P. v. Rios
Filed 10/7/10 P. v. Rios CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LUIS DANIEL RIOS, et al.
Defendants and
Appellants.
H034481
(Santa Cruz
County
Super. Ct.
Nos. F00786, F00788,
F00790)
Appellants
Luis Rios, Salvador Garcia, and Jesus Salazar were convicted of various crimes
in connection with the deaths of Vladimir Hernandez, Javier Escalante, and Luis
Reyes Escobar.[1] Following a contested victim restitution
hearing, on June 5, 2009,
the court awarded $270,062.97 in direct victim restitution (Pen. Code, 1202.4,
subd. (f)), with joint and several liability as to all three appellants. For reasons that follow, we remand for a new restitution hearing.
Each
appellant filed a timely notice of appeal. On appeal, the appellants challenge the
restitution order on various different grounds, which we shall outline
First, however, we outline the procedural background of this case.
Procedural Background
In May
2003, Rios, Garcia and Salazar were found guilty of three counts of involuntary manslaughter in the shooting
deaths of Hernandez, Escalante and Escobar.
In addition, as to Rios, the jury found true the allegation that Rios
personally discharged a firearm from a motor vehicle with the intent to inflict
great bodily injury or death within the meaning of Penal Code section 12022.55,
which was attached to each count, and one count of willfully and maliciously
discharging a firearm from a motor vehicle in violation of Penal Code section
12034; as to Garcia, the jury found him guilty of two counts of knowingly
permitting a person to bring a firearm into his motor vehicle in violation of
Penal Code section 12034, subdivision (a); as to Salazar, the jury found him
guilty of one count of placing a concealable weapon in a vehicle in violation
of Penal Code section 12025.
The trial
court sentenced appellants to state
prison and ordered direct victim restitution in the amount of $89,458.10,
with joint and several liability.
Appellants
appealed their convictions. This court
reversed the judgment for instructional error, but did not address the
appellants' challenge to the restitution order, which had been raised in the
appeal.
Rios was
retried and again the jury found him guilty of three counts of involuntary
manslaughter. Both Garcia and Salazar
entered guilty pleas to a violation of Penal Code section 32, accessory after
the fact. The court sentenced Rios to 18
years, four months in state prison. The
court sentenced Garcia and Salazar to three years in state prison. Due to credits from their initial
incarceration, the prison terms were deemed served.
As noted,
following a contested victim restitution
hearing the court awarded $270,062.97 in direct victim restitution (Pen.
Code, 1202.4, subd. (f)), with joint and several liability as to all three
appellants. The probation officer's report
recommended that restitution be set at $86,219.10 "with 10% interest to
the victims per 1202.4 (f)(3)(8)."[2]
The Restitution Hearing
We set
forth in detail the individual restitution amounts awarded, the basis for each
claim that was presented and the objections made by trial counsel. It is important to note that no witnesses
testified at the restitution hearing.
Further, the court did not explain how the individual amounts of
restitution were calculated.
Funeral Expenses to
Michael Hernandez
The court
awarded Michael Hernandez $14,875.10 for funeral expenses for the three
decedents to be paid to the Victim's Compensation and Claims Board. This claim was based on documentation
submitted by the Revenue Recovery and Compliance Division. Appellants' counsel did not object to this
amount below.
Restitution to Manuel
Cabrera for Lost Wages
The court
ordered $2,380 ($1,344 plus interest at 10 percent) to Manuel Cabrera based on
a declaration signed by Cabrera under penalty of perjury that he was a relative
of Vladimir Hernandez, was a prosecution
witness, and had lost wages in the amount of $1,344. A memorandum from a member of the District
Attorney's Office stated that Cabrera's employer paid him cash and would verify
employment only by telephone, not in writing.
The preparer of the memorandum, which was not submitted under penalty of
perjury states that "To the best of [her] knowledge [employment] was
verified by phone by Marissa in June 2000.
The company is no longer in business." Appellants' counsel objected to this award on
the grounds that there was no documentation to substantiate the amount of lost
wages and nothing to show that Cabrera qualified as a victim. Counsel pointed out that Cabrera did not
testify during the second trial because he was "unavailable," and the
prosecution did not know where he was so it was impossible to establish his
familial relationship to Hernandez.[3] Furthermore, Rios's counsel indicated that
her research revealed that the company for which Cabrera claimed he worked was
still in business, but the company was not able to supply any records for
Cabrera.[4]
Restitution to Laura
Estefany Hernandez Leiva
The court
ordered restitution in the amount of $147,834.70 to be paid to Laura Estefany
Hernandez Leiva (hereafter Laura). This
represented the amount the prosecution claimed Vladimir Hernandez would have
sent, in escalating monthly payments to his daughter in El
Salvador if he had lived, up until the
daughter reached the age of 18. It
included interest compounded annually from 2000.
The court
based the award on a letter from Hernandez's employer, a document purporting to
show that Hernandez was the father of Laura, and a declaration from a member of
Hernandez's family stating that Hernandez sent money to El
Salvador to support his daughter.
