Filed 12/18/20 P. v. Lockett CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

TRAMEL SYLVESTER LOCKETT,

Defendant and Appellant.

 

 B296211

 (Los Angeles County. 

 Super. Ct. No. BA474653)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Gustavo N. Sztraicher, Judge. Affirmed in part 

and reversed and remanded.

Robert Booher for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle and Colleen M. 

Tiedemann, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________
2

Tramel S. Lockett pleaded no contest to one count of theft 

of a vehicle and was sentenced to a five-year term, including a 

one-year enhancement under Penal Code section 667.5, 

subdivision (b).

1 The trial court issued a restitution order of 

$25,000 to compensate the victim for the diminished value of the 

vehicle. On appeal, Lockett contends this court should strike the 

one-year prior prison term enhancement in light of the enactment 

of Senate Bill No. 136 (SB 136). (Stats. 2019, ch. 590 § 1.) He 

also asserts the trial court erred when it ordered $25,000 in 

restitution. We reverse and remand to the trial court with 

directions to strike the one-year term imposed for the section 

667.5, subdivision (b) prior prison term enhancement. 

Thereafter, the prosecution may agree to reduce the sentence by 

one year or withdraw from the plea agreement. The trial court 

may also withdraw its prior approval of the plea agreement. 

We otherwise affirm the judgment.

FACTS

Lockett drove a used 2012 Bentley GT convertible off the 

lot of Phillips Auto dealership without permission. The vehicle 

was recovered six days later. Lockett pleaded no contest to 

driving a vehicle without consent (Veh. Code, § 10851, subd. (a)) 

and admitted he suffered a prior prison term (§ 667.5, subd. (b)) 

and a prior strike (§§ 667, subds. (c), (e)(1) & 1170.21, subd. 

(c)(1)). In presenting the plea agreement to the trial court, the 

prosecutor calculated the sentence as follows: “The disposition is 

for the mid-term of Count 2, which is two years, and that’s being 

multiplied by two to give you four years, and then plus one year 

for your [prison prior for burglary (§ 459)], to be a total of five 

1 All subsequent section references are to the Penal Code

unless otherwise specified.
3

years’ state prison.” The trial court approved the plea and 

sentenced Lockett accordingly. 

At the subsequent restitution hearing, the parties 

stipulated to actual damages in the amount of $2,450. Phillips 

Auto also claimed an additional loss of value in the amount of 

$25,000. A Phillips Auto employee testified the Bentley had a 

book value of $110,000 prior to the theft. He further testified the 

theft had to be reported to Carfax, and a theft recovery on Carfax 

diminishes the value of the vehicle by 25 to 30 percent because 

buyers are typically less inclined to purchase a high-end car that 

has been stolen due to concerns the car could have been damaged. 

Lockett argued the loss in value was unsubstantiated and 

presented a copy of the police report indicating there was no 

damage to the car. Lockett further advised the court that at the 

time of the hearing, the dealership had listed the car on its 

website for $99,960. The court credited the employee’s testimony, 

finding “it is reasonable to conclude that the car has [a] 

diminished value of $25,000, given the theft,” and ordered a total 

restitution amount of $27,450: $2,450 for the stipulated damages 

and $25,000 for the loss in value to the car. 

Lockett appealed.

DISCUSSION

I. The Case Is Remanded To Strike the One-Year 

Enhancement and Permit the People To Either 

Accept a Reduced Sentence or Withdraw From the 

Plea Agreement

The parties agree, as do we, that SB 136 applies 

retroactively to Lockett’s case because his prior prison term was 

not for a sexually violent offense, and his case was not yet final 

when the amendment took effect on January 1, 2020. (In re 
4

Estrada (1965) 63 Cal.2d 740; People v. Matthews (2020) 47 

Cal.App.5th 857, 864–865 (Matthews); § 667.5, subd. (b) [one-year 

prior prison term enhancement imposed only if the prior term 

was served “for a sexually violent offense”]; see Stats. 2019, 

ch. 590 § 1.) The parties, however, disagree as to the proper 

disposition in this case. 

In his opening brief, Lockett urges us to strike the 

enhancement but leave intact the remainder of the sentence. 

