Opinion
B330849
07-12-2024
THE PEOPLE, Plaintiff and Respondent, v. BOBBY DEAN MAHAN, Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TA155306 Hector E. Gutierrez, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Bobby Dean Mahan appeals from a restitution order requiring him to pay $416 in lost wages incurred by April Amey, the victim of an assault by Mahan, based on the amount of time Amey lost from work to attend court appearances in this case. Mahan pleaded no contest to assault with a semiautomatic firearm and fleeing or attempting to elude a pursuing peace officer while driving a vehicle with willful or wanton disregard for the safety of persons or property. Mahan contends substantial evidence does not support the restitution order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Assault and Mahan's Plea Agreement
On July 31, 2021 Amey was stopped at a traffic light when Mahan drove up and pointed a firearm at her. Mahan stated, "'You better watch what you say.'" Mahan then drove away. Mahan was subsequently detained after a police officer responded to a call for assistance, saw Mahan's car traveling the wrong way on a one-way street, and pulled Mahan over. A 22-caliber rifle was later recovered at a location where Mahan was observed throwing it out of his car window.
The summary of the facts is taken from the preliminary hearing testimony.
On March 23, 2022 Mahan pleaded no contest pursuant to a negotiated plea to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); count 1) and fleeing or attempting to elude a pursuing peace officer while driving a vehicle with willful or wanton disregard for the safety of persons and property (Veh. Code, § 2800.2; count 2). Mahan also admitted he was armed with a firearm during the commission of the offense as an aggravating circumstance. (Cal. Rules of Court, rule 4.421(a)(2).) Pursuant to the plea, the trial court imposed a nine-year state prison sentence (comprising the upper term on count 1 and a concurrent term of two years on count 2), suspended execution of the sentence, and placed Mahan on formal probation for two years. The court imposed as a condition of Mahan's probation that he make restitution to the victim for any damages. (§ 1202.4, subd. (f).)
Further undesignated statutory references are to the Penal Code.
B. The Restitution Hearing
The trial court set a restitution hearing for May 5, 2022, but it continued the hearing several times. Amey showed up to court for the restitution hearings scheduled for June 6 and September 28, 2022. The restitution hearing ultimately was held on May 25, 2023.
Amey completed a nine-page victim restitution request, which was admitted into evidence at the May 25, 2023 hearing. Amey stated in her request under penalty of perjury that she lost wages for the time spent appearing at the June 6 and September 28, 2022 hearings. She declared she was paid $26 per hour in wages and suffered a total wage loss of $416. Amey similarly testified at the hearing that she lost a total of $416 in wages on the two dates she appeared in court. Amey also testified that she incurred expenses in moving out of her home as a result of the crime.
On cross-examination, defense counsel asked Amey about her lost wages for June 6, 2022, and Amey testified she believed she needed to be present in court that day. She did not recall who told her to be in court but added that "[i]t had to have been someone from the D.A.'s office." Defense counsel did not examine Amey about her lost wages for September 28, 2022.
The trial court took judicial notice of its June 6, 2022 minute order, which stated, "'There is a victim present in court.'" Defense counsel also stipulated that the prosecutor wrote a note to himself on June 6 that stated with respect to the restitution hearing, "'Turns out defendant couldn't make it this day either. New date set July 27th, 2022. Victim Amey present in court.'" The trial court stated after Amey testified that it was "satisfied based on her testimony," and it invited argument from counsel. Defense counsel in her argument focused on Amey's claimed moving expenses, arguing there was insufficient evidence to support Amey's claimed losses. Defense counsel did not present any argument on lost wages.
At the conclusion of the hearing, the trial court ordered Mahan to pay Amey $2,251.49 in restitution pursuant to section 1202.4, subdivision (f), including $416 in lost wages. However, at a subsequent hearing on May 30, 2023, in response to an objection filed by defense counsel to the restitution order, the court reduced the restitution amount to include only the $416 in lost wages, citing People v. Baudoin (2022) 85 Cal.App.5th 1184 (Baudoin).
The Court of Appeal in Baudoin, supra, 85 Cal.App.5th at page 1195 reversed a restitution order for victim relocation expenses because the prosecution had not met the verification requirements in section 1202.4, subdivision (f)(3)(I), that "[e]xpenses 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."
Mahan timely appealed the restitution order.
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."
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, subdivision (f)(3)(E) provides for restitution for "[w]ages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution."
We review a restitution order for an abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663; Baudoin, supra, 85 Cal.App.5th at p. 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.)
The prosecution has the burden at the restitution hearing to prove the amount of restitution by a preponderance of the evidence. (People v. Millard (2009) 175 Cal.App.4th 7, 26; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) "In reviewing the restitution order, we do not reweigh the evidence or make credibility decisions. Our review is to determine whether there is sufficient evidence to support the inferences made by the trial court." (Baudoin, supra, 85 Cal.App.5th at p. 1191; see People v. Grundfor (2019) 39 Cal.App.5th 22, 27 [in determining whether there is a factual basis for the restitution amount, "our '"'"power . . . begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the . . . court's findings.'"'"].)
B. The Trial Court Properly Awarded Restitution to Amey for Her Lost Wages
Mahan contends the trial court erred in awarding restitution to Amey because there was insufficient evidence that Amey lost a full day's wages on June 6 and September 28, 2022, or that she had been "ordered to court" on September 28. Neither contention has merit.
As discussed, the June 6, 2022 minute order reflects, "Victim is present this date." Mahan does not dispute that Amey appeared in court on that date. With respect to the September 28, 2022 hearing, the minute order similarly states, "Victim, April Amey, is present," and her victim restitution request was filed on that date. Although it does not appear the trial court ordered Amey to appear on September 28, Amy testified her appearance "had to have been" at the request of the prosecutor. We are not aware of any requirement, nor does Mahan cite to any, that a witness be ordered by the court to appear to support recovery of lost wages. Rather, section 1202.4, subdivision (f), only requires that the victim suffer economic loss as a result of the defendant's conduct, which includes under subdivision (f)(3)(E) time spent as a witness or assisting the prosecution. Amy testified she suffered lost wages as a result of her appearance on two dates for the restitution hearing in Mahan's case.
Further, Amey stated in her victim restitution request under penalty of perjury that she was paid $26 per hour, and she testified at the May 25 hearing that she had incurred a total of $416 in lost wages for the two dates she appeared in court. We can infer the trial court found eight hours was a reasonable amount of time for a witness to prepare for her testimony, travel to court, wait for a case to be called, and then return home ($26 x 8 hours = $208/hearing). And once Amey concluded her testimony, the court indicated it was "satisfied based on her testimony" with respect to the restitution amount. It is a reasonable inference from this statement that the court found Amey's testimony credible, a finding we do not revisit on appeal. (Baudoin, supra, 85 Cal.App.5th at p. 1191.)
The prosecution therefore met its burden to show Amey had incurred a total of $416 in lost wages, shifting the burden to the defense to show this amount was unreasonable. (People v. Millard, supra, 175 Cal.App.4th at p. 26.) Yet defense counsel did not inquire further about Amey's court appearance on June 6 and did not ask any questions about her appearance on September 28. Mahan has not shown on appeal that the court's conclusion that Amey missed eight hours of work at $26 per hour on each appearance "'"falls outside the bounds of reason."'" (See People v. Giordano, supra, 42 Cal.4th at p. 663.)
DISPOSITION
The restitution order is affirmed.
We concur: MARTINEZ, P.J. STONE, J.