P. v. Shchirskiy

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Filed 12/29/06 P. v. Shchirskiy CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
SERGEY VINALYEVIC SHCHIRSKIY et al.,
Defendants and Appellants.
C050796
(Super. Ct. No. 04F03507)
Defendants Sergey Vinalyevic Shchirskiy and Andrey Larshin
appeal following judgment in a case involving various offenses,
including assault with a firearm (Pen. Code, § 245; undesignated
section references are to the Penal Code), robbery (§ 211), and
extortion by threat (§§ 519,1 520,2 5243). Larshin claims
1 Section 519 provides: “Fear, such as will constitute
extortion, may be induced by a threat, either: [¶] 1. To do an
unlawful injury to the person or property of the individual
threatened or of a third person; or, [¶] 2. To accuse the
individual threatened, or any relative of his, or member of his
family, of any crime; or, [¶] 3. To expose, or to impute to him
or them any deformity, disgrace or crime; or, [¶] 4. To expose
any secret affecting him or them.”

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insufficiency of the evidence and sentencing error. Shchirskiy
challenges a $1,500 restitution order. We shall reverse the
$1,500 restitution order against Shchirskiy but shall otherwise
affirm the judgments as to both defendants.
FACTUAL AND PROCEDURAL BACKGROUND
Although Larshin was convicted on numerous counts, his
appellate contentions are limited, and we therefore need not
recite the details of all counts.
Larshin was charged with 15 counts of robbery (§ 211),
attempted extortion4 (§ 524), criminal threats (§ 422), and
assault with a semiautomatic firearm (§ 245, subd. (b)), as to
various victims on various dates in 2003 and 2004, plus
enhancements for personal use of a firearm (§§ 12022.5, subd.
(a)(1), 12022.53, subd. (b)). Count Eleven was dismissed by the
court. The jury found Larshin not guilty on Count One
(attempted extortion of Peter Konishchuk) and not guilty on
2 Section 520 states, “Every person who extorts any money or
other property from another, under circumstances not amounting
to robbery or carjacking, by means of force, or any threat, such
as is mentioned in Section 519, shall be punished by
imprisonment in the state prison for two, three or four years.”
3 Section 524 provides: “Every person who attempts, by means of
any threat, such as is specified in Section 519 of this code, to
extort money or other property from another is punishable by
imprisonment in the county jail not longer than one year or in
the state prison or by fine not exceeding ten thousand dollars
($10,000), or by both such fine and imprisonment.”
4 Section 524, fn. 3, ante, makes attempted extortion punishable
in the same manner as if the defendant had actually obtained the
money or property from the victim.

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Count Nine (attempted robbery of Yaroslav Tseyk). The jury
found Larshin guilty on the other 12 counts5 and found true that
Larshin personally used a firearm for Counts Three through Eight
within the meaning of sections 12022.5, subdivision (a)(1), and
12022.53, subdivision (b).
Shchirskiy was charged with two counts (Counts One and
Thirteen), for attempted extortion by threat. The jury
acquitted Shchirskiy on Count Thirteen and found him guilty on
Count One -- attempted extortion by threat against victim Peter
Konishchuk.
The appellate contentions relate to Counts One, Two and
Three.
Count One (Shchirskiy’s Attempted Extortion)
Shchirskiy complains the trial court ordered him to pay
restitution unrelated to the sole crime of which he was
convicted -- Count One, attempted extortion of Konishchuk. The
evidence adduced regarding Count One included the following:
One day in March 2004, Konishchuk was in his automotive
body shop, making repairs to a customer’s Mercedes Benz, when a
5 The jury found Larshin guilty of criminal threat against Peter
Konishchuk on March 29, 2004 (Count Two); robbery, criminal
threat, assault with a firearm, extortion, attempted extortion,
and attempted robbery as against victim Yaroslav Tseyk on
various dates in 2003 and 2004 (Counts Three through Eight, Ten
and Twelve [Count Eleven was dismissed]); attempted extortion
and dissuading a witness from testifying, as to victim
Konstantin Brutskiy in April 2004 (Counts Thirteen and
Fourteen); and criminal threat against Stephanie Johnson in
August 2002 (Count Fifteen).

