P. v. Sidic

Filed 9/21/04 P. v. Sidic CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DON SIDIC,
Defendant and Appellant.
B167344
(Los Angeles County
Super. Ct. No. BA226096)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark V. Mooney, Judge. Affirmed in part, reversed in part and remanded.
Lora Fox Martin, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Ana R. Duarte, Lawrence M. Daniels and Carl N. Henry, Deputy Attorneys
General, for Plaintiff and Respondent.

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Don Sidic appeals from judgment entered following a jury trial in which he
was convicted of arson of an inhabited structure or property. (Pen. Code, § 451,
subd. (b).) Sentenced to prison for eight years and ordered to pay restitution in
the amount of $165,410.00 to Farmers Insurance Company and $1,000 to the Park
Wellington Condominium Home Owner’s Association, he contends the court
erred in awarding restitution to the insurance company and in its award of custody
credits. We asked the parties to submit supplemental briefing on the application
of Blakely v. Washington (2004) ___ U.S. ___, 124 S.Ct. 2531 (Blakely) to
appellant’s sentence. For reasons explained in the opinion, we reverse the
sentence and restitution order and remand the matter to the trial court for further
proceedings.
FACTUAL AND PROCEDURAL SUMMARY
The facts are not in dispute and it will suffice to observe that appellant was
convicted of arson of a condominium unit he had been leasing at 1131 Alta Loma
Road, number 422 in the city of West Hollywood.
Following his conviction, the court conducted a sentencing and restitution
hearing. Dean Sperling, counsel for Farmers Insurance Exchange, testified that
the Park Wellington Homeowner’s Association had an insurance policy with
Farmers Insurance Exchange, which insured the common areas of the building at
1131 Alta Loma Road in West Hollywood. That policy was in place on
November 16, 2001 and Farmers Insurance Exchange paid $165,410.55 as a
result of losses directly attributed to the fire. Additionally, the homeowners’
association had a $1,000 deductible so the entire loss was $166,410.55. It was
Mr. Sperling’s understanding that Safeco was an insurance company that
provided other insurance that may or may not have paid out on the loss.

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The trial court concluded that in terms of restitution, it appeared to the
court that the appropriate amount of restitution owed to Farmers Insurance
Exchange was $165,410.00 as well as $1,000 to the homeowners’ association that
it incurred as a deductible.1
Finding the crime involved sophistication, planning, a high monetary loss,
and a high degree of cruelty and callousness, the court sentenced appellant to the
high term of eight years.
DISCUSSION
I 2
Appellant first contends the court erred in awarding restitution to the
insurance company because the insurance company was not the victim of the
crime for purposes of the restitution statute. Penal Code section 1202.4,
subdivision (a)(1) 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.”
Subdivision (a)(3) provides in pertinent part that the court “in addition to any
1
While the reporter’s transcript does not specify the restitution order was pursuant
to Penal Code section 1202.4, subdivision (f), the minute order and the abstract of
judgment do and the record supports the conclusion that the court was imposing
restitution to Farmers Insurance Exchange and the homeowners’ association as “actual
victim[s].” The record does not support respondent’s conclusion the court imposed a
nonstatutory restitution award to the insurance company as a condition of future
probation.
2
While appellant failed to object to the restitution order in the trial court, “‘when
the trial court pronounces a sentence which is unauthorized by the Penal Code that
sentence must be vacated and a proper sentence imposed whenever the mistake is
appropriately brought to the attention of the . . . reviewing court.’ [Citation.]” (People
v. Rowland (1988) 206 Cal.App.3d 119, 126.)