Under this scenario, Lockett’s sentence would be reduced to four 

years. The People oppose this disposition. They argue this court 

may not unilaterally lessen Lockett’s punishment because it was 

the result of a negotiated plea agreement. While they agree the

trial court must strike the one-year enhancement under SB 136, 

they argue the district attorney must be allowed to either accept

the reduced sentence or withdraw from the plea agreement. 

In his reply brief, Lockett acknowledges the People’s position and 

agrees the matter should be remanded for resentencing. He 

asserts his subsequent exposure on remand must be limited to a 

term of five years, however, leaving his original plea agreement 

intact. According to Lockett, this disposition “restores to the 

prosecution the benefits for which it bargained while at the same 

time not depriving appellant of the bargain to which he remains 

entitled.” Two months after briefing was completed and two 

weeks prior to oral argument, we received a letter brief from 

Lockett advising us he intends to revert to his initial position in 

the opening brief that the enhancement should simply be 

stricken. Notwithstanding Lockett’s changing position, we are 

persuaded by the People’s argument. 
5

Because this presents a pure question of law, we review the 

issue de novo. (People v. Rells (2000) 22 Cal.4th 860, 870.) The 

first published case to address the impact of SB 136 on a sentence 

that is the result of a plea bargain was Matthews, supra, 47 

Cal.App.5th at page 869. Matthews held a trial court lacks the 

power to alter a sentence imposed pursuant to a plea agreement 

in which the parties agreed to specific sentences “except to 

eliminate enhancements affected by Senate Bill No. 136.” (Id. at 

p. 866.) The court reasoned “the purposes of Senate Bill No. 

136 . . . would be frustrated if the trial court were allowed to 

unilaterally alter agreed-to terms of a plea agreement after 

striking enhancement sentences as required by Senate Bill No. 

136.” (Id. at p. 868.) Matthews thus “conclude[d] the trial court 

cannot, in striking the enhancements invalidated by Senate Bill 

No. 136 . . . , reconsider other aspects of the sentences Matthews 

and the People specifically agreed to under the plea agreements.” 

(Id. at p. 869.)

Six months after Matthews, the Fifth District published 

People v. Hernandez (2020) 55 Cal.App.5th 942 (Hernandez), 

review filed Nov. 23, 2020. Hernandez agreed with Matthews

that SB 136 required the prior prison term enhancement be 

stricken even when it is part of a negotiated plea bargain. 

(Hernandez, supra, at p. 960.) Hernandez conducted an extensive 

review of relevant Supreme Court authority, including People v. 

Stamps (2020) 9 Cal.5th 685 (Stamps), which the high court 

published after Matthews and addresses the impact Senate Bill 

No. 1393—which gives a trial court discretion to strike a serious 

felony enhancement pursuant to section 667, subdivision (a)—has 

on a sentence that is the result of a plea agreement. (Stamps, 

supra, 9 Cal.5th at pp. 692, 701–703.) Following the disposition 
6

in Stamps, Hernandez held that once the enhancement is 

stricken or dismissed, the prosecution must be allowed to 

withdraw from the plea agreement, and the trial court may 

withdraw its approval of the plea agreement. (Hernandez, supra, 

55 Cal.App.5th at p. 960.) Hernandez found “there is no evidence 

the Legislature intended Senate Bill 136 to permit the trial court 

to unilaterally modify a plea agreement once the prior prison 

term enhancements are stricken.” (Id. at p. 958.) 

We agree with Hernandez that remand for resentencing is 

appropriate where the sentence is a result of a plea agreement. 

Hernandez provides an extensive review of the legislative history 

of SB 136 and relevant Supreme Court and Court of Appeal cases 

that “address[] the impact of amendments or repeals of statutes, 

either by the legislative or initiative process, that had provided 

for sentences that were part of a plea agreement for a specified 

sentence.” (Hernandez, supra, at 949.) We need not repeat 

Hernandez’s well-reasoned analysis here. 

We remand the matter to the superior court with directions 

to strike the one-year prior prison term enhancement under

section 667.5, subdivision (b). Thereafter, the People may agree 

to the reduced sentence or withdraw from the plea agreement. 