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group of persons including defendants drove up in a Jeep and
inquired about having Konishchuk repair a Jaguar assertedly
owned by Shchirskiy. Three days later, Konishchuk arrived at
work to find the entrance open and the Mercedes gone. He
reported the theft to the police. He then received telephone
calls from Shchirskiy, demanding $10,000 for the return of the
Mercedes. Konishchuk said he would try to get the money. He
reported the telephone calls to the police. Detective
Prokopchuk had Konishchuk participate in several tape-recorded
telephone calls on March 24 and 25, 2004 (played for the jury,
with translation provided), in which Shchirskiy repeated his
demands for money. Konishchuk said he had $8,000 and was trying
to get the other $2,000 but wanted to see the car before turning
over the money. Shchirskiy refused, became upset, and
threatened to burn the car. Konishchuk eventually said he would
not pay. He later learned that the police found the Mercedes
“burned down” on March 23, 2004 (before the recorded phone
conversations).
After the jury found Shchirskiy guilty of attempted
extortion in Count One (victim Konishchuk), the trial court
sentenced him to two years in prison and ordered him to pay
$1,500 restitution for an amount extorted from the car owner (a
crime for which Shchirskiy was not charged, as we discuss post).
Count Two (Larshin’s Criminal Threat Against Konishchuk)
The day after the monitored phone calls, Larshin telephoned
Konishchuk, said his (Larshin’s) home had been raided by the
police, and he (Larshin) would “make [Konishchuk] a hole in the

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head” if Konishchuk did not get Larshin’s name removed from the
police’s list of suspects for the theft of the Mercedes.
Larshin also told Konishchuk to leave town or he would “have no
life here anyway.” Konishchuk became “a little bit scared” and
believed defendant was serious and could carry out the threat.
Larshin testified he did not threaten Konishchuk. He
merely called to ask Konishchuk to remove Larshin from the
suspect list because he had nothing to do with the theft.
Counts Three through Six (Larshin’s Offenses Against
Yaroslav Tseyk)
Tseyk testified he was initially friendly with Larshin.
Larshin once commented on the amount of cash carried by Tseyk
(who worked as an airline baggage checker). While they were
still friendly, Larshin showed Tseyk a loaded semiautomatic gun
and said he carried it all the time. On other occasions
thereafter, Tseyk saw Larshin with the gun in his waistband or
putting the gun in the glove compartment.
Tseyk testified that one day in 2003 (he did not remember
the date), Larshin called and asked Tseyk to meet him at an
apartment complex near Norwood and Interstate 80. When Tseyk
arrived, Larshin and several other persons, all armed with guns,
approached Tseyk’s car. Larshin asked for $1,000 for
“protection.” Tseyk said no. Larshin, with his gun in his
hand, told Tseyk to pay the money or he would “end up in the
American River flowing [sic] down the water.” Larshin placed
the point of his gun touching the side of Tseyk’s head. Tseyk
was afraid and agreed to pay the money. Larshin told him to