The
prosecution provided the court with a document in Spanish that the prosecutor
represented to the court was an official record showing that Hernandez was the
father of Laura;[5] and
a declaration under penalty of perjury from Laura's grandmother in El Salvador
stating that Hernandez had sent $200 per month to her for his daughter's care;[6]
and a letter from a Julian Hernandez (Hernandez's uncle) confirming that
Hernandez sent $200 per month to Laura.
Bill Gibson
of Kestrel Construction wrote a letter to the trial court regarding Hernandez's
work with his firm. According to Gibson,
Hernandez worked for Gibson for a little over a year. His starting wage was $8 per hour, but twice Gibson
had given him a raise, once to $10 per hour and once to $12 per hour. Gibson stated that he would have given
Hernandez another raise if he had lived.
Regarding Hernandez's future income, Gibson stated that he could only
"guess" what might have happened, but opined that within five or six
years Hernandez would be making $45 per hour.
Based on
all of this documentation, the prosecution argued that in the year of his death
Hernandez would have been making $37,440 per year; that by May 2001, he would
have been making $49,420 per year; that by May 2002, he would been making
$74,880 per year; that by May 2004 or 2005, he would have been making $112,320
year.[7] The prosecution argued that because Hernandez
was sending $200 per month or eight percent of his wages to Laura each month,
Laura would be entitled to eight percent of his wages over time.
Defense
counsel objected to the document that the prosecutor represented to the court
was a birth certificate for Laura on the ground that it was not dated, did not
appear to be an official document and there was no foundation for its
admissibility; and objected to the evidence of Hernandez's wages because there
was no documentation in the form of a W-2 or 1099 form to verify the wages nor
was there any evidence to substantiate the claim that Hernandez sent $200 each
month for Laura's support. Counsel
argued that there was no authority for the type of escalating restitution that
the prosecution was claiming. Counsel
pointed out that Mr. Gibson had declined to honor a defense subpoena.
Restitution to
Escobar's Parents
The court
ordered restitution in the amount of $34,990.73 to be paid to Salvador
Escobar. Again, this amount included
interest.
The court
based the award on a declaration signed under penalty of perjury from Marisol
Reyes, the younger sister of Luis Reyes Escobar that her brother had sent $200
per month to their parents in El Salvador.
Based on
the assumption that Escobar would have continued to pay his mother $200 a month
for 10 years "and beyond" the prosecution suggested that the amount
of lost support would be $24,000, and that with interest compounded annually
the total amount of loss would be $34,990.73.
Defense
counsel objected to this award on the ground that there was no evidence to substantiate
the claim that the money was sent and no evidence to show that Luis Reyes
Escobar was actually employed.
The court
ordered restitution in the amount of $69,981.47 to be paid to the parents of
Javier Escalante. Again, this included
interest compounded annually.
The court
based the award on a declaration signed under penalty of perjury from
Escalante's brother Jorge Escalante stating that his brother sent $400 per
month to their parents in El Salvador.
Again, defense counsel objected to this award on
the ground that there was no evidence to substantiate the claim that the money
was sent and no evidence to show that Escalante was actually employed.
In ordering
restitution, the court overruled all the defense objections. The court did not explain how it arrived at
its calculation of each amount. It
appears, however, that the court relied on the prosecution's calculation of the
amount to be awarded. The court did
state that it was awarding interest "from the date of the loss."
Discussion
We begin
with an overview of the law pertaining to direct victim restitution as it
existed at the time of appellants' crimes.
"In
1982, California voters passed
Proposition 8, also known as The Victims' Bill of Rights. . . . Proposition 8
established the right of crime victims to receive restitution directly 'from
the persons convicted of the crimes for losses they suffer.' (Cal.Const., art. I, § 28, subd.
(b).)" (People v. Giordano
(2007) 42 Cal.4th 644, 652 (Giordano).) Article I, section 28, subdivision (b), of
the California Constitution provided:
"It is the unequivocal intention of the People of the State of California
that all persons who suffer losses as a result of criminal activity shall have
the right to restitution from the persons convicted of the crimes for losses
they suffer. [¶] Restitution shall be ordered from the
convicted persons in every case, regardless of the sentence or disposition
imposed, in which a crime victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary."
In
implementing Proposition 8, the Legislature enacted Penal Code section 1202.4,
which at the time of appellants' crimes provided:[8] "(a)(1) It is the intent of the
Legislature that a victim of crime who incurs any economic loss as a result of
the commission of a crime shall receive restitution directly from any defendant
convicted of that crime. . . . [¶] (3) The court, in addition to any other
penalty provided or imposed under the law, shall order the defendant to pay . .
. the following: . . . [¶]
(B) Restitution to the victim or victims, if any, in accordance with
subdivision (f), which shall be enforceable as if the order were a civil
judgment. . . . [¶] (f) In every case in which 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 in an
amount established by court order, based on the amount of loss claimed by the
victim or victims or any other showing to the court. 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. The court shall
order full restitution unless it finds compelling and extraordinary reasons for
not doing so, and states them on the record.