The court may also withdraw its prior approval of the plea 

agreement. (Hernandez, supra, 55 Cal.App.5th at p. 960; see

Stamps, supra, 9 Cal.5th at pp. 707–708.)

II. The Trial Court Did Not Abuse Its Discretion to 

Award Restitution In the Amount of $25,000 

Lockett next asserts the trial court abused its discretion 

when it ordered $25,000 in restitution to be paid to Phillips Auto. 

According to Lockett, that amount is entirely speculative because 

it is unsupported by the evidence. We disagree.
7

A. Governing Law

“It is the intent of the Legislature that a victim of crime 

who incurs any economic loss as the result of the commission of a 

crime shall receive restitution directly from any defendant 

convicted of that crime.” (§ 1202.4, subd. (a).) To achieve this 

goal, the trial court has broad discretion to order restitution so 

that every victim is fully compensated for their loss. (People v. 

Giordano (2007) 42 Cal.4th 644, 654 (Giordano).) The victim 

must make a prima facie showing of economic loss caused by the 

defendant’s criminal act that establishes the amount claimed by 

a preponderance of the evidence. (People v. Gemelli (2008) 161 

Cal.App.4th 1539, 1542 (Gemelli).) The trial court may rely solely 

on the victim’s statement to assess the loss of value to the stolen 

or damaged property. (Id. at p. 1543; see People v. Keichler

(2005) 129 Cal.App.4th 1039, 1045 [a property owner’s statement 

about the value of the property is sufficient to make a prima facie 

showing of economic loss].) “Once the victim makes a prima facie 

showing of economic losses incurred as a result of the defendant’s 

criminals acts, the burden shifts to the defendant to disprove the 

amount of losses claimed by the victim.” (Gemelli, supra, at 

p. 1543.)

We review a trial court’s restitution order for an abuse of 

discretion. (Giordano, supra, 42 Cal.4th at p. 663.) “No abuse of 

discretion will be found where there is a rational and factual 

basis for the amount of restitution ordered.” (Gemelli, supra, 161 

Cal.App.4th at p. 1542.)

B. The People Made a Prima Facie Showing

We are persuaded by Gemelli, supra, 161 Cal.App.4th 1539, 

the trial court had a rational and factual basis to order $25,000 in 

restitution in this case. In Gemelli, the trial court based a 
8

restitution order on a handwritten statement from the burglary 

victim and the probation officer’s recommendation, which was 

based solely on the victim’s statement. (Id. at p. 1544.) The 

victim’s statement listed individual repair and labor costs 

incurred as a result of the burglary that totaled $7,073. (Ibid.) 

Although the victim’s list was self-generated and uncorroborated 

by receipts or other documentation, the court found the list was 

credible and constituted sufficient evidence to make a prima facie 

case for the claimed damages. (Ibid.) 

As in Gemelli, the trial court here based its decision solely 

on the victim’s statements regarding the loss in value. Long, the 

dealership’s employee, estimated a theft would diminish the 

value of a high-end car by 25 to 30 percent. He further testified 

the theft “has to be disclosed” to a potential buyer, and that 

Carfax is the “first thing [buyers] pull when they look at Ferraris 

or high-end vehicles . . . . If there’s fire, theft, or anything, . . . it 

just kills the car.” Long explained people are less likely to 

purchase high end cars that have been stolen and recovered due 

to concern that the vehicle has been damaged. Following 

Gemelli, the trial court did not abuse its discretion to credit 

Long’s testimony and find the People made a prima facie showing 

the value of the $110,000 car was diminished by $25,000 as a 

result of the theft. 

Lockett relies on People v. Vournazos (1988) 198 Cal.App.3d 

948 (Vournazos) to argue that Long’s testimony was insufficient 

to make a prima facie showing. We are not persuaded. Like 

other courts before us, we reject the implication in Vournazos

that more than a victim’s statement of loss is required to 

establish loss. (In re. S.S. (1995) 37 Cal.App.4th 543, 547 

[declining to follow Vournazos because the property owner’s 
9

statement should constitute sufficient evidence of value]; People 

v. Foster (1993) 14 Cal.App.4th 939, 946 [rejecting the reasoning 

in Vournazos].)

