Foster

*943 Opinion

A jury found defendant Terry Foster guilty of residential burglary (Pen. Code, § 459) 1 and not guilty of arson (§451, subd. (b)). The court imposed five years’ supervised probation on the conditions, among others, that Foster (1) pay a $4,000 restitution fine, to be stayed upon successful completion of probation; (2) serve 365 days in county jail; (3) pay $7,040 plus a 10 percent fee as restitution to Farmers Insurance Company; and (4) pay $8,000 plus a 10 percent fee as restitution to the victim.

On appeal, Foster claims that: (1) in ordering restitution to the victim, the court could not rely solely on the victim’s uncorroborated statement as to the original cost of the stolen property; (2) the court could not order restitution to the insurance company because the insurance company was not a victim; and (3) he received ineffective assistance of counsel because of his trial counsel’s failure to object to the valuation of the victim’s loss and to the condition of restitution to the insurance company.

In a concurrent petition for writ of habeas corpus, Foster repeats his contention that he received ineffective assistance of counsel.

Facts

Defendant burglarized a…

With certain exceptions stated below, I concur with the discussion in the majority opinion and I concur completely with the disposition.

However, I disagree with the conclusion contained in the following statement on page 944 of the majority opinion under the heading “Evidence Supporting Restitution Award”: “Foster’s attorney failed to object to the restitution condition in the trial court. Therefore, any error is deemed waived for purposes of appeal.” The majority then cites People v. Walker (1991) 54 Cal.3d 1013, 1023 [ 1 Cal.Rptr.2d 902 , 819 P.2d 861 ] and People v. Rivera (1989) 212 Cal.App.3d 1153, 1161 [ 261 Cal.Rptr. 93 ] as supporting authority for that proposition. In my view, neither of those two cases support that proposition.

Walker basically held in part that a defendant’s failure to object to a restitution fine under Government Code section 13967 at or before the time of sentencing waives a claim by the defendant on appeal that he was not advised by the court, pursuant to Penal Code section 1192.5 at the time his guilty plea was being proffered, that one of the consequences of his plea *956 would be imposition of a mandatory restitution fíne. Walker does not…

A jury found defendant Terry Foster guilty of residential burglary (Pen. Code, § 459) [1] and not guilty of arson (§ 451, subd. (b)). The court imposed five years' supervised probation on the conditions, among others, that Foster (1) pay a $4,000 restitution fine, to be stayed upon successful completion of probation; (2) serve 365 days in county jail; (3) pay $7,040 plus a 10 percent fee as restitution to Farmers Insurance Company; and (4) pay $8,000 plus a 10 percent fee as restitution to the victim.

On appeal, Foster claims that: (1) in ordering restitution to the victim, the court could not rely solely on the victim's uncorroborated statement as to the original cost of the stolen property; (2) the court could not order restitution to the insurance company because the insurance company was not a victim; and (3) he received ineffective assistance of counsel because of his trial counsel's failure to object to the valuation of the victim's loss and to the condition of restitution to the insurance company.

In a concurrent petition for writ of habeas corpus, Foster repeats his contention that he received ineffective assistance of counsel.

Defendant burglarized…