Opinion
F078121
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO DUARTE, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF364571)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and De Santos, J.
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INTRODUCTION
Appellant/defendant Fernando Duarte pleaded no contest to felony infliction of corporal injury on his spouse and was sentenced to five years in prison. On appeal, he contends the court abused its discretion by imposing victim restitution without granting his motion for a hearing, the prior prison term enhancements must be stricken, and the court improperly ordered him to pay a restitution fine and other fees in violation of his due process rights pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). As we will explain, the matter must be remanded for further appropriate proceedings.
FACTS
Given defendant's plea, the facts are from L.D.'s testimony at the preliminary hearing, which the parties stipulated to as the factual basis for the plea.
On April 20, 2018, defendant and his wife, L.D., had been married for one year and lived in Visalia. L.D. knew defendant kept a rifle and ammunition in the bedroom. They had spent the day together, and defendant had been drinking. Around 10:00 p.m., they returned to their home after they had been shopping. They planned to shower and go out to dinner. Instead, defendant started to walk out of the house.
L.D. asked where he was going. Defendant said, " 'Why are you always asking me where the f[**]k I'm going?' " L.D. said, " 'Well, because I thought we were going to get in the shower.' " Within seconds, defendant "threw off his shirt and he just went into a rage." Defendant grabbed L.D. by her throat with both his hands and threw her against the wall and refrigerator. He grabbed her hair, pulled her to the floor, and dragged her into the living room. He dragged her for seven to eight feet and pulled some of her hair from her scalp.
Once they were in the living room, defendant picked up L.D. and threw her against the wall. Defendant, who was taller than L.D., again grabbed her by the throat with both his hands, lifted her four or five inches off the floor, and choked her. L.D. tried to break free, but he kept choking her; she blacked out for a few seconds. Defendant released his hold, she fell to the floor, and regained consciousness.
Defendant picked up a table and used it to repeatedly hit L.D. in the back of her head. As he hit her, defendant said, " 'I'm gonna kill you, you f[**]kin' bitch. I'm gonna kill you.' " L.D. curled up on the floor to protect herself and used her hands to block the blows.
Defendant ordered her to get up, but L.D. was too weak; she tried to lean against the living room wall for support. Defendant started to kick L.D, but he barely hit her, and his entire foot went through the wall instead.
L.D. tried to get up, but defendant threw a wooden chair at her. Defendant kept yelling at her to get up. L.D. said she could not do it. Defendant threw another chair at her, and then tried to lift the recliner to throw at her. L.D. was confused because he wanted her to stand up, "but as I was trying to stand up, he kept throwing stuff on me."
L.D. eventually got up and leaned against the wall. Defendant repeatedly yelled, " 'What's your f[**]kin' problem, bitch?' " L.D. apologized and insisted she did not have a problem. She tried to calm him down. Defendant said, " 'Just get the f[**]k out of my face, bitch' " and walked out of the front door.
L.D. grabbed her phone, wallet, and shoes and jumped out of the bedroom window. She thought she heard defendant yelling, " 'Where are you? Where are you?' " L.D. ran down the street, hid in a neighbor's backyard, and called 911 for help.
PROCEDURAL BACKGROUND
On April 24, 2018, the court issued a protective order for defendant not to have any contact with L.D.
On May 22, 2018, an information was filed in the Superior Court of Tulare County charging defendant with count 1, infliction of corporal injury to a spouse resulting in a traumatic condition, with two prior convictions for the same offenses within the prior seven years (Pen. Code, § 273.5, subds. (a), (e)(1)), and that he personally inflicted great bodily injury (§ 12022.7, subd. (e)); count 2, felon in possession of a firearm (§ 29800, subd. (a)(1)), and count 3, felon in possession of ammunition (§ 30305, subd. (a)(1)). It was further alleged defendant had three prior prison term enhancements. (§ 667.5, subd. (b)).
All further statutory citations are to the Penal Code unless otherwise indicated.
On July 10, 2018, the court granted defendant's motion to dismiss the great bodily injury allegation pursuant to section 995.
On July 11, 2018, defendant pleaded no contest to the charged offenses and admitted the special allegations for an indicated sentence of five years. Sentencing hearing
On September 12, 2018, the court denied probation and sentenced defendant to the upper term of five years for count 1, with concurrent midterms of two years for each of counts 2 and 3. The court stayed the terms for the prior prison term enhancements.
The court imposed a $4,500 restitution fine (§ 1202.4) and suspended the parole revocation fine of $4,500 (§ 1202.45). The court ordered defendant to pay a court operations assessment fee of $120 (§ 1465.8) and a criminal conviction assessment fee of $90 (Gov. Code, § 70373). It also ordered defendant to pay $2,000 in victim restitution (§ 1202.4, subd. (f)). The court found he did not have the ability to pay attorney fees.
The court extinguished the prior protective order and served defendant with a criminal protective order not to have any contact with L.D. for 10 years (§ 136.2, subd. (i)(1)).
On September 19, 2018, defendant filed a timely notice of appeal.