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other penalty. . . shall order the defendant to pay . . . (B) Restitution to the victim
or victims . . . in accordance with subdivision (f) . . . .” Subdivision (f) requires
the defendant to make restitution as “established by court order, based on the
amount of loss claimed by the victim or victims or any other showing to the
court. . . .” (Pen. Code, § 1202.4, subd. (f).)
“As explained in [People v. Birkett (1999) 21 Cal.4th 226, at p. 232] and
other cases . . . the victim is the object of the crime. In . . . Birkett . . . the direct
victims of the crimes were the automobile owners whose vehicles had been stolen
to dismantle and sell the parts, and the only involvement of the insurers was to
indemnify the owners for covered property losses under their insurance policies
. . . .” (People v. O’Casey (2001) 88 Cal.App.4th 967, 971.) “‘[A]n insurer who
has incurred expenses solely by virtue of a contractual duty to indemnify the
direct victim is not itself an “object” of the crime and hence not a direct victim.
[The insurer] cannot, therefore, be the recipient of a . . . restitution order unless it
is itself a direct victim of criminal conduct.’ [Citations.]” (People v. Moloy
(2000) 84 Cal.App.4th 257, 260.)
In contrast, in People v. O’Casey, supra, 88 Cal.App.4th at p. 971,where
appellant pled no contest to insurance fraud, the insurance company was viewed
“as a direct crime victim, where based upon appellant’s fraud, [the insurance
company] was induced to make payments directly to appellant and to medical
providers on appellant’s behalf. [The appellate court concluded] the insurance
company itself [was] the object of the crime. [Citation.]”
Similarly in People v. Moloy, supra, 84 Cal.App.4th at p. 260, Division
Three of this court observed that the object of the crime “was to victimize the
insurance companies by inducing them to settle false claims.”

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In the present case, the evidence established that the homeowners’
association was the direct victim of the crime and the insurance company became
involved only by covering the association for covered property loss under its
insurance policy. The trial court erroneously determined that Farmers Insurance
Exchange was a direct victim and the order of restitution must be reversed.
II
After briefing was complete in this case, the United States Supreme Court
decided Blakely, holding that a Washington state sentencing scheme violated the
rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).3
It appears
that the holding applies to all cases not yet final when Blakely was decided in
June 2004. (See Schriro v. Summerlin (2004) ___ U.S. ___, ___, 124 S.Ct.
2519.)
We asked the parties to submit supplemental briefing on the application of
Blakely to this sentence. Appellant contends the sentenced imposed was a
violation of the Sixth Amendment of the United States Constitution pursuant to
Apprendi and Blakely. We agree.
The court sentenced appellant to the upper term of eight years for the arson,
“because of the crime involving the great violence, the great potential for violence
and showing a high degree of cruelty and callousness, because of the
sophistication of the planning involved in this case, [and] because of the high
monetary value that was in fact destroyed in this case . . . .”
3
In Apprendi, the Supreme Court held: “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury and proved beyond a reasonable doubt.” (Id. at p. 490.)

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Pursuant to Penal Code section 1170, subdivision (b), “When a judgment
of imprisonment is to be imposed and the statute specifies three possible terms,
the court shall order imposition of the middle term, unless there are circumstances
in aggravation or mitigation of the crime.” The middle term is the maximum
sentence the court can impose “solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. . . .” (Blakely, supra, 124 S.Ct. 2531, 2537.)
The facts relied upon by the court to impose the upper term were not found true
by the jury or admitted by appellant. Under Blakely, use of these facts to impose
the upper term does not comply with the Sixth Amendment, resulting in an
invalid sentence. (Blakely, supra, 124 S.Ct. at pp. 2537-2538.)
III
Appellant asserts the trial court erred in its award of custody credits and
that he is entitled to a total of 501 days of credit for time in custody, including
conduct credits rather than the 447 days awarded. Appellant asserts he was
arrested on February 26, 2002 for this offense and sentenced on May 7, 2003.
While respondent agrees that if appellant was arrested on February 26,
presentence credits need to be recalculated, respondent also asserts the matter
should be remanded to the trial court for a determination of the arrest date and
recalculation. In view of the fact that the matter is remanded for resentencing and
imposition of a new restitution order, we shall also direct the trial court to
recalculate presentence credits from the date of appellant’s arrest.

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DISPOSITION
The matter is reversed in part and remanded for resentencing, a new
restitution order and recalculation of credits in accordance with the views
expressed in this opinion; in all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, Acting P.J.
We concur:
HASTINGS, J.
CURRY, J.

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