Summary
In People v. Evans (2019) 39 Cal.App.5th 771 (Evans), the court declined to extend Dueñas to victim restitution and concluded that a defendant's ability to pay victim restitution is not a proper factor in setting a restitution award under section 1202.4, subdivision (f).
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A154841
09-06-2019
The PEOPLE, Plaintiff and Respondent, v. Richard Anthony EVANS, Defendant and Appellant.
Counsel for Appellant: Law Office of John F. Schuck and John F. Schuck, Los Altos, by Court-Appointment under the First District Appellate Project Counsel for Respondents: Xavier Becerra, Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Seth K. Schalit, Supervising Deputy Attorney General; Lisa Ashley Ott, Deputy Attorney General
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.A and II.B.
Counsel for Appellant: Law Office of John F. Schuck and John F. Schuck, Los Altos, by Court-Appointment under the First District Appellate Project
Counsel for Respondents: Xavier Becerra, Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Seth K. Schalit, Supervising Deputy Attorney General; Lisa Ashley Ott, Deputy Attorney General
TUCHER, J. Defendant Richard Anthony Evans appeals a victim restitution order. He contends the order must be reversed because he was not present at the restitution hearing, the trial court misunderstood the scope of its discretion, and there was no showing of his ability to pay the restitution ordered here. We shall affirm the order, addressing in the published portion of this opinion why defendant's ability to pay is not relevant in fixing the amount of victim restitution.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of one count of sodomy of a child 10 years old or younger ( Pen. Code, § 288.7, subd. (a) ) and two counts of sexual penetration of a child 10 years old or younger ( § 288.7, subd. (b) ). He was sentenced to a prison term of 55 years to life. Last year, a different panel of this court affirmed the judgment. ( People v. Evans (June 12, 2018, A151459) 2018 WL 2931156 [nonpub. opn.].)
All undesignated statutory references are to the Penal Code.
Briefly, the facts are these. Defendant and his wife, C.W., lived with their son and C.W.'s daughters, 13-year-old M. and 9-year-old N. In February 2016, M. told her mother that appellant sexually abused her and N. In a separate conversation, N. told C.W. that defendant would give her Hot Wheels when she complied with his requests to touch him or allow him to sexually assault her. Evidence at trial showed that defendant admitted to both C.W. and the police that he had committed lewd acts against M. and N.
Defendant was charged with committing multiple sex offenses against both girls, but the charges pertaining to M. were dismissed prior to appellant's jury trial. As to N., defendant was tried on four felonies and convicted on three.
When the trial court sentenced defendant, it reserved jurisdiction over victim restitution. The District Attorney later filed a restitution motion seeking $4,149.07 already paid by the California Victim Compensation Board to M. and N., consisting of $1,463.75 for relocation expenses, $972 for each of them in mental health services, and $741.32 for home security.
The trial court held a restitution hearing on July 3, 2018. Defendant was represented by counsel, but he was not personally present. Subtracting $150.00 to reflect a duplicate bill, the prosecutor revised the request to $3,999.07. The parties stipulated that at the time of the crimes, defendant was married to the victims' mother and lived in the same house with them; he had never been out of custody since his arrest; and he was currently serving a life sentence. Although defense counsel argued that these facts rendered the home security expenses superfluous, the trial court awarded the full $3,999.07, payable to the California Victim Compensation Board.
II. DISCUSSION
A.-B.
See footnote *, ante .
C. Ability to Pay Restitution Fine
In supplemental briefing, defendant contends the trial court was required to consider his ability to pay restitution to the victims, in light of the recent decision in People v. Dueñas (2019) 30 Cal.App.5th 1157, 242 Cal.Rptr.3d 268 ( Dueñas ).
