Opinion
B297985
10-20-2020
THE PEOPLE, Plaintiff and Respondent, v. VIVIAN M. CORDERO, Defendant and Appellant.
Kravis, Graham & Zucker and Ian Graham, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. PA089193 APPEAL from an order of the Superior Court of Los Angeles County, David W. Stuart, Judge. Affirmed. Kravis, Graham & Zucker and Ian Graham, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
While driving drunk, defendant Vivian M. Cordero ran a red light and crashed into another car, injuring its occupants. She pled no contest to driving under the influence, causing great bodily injury. On appeal, defendant contends the trial court abused its discretion by not offsetting the victim restitution award with money her insurance company had paid to settle the victims' related civil suit. We disagree. Even assuming some portion of the settlement was for economic damages, it was defendant's burden to prove how much of the settlement covered amounts to be paid in victim restitution. She failed to do so. Because defendant did not carry her burden below, we affirm.
BACKGROUND
Because the underlying facts of this matter are irrelevant to the issue on appeal, we do not address them.
By felony complaint dated October 5, 2017, defendant was charged with driving under the influence of alcohol, causing injury (Veh. Code, § 23153, subd. (a); count 1) and driving with a 0.08 percent blood alcohol content, causing injury (Veh. Code, § 23153, subd. (b); count 2). As to both counts, the complaint alleged that defendant personally inflicted great bodily injury on Anne McIvor and Anthony Linquata (Pen. Code, § 12022.7). As to count 2, the complaint alleged that she proximately caused injury to more than one victim (Veh. Code, § 23558) and that she had a blood alcohol content of 0.15 percent or more (Veh. Code, § 23578).
All undesignated statutory references are to the Penal Code.
On December 15, 2017, defendant pled no contest to count 2 and admitted one of the great-bodily-injury allegations. She stipulated that she would pay restitution to both victims notwithstanding the dismissal of the second great-bodily-injury enhancement. (See People v. Harvey (1979) 25 Cal.3d 754.) On February 22, 2018, in accordance with the negotiated plea, the court suspended imposition of sentence and placed defendant on five years' formal probation. Among other conditions of probation, defendant was required to serve 60 days in county jail; complete a 30-day inpatient alcohol treatment program, a six-month outpatient alcohol treatment program, and a three-month alcohol program under Assembly Bill No. 541 (1981-1982 Reg. Sess.); and pay victim restitution in an amount to be determined at a restitution hearing.
A restitution hearing was held on April 20, 2018. The court ordered defendant to pay the $195,635.93 in economic losses claimed by the victims.
The prosecution had previously filed a restitution motion that included declarations from both victims as well as paystubs, receipts, and other evidence.
Meanwhile, the victims had filed a civil lawsuit against defendant and her husband, Fausto Cordero, and on May 23, 2018, they accepted defendant's Code of Civil Procedure section 998 offers to compromise for a total of $500,000. In the compromise offers, defendant and her husband "offer[ed] to allow judgment to be entered against them jointly, and in favor of [Linquata/McIvor]" on two terms and conditions: Each victim would recover $250,000 from defendant and her husband, and each party would bear its own costs.
There were two offers to compromise—one for each victim—in which each victim accepted $250,000.
On November 6, 2018, the court entered a superseding restitution order of $315,246 payable to Linquata and $133,984.35 payable to Mclvor, for a total of $449,230.35. The superseding order covered additional economic damages incurred since the restitution hearing, including attorney's fees the victims had paid in the civil case. Defendant then asked the court to apply the proceeds from the civil settlement to the restitution award—less the attorney's fees. The court took the matter under submission pending further briefing but, after an additional hearing on March 12, 2019, ultimately denied the request.
The offset proceedings are discussed in greater detail below.
Defendant filed a timely notice of appeal.
DISCUSSION
Everyone who suffers a loss as a result of criminal activity has the right to receive restitution from the person convicted of the crime that causes the loss. (Cal. Const., art. I, § 28, subd. (b)(13); § 1202.4, subd. (f).) But restitution in criminal cases may only reimburse the victim for economic losses—not for "noneconomic losses such as pain and suffering, which are recoverable in a civil action." (People v. Vasquez (2010) 190 Cal.App.4th 1126, 1132 (Vasquez).) As such, crime victims may recover both criminal restitution and civil judgments for harms inflicted in a single crime. (Ibid.)
