Opinion
2d Crim. B325038
11-15-2023
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JUAN AISPURONOLASCO, 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, Steven D. Matthews, Supervising Deputy Attorney General, and Analee K. Brodie, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, No. 21F-08806 George C. Eskin, 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, Steven D. Matthews, Supervising Deputy Attorney General, and Analee K. Brodie, Deputy Attorney General, for Plaintiff and Respondent.
CODY, J.
Juan Aispuronolasco appeals from a victim restitution order entered after he was placed on probation for committing a kidnapping (Pen. Code, §§ 207, subd. (a), 1202.4, 1203.1). Appellant contends the trial court erred in awarding the victim $16,196.64 (plus interest) for lost wages because she offered no evidence those losses were caused by the offense of which he was convicted. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Because appellant pleaded no contest to the kidnapping charge prior to the preliminary hearing, the facts of the offense are derived from the probation report. At the time of the incident, appellant and the victim Marla H. both worked at Treana Winery in Paso Robles and she had recently ended their two-year-long "on/off sexual dating relationship." When Marla arrived at work that afternoon, appellant grabbed her from behind and "told her he was going to be her worst nightmare, he did not care what happened, and he was going to 'fuck' her."
Marla was able to break free and leave the building, but when she returned appellant "appeared out of nowhere" and "grabbed her again from behind, pulled her in between two barrels, repeated what he told her earlier, and told her he would not leave her alone until she left the job or stayed with him." Appellant then pulled Marla to the ground and repeatedly resisted her attempts to get up by pushing her down to the ground. Appellant eventually got up, opened the door, and pushed Marla outside. Surveillance video depicts the entire incident and shows appellant dragging Marla approximately ten feet. Marla reported "that due to the instant matter, she left her job because she no longer felt safe there, and she is fearful upon [appellant's] release from custody he will seek her out."
Appellant was charged in a felony complaint with kidnapping, battery (§ 243, subd. (e)), and possession of methamphetamine (Health &Saf. Code, § 11377, subd. (a)). He subsequently pleaded no contest to the kidnapping charge in exchange for dismissal of the remaining counts. The court placed appellant on three years formal probation with terms and conditions including that he serve 364 days in jail, with full credit for time served. As a condition of his probation appellant was also ordered to pay victim restitution "[t]o be determined by the Probation Officer, or after a hearing."
On June 2, 2002, the probation department filed a request for restitution on Marla's behalf seeking $17,594 for lost wages and related expenses. In that request, Marla stated under penalty of perjury that she suffered the claimed losses as a result of leaving her job at Treana Winery and attached copies of her payroll earnings record. At the subsequent restitution hearing, Marla offered detailed testimony regarding her claimed losses. Among other things, she stated that she did not work for several months because she was traumatized as a result of the incident and her employer had told her they were going to find another location for her to work but never did so. She also recounted appellant repeatedly stalking her at work and his family members also harassing her while she was working.
After cross-examining Marla, appellant's attorney submitted on the matter without offering any argument or other evidence challenging the claim for restitution. The court ordered appellant to pay Marla $16,196.64 in restitution "for the period of time [she was] unable to work" and told Marla she was justified in feeling unsafe at the winery. The court also told Marla, "I hope, in time, the pain that he inflicted on you - the emotional pain, the psychological pain - will diminish and you will be able to go forward without fear from him, his friends, and family members."
DISCUSSION
Appellant contends the restitution order must be reversed for insufficient evidence. We conclude otherwise.
California crime victims have a constitutional and statutory right to receive full restitution for economic losses suffered as a result of a defendant's criminal conduct. (Cal. Const., art. I, § 28, subd. (b)(13); § 1202.4, subds. (a)(1), (3)(B), (f).) When a defendant is convicted and sentenced to state prison, "section 1202.4 limits restitution to losses caused by the criminal conduct for which the defendant was convicted." (People v. Lai (2006) 138 Cal.App.4th 1227, 1249.) But a different standard applies where, as here, a defendant is ordered to pay restitution as a condition of probation. (People v. Martinez (2017) 2 Cal.5th 1093, 1101 ["the restitution power conferred by section 1202.4 stands in contrast to a court's power to order restitution as a condition of probation"].)
Section 1203.1 "gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety." (People v. Anderson (2010) 50 Cal.4th 19, 26.) "California courts have long interpreted the trial courts' discretion [under section 1203.1] to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; see also Anderson, at p. 27 ["[t]here is no requirement the restitution order [imposed pursuant to section 1203.1] be limited to the exact amount of the loss in which the defendant is actually found culpable"].) "A trial court's power to order restitution in probation cases is thus 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 at p. 1101.)
A victim's statement of economic losses is sufficient to shift the burden of proof as to the claimed losses to the defendant. "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." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.)
We review the trial court's restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) We presume the judgment is correct, and to set it aside a defendant must affirmatively show error. (Id. at p. 666.) "No abuse of . . . discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result." (Id. at p. 665.) If the court used a rational method of determining the victim's economic loss, so that the order is not arbitrary or capricious, we will uphold the order. (See ibid.; People v. Garcia (2011) 194 Cal.App.4th 612, 617.)
"'"If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] 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.) "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.' [Citation.] Further, 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; see Millard, at p. 26.)
Appellant contends the restitution order must be reversed because "there was no basis for the court to conclude that the victim's claimed lost wages were caused by the offense." Appellant, however, effectively forfeited this claim by failing to raise it below. Although appellant requested a restitution hearing, he did not argue at that hearing that Marla's statement and subsequent testimony were insufficient to support the award. Moreover, Marla's statement under penalty of perjury in her request for restitution, followed by her testimony at the hearing, shifted the burden of proof to appellant to disprove the claimed losses. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.) Although appellant's attorney cross-examined Marla, he did not offer any argument or other evidence to meet appellant's burden of proof. Accordingly, appellant's claim that the evidence is insufficient to support the order necessarily fails.
In any event, appellant's contention overlooks the fact that he was ordered to pay restitution as a condition of probation. As we have noted, such orders may include losses that were not necessarily caused by the defendant's criminal conduct. (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) Appellant also fails to address People v. Brasure (2008) 42 Cal.4th 1037, which makes clear that the statutory grounds for awarding lost wages as restitution (§ 1202.4, subd. (f)(3)(D)) "do[] not distinguish between economic losses caused by physical injuries and those caused by psychological trauma." (Brasure, at p. 1075.) As the People aptly put it, "Marla's trauma as a direct victim of appellant's assault is a real, compensable injury." Because the court's exercise of its broad authority to order restitution for Marla's lost wages was neither arbitrary nor capricious, there is no basis for us to reverse that order. (People v. Giordano, supra, 42 Cal.4th at pp. 663-665.)
DISPOSITION
The November 14, 2022 order requiring appellant to pay $16,196.64 in restitution to victim Marla H. is affirmed.
We concur: YEGAN, Acting P. J., BALTODANO, J.