaired correctly the first time, and that a trial court abuses its discretion by
awarding an amount that insures the victim is made whole and placed in the same
position he was in before the felony vandalism.
       Here, the trial court had a rational reason to award the higher of the two estimates,
and the higher estimate supported the trial court’s finding that that amount represented
full compensation to Adisa. (See In re Alexander A. (2011) 192 Cal.App.4th 847, 851–
852 [garage estimate for repairs of vandalized vehicle].)3
       Defendant’s reliance on People v. Stanley (2012) 54 Cal.4th 734, is misplaced. In
that case, the victim purchased her truck for $950, but the estimated cost to repair the
vandalism damage inflicted by the defendant was $2,812.94. The trial court ordered
restitution in the amount of the estimated repair costs. (Id. at p. 736.) The defendant did
challenge the reasonableness of the repair estimate (made by a body shop), but rather,
asserted restitution was limited to the price the victim had paid for the vehicle plus what
he called a “surcharge” to reflect the inconvenience to the victim in having to replace the
truck. (Id. at p. 739.) The Supreme Court disagreed, explaining “the trial court had
discretion to award the victim as restitution the ‘actual cost of repairing’ her vandalized
truck, so long as repair was ‘possible.’ ” (Ibid.) The court also noted in passing that the
trial court had observed that if the repair ended up costing less than the estimate, “ ‘then

       3
         Contrary to defendant’s assertion, the fact In re Alexander A. is a juvenile case is
immaterial. The fundamental requirement of restitution is the same as in the adult
criminal context—restitution must be reasonably calculated to make the victim whole.

                                               7
restitution will be reduced appropriately.’ ” (Id. at p. 738.) Stanley by no means
suggests, as defendant argues, that a restitution order cannot be based on a legitimate
repair estimate. Nor is the case any kind of blessing on a problematic repair, rather than
one that will insure the vehicle is actually repaired.
                                        DISPOSITION
       The judgment of conviction and the restitution order are affirmed.



                                                   _________________________
                                                   Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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