Filed 8/29/18 P. v. Ordunez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. LENA MARIE ORDUNEZ, Defendant and Appellant.

H044816 (Santa Clara County Super. Ct. No. C1762087)

Defendant Lena Maria Ordunez pleaded no contest to buying or receiving a stolen motor vehicle with a prior conviction and admitted a prior conviction allegation. The trial court sentenced Ordunez to a “split sentence” of three years, with two years to be served in county jail and one year of mandatory supervision, as called for by her plea agreement.[1] The trial court also ordered that Ordunez pay $3,300 in victim restitution. The trial court stated orally that codefendant Anthony DeAnda was jointly and severally liable for the restitution award. The abstract of judgment reflects that the restitution order is joint and several, but the written restitution order does not.

On appeal, Ordunez seeks modification of the restitution order. The Attorney General responds that the trial court lacked authority to impose joint and several liability because DeAnda had not been convicted at the time of Ordunez’s sentencing, and argues that the abstract of judgment must be modified to remove the reference to joint and several liability for victim restitution.

We hold that the trial court exceeded its statutory authority in ordering that Ordunez and codefendant DeAnda, who had not yet been convicted, be held jointly and severally liable to pay victim restitution. Accordingly, we modify the judgment by striking the reference to joint and several liability and affirm the judgment as modified.

I. Background

By felony complaint filed in Santa Clara County Superior Court on April 24, 2017, Ordunez and DeAnda were charged with buying or receiving a stolen vehicle with a prior conviction (Pen. Code, §§ 496d, 666.5).[2] The complaint further alleged that Ordunez and DeAnda each had previously been convicted of a felony violation of Vehicle Code section 10851.

On May 9, 2017, Ordunez pleaded no contest to buying or receiving a stolen vehicle with a prior conviction and admitted that she previously was convicted of auto theft. Ordunez appeared for sentencing on June 19, 2017. At that time, codefendant DeAnda, who was present and in custody, was “pre‑plea.” As called for by Ordunez’s plea agreement, the court sentenced Ordunez to a split three‑year sentence consisting of two years in jail and one year on mandatory supervision. At the hearing, the court ordered Ordunez to pay “$3,300 restitution to [the victim,] Danielle [R.], jointly and severally with codefendant, Mr. DeAnda.” Neither party objected. The abstract of judgment is consistent with the oral pronouncement, stating that Ordunez was ordered to pay $3,300 to the victim “joint/several w/co-deft.” However, the written victim restitution order simply orders Ordunez to pay $3,300 to the victim without any mention of DeAnda or joint and several liability.

Ordunez timely appealed.

II. Discussion

A. The Parties’ Contentions

Ordunez seeks to have the written restitution order and abstract of judgment modified to reflect the court’s oral pronouncement that DeAnda is jointly and severally liable to pay $3,300 in restitution to the victim. The Attorney General contends the court exceeded its statutory authority by imposing joint and several liability for victim restitution on DeAnda, who had not yet been convicted of a crime. Noting that the abstract of judgment does indicate that the restitution order was joint and several, the Attorney General contends it must be modified. On reply, Ordunez argues the court’s oral pronouncement of joint and several liability was impliedly conditioned on DeAnda’s eventual conviction. She further argues that, because DeAnda eventually pleaded guilty, the order should stand. In connection with her reply brief, Ordunez moved to augment the record with minute orders and an abstract of judgment showing DeAnda pleaded guilty to buying or receiving a stolen motor vehicle with a prior conviction. The Attorney General opposes that motion to augment and moved to strike Ordunez’s reply brief, arguing that it improperly raises new contentions.

B. Legal Principles and the Standard of Review

“Section 1202.4, subdivision (f) requires courts to order restitution in most cases ‘in which a victim has suffered economic loss as a result of the defendant’s conduct.’ This provision contains a causality requirement: a defendant . . . may be obligated to pay restitution only for losses stemming from the criminal conduct of which he or she was convicted.” (People v. Selivanov (2016) 5 Cal.App.5th 726, 786 (Selivanov).) Codefendants may be held jointly and severally liable for a crime victim’s losses where the criminal conduct of which each defendant was convicted was “at least a substantial factor in causing the victim’s loss.” (Ibid.) “If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court.” (§ 1202.4, subd. (f).)

In the context of victim restitution, a defendant’s due process rights entitle him or her to notice in the probation report of the amount of restitution claimed and “ ‘ “ ‘an opportunity to challenge the figures in the probation report at the sentencing hearing.’ ” [Citations.]’ [Citation.]” (Selivanov, supra, 5 Cal.App.5th at p. 783; see § 1202.4, subd. (f)(1) [“The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution”].)

