Opinion
A145305
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN DYLAN BELMONT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR167189)
This is an appeal from a postjudgment order imposing victim restitution following a criminal conviction. In the underlying criminal case, a jury convicted Steven Dylan Belmont of one count of mayhem (Pen. Code, § 203), two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), and one count of battery with serious bodily injury (§ 243, subd. (d)). The jury also found true special allegations that a deadly weapon was used as to the mayhem and serious bodily injury counts (§ 12022, subd. (b)(1)), and that great bodily injury occurred as to one count of the assault with a deadly weapon (§ 12022.7, subd. (a)). The trial court sentenced appellant to five years in prison and ordered him to pay restitution to the victim in the amount of $277,722.17. Appellant appeals from the restitution order, asserting that he was entitled to a jury trial at his restitution hearing, that the trial court abused its discretion in calculating the amount of restitution, and that his trial counsel provided ineffective assistance. We affirm.
All further undesignated statutory references are to the Penal Code.
I. BACKGROUND
The challenged restitution order evolved from the economic losses sustained by victim Roy Powell and his wife, Jennifer. Mr. Powell, suffered several serious injuries, including a traumatic brain injury that caused a blood clot on his brain, multiple complex facial bone fractures, a cerebral contusion, a depressed skull fracture, a laceration to his arm, and a cut that severed his ear in half. Mr. Powell was induced into a coma for four weeks in order to treat his injuries. He was in the hospital for more than two months. Mr. Powell reported that his injuries resulted in posttraumatic stress disorder, nerve damage in his face, issues with his equilibrium, short-term memory loss, a loss of his sense of smell and taste, weight loss, and negative impacts on his ability to work. A presentence probation report recommended that appellant pay a total of $277,722.17 in victim restitution to Mr. Powell, plus future losses, plus interest at 10 percent per year from the date of sentencing.
On February 26, 2015, the trial court sentenced appellant to five years in prison and ordered victim restitution to Mr. Powell as recommended by the probation report "in the amount of $277.722.17, plus future losses, plus interest at 10% per year from the date of sentencing." Appellant contested the amount of restitution, and the court set a restitution hearing for May 21, 2015. Prior to the restitution hearing, the district attorney's office submitted a brief, requesting the amount of restitution outlined in the probation report and attached a victim impact statement written by Mr. Powell, as well as documents prepared by Mr. and Mrs. Powell listing "crime related" and "medical" costs.
At the restitution hearing, appellant's trial counsel objected to the proposed restitution on several grounds. Initially, counsel objected that Mr. Powell's listed gross income included "expenses that would have been paid for from a person's wages," including medical insurance, taxes, and missed S.S.I., Medicare, and S.D.I. contributions. Defense counsel asserted that those expenses "should have be[en] included in the $43,411 of earnings" and thus were "double counted." The prosecutor clarified that the deductions "are all things that were not included within the [gross income] amount. That was all calculated separately, and these are losses that were incurred separately that would have been on top of the lost wages. . . . [The medical insurance] was on top of the [$]43,411, because Mrs. Powell took those expenses out and itemized them. . . . Because she thought the Court needed a more clear itemization." The prosecutor pointed out that defense counsel "is assuming that these additional expenses are subsumed within the salary already. So like they're covered by the [$]43,000 and change." The prosecutor stated that assumption was not correct because what Mrs. Powell is saying is that she "pulled those expenses out of that lump sum to itemize them, and those are losses on top of the [$]43,000." Mrs. Powell, who was present at the hearing, confirmed the prosecutor's statements to the court and stated, "I really tried to itemize it to make it clear. I guess I should have just lumped it all together." The trial court asked defense counsel whether he had any further questions regarding the calculation of Mr. Powell's income, but trial counsel only stated, "[m]y objection stands"; he did not address the statements by the prosecutor or Mrs. Powell.
Defense counsel further objected to the amount of Mrs. Powell's lost income, stating that "[t]he question is was she working at the time, did she take the entire year off, and did she lose the entire $40,420, if that's a year's income. . . . That's a question of proof." After inquiry from the court, Mrs. Powell stated she took nine months off work and that the listed amount of $40,420 was for those nine months, "not more, not less." Although appellant's trial counsel maintained his objection as to "the total lost income," he did not further clarify the basis for his objection or ask the court to make further inquiries of Mrs. Powell.
