Filed 10/19/26 P. v. Serrano CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B344567
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA085362)
v.
VIVIANA SERRANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Emily J. Cole, Judge. Affirmed.
Steven S. Lubliner, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Jason Tran, Supervising Deputy
Attorney General, and Taylor Nguyen, Deputy Attorney General,
for Plaintiff and Respondent.
_________________
Viviana Serrano appeals from a judgment for misdemeanor
reckless driving following a negotiated plea. Serrano contends
the court erred in ordering her to pay $4,281.95 in restitution to
Erik Waite relating to a road rage incident in which Serrano
followed Waite in her vehicle, flashing her high-beam lights and
honking her horn, then enlisted the assistance of her boyfriend,
Christian Martinez, to help her follow and harm Waite. After
Martinez arrived in his vehicle and joined Serrano’s pursuit of
Waite, they caused Waite to pull over to the side of the road.
Martinez used his car to hit the back of Waite’s car, and Martinez
and Serrano parked in the front of and behind Waite, preventing
him from driving away.
As part of a negotiated plea, Serrano pleaded no contest to
misdemeanor reckless driving, the trial court dismissed a charge
for false imprisonment, and Serrano provided a Harvey waiver
with respect to the dismissed count.1 Serrano contends the court
abused its discretion in ordering restitution because it was
Martinez, not Serrano, who caused the damage to Waite’s vehicle.
We affirm.
1 As we will discuss, a “Harvey waiver” is based on the
Supreme Court’s decision in People v. Harvey (1979) 25 Cal.3d
754, 758, which requires a defendant’s agreement to a trial
court’s consideration of facts underlying a count that is dismissed
as part of a negotiated plea in imposing a sentence.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The 2023 Incident and Preliminary Hearing2
On the evening of March 7, 2023, Waite was driving home
on a two-lane highway with his 14-year-old daughter in the
passenger seat of his vehicle. Waite continued on the highway,
which became Avenue T. As he approached an intersection, he
changed lanes and noticed a car following closely behind him,
which was driven by Serrano. Serrano began flashing her
vehicle’s high-beam lights and honking her horn at Waite. Waite
pulled over to the right side of the road to allow Serrano’s vehicle
to pass. Serrano passed Waite on the left side of his vehicle at a
high rate of speed, crossed the double yellow line into the
oncoming lane of traffic, and passed multiple other cars before
she continued driving on the correct side of the road. Waite,
believing the interaction with Serrano had ended, continued to
drive home.
As Waite approached another intersection and began to
turn right, he noticed Serrano’s car had pulled over to the right
side of Avenue T just past the intersection. After Waite made the
right turn, Serrano made a U-turn and continued to follow him.
Waite then made a left turn onto the street where he lived, and
Serrano likewise made a left turn and continued to follow him.
At some point while Serrano was following Waite, she called her
boyfriend, Christopher Martinez, and asked him to come and
assist her.
2 The facts are primarily based on testimony at the
October 10, 2023 preliminary hearing.
3
Serrano continued to follow Waite’s vehicle. As he
approached his house, Waite decided not to pull into his driveway
because he did not want Serrano to know where he lived. Waite
drove past his house and circled the block a couple of times,
hoping Serrano would tire of following him and leave. However,
Serrano continued to follow Waite while flashing her high-beams
and honking her horn. During Waite’s second loop around the
block, he noticed a second vehicle coming toward him, which was
driven by Martinez. Waite moved toward the right side of the
road to let Martinez’s vehicle pass, but as Martinez started to
pass, he turned his vehicle toward the back of Waite’s vehicle and
hit it, causing damage to the vehicle. Waite slammed on the
brakes and pulled to the right side of the road, where his vehicle
stalled. Waite instructed his daughter to call 911.
Once Waite was on the side of the road, Martinez pulled
“right in front” of Waite’s vehicle so Waite “couldn’t leave” (drive
forward), while Serrano pulled her vehicle “right behind” Waite,
so Waite “wasn’t able to reverse.” Martinez and Serrano exited
their vehicles, approached Waite’s vehicle, and yelled at him and
his daughter through the vehicle window. One of them banged
on the vehicle’s window. The 911 operator instructed Waite to
remain in his vehicle. Waite waited in his vehicle until the
highway patrol officers arrived.
B. The Complaint and Serrano’s No Contest Plea
The complaint charged Serrano and Martinez with false
imprisonment by violence (Pen. Code, § 236; count 1)3 and child
3 Further undesignated statutory references are to the
Penal Code.