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bring the money the next day. Tseyk agreed to do so. The next
day, Larshin called Tseyk in the morning, and Tseyk brought him
$1,000 in cash. When asked why he gave Larshin the money, Tseyk
said, “So, he would leave me alone.” Larshin’s companions were
not with him when he got the money.
This scenario of Larshin obtaining money by threatening
Tseyk was repeated on later occasions, which were the subject of
other counts not at issue in this appeal.
Larshin testified he met Tseyk at the apartment complex but
had no gun, did not threaten Tseyk, and did not receive $1,000
from Tseyk. Larshin said Tseyk asked for help in buying a gun
because another man (Oleg) threatened him with a knife. Larshin
went to Oleg to intervene, but Oleg said Tseyk was lying, and
Tseyk owed money for a ticket he got when he borrowed Oleg’s
car. Larshin drove back to the apartment complex, angry that
Tseyk had tried to use him to get out of paying money he owed to
Oleg. Larshin hit Tseyk and took $92 cash that was inside the
wallet that fell out of Tseyk’s pocket.
After the jury returned its verdicts, the trial court
sentenced Larshin to a total of 29 years and four months -- the
upper term of nine years on the Count Five assault with a
firearm; one year on Count Seven extortion; one year on Count
Eight extortion; three years on Count Fourteen dissuading a
witness in violation of section 136.1; eight months each on
Counts Two, Ten, Thirteen, and Fifteen extortion and criminal
threats; 10 years for the section 12022.5, subdivision (a)(1),
gun enhancement attached to the Count Five assault with a

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firearm; and one year, four months for the gun enhancements
attached to Counts Seven and Eight.
Sentences on the remaining counts (Counts Three, Four, Six
and Twelve) were stayed under section 654.
DISCUSSION
I. Larshin’s Appeal
A. Substantial Evidence - Count Two
Larshin contends the evidence was insufficient to prove he
committed the offense of criminal threat (§ 422) against Peter
Konishchuk, as charged in Count Two, because there was no
substantial evidence of “sustained fear.” We disagree.
In reviewing a challenge to sufficiency of the evidence, we
examine the record in the light most favorable to the judgment
to see if it contains reasonable, solid evidence (contradicted
or uncontradicted) from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. (People v.
Johnson (1980) 26 Cal.3d 557, 578; People v. Castro (2006) 138
Cal.App.4th 137, 140.)
Section 422 provides in part: “Any person who willfully
threatens to commit a crime which will result in death or great
bodily injury to another person, with the specific intent that
the statement, made verbally, in writing, or by means of an
electronic communication device, is to be taken as a threat,
even if there is no intent of actually carrying it out, which,
on its face and under the circumstances in which it is made, is
so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an

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immediate prospect of execution of the threat, and thereby
causes that person reasonably to be in sustained fear for his or
her own safety or for his or her immediate family’s safety,
shall be punished by imprisonment in the county jail not to
exceed one year, or by imprisonment in the state prison.”
The jury was instructed, in accordance with People v. Allen
(1995) 33 Cal.App.4th 1149, 1156, that “sustained fear” meant “a
period of time that extends beyond what is momentary, fleeting,
or transitory.”
Larshin contends there is no substantial evidence that he
caused Konishchuk “sustained fear” when he (Larshin) telephoned
Konishchuk and said that he would “put a hole” in Konishchuk’s
head and that Konishchuk would have to leave the city or would
have no life unless he removed Larshin’s name from the list of
suspects for the theft of the car.
Larshin acknowledges Konishchuk testified he believed
Larshin’s words constituted a threat and believed Larshin could
carry out the threat. Larshin nevertheless argues Konishchuk
did not have “sustained fear,” as required by section 422,
because he testified he was only “a little bit scared,” and
there was no evidence that he took measures to ensure his
safety, that he complied with Larshin’s request to tell the
police to take Larshin off the suspect list, or that he had any
knowledge of any prior violence by Larshin.
We disagree with Larshin’s contention. First, the witness
did not testify he was “only” a little bit scared, as asserted
by Larshin on appeal. “Only” is Larshin’s word, not the

