P. v. Ambriz
Filed 1/10/14 P. v. Ambriz CA4/3
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California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO BEDOLLA AMBRIZ,
Defendant and Appellant.
G047906
(Super. Ct. No. 08NF2205)
O P I N I O N
Appeal
from an order of the Superior Court of
Orange County, Daniel B. McNerney, Judge.
Affirmed as modified.
Jan B. Norman,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Marissa Bejarano, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
defendant Roberto Bedolla Ambriz of several offenses relating to his
molestation of two children. The trial court
subsequently ordered Ambriz to reimburse the State Victim
restitution payments it made to one Leonard Rutkevicius. Ambriz contends the court abused its
discretion in ordering restitution for assistance the Board provided to
Rutkevicius because the prosecution did not prove Rutkevicius was a victim as
defined in Penal Code section 1202.4 (all statutory references are to the
the order
I
Factual and Procedural Background
A jury convicted
Ambriz of sodomizing a child age 10 or younger (§ 288.7, subd. (a)),
kidnapping to molest a child (§ 207, subd. (b)), forcible lewd act upon a
child under the age of 14 (§ 288, subd. (b)) and seven charges of lewd
acts on children younger than age 14 (§ 288, subd. (a)). Ambriz sexually molested 12-year-old Kenny M.
and 9-year-old Jesus N. On October 28, 2011, the trial court sentenced Ambriz to an aggregate of 55 years to
life in prison. The court reserved
jurisdiction over the issue of victim restitution.
The prosecution
filed a request for restitution on behalf of the Board. The request sought restitution for mental
including $825 for Jesus N., $3,300 for his mother, $2,860 for one of his
brothers, $2,750 for another brother, and $3,080 to Rutkevicius. On January 9, 2013,
the trial court conducted a hearing on the prosecution’s request. At the hearing, the prosecution provided Rutkevicius’s
health insurance claim
form, showing the dates on which he received mental health services. Ambriz objected to any award for Rutkevicius, arguing
his name appeared nowhere in the police reports or court file and his relation
to the case was unknown. Nevertheless,
the trial court found that by proving the Board made payments to Rutkevicius, the
prosecution had met its burden under section 1202.4, and ordered Ambriz to pay
restitution in the amount of $12,815, including the $3,080 payment to Rutkevicius.
II
Discussion
We review
the trial court’s restitution order for abuse of discretion. (People
v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).)
“[A]n order resting on a demonstrable
legal error constitutes such an abuse.â€
(People v. Hume (2011) 196
Cal.App.4th 990, 995 (Hume); See also
In re S. S. (1995) 37 Cal.App.4th
543, 550.)
The
California Constitution entitles crime victims to restitution. (Cal. Const., art.
I, § 28(b)(13).) Accordingly, section
1202.4 provides when “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 . . . .†(§ 1202.4, subd. (f).)
Section 1202.4, subdivision (k), defines “victim†for purposes of
section 1202.4.
The term includes three categories of natural persons: (1) “The immediate
surviving family of the actual victim;†(2) any “person who has sustained
economic loss as the result of a crime†and who satisfies specific conditions
pertaining to the person’s relation to the actual victim; and (3) “[a] person
who is eligible to receive assistance from the Restitution Fund†pursuant to the
Government Code. (§ 1202.4, subd. (k);
fn. 3 [“definition of ‘victim’ found in Penal Code section 1202.4, subdivision
(k) was amended Stats. 2004, ch. 223, § 2) to incorporate the persons
identified as ‘derivative victims’ in Government Code former section 13960,
without substantive changeâ€].)
Ambriz contends the prosecution failed to show
Rutkevicius was a victim entitled to restitution under section 1202.4. “The burden is on the party seeking
restitution to provide an adequate factual basis for the claim.†(Giordano,
supra, 42 Cal.4th at p. 664.)
“At a victim restitution hearing, a prima facie case for restitution is
made by the People. . . . Once the victim has [i.e., the People have] made a
prima facie showing … the burden shifts to the defendant . . . . [Citations.]†(People
v. Millard (2009) 175 Cal.App.4th 7, 26.) Here, as the party seeking restitution, the prosecution
had the burden to make a prima facie showing Rutkevicius was a victim under
section 1202.4.
At the
restitution hearing, the prosecution presented no evidence establishing
Rutkevicius’s relation to either of the actual victims, nor did the prosecution
present evidence establishing Rutkevicius was eligible to receive assistance from the Restitution Fund. Instead, the prosecution merely provided
evidence Rutkevicius received assistance from the Board. The trial court, relying on section 1202.4,
subdivision (f)(4), found Rutkevicius’s receipt of assistance from the Board
for mental health services gave rise to “a presumption with respect to the
validity of these restitution charges that must be rebutted by the defense with
evidence.†Because the defense presented
no evidence in rebuttal, the court ordered Ambriz to pay restitution for the
Board’s assistance to Rutkevicius.
Section 1202.4, subdivision (f)(4)(A)
provides, “If, as a result of the defendant's conduct, the Restitution Fund has
provided assistance to or on behalf of a victim . . . the amount of assistance provided shall be presumed to be a direct
result of the defendant’s criminal conduct and shall be included in the
amount of the restitution ordered.†(Italics added.) The presumption is one of causation. If the Board has provided assistance to a
victim or derivative victim, the prosecution need not show the victim’s
economic loss was “a result of the defendant’s conduct,†as subdivision (f)
would otherwise require, unless the defense rebuts the presumption. But that does not relieve the prosecution of its
burden to provide evidence the person is, in fact, a victim. Thus, under section 1202.4, subdivision (f)(4)(A),
the Board’s assistance to Rutkevicius does not give rise to a presumption Rutkevicius
Thus, the
prosecution had the burden to show Rutkevicius was a victim under section
1202.4. (See Giordano, supra,
party seeking restitution to provide an adequate factual basis for the claim].)
Because the prosecution failed to present
any evidence showing Rutkevicius was a victim, the trial court erred in including
the amount Rutkevicius received in its restitution order. Having found the trial court’s order rested
upon a demonstrable legal error, we conclude the court abused its discretion in
ordering Ambriz to pay restitution for the monetary assistance the Board
provided Rutkevicius. (See
III
Disposition
The order is modified
(§ 1260) to reflect defendant is ordered to pay restitution to the Board
in the amount of $9,735, plus a 10 percent administrative fee. The trial court is directed to prepare an
amended abstract of judgment and to serve a copy on defendant and the California
Department of Corrections and Rehabilitation.
The judgment is affirmed in all other aspects.
ARONSON,
J.
WE CONCUR:
O’LEARY, P.J.
BEDSWORTH, J.
