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People v. Jones

California Court of Appeals, First District, Fourth Division
Jul 18, 2008
No. A118285 (Cal. Ct. App. Jul. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. DANNY RAY JONES, Defendant and Appellant. A118285 California Court of Appeal, First District, Fourth Division July 18, 2008

NOT TO BE PUBLISHED

Del Norte County Super. Ct. No. CRF069034

Ruvolo, P. J.

I. INTRODUCTION

Appellant Danny Ray Jones appeals from an order of restitution imposed after a guilty plea to a charge of false personation. He argues on appeal that his due process rights were violated because the trial court failed to hold a restitution hearing before imposing a victim restitution fine of $6,250. Alternatively, he claims that if his due process rights were not violated, the evidence relied on by the court in ordering restitution was insufficient. We disagree and affirm the order for restitution.

II. PROCEDURAL AND FACTUAL BACKGROUND

On information, the Del Norte County District Attorney charged appellant with one count of false personation (Pen. Code, § 529) (Count 1) and felony driving under the influence (DUI) (Veh. Code, § 23550.5) (Count 2), alleging appellant had a prior DUI. Pursuant to a plea agreement entered on March 9, 2007, appellant plead guilty to Count 1 and to violation of Vehicle Code section 23152, subdivision (a), a misdemeanor, in lieu of Count 2 as charged. Appellant failed to appear for the initial sentencing hearing set for April 5, 2007. On June 28, 2007, appellant was sentenced to two years state prison, and $6,250 in victim restitution was imposed under Penal Code section 1202.4.

The facts giving rise to the charges stem from a traffic stop on October 22, 2005, when a California Highway Patrol officer pulled appellant over for drifting onto the right road shoulder. Appellant failed field sobriety tests and submitted to a breathalyzer test indicating a blood-alcohol level of 0.21 percent. Appellant was arrested. However, when he was booked into jail, he provided his brother’s name.

Appellant’s brother (“victim” or “appellant’s brother”) is a truck driver working out of Tennessee. As more fully appears below, appellant’s brother submitted a “description of loss” form to the county probation department itemizing the damages he suffered as a result of appellant’s identity theft. The submittal indicated $5,600 in income loss, $500 in attorney fees, $100 in long distance calls to California, and $50 in finger printing and gas. The only bill attached to substantiate the claims on the description of loss form was the $500 attorney fees.

III. DISCUSSION

A. Standard of Review and Appellant’s Contentions

Normally, the trial court’s order of is restitution is reviewed for abuse of discretion. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) The trial court has broad discretion in setting the amount of restitution. (People v. Baker (2005) 126 Cal.App.4th 463, 467.) The trial court must employ a rational method for calculating the amount of restitution to make the victim whole. (People v. Giordano (2007) 42 Cal.4th 644, 663-664.) There is no abuse of discretion even where the amount awarded does not represent “exact amount of the loss, nor must the order reflect the amount of damages recoverable in a civil action. [Citation.]” (People v. Akins, supra, 128 Cal.App.4th at p. 1382.)

On appeal, appellant contends that: (1) his due process rights were violated because the trial court failed to hold a restitution hearing as he requested; (2) if a hearing was held sufficient to satisfy due process, he was given insufficient notice that the restitution hearing was occurring concurrently with the sentencing hearing; (3) the burden-shifting standard applied at the restitution hearing violated his due process rights; and (4) the evidence relied on to impose victim restitution was insufficient to support the order.

B. Appellant’s Due Process Rights Were Not Violated in Ordering Victim Restitution

1. A Restitution Hearing Was Held

Appellant avers in his opening brief that he was entitled to a restitution hearing and no restitution hearing occurred. He argues this “structural error” violated his due process rights.

A restitution hearing is a “civil remedy rather than [a] criminal punishment.” (People v. Harvest (2000) 84 Cal.App.4th 641, 649.) The hearing is comparable to a civil hearing because direct victim restitution serves to compensate crime victims for their losses, rather than to punish defendants. (See Pen. Code, § 1202.4, subd. (a)(3)(B) [“Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment”]; People v. Harvest, supra, at pp. 649-650 [describing restitution as a civil remedy rather than a criminal punishment which does not constitute double jeopardy]. But see People v. Hanson (2000) 23 Cal.4th 355 [finding that increase in the maximum amount of restitution fines does constitute double jeopardy].) “The requirements of due process are satisfied by providing the defendant a hearing on . . . the extent of the loss occasioned by the defendant’s criminal conduct.” (People v. Baumann (1985) 176 Cal.App.3d 67, 79.)

Prior to the sentencing hearing, a sentencing report was submitted by the county probation department to the court and parties. The probation report contained an itemized list of damages prepared by the victim which totaled $6,250. This included victim’s claim of $5,600 in lost wages based on suspension of “[his] dedicated run to California . . . which resulted in a loss of 2000 miles per week for 8 weeks.” The probation officer recommended that the court should award the full amount of restitution requested.

During the sentencing hearing, the trial judge made clear his intention to consider at that time the reasonableness of the evidence supporting a request by appellant’s brother for victim restitution: “I’m trying to see where [sic] this amount would be unreasonable.”

First, the court heard from the prosecutor concerning the amount of restitution claimed by the victim from appellant.

“PROSECUTOR: “[T]he brother [hired] an attorney here locally, [consulted] with the D.A.’s Office, [proved] he was innocent and this did have some impact on his employability.

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“THE COURT: Well, Probation Officer’s making the finding [the restitution is $]6,250.

“PROBATION OFFICER []: It is, your Honor.”