[¶] (1) The defendant has the
right to a hearing before a judge to dispute the determination of the amount of
restitution. The court may modify the
amount, on its own motion or on the motion of the district attorney, the victim
or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim shall be
notified of that motion at least 10 days prior to the proceeding held to decide
the motion. (2) Determination of the
amount of restitution ordered pursuant to this subdivision shall not be
affected by the indemnification or subrogation rights of any third party. Restitution ordered pursuant to this
subdivision shall be ordered to be deposited to the Restitution Fund to the
extent that the victim, as defined in subdivision (k), has received assistance
from the Victims of Crime Program pursuant to Article 1 (commencing with Section
13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government
Code. [¶] (3) To the extent possible, the restitution
order shall be prepared by the sentencing court, shall identify each victim and
each loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every determined
economic loss incurred as the result of the defendant's criminal conduct,
including, but not limited to, all of the following: [¶]
(A) Full or partial payment for the value of stolen or damaged property.
The value of stolen or damaged property shall be the replacement cost of like
property, or the actual cost of repairing the property when repair is
possible. [¶] (B) Medical expenses. [¶]
(C) Mental health counseling expenses.
[¶] (D) Wages or profits lost due
to injury incurred by the victim, and if the victim is a minor, wages or
profits lost by the minor's parent, parents, guardian, or guardians, while
caring for the injured minor. [¶] (E) Wages or profits lost by the victim . . .
due to time spent as a witness or in assisting the police or prosecution. [¶]
(F) Noneconomic losses, including, but not limited to, psychological
harm, for felony violations of Section 288.
[¶] (G) Interest, at the rate of
10 percent per annum, that accrues as of the date of sentencing or loss, as
determined by the court. [¶] (H) Actual and reasonable attorney's fees and
other costs of collection accrued by a private entity on behalf of the
victim. [¶] (I) Expenses incurred by an adult victim in
relocating away from the defendant, including, but not limited to, deposits for
utilities and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred pursuant to this section
shall be verified by law enforcement to be necessary for the personal safety of
the victim or by a mental health treatment provider to be necessary for the
emotional well-being of the victim.
[¶] (J) Expenses to install or
increase residential security incurred related to a crime, as defined in
subdivision (c) of Section 667.5, including, but not limited to, a home
security device or system, or replacing or increasing the number of locks. [¶]
(K) Expenses to retrofit a residence or vehicle, or both, to make the
residence accessible to or the vehicle operational by the victim, if the victim
is permanently disabled, whether the disability is partial or total, as a
direct result of the crime."
(Stats.1999, ch. 584, § 4 pp.
4142-4145.)
Thus, Penal Code
section 1202.4 provides for full restitution of victims' economic
losses, but "does not authorize direct restitution for noneconomic
losses. [Citation.]" (Giordano, supra, 42 Cal.4th at p.
656.) Furthermore, "direct victims
of crime have a statutory right to restitution on the full amount of their
losses without regard to the full or partial recoupment from other sources
(except the state Restitution Fund).
[Citations.]" (People v.
Baker (2005) 126 Cal.App.4th 463, 468.)
"Since its
amendment in 1996, the list of categories of compensable loss in Penal Code
section 1202.4 has been nonexclusive: the order 'shall be of a dollar amount
that is sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's criminal
conduct, including, but not limited to,' the 11 enumerated categories .
. . . [Citation.]" (Giordano, supra, 42 Cal.App.4th at p.
656.)
At the time of
appellants' crimes a victim was defined to include the
immediate surviving family of the actual victim and derivative victims as
defined in then Government Code section 13960.
(Former Pen. Code, § 1202.4, subds. (k)(1) & (3), added by
Stats 1999, ch. 584, § 4, pp. 4142-4245.)
Former Government Code
section 13960, subdivision (a)(2), provided that a derivative victim was
"a resident of California, or resident of another state, who is one of the
following: [¶] (A) At the time of the crime was the parent,
sibling, spouse, or child of the victim.
[¶] (B) At the time of the crime
was living in the household of the victim.
[¶] (C) A person who had
previously lived in the household of the victim for a period of not less than
two years in a relationship substantially similar to a relationship listed in
subparagraph (A). [¶] (D) Is another family member of the victim,
including the victim's fiancé or fiancée, and witnessed the crime. [¶]
(E) Is the primary caretaker of a minor victim, but was not the primary
caretaker at the time of the crime." (Stats. 1998, ch. 895, § 1.3, pp.5844-5845,
operative Jan. 1, 1999.)
In general, at a victim restitution hearing, a prima
facie case for restitution is made by the People based in part on a victim's
testimony on, or other claim or statement of, the amount of his or her economic
loss. (People v. Prosser
(2007) 157 Cal.App.4th 682, 690-691 (Prosser);
People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 (
"Once the victim
has made a prima facie showing of his or her loss, the burden shifts to the
defendant to demonstrate that the amount of the loss is other than that claimed
by the victim. [Citations.]" (Prosser,
691.)
We review the trial
court's restitution order for abuse of discretion. (Giordano,
663.) "The abuse of discretion
standard is 'deferential,' but it 'is
not empty.' [Citation.] '[I]t asks in substance whether the ruling in
question "falls outside the bounds of reason" under the applicable
law and the relevant facts [citations].'
