Filed 9/9/15 P. v. Cheng CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A142360
v.
TONY CHENG, (San Francisco City & County
Super. Ct. No. SCN219984)
Defendant and Appellant.
BY THE COURT:1
A jury convicted defendant Tony Cheng of one count of misdemeanor assault
(Pen. Code, § 240),2 a lesser included offense of assault with a deadly weapon not a
firearm, and one count of vandalism exceeding $400 (§ 594, sub. (b)(1)), a wobbler,
which the trial court had reduced to misdemeanor vandalism. The trial court suspended
imposition of sentence and placed defendant on three years probation subject to
numerous conditions, including compliance with an individualized treatment plan in
cooperation with the Probation Department. We affirmed the judgment of conviction in
appeal No. A139923. The trial court subsequently ordered defendant to pay $400 in
victim restitution. Defendant appeals. We affirm the restitution order.
1
Before Margulies, Acting P. J., Dondero, J., and Banke, J.
2
All further references are to the Penal Code unless otherwise indicated.
1
BACKGROUND
In our prior opinion in appeal No. A139923 we recited the underlying facts and
procedural history, and now quote there from3:
“On November 28, 2012, the District Attorney for the City and County of San
Francisco filed a three-count felony complaint alleging defendant committed: (1) assault
with a deadly weapon against Maradona Truong (§ 245, subd. (a)(1)) on November 26,
2012; (2) assault with a deadly weapon against Camille Rozeira (§ 245, subd. (a)(1)) on
November 26, 2012; and (3) vandalism (§ 594, sub. (b)(1)).
“The complaint arose out of an incident at an Enterprise Car Rental office inside
the Hotel Nikko in San Francisco, when defendant tried to renew a car rental.[4] When
defendant’s credit card was declined, he presented Truong with a debit card. The
company’s policy on the use of debit cards required the customer to provide two forms of
proof of local residency. Defendant became angry and began to walk away toward the
door. He then returned to the counter and threw each of the three computer monitors on
the counter toward Truong. One was broken beyond repair and had to be replaced; the
other two, were repaired. The wall behind the counter also had to be repaired, where one
of the monitors hit it.
“On November 28, 2012, counsel was appointed for defendant, bail was set, time
was not waived and a preliminary hearing was set. After a time waiver, the preliminary
hearing was continued several times until April 11, 2013.
“Truong and Rozeira testified at the preliminary hearing. At the close of the
hearing, the trial court held defendant to answer as to counts 1 (assault against Truong)
and 3 (vandalism), and dismissed and discharged defendant as to count 2 (assault against
3
We take judicial of our prior opinion on our own motion. (Evid. Code, §§ 451,
subd. (a), 452, subd. (b)–(c) & 459.)
4
This summary of the incident is based on Truong’s testimony at the preliminary
hearing.
2
Rozeria). The court also granted in part a defense motion to reduce the charges to
misdemeanors, and reduced the vandalism charge.[5]
“On April 24, 2013, the district attorney filed a two-count information, alleging
(1) assault with a deadly weapon not a firearm against Truong (§ 245, subd. (a)(1)); and
(2) vandalism exceeding $400 (§ 594, sub. (b)(1)). Defendant was arraigned the
following day, time was not waived and the case was set for trial on June 24, 2013.
“Defendant made a number of in limine motions, including one to exclude a 2008
animal cruelty conviction (§ 597, subd. (b)) and one to allow testimony by his treating
psychiatrist that he suffers from a mental illness and was psychotic on the day of the
incident. As to the latter motion, defense counsel limited the proffered testimony to the
misdemeanor vandalism charge, acknowledging there was no basis for its admission as to
assault, a general intent crime. Counsel argued the evidence was relevant to the
‘maliciousness’ requirement of vandalism, but acknowledged this was ‘murkier.’[6] The
court denied the motion, concluding the law focused on the act of vandalism, itself, to
show maliciousness, and thus was a matter for the jury to decide. The court further
concluded that even if the evidence was of any relevance, other factors such as undue
consumption of time and juror confusion, warranted its exclusion under Evidence Code
section 352.
“Trial commenced with mini-opening statements and jury selection on June 20,
2013. Over the course of trial five witnesses testified, including Truong and Rozeira. All
exhibits offered by defendant (three were withdrawn) were admitted into evidence.
