California Penal Code Section 12022.6 provides for an additional term of incarceration when the government can prove a defendant took, damaged, or destroyed any property during the commission, or attempted commission of a felony, if the value of the property damage is over a specified amount. For a loss over $65,000, the court shall impose an additional one year term. For damage over $200,000, the length of the additional term increases to two years. The length of the additional term increases incrementally in relation to the value of the damage, to a maximum of four years for damages exceeding $3,200,000. The section also directs that if there are multiple charges of taking, damaging, or destroying property, the loss for purposes of sentencing will be determined by aggregating (adding together) all the losses to the victim for all the felonies committed.
The question posed to the California Court of Appeal for the Fourth District in this case is how exactly that damage amount is determined, specifically whether the amount should include lost profits. Wayne Evans was convicted in a San Diego Trial Court of auto theft, receiving stolen property, grand theft, vandalism, and conspiracy. The jury also found true the allegation that the victim’s aggregate losses exceeded $200,000, resulting in Evans receiving a total prison term of six years.
Evan’s conviction followed the theft of a truck, a trailer, an excavator, and a hydraulic breaker from a construction lot in Vista, California. Subsequent to the theft of the construction equipment, Evans made numerous telephone calls to the victim, claiming to know where the stolen items were being stored. He demanded $3000 from the victim in exchange for information on the whereabouts of the stolen machinery. Evans ultimately met with two undercover detectives from the Regional Auto Theft Taskforce, apparently believing he was going to receive the $3000 he demanded. Instead, Evans was arrested. He was further connected to the theft of the equipment through extensive cell phone records documenting his whereabouts during the theft and his interaction with his coconspirators.
At trial, the prosecution presented evidence on the value of the property taken. The victim trucking company spent $2,000 to repair a gate broken during the theft. The fair market value of the truck was $65,000 to $70,000, and the trailer was valued at $72,000 to $75,000. The excavator was valued at $40,000 to $50,000, and it was unclear of the exact value of the attached breaker. In addition to the physical property loss and damage, the victim estimated they lost approximately $37, 600 in business as a result of the theft. They specifically claimed that one of their primary clients gave a job valued at $38,618 to another business. The prosecution included the lost business in their computation of the aggregate loss, and Evans appealed.
The Court of Appeals first considered the plain language of the statute to determine the intent of the drafters, and they determined the wording was ambiguous as to whether the computation of damages should include lost profits. Therefore, the court went on to consider legislative intent. This statute was part of Determinative Sentencing Law enacted by the legislature to ensure defendants serve sentences “proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.” California Penal Code § 1170(a)(1). The Court of Appeals ruled that to include lost profit in the computation of damages for the purpose of sentencing would create a situation adverse to the purpose of Determinative Sentencing Law. Specifically, if the application of the statute were to depend on the “unique economic effects of a crime on a particular victim, criminals who commit similar crimes under similar circumstances could receive substantially different sentences.” However, if the computation of damages were based solely on the actual property damage, a more consistent outcome would result.
Although the Court of Appeals agreed with the defense on how the damages should be computed, it ultimately made no difference for Evans. The court determined that even without the inclusion of lost profits, the aggregate damages in this case still surpassed $200,000. This decision will, however, effect how the statute is applied for future defendants.