[Citation.] Under this standard,
while a trial court has broad discretion to choose a method for calculating the
amount of restitution, it must employ a method that is rationally designed to
determine the surviving victim's economic
loss. To facilitate appellate review of
the trial court's restitution order, the trial court must take care to make a
record of the restitution hearing, analyze the evidence presented, and make a
clear statement of the calculation method used and how that method justifies
the amount ordered." (
Appellants' Contentions
Initially,
we deal with appellants' constitutional challenges to the victim restitution
order.[9]
Double Jeopardy
Essentially,
appellants contend that the court's restitution award violated the state
constitutional prohibition against double
jeopardy because the court increased victim restitution after a successful
appeal and retrial.[10] Appellants' claim is based on the assertion
that victim restitution constitutes punishment.
In People v. Harvest (2000)
84 Cal.App.4th 641 (Harvest), the First District Court of Appeal
considered the propriety of a victim restitution order, which was initially
imposed at a resentencing. (
on due process and double jeopardy grounds.
Restitution in the form of funeral and burial expenses, which had been
incurred by the mother of a victim, was overturned due to the lack of a sufficient
evidentiary support. However, the court
affirmed the restitution order in all other respects, including child support
payments that one of the deceased victims was required to make. In so ruling, the majority held that the
double jeopardy prohibitions of the California Constitution (Cal. Const., art.
I, § 15) did not bar the trial court from imposing victim restitution for the
first time at resentencing, because court-ordered victim restitution is a civil
remedy rather than a punishment. In
short, the majority reasoned that, although the rationale of victim restitution
includes some element of deterrence, such restitution is more analogous to a
civil remedy than to a criminal fine or penalty, since its purpose is to
provide monetary compensation for actual economic losses incurred by the
victim. (Id. at pp. 647-653.)
The Harvest court explained that restitution fines are specifically
termed "punishments" in the Penal Code, must be imposed even where
the crime is victimless, are payable to the state treasury, cannot exceed
$10,000, may be calculated with reference to the years of imprisonment and the
number of crimes and victims, may vary with the gravity of the offense, and
cannot generally be avoided by an inability to pay. (Harvest, supra, 84 Cal.App.4th at pp. 646-647.) On the other hand, the court reasoned that
victim restitution is not statutorily termed a punishment, is payable only when
there is a victim, and is set without limit in an amount equal to the victim's
loss as compensation for the defendant's crime.
(Id. at pp. 647-648.) The court concluded these differences
demonstrated a legislative intent that victim restitution constitutes a civil
remedy, not a criminal punishment. (Id.
at p. 649.) The majority found that since victim restitution
had not historically been regarded as punishment, was primarily directed to
making the victim whole rather than punishing the defendant, and was limited in
amount to the victim's actual economic loss there was no clear proof that
victim restitution was effectively a criminal penalty despite the Legislature's
intent to the contrary. (Id. at p. 650.)
Thus, Harvest stands for the
proposition that double jeopardy does not apply to victim restitution orders.
Appellants Salazar and Garcia argue
that Harvest is wrongly decided, and urges this court to follow Justice
Poché's dissent, in which he concluded that direct victim restitution is so
punitive in purpose and effect as to render it a criminal
punishment, thereby offending "the double jeopardy
provisions of our state Constitution under the rule announced in People v.
Henderson (1963) 60 Cal.2d 482, 495-497 . . . ." (Harvest, supra, 84 Cal.App.4th at p. 656, [dis. opn of Poché,
J.].) His dissent points out that such
an order is only imposed upon conviction of a crime, and that it could far
exceed the scope and scale of damages which otherwise would be available to the
victim in a civil suit. (Ibid.)
Nevertheless, we are persuaded by
the majority opinion in Harvest and conclude that double jeopardy
considerations do not bar the imposition of the direct victim restitution order
for the damages suffered by the victims in this case. Victim restitution is imposed as recompense
for the monetary harm caused by those convicted of a crime.
Since the
direct victim compensation provisions of section 1202.4 are not criminal
penalties barred by the double jeopardy provisions of the state and federal
Constitutions, we reject appellants' constitutional arguments that the court
could not increase the amount of victim restitution after appellants'
successful appeal.
Due Process--Right to a
Jury Trial
In essence, Rios and Garcia
argue that due process requires a jury determination of the restitution
amount.
Rios and
Garcia rely on the statement in Giordano that the
numerous decisions holding that restitution hearings require fewer due process
protections "were decided prior to the high court's decision in Cunningham
v. California (2007) 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 [Cunningham ], and our decisions in People v.
Black (2007) 41 Cal.4th 799 . . . and People v. Sandoval (2007) 41
Cal.4th 825 . . . , which required 'that, under the Sixth Amendment, any fact
that exposes a defendant to a greater potential sentence must be found by a
jury, not a judge, and established beyond a reasonable doubt, not merely by a
preponderance of the evidence.' [Citations.]
Because defendant has not raised any due process or other state or
federal constitutional challenge, however, we do not have occasion to address
possible constitutional challenges to restitution hearings." (Giordano, supra, 42 Cal.4th at p. 662, fn. 6.)