Defense counsel also objected to the "out-of-pocket costs" listed on page four of the prosecutor's restitution brief. Counsel stated that while he had "no objection" to the medical bills from Queen of the Valley, he was not clear whether the bills were covered by insurance or were "actually billed to the Powells" and, therefore, that "the issue goes to where these payments should be made." The court stated that the payments would be ordered to Mr. Powell and that, "in any event, it's not [appellant's] worry as to whether his payments go to the Queen [of the Valley] or to Mr. Powell. They should go to Mr. Powell. Mr. Powell is responsible for it." The prosecutor also clarified that the amounts listed by the Powells were "the actual amounts that were . . . billed or paid." Mrs. Powell confirmed that "the medical bill amounts are already the reduced amounts. They are the actual amounts." Appellant's trial counsel again asserted his objection "based on the lack of information" regarding the medical bills from Queen of the Valley, Valley Physician's Group, and Kaiser.
The trial court modified the original restitution order by reducing the amount for Mr. Powell's union dues from $600 to $500, removing $1,673.14 for Mr. Powell's missed earning for two weeks of paid vacation, and removing $1,673.14 for Mr. Powell's missed earnings for two weeks of paid sick leave. The trial court affirmed its original restitution order in all other regards and reserved jurisdiction over restitution.
II. DISCUSSION
A. Appellant Was Not Entitled to a Jury Trial.
Appellant contends that notwithstanding his failure to request a jury trial, this issue is not waived on appeal because any such request would have been futile in light of California appellate decisions holding there is no right to a jury trial at a restitution hearing. Assuming the objection has been forfeited because appellant did not request a jury trial in the trial court, we will address the merits of the issue in response to appellant's contention that his trial counsel's failure to preserve his right to a jury trial constituted ineffective assistance counsel.
We note that appellant's acknowledgment of the futility of requesting a jury trial would militate against finding that defense counsel was deficient in failing to assert such a right. (See People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile"].) In any event, as discussed post, the argument is without merit.
Appellant argues he was entitled to a jury trial on the issue of victim restitution. Although his argument appears to be limited to the Seventh Amendment, we also briefly discuss the Sixth Amendment. Several decisions have made clear that the primary purpose of victim restitution is not punishment but instead is to compensate victims of crime. (See, e.g., People v. Jennings (2005) 128 Cal.App.4th 42, 57 ["our review of the statute's provisions suggests that the primary purpose of victim restitution is to fully reimburse the victim for his or her economic losses"]; People v. Kunitz (2004) 122 Cal.App.4th 652, 657 ["Victim restitution is not punishment"]; People v. Harvest (2000) 84 Cal.App.4th 641, 650 [victim restitution does not constitute punishment for double jeopardy purposes]; accord, People v. Bufford (2007) 146 Cal.App.4th 966, 970, fn. 4; see also U.S. v. Carruth (8th Cir. 2005) 418 F.3d 900, 904 ["[r]estitution is designed to make victims whole, not to punish perpetrators"]; U.S. v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054 ["restitution for harm done is a classic civil remedy," not a " 'penalty for a crime' "].) Thus, the determination of restitution does not implicate appellant's Sixth Amendment right to a jury trial because it does not increase the penalty for his crime. (See Behrman, supra, 235 F.3d at p. 1054.)
To the extent appellant argues that the restitution award is civil in nature, and he was entitled to a jury trial under the Seventh Amendment, this argument is without merit. As appellant acknowledges, no court has adopted this analysis and the Ninth Circuit has explicitly rejected it. (United States v. Keith (9th Cir. 1985) 754 F.2d 1388, 1391-1392 [restitution under the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3579, 3580, is a criminal penalty; victim enforcement provision "does not transform a sentencing proceeding resulting in a restitution order into an 'action at common law' within the meaning of the seventh amendment"].) We are similarly unpersuaded that the Seventh Amendment has any application here.
The California Constitution guarantees the right to jury trial in both civil and criminal cases. (Cal. Const., art. I, § 16.) The constitution also guarantees restitution to victims in criminal proceedings. (Cal. Const., art. I, § 28.) The right to jury trial, however, applies only to "actions" not "special proceedings." (People v. Masterson (1994) 8 Cal.4th 965, 969.) An action "is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." (Code Civ. Proc., § 22.) "A civil action is prosecuted by one party against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong." (Code Civ. Proc., § 30.) A criminal action is "[t]he proceeding by which a party charged with a public offense is accused and brought to trial and punishment." (§ 683.) "Every other remedy is a special proceeding." (Code Civ. Proc., § 23.)
A restitution hearing, following a criminal conviction is not a civil action, it is a "criminal sentencing hearing, not a civil trial." (People v. Smith (2011) 198 Cal.App.4th 415, 434.) Thus, a restitution hearing is not an action. It is a special proceeding ancillary to a criminal trial, for which there is no jury trial right. (People v. Masterson, supra, 8 Cal.4th at p. 969.)
In short, there is absolutely no basis in California, or federal law to support a claimed right to a jury trial in a restitution hearing to determine the amount of direct victim restitution following a criminal conviction. B. The Trial Court Did Not Abuse its Discretion in Ordering Restitution.