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witness’s word. The absence of evidence that Konishchuk was
aware of prior violence or took measures to ensure his safety
does not undermine a finding of sustained fear.
The “sustained fear” element of section 422 has an
objective and a subjective component. (In re Ricky T. (2001) 87
Cal.App.4th 1132, 1140.) There must be proof that the threat
has a gravity of purpose and an immediate prospect of execution
of the threat such as to cause the victim reasonably to be in
sustained fear. (In re Ernesto H. (2004) 125 Cal.App.4th 298,
312.) Larshin’s threats pass this test.
The subjective component of sustained fear under section
422 may be reasonably inferred from the circumstances. (People
v. Ortiz (2002) 101 Cal.App.4th 410, 417.)
Konishchuk testified at trial that, three days after
Larshin, Shchirskiy and another man visited his shop to discuss
repairs to a Jaguar, his (Konishchuk’s) shop was burglarized and
a Mercedes automobile was taken, along with other items.
Shchirskiy contacted Konishchuk and said the Mercedes would be
returned for $10,000, and if Konishchuk did not pay, he “would
see a disaster.” Konishchuk testified he then received a
telephone call from Larshin, who “told me to remove his name
from the police lists [of suspects]. And he said that unless I
did that, he would make me a hole in my head, and he also told
me to get out of the city or else you will have no life here
anyway.” Larshin used foul and profane language, which
Konishchuk declined to repeat in court. Konishchuk testified,
“people may have all kinds of things in their heads. I got a

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little bit scared.” Konishchuk also testified, “This wasn’t a
joke. This was serious.”
On cross-examination, Konishchuk testified as follows:
“Q. [Larshin’s counsel] Did Mr. Larshin tell you in
essence that you caused the police to come out to his house and
messed up his house?
“A. I do not understand the question.
“Q. Was Mr. Larshin blaming you for the police going to
his house?
“A. Yes. He was saying that I had turned him in.
“Q. And his request of you was to call them back and tell
them that you were wrong, right?
“A. Yes. Or either remove his name from the lists.
“Q. And then he used a little bit of heavy language along
that [sic] same request?
“A. Whatever I had said earlier, that was what he said.
“Q. Okay. Is there anything unusual about a couple of
Russian men talking kind of rough with each other?
“A. It depends on what kind of surroundings you are.
“Q. You didn’t really believe he was going to put a hole
in your head, did you?
“A. I did not believe?
“Q. That’s the question[.]
“A. This is not a smart question.
“Q. What’s the answer?
“A. He could have done easy whatever he said.

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“Q. I appreciate that, but the question to you sir, is,
Did you within yourself believe[] that if you didn’t call off
the police, he is [sic] going to run over to your shop and put a
hole in your head?
“A. Yes, I believed he could have done whatever.
“Q. Well, I think any one of us could have done it, but
what I’m asking you is, Did you think he was going to do it?
“A. This was a threat. He did not point his gun to my
head, but this was a threat.”
We disagree with Larshin’s assertion that the witness (who
was testifying with the assistance of an interpreter) was
evasive.
On appeal, Larshin argues the evidence did not reflect that
Konishchuk’s reaction was anything other than transitory or
momentary. Larshin argues there was no evidence that the
witness undertook any measures to ensure his safety, nor did he
seek to remove Larshin’s name from the list of suspects.
Larshin argues this case is different from Ortiz, supra, 101
Cal.App.4th 410, where sustained fear was inferred from
circumstantial evidence, because in Ortiz the threat was made
during a carjacking and kidnapping of the victim, and as the
Ortiz court said, anyone would be scared in such circumstances.
Larshin also argues this case is distinguishable from another
case where the victim was aware of prior criminal conduct by the
defendant. (People v. Garrett (1994) 30 Cal.App.4th 962, 967.)
Larshin’s argument is without merit. After defendants
visited his business premises, Konishchuk suffered a burglary

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which included the theft of a customer’s car, following which
Konishchuk received telephone calls from Shchirskiy extorting
money for the return of the car. Konishchuk’s belief that
defendants took the car is reflected in the evidence that he
borrowed thousands of dollars from relatives in an attempt to
meet the extortion demand. This context provides circumstantial
evidence from which to infer that the fear Konishchuk expressed
as a reaction to Larshin’s threatening phone call was “sustained
fear” within the meaning of section 422.
We conclude substantial evidence supports the conviction of
Larshin on Count Two for criminal threat in violation of section
422.
B. Count Three - Robbery
Under the heading that the evidence was insufficient to
sustain his conviction for robbery of his former friend,
Yaroslav Tseyk, as charged in Count Three, Larshin argues,
“Since Tseyk did not give [defendant] any cash at the time of
the threatened encounter, but rather gave him cash the following
day, a completed robbery was not committed.” Larshin also
argues the jury returned “mutually exclusive” verdicts of guilt
on both robbery (Count Three) and extortion (Count Six) arising
from the same act. We shall conclude Larshin fails to show
grounds for reversal.
Robbery is “the felonious taking of personal property in
the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force
or fear.” (§ 211.)