The Supreme
Court's decision in Cunningham was based upon its earlier decision in Blakely
v. Washington (2004) 542 U.S. 296, where the high
court ruled 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.' " (Id.
at pp. 301, quoting Apprendi v. New Jersey
(2000) 530 U.S.
466, 490.) Since the California
statute governing victim restitution--Penal Code section 1202.4-- does not
prescribe a statutory maximum, we believe that it is not necessary to have the amount
of victim restitution submitted to a jury.
We note
that the California Supreme Court has yet to address the question of whether a
restitution hearing must be tried to a jury.
However, the Fourth District Court of Appeal has answered this question
unfavorably for appellants. In People v. Millard (2009) 175 Cal.App.4th 7 (Millard), the court rejected
the defendant's claim that he had a Sixth Amendment right to a jury trial at a
section 1202.4 victim restitution hearing, disagreeing with his "premise
that Penal Code section 1202.4 victim restitution constitutes increased
punishment for a crime." The court
agreed instead with the court in Harvest, supra,
84 Cal.App.4th 641 that " 'the primary purpose of victim restitution
is to provide monetary compensation to an individual injured by crime,' "
a collection procedure that is civil in nature.
(Millard, supra, 175 Cal.App.4th at p. 35.) The Millard court explained that
"[t]o 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 . . . ."
(Id. at pp. 35-36.)
The Millard
court explained that "Penal Code section 1202.4's requirement that a trial
court issue an order providing for full restitution of a victim's economic
losses does not constitute a sentencing choice by the trial court. Rather, because that statute requires the
court to award the victim full restitution, the court's determination of that
amount in a restitution hearing by a preponderance of the evidence does not
involve a defendant's Sixth Amendment right to a jury or proof beyond a
reasonable doubt." (Millard,
supra, 175 Cal.App.4th at p. 36, italics added.)
Federal appellate courts have reached
the same conclusion that the Sixth Amendment does not require jury
trials on issues of victim restitution. (See,
e.g., United States v. Leahy (3d Cir. 2006) 438 F.3d 328, 338
[collecting cases]; United States v. Sosebee (6th Cir. 2005) 419 F.3d
451, 461-462; United States v. Behrman (7th Cir. 2000) 235 F.3d 1049,
1054 [holding that Apprendi does not affect the calculation of
restitution]; United States v. Wooten (10th Cir. 2004) 377 F.3d 1134,
1143-1144.) We agree with their
conclusion that the trial court has the prerogative to determine victim restitution and reject all of
appellants' arguments to the contrary.
Alternatively,
Rios argues that he has a constitutional right to a jury trial because if restitution
is a civil matter the California Constitution guarantees the right to a jury
trial in civil cases.
Certainly,
the "governing statutes specify that an order for victim restitution may
originate from criminal court, but expressly recognize that such an order
'shall be enforceable as a civil judgment.'
[Citations.]" (
However, a restitution order when imposed is part of a criminal
sentencing procedure and is not a civil matter.
It becomes a civil matter only when it comes to the victim enforcing the
restitution order. Accordingly, we
reject Rios's argument that he had a right to a civil jury trial.
Excessive Fine
Rios contends that the procedure
for determining restitution violated his constitutional right to be free from
excessive fines.
The excessive fines clause of
the Eighth Amendment to the United States Constitution is not implicated by the
restitution award. (Compare People v.
Hanson (2000) 23 Cal.4th 355 with Harvest, supra, 84 Cal.App.4th 641.) Since restitution is confined to the victim's
actual economic loss, it cannot be condemned as excessive. (
Due Process--Method of
Determining Restitution
Rios
contends that the method of determining restitution set forth in California
case law violated his right to due process of law. Rios points out that recent California
cases have held that a defendant's right to due process in restitution hearings
is minimal. He argues that California's
procedure of requiring the prosecution to present only a prima facie case and
then shifting the burden to the defendant to prove to a judge a lower amount is
inappropriate. He asserts that here he
"complained that the prosecution had provided little or no proof to
substantiate most of the restitution amounts it asked the court . . . to
award. Trial counsel observed that it
had attempted to subpoena such persons as Mr. Hernandez'[s] employer, Mr.
Gibson and Mr. Shilling, Mr. Escalante's purported employer but those persons
had ignored the subpoenas. For such
reasons, it was essentially impossible for the defense to rebut the
prosecution's contentions."[11]
The
fundamental aspects of due process are the right to notice and the opportunity
to be heard. (See People v. Bautista
(1998) 63 Cal.App.4th 865, 870.) In
proceedings to determine the amount of restitution to be ordered, " '[a]
defendant's due process rights are protected when the probation report gives
notice of the amount of restitution claimed . . . and the defendant has an opportunity
to challenge the figures in the probation
report . . . .' "
(People v. Resendez (1993) 12 Cal.App.4th 98, 113.) Of course in this case, the probation report
stated that the amount of restitution being claimed was $86,219.10, which
included $70,000 to support Laura, $1344 for Manuel Cabrera, $14,875.10 to
Michael Hernandez, plus interest. No
mention was made of any restitution being claimed by the parents of Escobar or
Escalante. However, on March 13, 2009, approximately 12
weeks before the restitution hearing, the prosecution filed a "Points and
Authorities Regarding Restitution," which set forth in detail the amount
of restitution being claimed by all the victims. Attached to the points and authorities were
all the documents that we detailed ante
as support to substantiate the claims.