The issue in Dueñas was whether a court must consider a defendant's ability to pay before imposing certain fines and fees, specifically court facilities and court operations assessments under section 1465.8 and Government Code section 70373, and a restitution fine under section 1202.4, subdivision (b). The appellate court held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments," and that, "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless" the court finds the defendant has the ability to pay it. ( Dueñas , supra , 30 Cal.App.5th at p. 1164, 242 Cal.Rptr.3d 268.) In reaching this conclusion, the court reasoned that imposing unpayable assessments for court facilities and operations on an indigent defendant was unfair and did not serve the legislative intent of augmenting the state's revenues, instead "transform[ing] a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." ( Dueñas , at pp. 1167–1168, 242 Cal.Rptr.3d 268.) As to the restitution fine, the court noted that a defendant who had successfully fulfilled the conditions of probation (including payment of the mandatory restitution fine) had a right to have the charges against him dismissed, and reasoned it was fundamentally unfair to deny the same right to a defendant who blamelessly was unable to pay the same fine. ( Id. at pp. 1170–1171, 242 Cal.Rptr.3d 268.)
Subsequent cases have suggested that the proper analytic framework for evaluating the constitutionality of punitive fines, such as restitution fines under section 1202.4, subdivision (b), is the excessive fines clause of the Eighth Amendment to the United States Constitution, rather than the due process clause. (See, People v. Kopp (2019) 38 Cal.App.5th 47, 96–97, 250 Cal.Rptr.3d 852 (Kopp ); People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034, 247 Cal.Rptr.3d 850 (conc. opn. of Benke, J.).) Other cases have walked back some of the language in Dueñas , holding that it is the defendant's burden to prove inability to pay, rather than the prosecutor's burden to come forward with contrary evidence, and that future earnings can be considered, along with a defendant's present ability to pay. (People v. Santos (2019) 2019 WL 3821793, *6–7, 2019 Cal.App. LEXIS 759, *16–17 ; Kopp , at p. 96, 250 Cal.Rptr.3d 852 ; People v. Castellano (2019) 33 Cal.App.5th 485, 490, 245 Cal.Rptr.3d 138 [same division that decided Dueñas ruled that court may consider potential prison pay in determining ability to pay]; see § 2085.5 [restitution balance collected from prison wages].)
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The restitution payments at issue here are fundamentally different from the fine and assessments in Dueñas. As Dueñas explains, "California law provides for two types of restitution: direct restitution to the victim ( Pen. Code, § 1202.4, subd. (f) ), which is based on a direct victim's loss, and a restitution fine ( Pen. Code, § 1202.4, subd. (b) ), which is not. Payment of direct victim restitution goes directly to victims and compensates them for economic losses they have suffered because of the defendant's crime." ( Dueñas , supra , 30 Cal.App.5th at p. 1169, 242 Cal.Rptr.3d 268, citing People v. Giordano (2007) 42 Cal.4th 644, 651–652, 68 Cal.Rptr.3d 51, 170 P.3d 623.) Restitution fines under subdivision (b) of section 1202.4 "are set at the discretion of the court in an amount commensurate with the seriousness of the offense and within a range set by statute," and "are not paid to the victim of the crime." ( Dueñas , at p. 1169, 242 Cal.Rptr.3d 268.) The money collected in restitution fines goes directly into state coffers. ( § 1202.4, subd. (e).)
Here, the court ordered defendant to pay victim restitution under section 1202.4, subdivision (f). The Legislature has declared its intent that crime victims who incur economic loss receive restitution from the defendant, and that a restitution award under subdivision (f) should be enforceable as if it were a civil judgment. ( §§ 1202.4, subd. (a)(1), (3)(B) ; 1214, subd. (b).) Courts, too, have explained that victim restitution is intended "as a civil remedy rather than a criminal punishment." ( People v. Harvest (2000) 84 Cal.App.4th 641, 649–650, 101 Cal.Rptr.2d 135 ; accord, People v. Millard (2009) 175 Cal.App.4th 7, 35–36, 95 Cal.Rptr.3d 751, People v. Kunitz (2004) 122 Cal.App.4th 652, 657, 18 Cal.Rptr.3d 843.) For this reason, the court in Kopp did not address victim restitution when considering whether to remand for the trial court to hold an ability to pay hearing, instead limiting its analysis to fees, assessments, and a restitution fine under subdivision (b) of section 1202.4. ( Kopp, supra , 38 Cal.App.5th at p. 94, fn. 22, 250 Cal.Rptr.3d 852.) The statute prohibits courts from considering a defendant's ability to pay in determining the amount of the restitution order. ( § 1202.4, subd. (g).)