DISCUSSION
I. The Court's Victim Restitution Order
Defendant contends the court abused its discretion and his right to due process because it denied his request for a hearing to contest victim restitution and ordered him to pay $2,000 based on L.D.'s claim of economic loss that was contained in the probation report and a letter submitted to the court. As we will explain, defendant raised a timely objection and the court should have granted his motion, and the matter must be remanded.
A. The Preliminary Hearing Testimony
At the preliminary hearing, L.D. was the only witness and testified about defendant's assault on her. L.D. testified when the police arrived, they offered to call an ambulance for her, but she declined.
L.D. further testified that as a result of defendant's assault on her, she had injuries "from my shoulder all the way down my arm. I had bruises on both legs and I had a really big knot on the back of my head that's still there." She had bruises "all over my arm and then here on my arm and then I had one here from where ... the end of the table hit the leg," and she still had some bruises. The court stated for the record that L.D. pointed to "most of her left arm from her shoulder down to her wrist, and then has pointed to the inside of the forearm on the right arm."
B. The Probation Report
According to the probation report, L.D. spoke to the probation officer on August 30, 2018, and expressed "tremendous fear" of defendant. L.D. told the probation officer that she had incurred $2,000 in debts for medical expenses. The probation officer requested the court impose victim restitution in that amount.
On August 31, 2018, the probation officer contacted a restitution specialist, who reported there had been no applications submitted on behalf of L.D. for direct restitution.
L.D. submitted a letter that was attached to the probation report, which recounted the assault and expressed her continued fear of defendant. In the letter, L.D. wrote defendant caused her "much emotional and mental pain along with tremendous physical pain and trauma along with physical scars [that] have been left on my face and body." L.D. further wrote that she was "currently in debt with the local hospital for over [$]2,000 which I am now responsible for so this has effected [sic] me financially as well."
Based on L.D.'s letter and statements to the probation officer, the probation report recommended victim restitution of $2,000 to L.D. pursuant to section 1202.4, subdivision (f).
C. Sentencing Hearing
On September 12, 2018, the court conducted the sentencing hearing and stated it had read the probation report. The victim advocate read L.D.'s letter into the record, as set forth above, which concluded with her statement that she was in debt to the local hospital for $2,000.
As soon as the victim advocate finished reading L.D.'s letter, the court asked the parties if they were going to submit the matter. Defense counsel said: "We would like a hearing on restitution perhaps at pretrial. Other than that, I'll submit."
The court imposed the sentence and a restitution fine of $4,500 (§ 1202.4, subd. (b)). The court then turned to victim restitution.
"[THE COURT:] There's a letter here from the victim as to the $2,000, so I'm going to deny [defendant's] request for a restitution hearing and order that he reimburse or pay restitution in the amount of $2,000, with ten percent interest as of today's date.
"[DEFENSE COUNSEL]: I'd object for the record.
"THE COURT: So noted."
The court imposed the other fees, issued the no-contact order, and the hearing concluded.
D. Section 1202.4 , Subdivision (f)
The California Constitution gives crime victims a right to restitution and requires a court to order a convicted wrongdoer to pay restitution in every case in which a crime victim suffers a loss. (Cal. Const., art. I, § 28, subd. (b)(13)(B).)
To implement this requirement, section 1202.4, subdivision (f) generally provides that "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." The defendant's inability to pay shall not be a consideration that would justify a court ordering less than full restitution to the victim. (§ 1202.4, subd. (g); People v. Draut (1999) 73 Cal.App.4th 577, 582.)
The court shall award restitution to the victim in an 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." (§ 1202.4, subd. (f)(3).) Economic losses include medical expenses. (§ 1202.4, subd. (f)(3)(B).) "To 'fully reimburse' the victim for medical expenses means to reimburse him or her for all out-of-pocket expenses actually paid by the victim or others on the victim's behalf (e.g., the victim's insurance company). The concept of 'reimbursement' of medical expenses generally does not support inclusion of amounts of medical bills in excess of those amounts accepted by medical providers as payment in full." (People v. Millard (2009) 175 Cal.App.4th 7, 27 (Millard).)
"The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1); People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172.) "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. [Citations.]" (Millard, supra, 175 Cal.App.4th at p. 26.) " ' "[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." ' [Citation.] Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a [crime victim's] statement made in the probation report" about the amount of the economic loss. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli).) The court may consider information in the probation report " 'because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.' [Citation.]" (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.)
"Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. [Citation.] The defendant has the burden of rebutting the victim's statement of losses," and may submit evidence to refute the victim's claim. (Gemelli, supra, 161 Cal.App.4th at p. 1543; People v. Chappelone, supra, 183 Cal.App.4th at p. 1172; Millard, supra, 175 Cal.App.4th at p. 26.) "Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. [Citation.]" (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.)
" 'The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed." [Citation.] " 'Where there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " [Citations.]' [Citation.] However, a restitution order 'resting upon a " 'demonstrable error of law' " constitutes an abuse of the court's discretion. [Citation.]' [Citation.]" (Millard, supra, 175 Cal.App.4th at p. 26.)