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To the extent Larshin suggests he was convicted for robbery
based only on what happened the first day (when Larshin
expressly threatened Tseyk), Larshin fails to show the jury
convicted him for robbery based only on what happened the first
day. The jury was instructed that robbery required that there
be a taking possession of the victim’s property by Larshin.
To the extent that Larshin suggests all elements of robbery
must occur on the same day, his opening brief cites no authority
on this point. He merely asserts there was no evidence that he
threatened the victim on the second day, when Larshin took
possession of the cash. Larshin argues the victim’s testimony
demonstrated only that, after the victim agreed on day one to
bring Larshin the money, the victim met Larshin at the same
location on day two and gave him $1,000. Larshin says there is
no evidence that, at the time of the cash exchange, Larshin
threatened the victim with a gun or words.
However, robbery need not be confined to a single time and
place. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1057.)
In his reply brief, Larshin miscites Carrasco for the
proposition that robbery requires that the taking of property be
contemporaneous with or within minutes of the show of threat or
force.
However, Carrasco does not help Larshin. Although there
was an express threat at the time of, or a few minutes before,
the taking of property as to two of the three robbery
convictions affirmed in Carrasco, there was not a

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contemporaneous threat as to the first incident. Thus, the
Carrasco opinion begins:
“Defendant Luis Carrasco asked his friend to give him
money. The friend refused. At various times during the next
four hours defendant threatened to kill his friend and fired
gunshots near the front of the store where his friend worked.
Two hours after the shots were fired, defendant came to the
store and demanded money from his friend but did not show a gun.
[Italics added.] His friend gave him money.
“We conclude that under these circumstances defendant
committed a robbery. We also conclude that firing the gun after
the first threat was made and two hours before defendant
received the money supports the allegation of personally
discharging a firearm during the commission of a robbery.
[Citation.]” (Carrasco, supra, 137 Cal.App.4th at p. 1053.)
In upholding the firearm enhancement, Carrasco said:
“‘“Robbery . . . is not confined to a fixed locus, but is
frequently spread over a considerable distance and varying
periods of time.”’ [Citations.] ‘The crime is not divisible
into a series of separate acts. Defendant’s guilt is not to be
weighed at each step of the robbery as it unfolds. The events
constituting the crime of robbery, although they may . . . take
some time to complete, are linked by a single-mindedness of
purpose.’ [Citation.] In other words, the crime of robbery
begins with the commission of any of the defined elements and is
completed when all of the remaining elements have been
committed. It is a continuing offense that concludes not just

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when all the elements have been satisfied but when the robber
reaches a place of relative safety. [Citation.]” (Carrasco,
supra, 137 Cal.App.4th at p. 1059.)
Thus, the absence of evidence of an express threat by
Larshin at the time the victim turned over the money does not
constitute grounds for reversal.
The record in this case supports an inference that the
victim was operating under fear of Larshin’s threat when he gave
Larshin the money. Larshin held a gun to the victim’s head and
threatened to kill him unless the victim gave him money. Out of
fear, the victim agreed to bring the money the following day.
Although the victim did not testify he was still afraid when he
turned over the money, the evidence supports this inference.6
Thus, since Larshin and the victim had been friends, Larshin
knew how to find the victim if the victim did not show up.
Moreover, the victim testified he knew Larshin carried the gun
at all times, because Larshin previously told him so, and on
other occasions the victim saw Larshin put the gun in the car’s
glove compartment or carry it in his waistband.
Substantial evidence supports the robbery conviction.
As to Larshin’s contention that his robbery conviction must
be reversed because it conflicts with his extortion conviction
6 The People say Tseyk’s fear is supported by his testimony that
he delayed going to the police out of fear of Larshin. However,
the cited testimony was that the victim delayed going to the
police for a year after a subsequent incident involving Larshin.
This does not show fear on the day at issue in this appeal.