4
abuse under circumstances likely to cause great bodily injury or
death (§ 273a, subd. (a); count 2), and it charged Serrano with
misdemeanor reckless driving on a highway (Veh. Code, § 23103,
subd. (a); count 5).4
Pursuant to a negotiated plea, on March 4, 2024 Serrano
pleaded no contest to count 5 for misdemeanor reckless driving;
the trial court dismissed count 1 for false imprisonment, subject
to a Harvey waiver with respect to restitution. The court placed
Serrano on summary probation and, as a condition of probation,
ordered her to pay Waite restitution under section 1202.04,
subdivision (f). At the plea hearing the court advised Serrano
regarding the Harvey waiver, “You will be responsible for
restitution with [regard] to the count you are pleading to but also
count 1, which is the one that is being dismissed, the false
imprisonment. If there were any restitution that would derive
from these particular two counts, then you would be responsible
for that. Is that your understanding of the deal here today?”
Serrano responded, “Yes.”
“‘False imprisonment is the unlawful violation of the
personal liberty of another.’ (§ 236.) ‘False imprisonment is a
misdemeanor unless it is “effected by violence, menace, fraud, or
deceit,” in which case it is a felony.’” (People v. Islas (2012)
210 Cal.App.4th 116, 122-123.) The gravamen of reckless driving
is driving with a wanton disregard for the safety of persons and
property. (See People v. Barber (2020) 55 Cal.App.5th 787, 802.)
4 The complaint also charged Martinez with felony assault
with a deadly weapon (§ 245, subd. (a)(1)) and felony vandalism
(§ 594, subd. (a)). The trial court granted Serrano’s motion to
dismiss the child abuse count under section 995.
5
C. The Restitution Hearings
Waite requested approximately $7,000 in restitution, which
included the cost of repairing the damage to his vehicle
($4,276.71); rental car expenses while his vehicle was being
repaired ($378.65); medical costs for his insurance co-payment
and prescription medication ($48.58); and his lost wages for five
days, including the time he was unable to work as a result of his
injuries, the time to pick up and return his rental car, and the
time he needed to appear in court ($2,404.40). At the initial
restitution hearing, Serrano stipulated to pay $961.76 in
restitution for Waite’s lost wages for his appearances in court,
but Serrano objected to the remainder of the requested
restitution on the ground that it was Martinez’s collision with
Waite’s vehicle that caused the remaining losses. The trial court
continued the restitution hearing.
At the continued restitution hearing on August 30, 2024,
Serrano again argued she should only be ordered to pay
restitution based on her reckless driving conviction because
Serrano “neither pled to nor was convicted of the assault with a
deadly weapon or . . . any charge related to the damage to the
vehicle.” The prosecutor argued that Serrano’s reckless driving
created a dangerous situation, and Serrano enlisted Martinez to
assist her in pursuing and stopping Waite, which heightened the
danger to Waite and his vehicle and led to the collision. The trial
court ordered a total of $4,281.95 in restitution (including the
$961.76 Serrano had agreed to pay). The court explained, “[T]he
plea was to count 5 with a Harvey waiver as to count 1, which is
the false imprisonment. Count 5 is the reckless driving. I
understand [Serrano’s] arguments, but I don’t know that we can
separate the type of actions and damages when they all seem to
6
come from the same instance generated by the defendant.” The
court ordered that Serrano and Martinez would be jointly and
severally liable for the restitution award.
Serrano timely appealed.5
DISCUSSION
A. Governing Law and Standard of Review
“Under the California Constitution, as amended in 1982 by
Proposition 8 (commonly known as The Victims’ Bill of Rights),
every crime victim has a right to be compensated by the
defendant for losses incurred as a result of the defendant’s crime.
(Cal. Const., art. I, § 28, subd. (b)(13).)” (People v. Martinez
(2017) 2 Cal.5th 1093, 1100.) Consistent with this constitutional
provision, section 1202.4, subdivision (a)(1), provides, “It is the
intent of the Legislature that a victim of crime who incurs an
economic loss as a result of the commission of a crime shall
receive restitution directly from a defendant convicted of that
crime.” Section 1202.4, subdivision (f), similarly states, with
limited exceptions not applicable here, “[I]n 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.” (See People v.
Williams (2010) 184 Cal.App.4th 142, 147 [“The only limitation
5 Serrano appealed her misdemeanor conviction to the
appellate division, which transferred the appeal to this court
based on the underlying felony charges on which the restitution
was partly based.
7
the Legislature placed on victim restitution is that the loss must
be an ‘“‘economic loss’”’ incurred as a result of the defendant’s
criminal conduct.”].)