“At the close of the prosecution’s case, defendant moved for acquittal as to the
assault charge, arguing no reasonable juror could find the computer monitors constituted
5
If the damage caused by the act of vandalism is $400 or more, section 594,
subdivision (b)(1), specifies the crime is punishable ‘by imprisonment pursuant to
subdivision (h) of Section 1170 or in a county jail not exceeding one year.’ (§ 594, subd.
(b)(1).)
6
Section 594 provides in pertinent part: ‘(a) Every person who maliciously
commits any of the following acts with respect to any real or personal property not his or
her own . . . is guilty of vandalism: [¶] . . . [¶] (2) Damages. (3) Destroys.’
3
‘deadly’ weapons. Counsel pointed out Truong had sustained only a jammed finger from
deflecting the first thrown monitor. The court denied the motion, ruling it was for the
jury to decide whether a monitor would be capable of inflicting serious bodily injury.
“Defendant then testified in his own defense. He is a graduate of Northwestern
University with a degree in economics and international studies, and holds a master’s
degree in international policy studies from Stanford University and a master’s degree in
business administration from the European Institute for Business Affairs in
Fontainebleau, France. At the time of trial he was 34. Since 2001, he has worked for
five different companies, and since 2012 had been unemployed because of health issues.
He had been renting a car for ‘pleasure,’ and also to store his belongings because he had
‘just relocated’ from Singapore. He had wanted to use Singapore-based credit and debit
cards to ‘draw down [his] accounts’ there, and had numerous communications with
Enterprise to try to do this. He finally went in person to the office on Mason Street. His
interaction with Rozeira was unhelpful as she kept giving him ‘confusing’ rental
information. He found this particularly disconcerting because he had spoken to her in
advance and she knew he was coming in for a further rental. Truong then took over, and
at some point took the rental car keys defendant had laid on the counter. This ma[d]e
defendant ‘upset’ because he thought he had a right to the car for several more hours.
When Truong told him his credit card had been declined, defendant thought he was lying.
Defendant then presented a different card, and Truong asked for proof of local residency.
Defendant had never had to supply that information before and claimed he had been
using a debit card all along. Defendant was ‘upset and angry’ and asked to see the
manager. Defendant then began taking photos with his iPad. Truong told him to stop
and, according to defendant, began ‘taunting’ him with the car keys. Defendant then
‘created a distraction’ by pushing the computer monitors ‘over the counter,’ hoping this
would provoke Truong to come up with ‘a solution.’ He denied throwing the monitors.
A ‘flood of security’ from the Hotel Nikko entered, ‘pinned’ him against the wall and
handcuffed him.
4
“The jury returned a verdict of not guilty on the felony assault charge, but guilty of
the lesser included offense, simple assault, a misdemeanor (§ 240). It also found
defendant guilty of vandalism. The jury was duly polled, confirming its verdicts were
unanimous.
“Since defendant had not waived time for sentencing, the case was called for
sentencing two days later, on June 28, 2013. The court stated it had read all submissions,
including those by the defense concerning defendant’s medical condition, which it ruled
should be sealed. The court indicated its intended sentence would be suspended
imposition, and three years’ probation conditioned on serving 120 days’ county jail
(credit for time served of four days) but stayed on compliance with an individualized
treatment plan prepared in cooperation with the Adult Probation Department. The
prosecutor opposed the indicated sentence, arguing defendant was a danger and pointing
to his prior animal cruelty conviction for starving six dogs ‘to death while he was binging
on methamphetamine’ and that he was ‘very lucky’ no one had gotten seriously injured
during the instant incident. Moreover, he showed ‘no contrition.’ The prosecution did
not believe defendant would cooperate with anybody, and asked that 60 days be imposed
for both the assault and vandalism, to run consecutively. Defense counsel asked that the
matter be put over for further work with representatives of the Behavioral Health Court to
see if a probation plan could be put together to both ensure public safety and address
defendant’s mental illness. Defendant then waived time for sentencing and agreed to
undergo an assessment for the Intensive Supervision Program.
“On September 6, 2013, the court was advised defendant had been accepted into
the program. The court then proceeded with sentencing, ordering the two counts to run
concurrently, suspending imposition of sentence and placing defendant on three years’
probation subject to numerous terms and conditions, including serving seven days in the
county jail satisfied by credit for time served, and complying with the individualized
treatment plan prepared by probation. The court further found defendant did not have
any present ability to pay defense costs.” (People v. Cheng (May 30, 2014, A139923)
[nonpub. opn.].)