The parties have not cited any cases extending the rule of Dueñas to victim restitution under section 1202.4, subdivision (f), and our own research has disclosed none. Case law does make clear that the purposes of the assessments and fine considered in Dueñas are different from the primary purpose of victim restitution. ( People v. Holman (2013) 214 Cal.App.4th 1438, 1451, 155 Cal.Rptr.3d 164 ( Holman ) [comparing purposes of restitution fines and victim restitution].) As Dueñas explains, the court facilities and court operations assessments are intended to maintain funding for California courts. ( Dueñas , supra , 30 Cal.App.5th at p. 1165, 242 Cal.Rptr.3d 268 ; see People v. Alford (2007) 42 Cal.4th 749, 757–758, 68 Cal.Rptr.3d 310, 171 P.3d 32 [§ 1465.8]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1492, 106 Cal.Rptr.3d 722 [ Gov. Code, § 70373 ].) A restitution fine is intended to be additional punishment for a crime. ( Dueñas , at p. 1169, 242 Cal.Rptr.3d 268 ; Holman , at p. 1451, 155 Cal.Rptr.3d 164 ; People v. Hanson (2000) 23 Cal.4th 355, 362, 97 Cal.Rptr.2d 58, 1 P.3d 650.)
The purpose of victim restitution, on the other hand, is neither to raise funds nor to punish a defendant; it "is to reimburse the victim for economic losses caused by the defendant's criminal conduct, i.e., to make the victim reasonably whole." ( Holman , supra , 214 Cal.App.4th at p. 1451, 155 Cal.Rptr.3d 164.) Section 1202.4 implements the state constitutional mandate that "all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." ( Cal. Const., art. I, § 28, subd. (b)(13)(A); Giordano , supra , 42 Cal.4th at p. 652, 68 Cal.Rptr.3d 51, 170 P.3d 623 ; People v. Mearns (2002) 97 Cal.App.4th 493, 498, 118 Cal.Rptr.2d 511.) While a victim restitution order may also serve the purposes of rehabilitation and deterrence ( People v. Bernal (2002) 101 Cal.App.4th 155, 161–162, 123 Cal.Rptr.2d 622 ; People v. Moser (1996) 50 Cal.App.4th 130, 135–136, 57 Cal.Rptr.2d 647 ), its measure is the harm suffered by crime victims and its primary effect is to compensate those victims. This effect is reinforced by the requirement that all moneys collected from a defendant be first applied to victim restitution. ( Cal. Const., art. 1, § 28, subd. (b)(13)(C).)
Based on the significant differences in purpose and effect between victim restitution and the moneys at issue in Dueñas , we decline to extend the rule of Dueñas to victim restitution. In a civil action for compensatory damages, a defendant's wealth is irrelevant to liability. ( Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1242–1243, 1 Cal.Rptr.2d 301.) We conclude similarly that a defendant's ability to pay victim restitution is not a proper factor to consider in setting a restitution award under section 1202.4, subdivision (f). We are not persuaded otherwise by the fact that in this case, the victims have already received compensation through the California Victim Compensation Board. As explained in Holman , "[t]he Restitution Fund is in the State Treasury Department, and is used to compensate victims for certain kinds of ‘pecuniary losses they suffer as a direct result of criminal acts.’ ( Gov. Code, § 13950, subd. (a).) Crime victims may apply to the Restitution Fund as one avenue to recover monetary losses caused by criminal conduct." ( Holman , supra , 214 Cal.App.4th at p. 1452, 155 Cal.Rptr.3d 164, citing § 1202.4, subd. (f)(2).) Then, "when direct victim restitution has been satisfied by the victim's application to the victim compensation program, the amounts a defendant is ordered to pay as direct victim restitution are instead paid to the Restitution Fund." ( Holman , at p. 1452, 155 Cal.Rptr.3d 164.) We see no reason that defendant should receive a windfall—and the Restitution Fund should suffer a loss—simply because the victims exercised their right to apply to the California Victim Compensation Board rather than waiting for the victim restitution order.
III. DISPOSITION
The restitution order is affirmed.
WE CONCUR:
STREETER, Acting P. J.
BROWN, J.