Section 1202.4, subdivision (f)(3), specifies that, “[t]o the
extent possible, the restitution 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”
12 enumerated categories of victim expenses. As relevant here,
economic loss for the purposes of victim restitution includes:
(1) “[f]ull 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”; (2) “[w]ages or profits lost
due to injury incurred by the victim”; and (3) “[w]ages or profits
lost by the victim . . . due to time spent as a witness.” (§ 1202.4,
subds. (f)(3)(A), (D), and (E).)
“A defendant is entitled to a hearing to ‘dispute the
determination of the amount of restitution.’ (§ 1202.4,
subd. (f)(1).) . . . The standard of proof at a restitution hearing is
preponderance of the evidence, not reasonable doubt.” (People v.
Holmberg (2011) 195 Cal.App.4th 1310, 1319-1320.) “[T]he
court’s discretion in setting the amount of restitution is broad,
and it may use any rational method of fixing the amount of
restitution as long as it is reasonably calculated to make the
victim whole.” (People v. Baker (2005) 126 Cal.App.4th 463, 470.)
“A trial court’s power to order restitution in probation cases
is . . . broader than its power to order direct victim restitution
under section 1202.4 in cases in which the defendant receives a
nonprobationary sentence.” (People v. Martinez, supra, 2 Cal.5th
8
at pp. 1101-1102; see People v. Grandpierre (2021) 66 Cal.App.5th
111, 115 [“The scope of a trial court’s discretion is broader when
restitution is a condition of probation.”].)
The Supreme Court in People v. Harvey (1979) 25 Cal.3d
754, 758 (Harvey), held that a trial court may not impose any
adverse sentencing consequences on a defendant based on the
facts of an underlying count that is dismissed as a result of a plea
bargain absent an agreement by the defendant. (See People v.
Weatherton (2015) 238 Cal.App.4th 676, 678 [“facts underlying
charges dismissed as part of a negotiated plea may not, absent
contrary agreement by the defendant (now called a Harvey
waiver), be used to impose adverse sentencing consequences”].)
In People v. Baumann (1985) 176 Cal.App.3d 67 at pages 74 to
75, the court extended the principle in Harvey to cover
restitution, which extension was later codified in section 1192.3,
subdivision (b). (See § 1192.3, subd. (b) [“If restitution is imposed
which is attributable to a count dismissed pursuant to a plea
bargain, . . . the court shall obtain a waiver pursuant to [Harvey]
from the defendant as to the dismissed count.”]; Weatherton, at
p. 678.)
We review a restitution order for an abuse of discretion.
(People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Baudoin
(2022) 85 Cal.App.5th 1184, 1191.) We ask “‘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.” (Giordano, at pp. 663-664;
accord, Baudoin, at p. 1191.) “‘“‘Where there is a factual and
9
rational basis for the amount of restitution ordered by the trial
court, no abuse of discretion will be found by the reviewing
court.’” [Citations.]’ . . . However, a restitution order ‘resting
upon a “‘demonstrable error of law’” constitutes an abuse of the
court’s discretion. [Citations.]’ . . . ‘In reviewing the sufficiency
of the evidence [to support a factual finding], 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.] . . . We do not reweigh or reinterpret the evidence;
rather, we determine whether there is sufficient evidence to
support the inference drawn by the trier of fact.’” (People v.
Millard (2009) 175 Cal.App.4th 7, 26; see People v. Williams,
supra, 184 Cal.App.4th at p. 146 [“when the propriety of a
restitution order turns on the interpretation of a statute, a
question of law is raised, which is subject to de novo review on
appeal”].)
B. The Trial Court Did Not Abuse Its Discretion by Requiring
Serrano To Pay Restitution Relating to Damage to Waite’s
Vehicle
Serrano contends the trial court’s restitution order
compensated Waite for losses that did not arise from Serrano’s
reckless driving charge or the dismissed false imprisonment
count. Serrano argues the restitution ordered was not supported
by the reckless driving charge because: (1) intent to cause
damage is not an element of reckless driving; (2) Serrano did not
admit she intended to damage Waite’s vehicle; and (3) she did not
proximately cause the damage to Waite’s car by speeding, cutting
into oncoming traffic, following Waite too closely, or honking at
10
him. As to the dismissed false imprisonment count, Serrano
argues it was Martinez, not her, who used violence to drive into
Waite’s vehicle. Serrano’s contentions lack merit.
“We apply tort principles of causation to determine whether
a loss was a result of the defendant’s conduct. [Citation.] ‘Legal
causation in tort law has traditionally required two
elements . . . .’ [Citation.] The first is cause in fact. [Citation.]