C. Lockett Did Not Effectively Rebut the Claimed 

Amount

Once Phillips Auto made a prima facie showing of its 

claimed economic loss, the burden shifted to Lockett to rebut the 

validity of the amount claimed. (People v. Fulton (2003) 109 

Cal.App.4th 876, 886.) Lockett presented a police report that

stated “there was no damage to the car when it was recovered.”

He argued that although there may have been some scratches on 

the car, the damage was not significant enough for the police 

officer to note, and thus, it was unlikely that the value of the car 

was diminished by $25,000. The court did not find this evidence 

persuasive because a police officer “does not necessarily have the 

expertise in looking at a car of that value and determining what 

specific damages were sustained by that vehicle.” 

Again, Gemelli, supra, 161 Cal.App.4th 1539 is illustrative. 

In Gemelli, the defendant was a former employee of the 

restaurant she had robbed, and she attempted to dispute the 

credibility of the victim’s list based on her knowledge of the 

victim’s business practices. The court found the defendant’s 

testimony “did not effectively rebut” the claimed economic losses 

because she did not present evidence that directly contradicted 

the amounts. (Id. at p. 1544.)

Similarly, Lockett’s evidence pertaining to the extent of 

damages to the car did not directly rebut Long’s testimony that 

the mere fact a car has been stolen greatly diminishes its value. 

The trial court was entitled to credit Long’s testimony regarding 

the loss in value while placing less emphasis on the police report. 
10

(See People v. Tabb (2009) 170 Cal.App.4th 1142, 1153 

[credibility determinations are for the trier of fact, and “we do not 

reweigh or reinterpret” the evidence on appeal, “we only 

determine whether there is sufficient evidence to support the 

inference drawn by the trier of fact”].)

We reject Lockett’s reliance on People v. Valenti (2016) 243 

Cal.App.4th 1140, 1182 (Valenti) to argue that the restitution 

amount was “entirely speculative.” Valenti is distinguishable 

because, in that case, the trial court awarded noneconomic

restitution to victims of continuous child sexual abuse. (Ibid.) 

On appeal, the court concluded that there was no rational basis 

to support the $50,000 amount awarded to each child victim 

because the trial court “did not find facts, cite reliable evidence, 

or even explain how it arrived at the amount of restitution for 

each victim.” (Id. at p. 1183.) Thus, the court reversed the 

restitution awards and remanded for a new hearing. (Id. at p. 

1184.) 

Lockett argues the amount of loss is speculative because he 

presented evidence the dealership relisted the Bentley for nearly

$100,000, which is approximately $10,000 less than its value 

prior to the theft. Lockett also claims there was no evidence the 

dealership had actually reported the car stolen by the time of the 

restitution hearing, despite having had many weeks to do so. 

He argues that this “actively contradict[s] the dealership’s claim 

of loss.” 

We repeat the long-established rule that credibility 

determinations are for the trier of fact, and “we do not reweigh or 

reinterpret” the evidence on appeal, “we only determine whether 

there is sufficient evidence to support the inference drawn by the 

trier of fact.” (People v. Tabb, supra, 170 Cal.App.4th at p. 1153.) 
11

Here, the record shows the trial court asked Long what he 

believed the car would realistically sell for in light of the relisted 

price, and Long replied he believed the car would probably sell for 

“between 75 and 85 [thousand dollars].” Long further testified 

“[the theft] has to be disclosed” to a potential buyer. Long’s 

testimony provides a rational basis to support the conclusion that 

Lockett’s criminal act diminished the value of the Bentley by 

$25,000. The trial court was entitled to discredit contrary 

evidence. The trial court did not abuse its discretion to order 

restitution in the amount of $25,000. 

DISPOSITION

The matter is remanded to the trial court with directions to 

strike the one-year term imposed for the section 667.5, 

subdivision (b) enhancement. Thereafter, the People may agree 

to modify the bargain to reflect the downward departure in the 

sentence or withdraw their assent to the plea agreement.

Further, the court may withdraw its prior approval of the plea 

agreement. We otherwise affirm the judgment.

BIGELOW, P. J.

We Concur:

STRATTON, J. WILEY, J.