E. Analysis
In this case, the probation report recommended the court order defendant to pay victim restitution of $2,000, based on L.D.'s statements to the probation officer and her letter about her medical debts. At the sentencing hearing, the court stated it had reviewed the probation report and the victim advocate read L.D.'s letter into the record. Immediately after the advocate read the letter, defense counsel objected and requested a hearing on victim restitution. The court conducted the sentencing hearing, imposed the prison term and the restitution fine, and then ordered defendant to pay $2,000 in victim restitution based on L.D.'s request. It denied defendant's motion for a hearing without explanation. Defense counsel again objected, and the court did not further address victim restitution.
As explained above, statements in the probation report may be relied on to establish a prima facie evidence for the crime victim's economic loss, and then the burden shifts to the defendant to rebut the victim's claim. As also explained above, however, the defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. (§ 1202.4, subd. (f)(1); People v. Chappelone, supra, 183 Cal.App.4th at p. 1172.) "Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. [Citation.]" (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.)
The probation report clearly stated the People's intent to seek an order for victim restitution of $2,000 based on L.D.'s medical debts, and L.D.'s letter was read into the record at the beginning of the sentencing hearing. Defense counsel immediately made a timely objection at the sentencing hearing and requested a hearing on restitution. The court stated that it was relying on L.D.'s statements to impose the order for $2,000 in victim restitution, and denied defendant's motion for a hearing without explanation. The court could have conducted a hearing in the course of the sentencing hearing, and asked defense counsel for an offer of proof or any other evidence to determine if defendant would meet his burden of rebutting the victim's prima facie case, but failed to do so. Instead, the court denied defendant his statutory right to a hearing on the amount of victim restitution and the opportunity to refute the amount of economic losses.
A restitution order based on a demonstrable error of law constitutes an abuse of discretion. (Millard, supra, 175 Cal.App.4th at p. 26.) If the court conducted a hearing and determined defendant failed to meet his burden to rebut the victim's prima facie evidence, its reliance on the probation report as the basis for the victim restitution order would not have been an abuse of discretion. The court, however, failed to conduct a hearing or ask defense counsel for such an offer of proof.
We are thus compelled to remand the matter for the court to conduct a hearing to determine whether defendant can meet his burden to refute the victim's prima facie evidence that she had $2,000 in medical expenses to support the victim restitution order. If defendant fails to do so, the court's victim restitution order shall not be disturbed.
II. The Prior Prison Term Enhancements
Defendant admitted three prior prison term enhancements pursuant to section 667.5, subdivision (b). The court stayed these enhancements and did not impose sentences for any of them.
In supplemental briefing, defendant asserts, and the People concede, that defendant's admissions to the three prior prison term enhancements under section 667.5, subdivision (b) must be stricken. We agree.
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b), to limit prior prison term enhancements to only prior terms that were served for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) The parties agree that none of defendant's prior prison terms were served for a sexually violent offense and, thus, defendant's admissions must be stricken.
Given this conclusion, we need not reach defendant's alternate issue that the court erroneously "stayed" the three section 667.5, subdivision (b) enhancements.
III. The Restitution Fine and Fees
Also, in supplemental briefing, defendant relies on Dueñas and argues the court improperly imposed the restitution fine and fees in violation of his constitutional rights to due process and equal protection without determining whether he had the ability to pay these amounts. Defendant asserts the order imposing the fees must be stayed until the court conducts a hearing on his ability to pay.
In Dueñas, the court held the assessments under section 1465.8 and Government Code section 70373 may be "imposed only on those with the means to pay them" (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169), and "that although the trial court is required by ... section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay" (id. at p. 1172; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 490 [following Dueñas but clarifying that "a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"]; contra, People v. Allen (2019) 41 Cal.App.5th 312, 325-330 [rejecting the defendant's Dueñas-based due process claim and her equal protection claim]; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas's due process analysis]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenges to fines, fees and assessments should be made under the Eighth Amendment's excessive fines clause]).
The California Supreme Court is currently considering whether trial courts must consider a defendant's ability to pay before imposing or executing section 1202.4, subdivision (b) restitution fines, and fees and assessments; and if so, which party bears the applicable burden of proof. (See People v. Kopp (2019) 38 Cal.App.5th 47, 94-98, review granted Nov. 13, 2019, S257844.)
We conclude it is unnecessary to reach defendant's Dueñas arguments given remand of this matter. To the extent that defendant believes Dueñas entitles him to any relief, he may, if he so chooses, request such relief in the trial this issue in the trial court in the first instance. (People v. Castellano, supra, 33 Cal.App.5th at pp. 489-491.)
On remand, any motion under Dueñas would be limited only to the assessments, fees, and the section 1202.4, subdivision (b) restitution fine. Dueñas has not been extended to victim restitution, and section 1202.4, subdivision (g) expressly excludes ability to pay as a consideration when the court orders victim restitution under section 1202.4, subdivision (f). (People v. Evans (2019) 39 Cal.App.5th 771, 777; People v. Draut, supra, 73 Cal.App.4th at p. 582.)
DISPOSITION
The matter is remanded to the trial court to strike defendant's admissions to the three prior prison term enhancements; and grant defendant's motion for a hearing on victim restitution and determine whether he can rebut the victim's prima facie evidence of economic loss. The judgment is otherwise affirmed.