Thus, appellants had notice and all availed themselves of the
opportunity to contest the claims made.
That is all due process requires.
Substantial Evidence
of Loss of Future Economic Support
Essentially, appellants assert
that the trial court abused its discretion by basing the future economic loss
calculations (support for Laura, the parents of Escalante and the parents of
Escobar) on the uncorroborated statements of interested parties.
Appellants
point out that over objection, "the trial court considered various
uncorroborated statements of the alleged victims to establish an order for
restitution for lost wages. The order,
based on inapposite authority offered by the prosecution, effectively suggests
that the mere statement of a fact is sufficient under the law to support a
finding requiring restitution. Though
the statements of alleged victims regarding the value of personal property may
be used to establish a prima facie case for restitution for the loss of such
property . . . there appears to be no case that allows the proof of the losses
(rather than the value of losses) based merely on the statements of the
interested parties. In this case, the
unsupported statements of the victims were insufficient to overcome the
objections of counsel and prove the restitution owed." Garcia notes that this appears to be an issue
of first impression in California.
At the
outset, we note that the standard of proof at a restitution hearing is by a
preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Baker (2005) 126
Cal.App.4th 463, 468-469.) "In
reviewing the sufficiency of the evidence, the ' "power of the appellate
court begins and ends with a determination as to whether
there is any substantial evidence, contradicted or uncontradicted," to
support the trial court's findings.'
[Citations.]" (
In Giordano,
the California Supreme Court held section 1202.4 did not preclude a court from
ordering a defendant convicted of vehicular manslaughter to pay restitution to
the surviving spouse for "future economic losses attributable to the
deceased victim's death." (Giordano,
supra, 42 Cal.4th at p. 649.)
Nevertheless, the
"a trial court has broad discretion to choose a method for calculating the
amount of restitution" (Giordano,
trial court must, "employ a method that is rationally designed to
determine the [crime] victim's economic loss." (Id. at pp. 663-664.)
Thus,
"[w]hile the court need not order restitution in the precise amount of
loss, it 'must use a rational method that could reasonably be said to make the
victim whole, and may not make an order which is arbitrary or capricious.'
" (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172; see also People v. Ortiz (1997) 53 Cal.App.4th 791, 800 [while the amount of restitution
cannot be arbitrary or capricious, there is no requirement the restitution
order be limited to the exact amount of the loss in which the defendant is
actually found culpable, nor is there any requirement the order reflect the
amount of damages that might be recoverable in a civil action].)
Finally, we
note that "[i]f there is no substantial evidence to support the award, and
assuming no other rational explanation, the trial court
will have obviously abused its discretion." (People v. Thygesen (1999) 69
Cal.App.4th 988, 993 (Thygesen).)
Factors
relevant to the trial court's reasonable determination of loss of future
economic support "will necessarily depend on the particular circumstances
before the court. Generally, the
calculation of the loss of support may be informed by such factors as the
earning history of the [decedent], the age of the survivor and decedent, and
the degree to which the decedent's income provided support to the survivor's
household. These guideposts are not
provided as an exhaustive list.
Naturally the court's discretion will be guided by the particular
factors at play in each individual claim."
(Giordano, supra, 42
Cal.4th at p. 665.)
Although a
defendant has the burden of establishing that the amount of the loss is other
than that claimed by the victim, where loss of future economic support is
concerned, "[t]he burden is on the party seeking restitution to provide an
adequate factual basis for the claim."
(Giordano,
Initially,
we note that Salazar and Rios contend that the parents of Escobar and Escalante
were not entitled to restitution.
The
determination of who may receive and how much they may receive in future
economic losses, is inherently different from the determination of how much a
stolen or damaged piece of property was worth in order that restitution may be
made to owner. Accordingly, similar to
the Giordano court (
to wrongful death actions and statutes to guide our analysis here.
A cause of
action for the death of a person caused by the wrongful act of another may be
asserted by the decedent's parents "if they were dependent on the
decedent." (Code Civ. Proc., §
377.60, subd. (b).)
As the
purpose of the statute establishing standing for certain persons to bring
wrongful death actions, Code of Civil Procedure section 377.60, 'is to enable
the heirs and certain specified dependents of a person wrongfully killed to
recover compensation for the economic loss and deprivation of consortium
they suffer as a result of the death.'
[Citation.] One of the approved
jury instructions for calculating wrongful death losses describes the
'financial support, if any, which each of said heirs would have received from
the deceased except for the death, and the right to receive support, if any,
which each of the heirs has lost by reason of the death' as 'economic
damage.' [Citations.]" (Giordano, supra, 42 Cal.4th at pp. 658-659.)
In
"[t]he Legislature very clearly intended 'that a victim of a crime who
incurs any economic loss as a result of the commission of a crime shall
receive restitution directly from any defendant convicted of that crime.' [Citation.]