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(§ 520, fn. 2, ante), Larshin fails to show grounds for
reversal. He cryptically states he is not raising a claim of
inconsistent verdicts, but rather mutually exclusive verdicts,
because a jury cannot find conflicting mental states of the
victim (consensual for extortion, nonconsensual for robbery) in
a single act of theft.
We note there is no issue of multiple punishment for the
same act in this case, because the trial court designated
Larshin’s assault on Tseyk with a firearm (Count Five) as the
principal offense and stayed sentence on both the extortion and
the robbery convictions pursuant to section 654.
We reject Larshin’s argument that robbery and extortion
require necessarily conflicting mental states of victims.
People v. Torres (1995) 33 Cal.App.4th 37, said, “‘The crime of
extortion is related to and sometimes difficult to distinguish
from the crime of robbery.’ [Citation.] Both crimes have their
roots in the common law crime of larceny. [Fn. omitted.] Both
crimes share the element of an acquisition by means of force or
fear. One distinction between robbery and extortion frequently
noted by courts and commentators is that in robbery property is
taken from another by force or fear ‘against his will’ while in
extortion property is taken from another by force or fear ‘with
his consent.’ [Fn. omitted.] The two crimes, however, have
other distinctions [robbery requires a taking from the victim’s
person or immediate presence with intent to permanently deprive
him of the property] . . . Extortion does, however, require the
specific intent of inducing the victim to consent to part with

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his or her property. [Citation.]” (Id. at p. 50.) In a
footnote, Torres said, “The paradox of a taking which is both
consensual and the result of force or fear has been the subject
of numerous court decisions and commentaries. [Citations.]”
(Torres, supra, 33 Cal.App.4th at p. 50, fn. 6.)
However, robbery can be committed strictly by frightening a
victim into surrendering property. (Carrasco, supra, 137
Cal.App.4th at p. 1057.) Indeed, section 519, fn. 1, ante,
says, “Fear, such as will constitute extortion, may be induced
by a threat . . . [t]o do an unlawful injury to the person or
property of the individual threatened . . . .”
We conclude Larshin fails to show grounds for reversal of
the robbery conviction in Count Three.
C. Sentence
The trial court imposed the upper term on Count Five
(assault with a firearm) and the upper term on the attached
section 12022.5 enhancement because (1) the crimes involved
great violence and threat of great bodily harm or acts
disclosing a high degree of cruelty, viciousness or callousness;
(2) the victims were particularly vulnerable because English was
their second language, they were new to this country and had a
general distrust of law enforcement; (3) Larshin induced others
to participate in the crimes and threatened witnesses; (4) the
crimes involved planning and some degree of sophistication; (5)
Larshin’s prior performance on probation was unsatisfactory; and
(6) there were no circumstances in mitigation.

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Larshin contends the imposition of the upper term sentence
violated Blakely v. Washington (2004) 542 U.S. 296, and the
federal constitutional rights to a jury trial (6th Amendment)
and due process (14th Amendment). He argues we should consider
this contention despite his failure to raise it in the trial
court. He acknowledges his claim of sentencing error fails
under People v. Black (2005) 35 Cal.4th 1238 (which was
published before Larshin’s sentencing hearing) but says he makes
the argument here in order to preserve it for federal court
review. Since the Attorney General does not urge forfeiture, we
shall not consider the contention forfeited.
Applying the 6th Amendment to the United States Constitution,
the United States Supreme Court held in Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that other than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the statutory maximum must be tried to a jury and
proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at
p. 455].) For this purpose, the statutory maximum is the maximum
sentence that a court could impose based solely on facts reflected
by a jury’s verdict or admitted by the defendant. Thus, when a
sentencing court’s authority to impose an enhanced sentence depends
upon additional fact findings, there is a right to a jury trial and
proof beyond a reasonable doubt on the additional facts. (Blakely
v. Washington (2004) 542 U.S. 296, 303-306 [159 L.Ed.2d 403, 413-
414] (Blakely).)
The United States Supreme Court later emphasized: “If the
[sentencing scheme] could be read as merely advisory provisions

