Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge., Super. Ct. No. BF113180D.
Julia L. Bancroft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Cornell, J. and Hill, J.
Appellant Jose Hernandez, Jr., pled guilty to one count of accessory to murder in violation of Penal Code section 32. He was sentenced to three years of formal probation and one year in the county jail. In addition, along with his two co-defendants, he was ordered to make restitution to the victim’s family for funeral and burial expenses of $9,2870.90, pursuant to section 1202.4, subdivision (f). Appellant appeals from the restitution order, alleging the trial court abused its discretion in ordering payment of funeral and burial costs when his criminal conduct occurred after the victim’s death. For the following reasons, the restitution order will be affirmed.
All statutory references are to the Penal Code.
In light of appellant’s plea, the facts are taken from the probation officer’s report.
On the early morning of December 25, 2005, Narcisco Hernandez shot and killed Manuel Madrigal with a sawed-off shotgun. The shooting occurred outside the home of Melba Hernandez (Aunt Melba) in Kern County. Aunt Melba was in the driveway of her house listening to music with her niece’s intoxicated boyfriend, Everado Contreras, and her nephew, appellant. Madrigal approached the group and asked for a cigarette. According to Aunt Melba, appellant told Madrigal they were discussing a family issue and needed privacy, to which he responded “This is my territory and I am not leaving.” A fight ensued between the three men, at which point Narcisco Hernandez, appellant’s brother, arrived with a shotgun and shouted “What are you doing to my aunt?” Narcisco Hernandez then shot the victim twice at close range and kicked him in the head.
Shortly thereafter, Melby Hernandez (Aunt Melba’s niece and Contreras’ girlfriend), Everado Contreras, and appellant removed the victim’s body from the crime scene and dumped it in Tulare County. The body was discovered by law enforcement officials the next day.
Narcisco Hernandez admitted shooting Madrigal and was eventually charged with the murder. He told deputies that “he heard his aunt yelling for help, obtained the shotgun and went to her house, saw Madrigal fighting with his brother [appellant], and ‘just shot him [Madrigal].’” Appellant initially claimed he was not involved and had wanted to call an ambulance after the shooting, but that his brother had convinced him otherwise. He eventually conceded some involvement in the fight and admitted to moving the body with Contreras. Appellant, Melba, and Contreras were later charged as accessories after the fact.
DISCUSSION
The issue on appeal is whether the trial court erred in ordering appellant to make restitution to the victim’s family for funeral and burial costs pursuant to section 1202.4, subdivision (f). The appropriate standard of review in this case is abuse of discretion and, as such, the trial court’s order will stand unless “its determination is arbitrary or capricious or ‘“‘exceeds the bounds of reason, all of the circumstances being considered.’”’” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) The trial court in this case had a factual basis for ordering appellant to make restitution and was therefore acting within its discretion.
Under section 1203.1, the trial court has discretion to order restitution as a condition of probation. (People v. Carbajal, supra, 10 Cal.4th at p. 1120.) Conditions of probation, as a general rule, will be upheld on appeal unless they bear no relationship to the crime of which the offender was convicted, relate to conduct which is not in itself criminal, and require or forbid conduct which is not reasonably related to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (superseded on another ground by Proposition 8 as explained in People v. Wheeler (1992) 4 Cal.4th 284.) In other words, a condition of probation requiring or forbidding conduct which is not criminal in itself, such as restitution, is valid if “reasonably related to the crime of which the defendant was convicted or to future criminality.” (Ibid.) In this case, there was a factual basis for concluding that the restitution order was related to the crime of which the appellant was convicted and/or his future criminality.
Although appellant pled guilty to being an accessory after the fact, an order requiring him to make restitution to the victim’s family is appropriate because there is overwhelming evidence demonstrating appellant’s involvement in the overall course of conduct, of which the homicide was one part. Appellant was present in the driveway when Madrigal approached and he was the one who told him they needed privacy. By all accounts, he was directly involved in the fight, which escalated quickly and ended in death. There is no denying that the gunshot wounds inflicted by appellant’s brother, Narcisco Hernandez, were the immediate cause of death. However, the language of section 1202.4, subdivision (f) does not limit restitution orders to those defendants whose conduct directly results in the victim’s loss. Appellant argues, “A court may not order a defendant to pay restitution for losses that are not reasonably” attributable to his conduct. However, there would not have been a death were it not for appellant provoking, and then participating in, a fight with the victim. There is a clear and rational relationship between requiring restitution as a condition of probation and appellant’s conduct.
Courts impose conditions of probation for a number of reasons, one being “the reformation and rehabilitation of the probationer.” (§ 1203.1, subd. (j)) In the case of In re I.M., the court of appeal upheld a probation order requiring appellant, who was convicted of being an accessory after the fact, to make restitution payments to the murdered victim’s family. (In re I.M. (2005) 125 Cal.App.4th 1195.) Examining whether the restitution order was sufficiently related to appellant’s future criminality, that court focused on appellant’s gang involvement and concluded there was a sufficient relationship. (Ibid.) Despite the fact that his involvement had been limited to being an accessory after the fact, the court found the restitution order “force[d] defendant to face the emotional and financial effects of gang-related activity on the family of the victim.… directly related to defendant’s future criminality, and was an appropriate exercise of the trial court’s discretion.” (Id. at p. 1210.) Similarly, the restitution order in this case forces appellant to take financial responsibility for his actions and their repercussions. The altercation, homicide, and disposal of the body constituted a course of conduct in which appellant was intimately involved, even if he did not fire the fatal shot.
Appellant argues that the case of In re I.M., supra, 25 Cal.App.4th 1195, “is distinguishable and should be limited to cases involving special circumstances, such as evidence of active gang membership and participation, where the loss is attributable to the conduct.” However, appellant’s attempts to distinguish the case from the facts before us fail because the rationale employed is equally applicable, despite the absence of gang affiliation. Appellant was Narcisco Hernandez’s brother. He made a conscious decision to help him dispose of the body and protect him from arrest. His conduct demonstrated an absolute loyalty characterized by a complete disregard for the law. The restitution order serves a rehabilitative purpose by bringing home to the appellant the consequences of his decision to protect his brother’s serious crime from discovery.
The judgment is affirmed.