The Legislature is presumed to be aware of ' "judicial decisions
already in existence, and to have enacted or amended a statute in light
thereof. [Citation.]" '
[Citation.]" (
659.) Accordingly, the Supreme Court
concluded that "when it enacted Penal Code 1202.4, requiring that victims
receive restitution for all economic losses, it did so with the presumed
knowledge that courts have long understood that a surviving spouse incurs an
economic loss upon the death of his or her spouse." (Ibid.)
Similarly,
we must conclude that the Legislature was aware that courts have long
understood that dependent parents incur an economic loss upon the death of a
son or daughter. "Given the
constitutional and legislative intent to provide restitution for all crime
victim losses, and the expressly nonexclusive list of categories of loss included
in the direct restitution statute" (id.
at p. 660), we decline to hold that Escobar's parents and Escalante's parents
are not entitled to restitution for loss of future economic support, even
though they are not residents of this country and their sons were under only a
moral obligation to send money.[12] (See Taylor
v. Albion Lumber Company (1917) 176 Cal.
347, 352 [nonresident aliens may maintain actions under the wrongful death
statutes]; Sneed v. Marysville Gas, etc.
Co.(1906) 149 Cal.704, 710 [pecuniary loss may be either a loss arising
from the deprivation of something to which the heirs are legally entitled or it
could be reasonably expected such heirs would receive from the deceased had he
or she lived even though the obligation may have been only a moral
obligation].)
That being
said, as noted, the burden was on Escobar's parents and Escalante's parents to
"provide an adequate factual basis for the claim." (Giordano,
supra, 42 Cal.4th at p. 664.)
In
the wife's claim for loss of her decedent husband's future economic support was
provided by the testimony of the decedent's employer establishing the
decedent's earnings for the three years preceding his death and by the
decedent's spouse that decedent " 'was a provider' " for their family. Based on this testimony, the court ordered
the defendant to pay restitution to the wife in the amount of $167,711.65,
which was calculated by multiplying the husband's average annual earnings over
the three years prior to his death by five years. (Giordano,
supra,
42 Cal.4th at p. 663.) Although the
Supreme Court found the trial court's calculation imprecise, it was not
persuaded that the trial court abused its discretion. (Ibid.)
Respondent
argues the victims' statements regarding losses they incurred from criminal
acts are prima facie evidence of the losses, citing Keichler, supra, 129
Cal.App.4th 1039. Keichler states
as an example that victims' statements about the value of the property stolen
constitute " 'prima facie evidence of value for purposes of restitution.'
" (Id. at p. 1048.) The situation here differs from Keichler
because although the court in Keichler viewed the victims' statements as
prima facie evidence, there was expert testimony provided, and the victims'
written statements had attached receipts that constituted substantial evidence
of the amount of victim restitution ordered by the court. (Id.
at p. 1043.) As this court has explained
before, the Keichler court "found that the amount of restitution
was adequately established by evidence including unobjected-to statements in
the probation report from the victims, an itemization of amounts sought, 'a
recitation of their medical bills ' and certain expenses incurred by
them, receipts for certain items claimed, and expert testimony establishing the
reasonableness of certain amounts.
[Citation.]" (
re K.F. (2009) 173
Cal.App.4th 655, 665.)
Here, the
statement of Escobar's sister that her parents received $200 per month in
support from her brother and the statement from Escalante's brother that his
parents received $400 per month in support from his brother without anything
comparable to a "receipt" showing the loss is not substantial
evidence to justify the claims for loss of future economic support. Although a victim is not required to provide
an exact dollar amount of his or her losses to a certainty (People v.
Carbajal (1995) 10 Cal.4th 1114,
1121), here the issue is not that the victims provided an uncertain or inexact
amount, but that the victims did not present sufficient evidence to establish
their loss. Without something more
tangible than an unsupported bare assertion of loss of economic support, a
victim has not provided "an adequate factual basis for the claim." (Giordano,
supra, 42 Cal.4th at p. 664;
and demonstrated economic loss].)[13]
As the
outlined in the probation officer's report or in this case the pleadings of the
prosecution, may satisfy notice requirements for purposes of due process, but
it cannot take the place of evidence. (
accord Thygesen, supra, 69 Cal.App.4th at pp. 995-996.)
As noted,
in our view the determination of who may receive and how much they may receive
for loss of future economic support, is inherently different from the
determination of how much a stolen or damaged piece of property was worth in
order that restitution may be made to owner.
A piece of property or even such things as medical bills are more
tangible than claims for loss of future economic support. In cases involving property loss or damage or
even injury to the victim the prosecution has already proved beyond a
reasonable doubt the actual loss, damage or injury occurred. There is a more direct link between the loss
and the underlying crime. This is not so
where the loss of future economic support is concerned. Accordingly, where a victim claims loss of future
economic support, we conclude that more is required than the bare assertion
that a decedent was supporting the person or persons claiming the loss.
We do not
mean to imply that appellants should not be held responsible for all the
consequences of their acts. However, to
allow victims to claim restitution for loss of economic support without
anything to verify the claim reduces the process to mere paper accounting.