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that recommended, rather than required, the selection of particular
sentences in response to differing sets of facts, their use would not
implicate the Sixth Amendment. We have never doubted the authority
of a judge to exercise broad discretion in imposing a sentence within
a statutory range. [Citations.] . . . For when a trial judge
exercises his discretion to select a specific sentence within a
defined range, the defendant has no right to a jury determination of
the facts that the judge deems relevant.” (United States v. Booker
(2005) 543 U.S. 220, 233 [160 L.Ed.2d 621, 643] (Booker).)
Citing Apprendi and Blakely, Larshin contends the upper term
for Count Five (assault with a firearm) and the upper term of 10
years for the attached firearm enhancement must be reversed because
the trial court relied on facts not submitted to the jury and
proved beyond a reasonable doubt, thus depriving Larshin of the
constitutional right to a jury trial on facts legally essential to
the sentence.
However, for reasons set forth in its recent opinion, the
California Supreme Court has held “the judicial factfinding that
occurs when a judge exercises discretion to impose an upper term
sentence . . . under California law” does “not violate a defendant’s
right to a jury trial under the principles set forth in Apprendi,
Blakely, and Booker.” (Black, supra, 35 Cal.4th 1238, 1254.)
We must follow the holding in Black, supra, 35 Cal.4th 1238,
which is binding on us. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) Accordingly, we reject Larshin’s claim
of sentencing error.

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II. Shchirskiy’s Appeal
Shchirskiy raises only one issue on appeal. He contends
the trial court improperly ordered him to pay $1,500 restitution
to the Mercedes’s owner who, according to the probation report,
gave Larshin and Shchirskiy $1,500 for return of the car,
unaware the police had already found the car burned. Shchirskiy
argues the restitution order was unauthorized because he was
convicted only of extortion against the garage owner Konishchuk,
who did not suffer the $1,500 economic loss. We agree and shall
reverse the restitution order.
Shchirskiy was originally charged with extortion of the
Mercedes owner (Peter Svityashchuk), but that charge was
dismissed and was omitted from the amended information.
The probation report said that the Mercedes’s owner gave
Larshin and Shchirskiy $1,500 for return of the car, unaware
that the police had already found the car burned. The probation
report also said the garage owner sustained no apparent losses,
other than a possible loss at the point of entry to his
business.
At sentencing, Shchirskiy’s attorney argued Shchirskiy was
convicted only for his unsuccessful attempt to extort money from
the garage owner Konishchuk, and this conviction was not
transactionally related to the $1,500 paid by the Mercedes
owner. The deputy district attorney was unfamiliar with the
case and expressed no opinion. Defense counsel represented to
the court that the $1,500 was paid from the car owner
(Svityaschuk) to Larshin, and though no evidence was adduced at

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trial, pretrial matters indicated the car owner called
Shchirskiy for help in getting the car back. Shchirskiy put the
car owner together with Larshin, who collected the $1,500 from
the car owner. The charge for extorting the $1,500 was
dismissed because of the absence of the car owner.
The trial court said: “Well, I’m going to go ahead and
order the restitution. Mr. S[h]chirskiy has a right to a
hearing before a Judge to resolve it if that’s an issue. It’s
my recollection that $1500 [sic] was paid out, and that that is
appropriate for a restitution order. But, obviously, if my
memory is incorrect, Mr. Shchirskiy can have another Judge take
a look at it and make a decision.”7
The judgment ordered Shchirskiy to pay $1,500 to unnamed
“victim(s).”
A restitution order resting upon a demonstrable error of
law constitutes an abuse of the trial court’s discretion.
(People v. Jennings (2005) 128 Cal.App.4th 42, 49.)
California Constitution, article I, section 28, subdivision
(b), states it is “the unequivocal intention of the People of
the State of California that all persons who suffer losses as a
result of criminal activity shall have the right to restitution
from the persons convicted of the crimes for losses they suffer.
7 Though not clear, the trial court perhaps was referring to
section 1202.4, subdivision (f)(1), which gives the defendant
the right to a hearing to dispute the amount of restitution.