‘“‘An act is a cause in fact if it is a necessary antecedent of an
event.’” [Citation.]’ . . . ‘[T]he “but for” test governs questions
of factual causation’ except in cases involving concurrent
independent causes, in which case the ‘substantial factor’ test
applies.” (People v. Trout-Lacy (2019) 43 Cal.App.5th 369, 372
[affirming restitution order for victim’s funeral expenses where
substantial evidence supported trial court’s finding that
defendant’s assault was a “but for” cause of the victim’s death.])
“Under the ‘but for’ test, a defendant’s conduct is a cause of the
injury if the injury would not have occurred but for the
defendant’s conduct. [Citation.] The substantial factor test
generally ‘subsumes the “but for” test’ and holds that conduct is a
cause in fact when it is a substantial factor in bringing about the
injury.” (People v. Rojas (2023) 95 Cal.App.5th 48, 60-61.) “The
second aspect of legal causation focuses on public policy
considerations that limit an actor’s responsibility for the
consequences of his conduct.” (Trout-Lacy, p. 372.)
Because Serrano’s negotiated plea included a Harvey
waiver, the trial court properly considered the facts underlying
both the reckless driving and false imprisonment counts in
awarding victim restitution. (Harvey, supra, 25 Cal.3d at p. 758;
People v. Weatherton, supra, 238 Cal.App.4th at p. 683.) The
court determined Waite’s economic loss resulted from the actions
11
“generated” by Serrano. We imply a finding that the damage to
Waite’s vehicle was a foreseeable result of Serrano’s criminal
conduct (reckless driving and false imprisonment), and but for
that conduct, Waite’s vehicle would not have been damaged.
When Serrano followed Waite, then summoned Martinez to assist
her in her plan to follow and then stop Waite, it was reasonably
foreseeable that Serrano and Martinez would drive their vehicles
in concert in a manner that one of them would hit Waite’s
vehicle.
Moreover, substantial evidence supported the trial court’s
implied finding that the damage to Waite’s vehicle resulted from
Serrano’s criminal actions. Serrano closely followed Waite at
high speeds and flashed her bright headlights, creating a
dangerous situation, and her conduct in calling Martinez to assist
her in following and stopping Waite increased the danger to
Waite. Once Martinez arrived, the two of them worked together,
with Martinez using his car to hit Waite’s car, then Martinez and
Serrano blocking Waite’s vehicle so he could not leave. These
facts supported a finding that Serrano intended “to commit an
act, the natural, probable and foreseeable consequence of which
[was] the nonconsensual confinement” of Waite’s vehicle [(false
imprisonment)], which she accomplished by calling for Martinez’s
help. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1399-
1400.)
Accordingly, the obligation to pay restitution arose from
both the reckless driving and false imprisonment counts. While
Serrano argues Martinez’s decision to hit Waite’s vehicle was so
extreme that it amounted to an intervening cause, as discussed,
it was not an unforeseeable or extraordinary event. (See People
v. Cervantes (2001) 26 Cal.4th 860, 871 [“‘In general, an
12
“independent” intervening cause will absolve a defendant of
criminal liability. [Citation.] However, in order to be
“independent” the intervening cause must be “unforeseeable
[and] . . . an extraordinary and abnormal occurrence, which rises
to the level of an exonerating, superseding cause.”’”].)
The holding in People v. Rojas, supra, 95 Cal.App.5th at
pages 59 to 61 is instructive. In Rojas, the Court of Appeal
affirmed a restitution order requiring the defendant, who had
been convicted of assault, to pay the victim’s burial expenses
arising from the codefendant’s shooting of the victim. The
defendant had started a fistfight with the victim, called his
friends to help him, and one of his friends shot and killed the
victim. (Ibid.) The Court of Appeal rejected the defendant’s
contention that the burial expenses did not arise as a result of his
criminal conduct (the assault), because the assault set in motion
the chain of events culminating in the victim’s death. (Ibid.) The
court explained that the defendant’s criminal conduct “bore a
substantial relationship to the victim’s losses,” and the gunshot,
as an intervening cause, “was not an unforeseeable or
extraordinary occurrence” because it “was reasonably foreseeable
that summoning numerous people to assist in a fight could result
in serious or fatal injury to any of the participants.” (Id. at p. 61.)
Likewise, it was reasonably foreseeable that when Serrano
summoned Martinez to help stop Waite’s vehicle, she set in
motion a series of events, including Martinez using his car to hit
Waite’s vehicle.
Accordingly, the trial court did not abuse its discretion in
finding Waite incurred losses as a result of Serrano’s criminal
conduct proscribed by Penal Code section 236 and Vehicle Code
section 23103, subdivision (a).
13
DISPOSITION
The judgment is affirmed.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.
14