People v. Chun

THE PEOPLE, Plaintiff and Respondent, v. TONY SANGHYUN CHUN, Defendant and Appellant.

B295207

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

August 20, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. TA145852)

APPEAL from an order of the Superior Court of Los Angeles County, Connie R. Quinones, Judge. Affirmed.

Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Tony Chun pled no contest to a single count of grand theft (Pen. Code, § 487, subd. (a)).¹ As part of his sentence, the trial court ordered Chun to pay restitution to his former employer, Hyundai Shipping U.S.A. (Hyundai), in the amount of $7,736.23. Chun argues that Hyundai was not the victim of his crime, and separately that the amount of restitution the trial court ordered constitutes an abuse of discretion. He also contends that he was deprived of effective assistance of counsel at his restitution hearing. We affirm the trial court's restitution order.

BACKGROUND

Hyundai receives at its Rancho Dominguez facility merchandise purchased online from U.S. companies by consumers located overseas. Hyundai opens the boxes it receives to verify that customers' orders are correct (cross-checked against invoices Hyundai receives for merchandise it is to ship), logs the merchandise into its computer, reseals the boxes, and prepares them to be shipped. Once a week, Hyundai places the merchandise in a shipping container, which is then picked up and delivered to the Port of Long Beach to be shipped.²

Hyundai hired Chun in December 2017 to handle merchandise from the time Hyundai received it until Chun loaded it into the shipping container. At the beginning of January 2018, however, Hyundai began receiving complaints from customers that the merchandise they ordered was missing. By watching security camera footage showing him removing items from boxes, placing it in his pockets or a bag, and leavingthe facility with the items, Hyundai discovered that Chun had been stealing the items. Police found some of the items customers reported missing at Chun's home.

At Chun's restitution hearing, Hyundai's manager, Richard Yun, identified a list from a police report of 34 items Chun took. Yun testified that the list attached the police report consisted of items for which Hyundai had reimbursed customers' purchase price based on the invoices in Hyundai's computer system. The amount Hyundai reimbursed customers based on missing purchases was $7,736.23. Yun testified that he also paid customers "about $3,000" to compensate for delayed delivery of their merchandise, but decided not to include in his restitution claim "the money we paid to the customers for the delay of the delivery."

On cross-examination, Yun identified five items from the list of stolen items that police recovered from Chun's home and returned to Hyundai. Yun testified that Hyundai had already paid customers the invoice value for the items by the time the police returned them, and the items could not be shipped to customers or otherwise used by Hyundai because the original packaging was damaged.

Based on Yun's testimony, which the trial court found credible, the trial court ordered Chun to pay Hyundai $7,736.23 in restitution. The trial court expressly declined to reduce the amount by $1,632.97—the value of the five items police returned to Hyundai. And although it was not an amount Hyundai requested, the trial court stated on the record that it was "not going to grant the request for the $3,000 for the customer service fees [Hyundai] paid to keep [its] business reputation."

Chun timely requested a certificate of probable cause to appeal the restitution order, and the trial court granted Chun's request.

DISCUSSION

Chun challenges the trial court's order on several grounds. First, Chun argues that Hyundai was not the "victim" for purposes of section 1203.1, but was merely a third party standing in the shoes of customers, who were Chun's victims. Second, Chun contends that the restitution order created an "improper windfall" for Hyundai in two ways. Chun argues that the trial court should have awarded a replacement value of the merchandise Chun stole, rather than the full retail value, and that awarding restitution for the stolen merchandise that was recovered was "redundant compensation." Chun next contends that the record contains insufficient evidence to support the restitution order because Hyundai only established the full retail value of the property Chun took, rather than its replacement value. Finally, Chun contends his was deprived of effective assistance of counsel because his trial counsel did not make "obvious meritorious objections" and request an offset of the restitution award for the value of the items police recovered from Chun's home and returned to Hyundai. We disagree with each of Chun's arguments.

A. Identity of the "Victim"

"[I]n 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 in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." (§ 1202.4, subd. (f).)

Chun contends that his victims were Hyundai's customers, and not Hyundai. He compares Hyundai to an insurer who has paid an insurance claim for a loss caused by a criminal defendant. Chun's argument is based on People v. Birkett (1999) 21 Cal.4th 226 (Birkett). Chun argues that the Supreme Court concluded an insurer had no standing to claim restitution under the restitution statute because the insurance company was not the defendant's "victim," but rather was claiming as an entity that had "stepped into the [victim's] shoes." We review statutory language de novo. (Barajas v. Appellate Division of Superior Court (2019) 40 Cal.App.5th 944, 951.)

Contrary to Chun's assertion here, Birkett analyzed statutory language and arrived at its conclusion based on the restitution statute's plain language. "We therefore conclude that by its plain terms," the Supreme Court stated, "the 1994 mandatory restitution scheme excluded reimbursing insurers, claiming in that capacity, as 'direct victim[s]' entitled to restitution from an adult probationer." (Birkett, supra, 21 Cal.4th at p. 234, italics added.)

Hyundai was not an insurer. Hyundai took possession of products in their original packaging and shipped those products to the purchaser. If a product were to go through that process in the normal course of business, Hyundai would not pay a customer the full retail value of the product the customer received—the customer would have simply received the product it paid for. To the contrary, Hyundai presumably would be paid some fee for its service. Because Chun stole products from Hyundai's facility, however, Hyundai was out-of-pocket for the full retail value—the cost to replace the stolen goods—for 34 items Chun stole. Hyundai is not in the business of insuring others for goods theyhave purchased. Hyundai is in the business of delivering those goods, and when Hyundai is unable to deliver those goods, Hyundai presumably must replace them. Chun caused Hyundai to violate its direct obligations to its customers, and Chun cost Hyundai the value of those violations. Far from being expressly excluded from the statute's plain language, Hyundai is one of Chun's direct victims—entitled to restitution according to section 1202.4, subdivision (f). (See Birkett, supra, 21 Cal.4th at p. 232, fn. 6.)

B. Amount of Restitution

"[W]e review the trial court's restitution order for abuse of discretion." (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).) " '[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. Millard (2009) 175 Cal.App.4th 7, 26-27 (Millard).)

"While we review all restitution orders for abuse of discretion, we note that the scope of a trial court's discretion is broader when restitution is imposed as a condition of probation. [Section] 1203.1, subdivision (j) expressly grants trial courts broad discretion in imposing conditions of probation. As [our Supreme Court] has held, '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which isnot reasonably related to future criminality. . . ." ' " (Giordano, supra, 42 Cal.4th at p. 663, fn. 7.) " ' "[T]he granting of probation is not a right but a privilege, and if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation." [Citations.] Because a defendant has no right to probation, the trial court can impose probation conditions that it could not otherwise impose, so long as the conditions are...