5
On June 20, 2014, the court held a restitution hearing. Defendant objected to the
claimed $670 on the ground an e-mail from Enterprise Rent-a-Car setting forth the
amount and the breakdown involved multiple levels of hearsay and was therefore
insufficient to establish the validity of the claim.
The deputy district attorney explained this was an e-mail sent to her after speaking
with the Regional Risk Supervisor at Enterprise Holdings, Ryan Smith, to whom she had
been referred by the Enterprise local branch manager. The Supervisor explained
Enterprise no longer had the receipts and believed they had been given to the district
attorney’s office much earlier in the case.7 The deputy district attorney further stated she
had reviewed the file but could not locate the receipts, and the trial attorney was no
longer with the office. She further referred the court to the probation file.
The trial court ordered restitution, but limited it to $400 in light of the fact
defendant was convicted of only misdemeanor vandalism.
DISCUSSION
“ ‘ “The standard of review of a restitution order is abuse of discretion. ‘A
victim’s restitution right is to be broadly and liberally construed.’ [Citation.] ‘ “When
there is a factual and rational basis for the amount of restitution ordered by the trial court,
no abuse of discretion will be found by the reviewing court.” ’ [Citations.]” [Citation.]
However, a restitution order “resting upon a ‘ “demonstrable error of law” ’ constitutes
an abuse of the court’s discretion. [Citation.]” [Citation.] “In reviewing the sufficiency
of the evidence [to support a factual finding], the ‘ “power of the appellate court begins
7
The e-mail from Smith stated:
“Good afternoon Kelly [the deputy district attorney],
“I apologize, I gave Kristen all the prices but I guess she did not forward it to you.
We no longer have the receipts or any of the copies, we gave that information to
the DA that was handling the prelim trials [sic]. At this point it has been a year
and a half, here is the costs of the items that were replaced/repaired.
“Wyse terminal $400 (this is like a computer hard drive, it is what connects the
branch monitor to the enterprise network)
“Monitor $170
“Repair wall $100.”
6
and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted,” to support the trial court’s findings.’ [Citations.]
Further, the standard of proof at a restitution hearing is by a preponderance of the
evidence, not proof beyond a reasonable doubt. [Citation.] ‘If the circumstances
reasonably justify the [trial court’s] findings,’ the judgment may not be overturned when
the circumstances might also reasonably support a contrary finding. [Citation.] We do
not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient
evidence to support the inference drawn by the trier of fact. [Citation.]” [Citation.]
“ ‘ “[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. Sy (2014)
223 Cal.App.4th 44, 63, quoting People v. Millard (2009) 175 Cal.App.4th 7, 26–27.)
We conclude there was a sufficient basis for the court’s restitution order. While
defendant objects that the e-mail from Enterprise consisted of “multiple levels” of
hearsay, that is not an impediment to relying on this statement by Enterprise, the victim
of the vandalism. (See People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 (Keichler)
[victim statements repeated in probation report sufficient for prima facie showing and to
shift burden to defendant to challenge claimed restitution]; People v. Foster (1993)
14 Cal.App.4th 939, 943–944 [victim claims recited in probation report provide sufficient
notice to defendant for due process purposes and shift burden to defendant to challenge
claimed restitution], superseded by statute on other grounds in People v. Sexton (1995)
33 Cal.App.4th 64, 70.)
Defendant maintains relying on a probation report, as Keichler permits, is different
because only one level of hearsay is present. However, Keichler does not establish any
such bright-line rule. Rather, the point of Keichler is that a probation report suffices to
7
shift the burden to the defendant to challenge a victim’s restitution claim. (Keichler,
supra, 129 Cal.App.4th at p. 1048.)
We see no material difference with the restitution claim outlined in the Enterprise
email. As the trial court observed, because the email was addressed to the deputy district
attorney, it was self-authenticating. It was also entirely reasonable that the Regional Risk
Manager would speak “for” Enterprise, the victim in this case, and the claimed amounts
of restitution were clearly set forth in the e-mail. Accordingly, defendant had ample
notice of the claimed restitution, and the burden shifted to him to take issue with the
claimed amounts if there was any legitimate basis for doing so. Indeed, given the record
in the prior appeal, it is no surprise that other than challenging the facial sufficiency of
the e-mail, defendant made no other challenge to the claimed restitution. As it is,
defendant has ended up shouldering only $400 of the $670 in damages.
DISPOSITION
The order awarding $400 in victim restitution is affirmed.
8