Appellant argues that the Powells received an improper "windfall" when the court awarded restitution for lost wages based on their gross pay without a reduction that would account for payroll deductions. Appellant further contends the trial court erred by failing to assure that the restitution order only included the actual medical expenses. California law grants the trial court broad discretion in making an order for restitution.
Appellant raises several issues on appeal that were not specifically addressed below. Nevertheless, we will address the merits of the issue in response to appellant's contention that his trial counsel was ineffective for failing to raise these issues in the trial court.
Article I, section 28, subdivision (b)(13)(A) to the California Constitution provides: "(A) It is the unequivocal intention of the People of the State of California 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. [¶] (B) Restitution shall be ordered from the convicted wrong doer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss."
With respect to the amount of restitution owed by a criminal defendant, section 1202.4 begins: "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." . . . [This] 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." (Id., subd. (f)(3), italics added.) In addition, "[t]he court shall order full restitution" (Id., subd. (f), italics added) "unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (Id., subd. (b).) Thus, as the California Supreme Court elaborates: "With the exception of restitution orders relating to felony convictions for lewd or lascivious acts ([]§ 288), for which noneconomic losses may be included in a direct restitution order, . . . section 1202.4 does not authorize direct restitution for noneconomic losses. (Id., at subd. (f).) Apart from this categorical limitation, the Legislature has not further limited the types of economic loss that must be included in a restitution order." (People v. Giordano (2007) 42 Cal.4th 644, 656.)
"A '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. Giordano, supra, 42 Cal.4th at pp. 651-652.) At this 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.] 'Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]' [Citation.]" (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed." (People v. Mearns (2002) 97 Cal.App.4th 493, 500.) Thus, while the amount of restitution cannot be arbitrary or capricious, " '[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement that the order reflect the amount of damages that might be recoverable in a civil action. [Citation.]' [Citation.]" (People v. Millard, supra, 175 Cal.App.4th at pp. 26-27.) So long as " '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.' " (People v. Mearns, supra, 97 Cal.App.4th at p. 499; see also People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
In this case, evidence was presented at the restitution hearing in the form of the probation report, as well as the documents submitted by the Powells that listed the crime-related and medical costs. According to this evidence, Mr. Powell claimed loss of gross income in the amount of $43,411, and Mrs. Powell claimed a loss of gross income in the amount of $40,420. At the restitution hearing, Mrs. Powell explained that, at least as to her husband's wages, the various payroll deductions were listed separately, and not included in the "gross amount" listed, as such they were not double counted. Similarly, the medical insurance premiums of $4,807.08, were not included in Mr. Powell's lost income and were not double counted.
The deductions included: 1) Supplemental Security Income (SSI) contribution $2,645.37; 2) Medicare contribution $618.63; 3) and State Disability Insurance (SDI) contribution $382.50.
As mentioned above, under section 1202.4, restitution "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 . . . ." (Id., subd. (f)(3); see also In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) Moreover, when applying this statute, the "term 'economic losses' is . . . . entitled to an expansive interpretation." (Id., at pp. 1132-1133 [applying Welf. and Inst. Code, § 730.6, which "parallels" § 1202.4, to a juvenile restitution matter].) Indeed, "[i]n determining the amount of restitution, all that is required is that the trial court 'use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' [Citations.] The order must be affirmed if there is a factual and rational basis for the amount." (People v. Akins (2005) 128 Cal.App.4th 1376, 1382; see also In re K.F. (2009) 173 Cal.App.4th 655, 663 ["To constitute evidence of a 'loss incurred,' there must be some basis to conclude that the victim is 'liable or subject to' a charge"].) In addition, the court may consider the secondary goals of rehabilitating the defendant and deterring future criminal conduct when making this conclusion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1124 ["restitution is also related to the goal of deterring future criminality"]; accord People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184.)
Here, we conclude the trial court met this standard. Contrary to appellant's suggestion, nothing in section 1202.4 limits the calculation of "economic loss" to net revenue, rather than gross revenue. And as we just explained, "both the People of this state when they passed Proposition 8, and extensive case authority express that restitution statutes are to be interpreted broadly and liberally." (In re Johnny M., supra, 100 Cal.App.4th at p. 1132, fn. omitted [the "term 'economic losses' is thus entitled to an expansive interpretation"] Id. at p. 1133; accord People v. Mearns, supra, 97 Cal.App.4th at p. 499.) As such, "[a]ny interpretation that limits a victim's right to restitution 'would be in derogation of the expressed intent and purposes of Proposition 8 and the provisions adopted by the Legislature to implement this measure. [Citation.]' (People v. Carbajal [supra,] 10 Cal.4th 1114, 1122.)" (In re Johnny M., supra, 100 Cal.App.4th at pp. 1132-1133.)
