(Super. Ct. No. CM032795)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Ramon Garcia-Cornejo pleaded no contest to second degree robbery in the theft of marijuana plants, admitted he was armed with a firearm, and also admitted being an accessory after the fact to the crime of evading an officer causing injury. Sentenced to six years in state prison, defendant also was ordered to pay, jointly and severally with his co-defendant, restitution totaling $171,652 to two people injured in the car crash that followed his co-defendant's attempt to evade police.
On appeal, defendant contends his trial counsel provided ineffective assistance at sentencing by (1) failing to urge the court to impose a lesser sentence, and (2) failing to object to the restitution order.
The latter contention has merit. We shall reverse the restitution order and remand for the trial court to conduct a restitution hearing.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of these events, the robbery victim was tending a marijuana garden belonging to individuals with recommendations for medicinal use of marijuana. Surprised by a group of three men armed with "long" guns, one of whom called out in Spanish "Don't move or we will shoot you," the victim ran away and called 911. The intruders removed 74 marijuana plants from the garden and left a shotgun at the scene. Police responding to the 911 call passed a white van that smelled strongly of marijuana. The police gave chase; the van drove into oncoming traffic and crashed into a sedan.
Three men fled the van, which later proved to be stolen. Marijuana plants and guns were found inside the van; the guns also proved to have been stolen in the San Jose area. The three occupants of the sedan struck by the van were taken to the hospital. One, Ishmael Siapco, suffered serious injuries.
Defendant and co-defendant Jose Francisco Rios-Magana were apprehended the next day. Rios-Magana's injuries were consistent with his having been the driver of the van at the time of the collision.
Upon his arrest, defendant admitted he had been hired in San Jose to harvest marijuana; he learned that the marijuana was stolen when he arrived at the garden and joined the others in carrying plants to the van.
Defendant and Rios-Magana were both charged with second degree robbery (as to which it was alleged they were armed during the crime) and receiving stolen property. Rios-Magana was also charged with evading an officer and defendant was ...