Although we
have not decided this issue on due process grounds, we note that a "trial
court violates a defendant's due process right at a hearing to determine the
amount of restitution if the hearing procedures are fundamentally unfair. [Citation.]" (People v. Cain (2000) 82 Cal.App.4th 81, 87.) Reliability of the information
considered by the court is the key issue in determining fundamental
fairness. (People v. Arbuckle (1978)
22 Cal.3d 749, 754-755.) Without
anything to substantiate the victims' claims in this case, there was no way for
defense counsel to challenge the amount of restitution claimed by Escobar's
parents, Escalante's parents and Laura.
Due process requires the opportunity to be heard at a meaningful time
v. Litmon (2008) 162 Cal.App.4th 383, 396.)[14]
We are
mindful that while the "power to judge the credibility of witnesses and to
resolve conflicts in the testimony is vested in the trial court" (In re
Carpenter (1995) 9 Cal.4th 634, 646) and we recognize that sentencing
judges are given virtually unlimited discretion as to the kind of information
they can consider and the source from whence it comes (People v. Baumann (1985) 176 Cal.App.3d 67, 81), here no witnesses
testified at the hearing. It is
axiomatic that a person's declaration puts his or her credibility at issue, but
without that person testifying or producing something to substantiate the claim
a court has nothing upon which to make a credibility determination regarding
the matters stated.[15] As such, the court's determination one way or
the other is arbitrary.
Since the
trial court's determination of the amount of loss to the parents of Escobar and
Escalante was not based on factual evidence presented at the hearing the awards
cannot stand.
Furthermore,
nowhere in the record of the restitution
hearing do we find where the trial court made a clear statement of the
calculation method used and how that method justified the amount ordered. It appears that the court accepted the
prosecution's calculations without question.
As the Giordano court noted,
and we reiterate that the court must, at a minimum, calculate the loss of
support on the earning history of the decedent, the age of the survivor and
decedent, and the degree to which the decedent's income provided support to the
survivor's household. (
666.) None of this information is in the
record presented to the trial court.
Accordingly, there was no evidence presented to the trial court from
which a rational determination of loss could be made. Thus, we must remand the matter for a new
hearing on the economic loss to Escobar's and Escalante's parents.
As to the
award of economic support to Laura, again, we find the "evidence" of
Laura's economic loss lacking. No court
has discretion to find facts for which there is not substantial evidence. Thus, again, we must remand the matter for a
new hearing.[16]
Restitution to Manuel
Cabrera
As noted
the court ordered $2,380 ($1344 plus interest at 10 percent) to Manuel Cabrera
based on a declaration signed by Cabrera under penalty of perjury that he was a
relative of Vladimir Hernandez, was a prosecution witness, and had lost wages
in the amount of $1344. Cabrera's
declaration did not detail the hours of work that he lost assisting the
prosecution or the amount he was paid by Geno's Landscape Services. The prosecution claimed that Cabrera
qualified as a derivative victim under Government Code sections 13951and 13955,
subdivision (c)(4).
Government
Code section 13951, which currently contains the definition of who is a
derivative victim, was not enacted until after appellants' crimes. (Stats. 2002, ch. 1141, § 2, pp.
5667-5668.) We do not question, however,
that Cabrera qualified as a victim under former Penal Code section 1202.4,
subdivision (k)(3). (Stats. 1999, ch.
584, § 4, p. 4147.) He was a derivative
victim under former Government Code section 13960, subdivision (a)(2), which
provided that a derivative victim was "a resident of California, or
resident of another state, who is one of the following: . . . [¶]
(D) Is another family member of the victim, including the victim's
fiancé or fiancée, and witnessed the crime." (Stats. 1998, ch. 895, § 1.3, p. 5845.) Thus, because Cabrera was Hernandez's cousin
and witnessed the crime, he qualifies as a victim.
Crime
victims may receive restitution for wages lost while they are assisting the
police or prosecution. (People v.
Brasure (2008) 42 Cal.4th 1037, 1074-1075.)
As noted,
Penal Code section 1202.4 authorizes victim restitution for the purpose of
reimbursing victims for the actual economic loss suffered as a result of a
defendant's offense. The problem with
the restitution order in this case is not a misinterpretation of the meaning or
purpose of section 1202.4, but rather with the absence of sufficient evidence
to support the finding of economic loss in the form of lost wages or other
employment benefits for time spent assisting the prosecutor and attending
hearings. The economic loss may be
established by evidence of the time spent for these purposes, the value of that
time and the reduction in pay or compensation the victim suffered as a result
of that time. Did the victim miss work
or use holiday or vacation time, and if so, how muchâ€
| Description | Appellants Luis Rios, Salvador Garcia, and Jesus Salazar were convicted of various crimes in connection with the deaths of Vladimir Hernandez, Javier Escalante, and Luis Reyes Escobar.[1] Following a contested victim restitution hearing, on June 5, 2009, the court awarded $270,062.97 in direct victim restitution (Pen. Code, 1202.4, subd. (f)), with joint and several liability as to all three appellants. For reasons that follow, Court remand for a new restitution hearing. Each appellant filed a timely notice of appeal. On appeal, the appellants challenge the restitution order on various different grounds, which we shall outline post. First, however, Court outline the procedural background of this case. |
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