The trial court has the authority to modify the amount of victim restitution ordered “on its own motion or on the motion of the district attorney, the victim or victims, or the defendant.” (§ 1202.4, subd. (f)(1).)

We review restitution orders for abuse of discretion (People v. Giordano (2007) 42 Cal.4th 644, 663) and questions of statutory interpretation de novo (People v. Prunty (2015) 62 Cal.4th 59, 71).

C. Analysis

As an initial matter, we note that we may reach the Attorney General’s claim that the trial court exceeded its statutory authority despite the lack of objection below because that claim “falls within the ‘unauthorized sentence’ exception” to the general rule that only those claims properly raised and preserved below are reviewable on appeal. (People v. Slattery (2008) 167 Cal.App.4th 1091, 1094-1095; see People v. Williams (2017) 7 Cal.App.5th 644, 696 [reaching claim that the trial court exceeded its statutory authority in connection with restitution order under unauthorized sentence exception to the forfeiture rule].)

At issue on appeal is the scope of the trial court’s statutory authority at the time of Ordunez’s sentencing. While DeAnda’s later conviction is irrelevant to that analysis, we nevertheless grant Ordunez’s motion to augment the record because, as discussed below, his plea and sentence informs our disposition of this appeal. The Attorney General’s motion to strike the reply brief is denied. We shall disregard any arguments that are raised for the first time on reply. However, to the extent that the new points raised on reply are made in answer to the Attorney General’s contention that the trial court lacked authority to order joint and several liability for victim restitution, the general rule that new points may not be raised for the first time on reply is inapplicable. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, p. 791, citing Fratessa v. Roffy (1919) 40 Cal.App. 179, 188.)

At the time of Ordunez’s sentencing, DeAnda had not been convicted. Therefore, the trial court had no authority under section 1202.4, subdivision (f), to order him—a defendant who had been convicted of no crime—to pay restitution. Ordunez argues the trial court did not improperly order DeAnda to pay restitution before his conviction, but rather implicitly conditioned the portion of its restitution order regarding joint and several liability on DeAnda’s eventual conviction for the charged offense. Even if we were to read such an implicit condition into the order, we are not convinced it would bring the order within the bounds of section 1202.4, subdivision (f). A defendant has a due process right to challenge the amount of restitution at a sentencing hearing. Accordingly, DeAnda’s conviction alone cannot render him jointly and severally liable to pay $3,300 in victim restitution; he is first entitled to an opportunity to challenge that amount. (But see People v. Jessee (2013) 222 Cal.App.4th 501, 510 [ordering modification of abstract of judgment to state that victim restitution orders are joint and several obligations of “the coconspirators convicted thus far, together with Thomas Garrick, if and when he is ever convicted of these same crimes” without addressing due process].) In any event, Ordunez cites neither the record nor any authority supporting her contention—raised for the first time on reply—that the portion of the court’s restitution order regarding joint and several liability is implicitly conditioned on DeAnda’s eventual conviction for the charged offense. Accordingly, we decline to address the point. (People v. Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ ”]; Otay Land Co., LLC v. U.E. Limited, L.P. (2017) 15 Cal.App.5th 806, 851, fn. 32 [declining to address argument raised for the first time on reply].)

We hold that the trial court exceeded its statutory authority in ordering that Ordunez and codefendant DeAnda, who had not yet been convicted, be held jointly and severally liable to pay $3,300 in victim restitution. Next, we must consider the appropriate disposition. Ordunez suggests that we need not modify the abstract of judgment because DeAnda ultimately was convicted and ordered to pay victim restitution, such that joint and several liability is appropriate. If the court had ordered DeAnda to pay $3,300 in restitution to Danielle R., then an order that the restitution be paid jointly and severally would be appropriate. And, under those circumstance, judicial economy interests might justify modifying the restitution order and affirming the judgment as Ordunez requests. But the augmented record does not establish that, like Ordunez, DeAnda was ordered to pay $3,300 in restitution to Danielle R. Rather, it indicates that the court entered a general order of restitution under section 1202.4, subdivision (f) without identifying the victim or specifying the amount.[3] Neither DeAnda’s abstract of judgment nor the minute order from his sentencing hearing mentions Ordunez or orders joint and several liability for the restitution. Accordingly, we will modify the abstract of judgment to remove the reference to joint and several liability for victim restitution. Ordunez may move for modification of the restitution order to specify joint and several liability in the trial court. (§ 1202.4, subd. (f)(1).)

III. Disposition

The judgment is modified to reflect that codefendant Anthony DeAnda is not jointly and severally liable for the $3,300 victim restitution order. The clerk of the superior court is directed to amend the abstract of judgment in accordance with this disposition and to transmit the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.