P. v. Craig
Filed 8/26/13 P. v. Craig CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
KENT CRAIG, JR.,
Defendant and Appellant.
C070999
(Super. Ct. No. 07F09047)
Pursuant to
a plea agreement, defendant Kent Craig, Jr., pled to one count of
§§ 211, 12022.5.) At sentencing,
the court ordered defendant to pay $1,718 in restitution directly to the
victims for their losses from the robbery and $1,542 to the Victims of Violent
Crimes Program (VVCP), pursuant to section 1202.4, subdivision (f).
On appeal,
defendant contends the $1,542 restitution award to the VVCP is punishment and,
as such, cannot be imposed on judicially determined facts without violating the
Sixth Amendment, citing the recent
States Supreme Court case of Southern
Union Co. v. United States (2012) 567
U.S. ___ [183 L.Ed.2d 318] (Southern
Union), and Apprendi v.
(2000) 530 U.S.
466 [147 L.Ed.2d 435] (Apprendi) as
well as Blakely v.
(2004) 542 U.S.
296 [159 L.Ed.2d 403] (Blakely).
We conclude
defendant was not entitled to a jury trial prior the imposition of the
restitution order, and shall affirm the judgment.
Defendant
and an associate
title="">[2]
ordered the three teenage victims to the ground and took their money, jewelry
and shoes.
Charged
with three robbery counts (one for each victim), defendant eventually entered a
negotiated plea of no contest to one robbery count and admitted personally
using a gun during the robbery, in exchange for a stipulated sentence. The other two robbery counts were dismissed
with a Harvey
waiver for restitution.
The
probation report stated that the three victims had incurred losses in
connection with the robbery of $150, $690, and $878, respectively. It noted that one victim included “moving
expenses†in his restitution claim; as to another victim, “[a]n additional
amount of $1,542.00 is being requested for the Victim Compensation and
Government Claims Board for reimbursement for relocation[.]â€
probation report
prior to sentencing.
At
sentencing, the trial court imposed a prison term of six years and, as relevant
to this appeal, ordered defendant to pay direct restitution to the victims of
$1,718 (the sum of three individual awards of $150, $690, and $878,
respectively) and to pay $1,542 to the VVCP.
Defense counsel did not object.
Defendant
contends he was entitled to a jury determination of facts underlying the trial
court’s order that he pay $1,542 to the VVCP.
We disagree.
In
p. 490 [147 L.Ed.2d 435], the United States Supreme Court held that
“[o]ther 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.†As the Court explained in
maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant.†(Some italics omitted.) It follows that a judgment may not “inflict[]
punishment that the jury’s verdict alone does not allow.†(Blakely,
In
held Apprendi applies to the
imposition of criminal fines. (
at p. ___ [183 L.Ed.2d 318].) The
statutory fine imposed in Southern Union
was $50,000 for each day of violation; the trial court, rather than the jury,
determined the number of days of violation.
Because the amount of the fine was directly tied to the number of days
of violation, the Court held the trial court’s factual finding as to the number
of days of violation ran afoul of Apprendi. (Southern
Union, supra, 567 U.S. at p. ___ [183 L.Ed.2d 318].)
defendant’s argument. First, unlike the
criminal fine in Southern Union, the
restitution to VVCP is direct victim compensation. The California Constitution provides in
relevant part that “[r]estitution shall be ordered from the convicted wrongdoer
in every case, regardless of the sentence or disposition imposed, in which a
crime victim suffers a loss.†(Cal.
Const., art. I, § 28, subd. (b)(13)(B).)
Subdivision (f) of section 1202.4 implements the constitutional
directive to require
restitution for crime victims. A court must order “full restitution unless
it finds compelling and extraordinary reasons for not doing so, and states them
on the record.†(§ 1202.4, subd.
(f).) The statute expressly provides that restitution may, as here, include
expenses incurred “in relocating away from the defendant.†(§1202.4, subd. (f)(3)(I).) “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.â€
(§ 1202.4, subd. (f)(2), (4)(A).)
Thus, the statute mandates a victim restitution award regardless of
whether the restitution is paid directly to a victim or to the Restitution Fund
to the extent it incurred expenses on behalf of the victim. (§ 1202.4, subd. (f).)
Neither
any application to direct victim restitution, because victim restitution is not
a criminal penalty. (People
v. Pangan (2013) 213 Cal.App.4th 574, 585.) Victim restitution is a substitute for a
civil remedy so that victims of crime do not need to file separate civil suits;
it is not increased “punishment.†(
purpose of a victim restitution hearing is to allow the People to prosecute an
expedited hearing before a trial court to provide a victim with a civil remedy
for economic losses suffered, and not to punish the defendant for his or her
crimeâ€]; accord, People v. Harvest
(2000) 84 Cal.App.4th 641, 645, 650 [victim restitution does not
constitute punishment for double jeopardy purposes].) To the extent a victim restitution order has
the secondary purposes of rehabilitation of a defendant and/or deterrence of
the defendant and others from committing future crimes, those purposes do not
constitute increased punishment of the defendant. (People
v. Millard, supra, 175 Cal.App.4th at pp. 35–36; but compare
147 Cal.App.4th 1213, 1221.)
Moreover,
the restitution statute itself characterizes victim restitution awards as civil
(see § 1202.4, subd. (a)(3)(B) [victim restitution imposed pursuant to
subdivision (f) “shall be enforceable as if the order were a civil judgmentâ€])
and federal cases addressing the issue have likewise concluded that a
restitution hearing does not implicate the Sixth Amendment right to a jury
trial. (Chappelone, supra, 183 Cal.App.4th at p. 1184 [collecting the numerous federal
cases holding that, because victim restitution does not constitute increased
punishment for crime, judges may find the facts necessary to impose a
restitution order].)
Having
concluded the trial court did not err in imposing the restitution order without
a jury determination of the restitution amount, we need not address defendant’s
argument that defense counsel rendered ineffective assistance in failing to
object thereto.
The
judgment is affirmed.
DUARTE , J.
We concur:
NICHOLSON , Acting P. J.
MURRAY , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Penal Code.
name="_ftn2" title="">[2] The associate was found guilty by jury of
charges arising from these crimes.