In civil cases, injured parties may recover gross earnings without reduction. (See Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 665-668, disapproved on other grounds in Coito v. Superior Court (2012) 54 Cal.4th 480, 499 [future wage loss in personal injury case properly based on gross earnings without reduction for effect of taxes].) The court's discretion to award victim restitution in criminal cases must be at least as broad. (See People v. Carbajal, supra, 10 Cal.4th at p. 1121.)
Appellant has not shown that the court abused its discretion when it ordered him to pay as restitution the gross wages lost by the Powells. (See People v. Giordano, supra, 42 Cal.4th at p. 665 ["No abuse of that discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result"]; People v. Thygesen (1999) 69 Cal.App.4th 988, 994 [rejecting argument that restitution should be limited to victim's net profits].) Ample case law supports this conclusion. For example, "[People v.] Dalvito, supra, 56 Cal.App.4th at page 562, is particularly instructive on the rule that the victim need not demonstrate out-of-pocket loss to qualify for a restitution award. There, the trial court's order included $15,950 for the price of a necklace the defendant obtained from the victim under false pretenses. After the defendant absconded with the necklace, the victim stopped payment on the check he wrote to a third person (a jeweler) from whom he had purchased the necklace. The jeweler sued the victim and obtained judgment in the amount of the check, but the victim declared bankruptcy and the jeweler's judgment against the victim was discharged. (Id. at pp. 558-559.) The appellate court affirmed the restitution order, rejecting the defendant's contention that the victim had suffered no actual loss inasmuch as his debt to the jeweler was discharged. It reasoned that the victim had initially suffered an economic loss in a determined amount and it was immaterial what actions the victim took to mitigate his damages. (Id. at p. 561.) 'If defendant had not stolen the necklace for which [the victim] owed $15,950, then perhaps [the victim] would not have been obliged to seek refuge in the bankruptcy laws. [The victim] has had his debt to the jeweler for $15,950 discharged, but he suffered the consequences of that action . . . .' (Ibid.)" (In re Johnny M., supra, 100 Cal.App.4th at pp. 1133-1134.)
Similarly, in People v. Hove (1999) 76 Cal.App.4th 1266, 1272-1273, the reviewing court held that the victim need not suffer direct economic losses to recover restitution and, in fact, may recover "even though the victim could conceivably profit . . . if defendant complies with the restitution order and if Medicare and/or Medi-Cal does not pursue reimbursement."
Finally, in People v. Giordano, supra, 42 Cal.4th 644, 649, the state's high court was asked to consider whether the trial court abused its discretion in awarding a surviving spouse $167,711.65 in lost support following the death of her husband. In its analysis, the high court began by noting that "a surviving spouse's economic loss is not simply the wages or income that the deceased spouse would have earned but for his or her death"; rather, "a surviving spouse may receive restitution only in the amount of his or her own economic loss." (Id. at p. 664.) Then, turning to the restitution award under challenge, the high court noted "[the trial court] estimated [the surviving spouse's] loss by multiplying the deceased victim's approximate average annual earnings by five years. This method of calculation assumes that [the surviving spouse] was entitled to receive her husband's gross annual earnings, not just that portion of his earnings that went to her economic support. It also assumes that five years is the appropriate term for loss of support restitution . . . . In these ways, the trial court's method of calculation was not carefully designed to establish [the surviving spouse's] loss of support." (Id. at pp. 665-666.)
However, ultimately, while criticizing the trial court's restitution calculation as "imprecise," the California Supreme Court nonetheless concluded that "we are not persuaded that the trial court abused its discretion." (People v. Giordano, supra, 42 Cal.4th at p. 663.)
As the case law described above reflects, trial courts are afforded broad discretion to fashion restitution awards to crime victims in amounts that are reasonably related to their loss, even if not direct calculations of their actual loss. Here, we conclude that, while perhaps not as precise as it could have been, the restitution award for lost income is within the broad definition of "economic losses" provided for under the Penal Code. Indeed, it is well-established that, on appeal, we must presume the lower court's order is correct, and indulge all intendments and presumptions in its support on matters to which the record is silent. (People v. Giordano, supra, 42 Cal.4th at p. 666.)
Additionally, the record reflects that the medical costs claimed were the amounts paid by the Powells. And while there is little in the record by way of specific facts regarding the amount of the medical costs, appellant offers no contrary facts to overcome our presumptions in favor of the lower court's ruling. (People v. Foster (1993) 14 Cal.App.4th 939, 946-947, superseded by statute on another point as recognized in People v. Birkett (1999) 21 Cal.4th 226, 238-242 [defendant bears the burden of producing evidence sufficient to rebut a proposed restitution amount].) Accordingly, we conclude that the restitution order must stand.
III. DISPOSITION
The restitution order is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SMITH, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------