A civil settlement between a victim and the defendant's insurer does not relieve the defendant of her restitution obligation. (People v. Bernal (2002) 101 Cal.App.4th 155, 162.) Nevertheless, settlement payments made to a victim on the defendant's behalf must be used to offset the restitution award "to the extent that those payments are for items of loss included in the restitution order." (Id. at p. 168; Vasquez, supra, 190 Cal.App.4th at p. 1137.) Restitution orders are reviewed for abuse of discretion. (People v. Grundfor (2019) 39 Cal.App.5th 22, 27.)
In this case, defendant acknowledges that some portion of the judgment entered in the related civil matter was for pain and suffering and that, at most, she has the right to a restitution offset for whatever portion of the settlement payment was both made on her behalf and allocable to expenses included within the restitution order. (See Vasquez, supra, 190 Cal.App.4th at p. 1137.) She asserts, however, that "it was an abuse of discretion for the trial court to deny any kind of offset simply because it might take time to determine what portions of the [settlement] were for economic losses ... and what portions were for pain and suffering." We disagree.
"As the party seeking an offset or credit to, or modification of, the restitution order to which [she] had previously stipulated, [defendant] had the burden of proof as to 'each fact the existence or nonexistence of which is essential to the claim for relief ... [she was] asserting.' [Citations.]" (Vasquez, supra, 190 Cal.App.4th at p. 1137.) That is, defendant was required to prove how much of the settlement covered expenses that were also part of the restitution award.
Defendant does not dispute that she bore the burden of proof below. Nor does she argue that the amount of the offset can be determined based on the record before us—namely, the evidence she submitted to the trial court. Instead, she argues that some portion of the settlement must be for expenses covered by the restitution award and asks us to remand for the trial court to determine how much. (See People v. Short (2008) 160 Cal.App.4th 899, 905.)
At the November 6, 2018 restitution hearing, defense counsel asked the court for an order deducting the settlement amount from the total restitution award—less attorney's fees. The prosecutor responded that defendant was only entitled to an offset to the extent the settlement covered economic losses for which restitution had been ordered—and "[t]here is nothing before this court that indicates that anything [the insurance company] paid covered the economic losses." Defense counsel pointed to the declaration cited in this appeal, which indicated that defendant's insurance policy covered "medical bills, loss of earnings, as well as, of course, the loss of consortium and pain and suffering." But, the prosecutor argued, that policy description was not sufficient to establish what portion of the settlement award covered the economic damages provided for in the restitution award. At that point, the court offered to let the parties come back in 90 days, and, in the interim, "submit what you want on the set-off issue."
The court had previously noted, as to the attorney's fees, that it "didn't have a verdict or any kind of order detailing what was for economic or non-economic damages in the civil case. So I'm going to find that it's not possible to apportion those amounts."
On February 7, 2019, defense counsel filed a written motion seeking the offset she had requested at the previous hearing. But rather than using the intervening three months to obtain additional evidence, she instead attached the same declaration—dated August 27, 2018—that she had referenced before as well as copies of the same vague settlements. Again, the prosecution argued that this evidence was not sufficient to establish "that the payment was meant to (or adequate to) cover any of [the victims'] economic losses identified and ordered as restitution by the court." (Bold omitted.)
As discussed, Linquata and McIvor had signed offers to compromise, each of which said that the victim "shall recover from defendants Vivian Margarita Cordero and Fausto Cordero the sum of Two Hundred and Fifty Thousand Dollars and zero cents ($250,000.00)" and that each party would bear its own costs.
When the matter was heard on March 12, 2019, defense counsel repeatedly asserted that she was unable to proceed because she needed additional time "to pursue additional evidence from [defendant's] insurance company, as well as to secure experts, who I've been trying to secure to testify at today's hearing." The court denied the continuance request, then, based on the evidence before it, denied the setoff request.
On this record, we disagree with defendant that the "court effectively 'threw up its hands' and denied [her] the benefit of any kind of offset simply because it was going to be difficult to determine the amount of the [settlement] that pertained to economic losses." To the contrary, the record demonstrates that counsel had a minimum of three months to obtain the evidence needed to meet her burden in this case. She failed to do so. (See Vasquez, supra, 190 Cal.App.4th at pp. 1137-1138.)
Defendant does not argue that the court abused its discretion by denying her request for a continuance. --------
Accordingly, we conclude the trial court's ruling that defendant failed to establish her entitlement to an offset is supported by substantial evidence and falls well within the court's ample discretion in this matter.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
DHANIDINA, J.