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[¶] Restitution shall be ordered from the convicted persons in
every case, regardless of the sentence or disposition imposed,
in which a crime victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary. The Legislature
shall adopt provisions to implement this section . . . .”
Section 1202.4 provides:
“It is the intent of the Legislature that a victim of crime
who incurs any economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime.
“[¶] . . . [¶]
“(f) . . . [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.”
In a nonprobation context, “restitution must be for
economic damages resulting from the crime of which [the
defendant] was convicted, not merely those ‘reasonably related’
to the crime.” (People v. Rubics (2006) 136 Cal.App.4th 452,
460 [noting different rule for probation cases]; see also,
People v. Percelle (2005) 126 Cal.App.4th 164, 180 [in
nonprobation context, a restitution order is not authorized
where the defendant’s only relationship to the victim’s loss is
by way of a crime of which the defendant was acquitted].)

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Thus, in the nonprobation context of this case, the trial
court was not authorized to order Shchirskiy to pay restitution
to a victim of a crime for which Shchirskiy was not charged or
convicted (i.e., the car owner who paid $1,500). Nor was the
court authorized to order Shchirskiy to pay $1,500 to Konishchuk
(the victim of the attempted extortion of which Shchirskiy was
convicted), because Konishchuk did not suffer that $1,500
economic loss (nor did Konishchuk suffer any economic loss from
the attempted extortion of which Shchirskiy was convicted).
Section 1202.4, subdivision (a), authorizes restitution to “a
victim of crime who incurs any economic loss,” and subdivision
(k) says “victim” includes any person who has sustained economic
loss as a result of a crime and is a relative or household
member of the victim. There is no evidence or argument that
Konishchuk paid or was entitled to the $1,500.
The People argue that, according to Percelle, supra, 126
Cal.App.4th 164, the defendant must be acquitted of the crime in
order not to be liable for restitution. However, Percelle did
not impose any such restriction on all cases but merely made the
reference to acquittal because the defendant in that case had
been acquitted. Percelle rejected the Attorney General’s
argument that restitution was authorized because section 1202.4,
subdivision (f), required the court to order restitution to a
victim who has suffered economic loss as a result of the
defendant’s “conduct.” (Percelle, supra, 126 Cal.App.4th at p.
180.) Percelle said the subdivision merely described how to
calculate the amount of restitution, and the statute in total

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made clear that the victim should receive restitution from a
defendant convicted of that crime. (Ibid.)
Accordingly, we need not address the People’s argument that
Shchirskiy was “well-connected” with “losses associated with the
Mercedes,” including the car owner’s loss of the $1,500, because
of his involvement, e.g., he was a known associate of Larshin,
was apparently involved in the theft of the car, and demanded
money from garage owner Konishchuk.
We conclude the restitution order of $1,500 against
Shchirskiy must be reversed.
DISPOSITION
The judgment as to Andrey Larshin is affirmed. As to
Sergey Vinalyevic Shchirskiy, the abstract of judgment is
modified to delete the victim restitution order of $1,500. The
trial court shall forward a certified copy of the amended
abstract of judgment to the Department of Corrections and
Rehabilitation. The Shchirskiy judgment is otherwise affirmed.
SIMS , Acting P.J.
We concur:
HULL , J.
CANTIL-SAKAUYE , J.

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