California Court of Appeals, Third District, Butte
APPEAL from a judgment of the Superior Court of Butte County, Super. Ct. No. CM038054 Kristen A. Lucena, Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
NICHOLSON, Acting P. J.
Defendant Derek Eldeen Pierce appeals following the trial court’s modification of an order requiring defendant to pay restitution to various victims. Defendant contends: (1) the trial court erred in modifying the restitution order without vacating the prior order to avoid duplication of the restitution award; (2) the trial court erred in imposing restitution for damages caused by a codefendant because the People explicitly waived the claim; and (3) if both or either of these claims is forfeited due to trial counsel’s failure to object, counsel provided ineffective assistance. We conclude: (1) the trial court did not err in modifying the restitution order
because its modification superseded the prior order; (2) the People’s decision not to seek restitution relative to the codefendant’s car crash in the initial restitution hearing did not waive the victims’ right to seek restitution later; and (3) trial counsel was not ineffective in failing to object because such an objection would have been meritless. Therefore, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pleaded no contest to home invasion robbery (Pen. Code, § 211) and admitted he voluntarily acted in concert (§ 213, subd. (a)(1)(A)) with two other men, Marcus Jones and Christopher South, in committing the robbery. Jones and Pierce left the scene of the robbery in Jones’s car; South stole victim Karl Rauch’s truck and crashed it into a telephone pole, damaging the pole and a neighboring house, while attempting to evade law enforcement. Defendant was sentenced to state prison for six years.
At the initial sentencing hearing, the trial court ordered defendant, jointly and severally with Jones and South, to pay restitution to Rauch in the amount of $539.57 plus interest, and reserved jurisdiction to set or modify the victim restitution. At that time, the People sought only restitution for Rauch’s out-of-pocket expenses related to medical bills, damage to Rauch’s house, and Rauch’s travel to and from the courthouse, but did not “include the car and truck rental [in its request], because Mr. South, being the co-defendant, it is definitely arguable that -- foreseeable when you leave your co-defendant there, he’s going to look for a way to flee. But I [the prosecutor] believe that it’s more appropriate for Mr. South to be saddled with that amount.... We did not include the PG&E. And, again, Mr. South drove a truck into a telephone pole. This defendant was not there. And we did not include the damage to a home from the falling telephone pole.”
Thereafter, the People moved to modify the victim restitution award for Rauch and to award restitution to additional victims AT&T and PG&E (Pacific Gas and Electric Company). Pursuant to the People’s motions, the court ordered defendant to be jointly and severally liable with Jones and Smith to pay restitution to Rauch in the amount of $20, 357.21, to PG&E in the amount of $20, 388.63, to William Kumle (the owner of the home damaged ...