The court heard argument from appellant’s counsel concerning the reliability of the victim’s statement. The court also considered the unsworn statement of appellant who related, “I talked to [victim] several times and he was on the road in his truck.” However, the court rejected the probity of appellant’s argument that appellant’s phone call was evidence the victim was driving his truck at a time, when, according to the victim’s letter, the victim said he was not driving his truck.

Considered as a whole, the record indicates the court held a restitution hearing, and that the hearing comported with due process. Nevertheless, as evidence of the fact the court held no restitution hearing, appellant points to the trial judge’s statement following his counsel’s request for a “hearing,” “Well, I don’t know that there’s been enough of a basis to—to show the need for a hearing.”

Considered in context, we conclude the trial court’s statement was not evidence that no restitution hearing was held, but instead that no additional restitution hearing was necessary, in light of what was presented at this hearing. To that extent, we find there was no abuse of discretion in not granting the request for a further hearing.

2. Appellant Had Notice of the Hearing

Appellant further contends that even if the court held a restitution hearing, the hearing failed to meet the requirements of due process, because he was not given notice that a restitution hearing was occurring, and as such the hearing was neither “meaningful [nor] fair.” Again, this argument conflicts with the record. Although the record does not indicate specifically when appellant was provided with the probation report detailing the victim’s claim for restitution and recommending that $6,250 in victim restitution be awarded, the latest date appellant could have received the report was the June 21, 2007 hearing, when appellant’s counsel acknowledged its receipt. This was a full week before the restitution hearing occurred.

At the hearing, appellant specifically offered evidence about his phone call to his brother in order to refute the claim. Offering evidence to limit the victim’s restitution request clearly indicates that appellant was fully aware that the amount of restitution would be decided at the hearing.

Moreover, it is apparent from the transcript of the hearing that trial counsel was fully aware that the amount of restitution was to be decided at the hearing. After the trial judge determined appellant did not present enough evidence to necessitate a separate hearing, trial counsel took the opportunity to “make a record.” Trial counsel forcefully argued the reliability of the restitution amount claimed by the victim. However, the trial judge found the evidence of victim’s lost wages adequate. Also, prior to making his order, the trial judge stated his intention to “go with what the Probation Department’s investigation has shown.” This too provided notice to appellant that a restitution hearing was occurring concomitantly with the sentencing hearing. Had appellant additional evidence to introduce, or further objections to make, this hearing was the time to do so.

3. Shifting the Burden to Appellant to Refute the Claim

Appellant further claims that the procedure followed during the hearing violated his due process rights. We disagree.

“The burden is on the party seeking [direct victim] restitution to provide an adequate factual basis for the claim.” (People v. Giordano, supra, 42 Cal.4th at p. 664.) Under the current framework, victim’s submission of a claim makes a prima facie showing of the amount of victim’s damages. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; People v. Fulton (2003) 109 Cal.App.4th 876, 886.) The burden then shifts to the defendant to dispute the amount claimed by the victim. (People v. Keichler, supra, at p. 1048; People v. Fulton, supra, at p. 886.) The standard of proof for the restitution amount is the preponderance of the evidence. (People v. Keichler, supra, at p. 1045.) “The scope of a criminal defendant’s due process rights at a [restitution] hearing to determine the amount of restitution is very limited[.]” (People v. Cain (2000) 82 Cal.App.4th 81, 86.)

Appellant acknowledges that a number of cases hold that once the victim has made a prima facie showing of loss, the burden shifts to the defendant to disprove the amount. Appellant’s contention is that this burden-shifting standard itself violates due process. For this proposition appellant cites People v. Giordano, supra, where our Supreme Court addressed the issue of how a trial court could measure future economic losses under Penal Code section 1202.4. (42 Cal.4th 644.)

In People v. Giordano, supra, 42 Cal.4th 644, the court affirmed a restitution order of five years of the victim-decedent’s average annual earnings to the victim-decedent’s wife, after concluding that a victim’s preliminary statement “provide[d] an adequate factual basis for the claim.” (Id. at p. 664.) The defendant argued “the amount of restitution a surviving spouse may receive as direct restitution pursuant to Penal Code section 1202.4 is limited to the amount of loss of support assistance offered by the Restitution Fund. . . .” Therefore, the economic loss should have been limited to victim-decedent wife’s “own economic loss” rather than her husband’s full earnings. (Ibid.) Importantly, there is no mention of defendant’s offer of evidence showing different annual average earnings, which could implicate the burden-shifting standard, and the burden-shifting process was not discussed.

From this, appellant argues that, since the court did not address how the burden-shifting framework is to proceed, the court tacitly rejected the procedure. We disagree. Because the burden-shifting standard was not salient in the case, there was no need for the court to discuss it. We reject the notion that the court’s silence on the issue indicates disapproval.

Appellant also argues this burden-shifting standard unnecessarily departs from Evidence Code section 500. “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.) Appellant’s contention is inaccurate.

Evidence Code section 500 places the burden of proving facts on the party whose claim is dependent on proof of those facts. Consistent with Evidence Code section 500, the burden is on the victim to make a prima facie showing of loss. (Pen. Code, § 1202.4, subd. (f) [“the court shall require that the defendant make restitution to the victim . . . based on the amount of loss claimed by the victim . . . or any other showing to the court”], italics added; see People v. Keichler, supra, 129 Cal.App.4th at p. 1048; People v. Fulton, supra, 109 Cal.App.4th at p. 886.) Thus, consistent with Evidence Code section 500 the initial burden is on the victim, “[the] party [having] the burden of proof as to [the amount of restitution] which is essential to the claim for relief . . . [the victim is] asserting.” (Evid. Code, § 500.) It is only after the victim’s prima facie showing that the burden shifts to the defendant to rebut the victim’s showing of loss. Therefore, Penal Code section 1202.4, subdivision (f) does not depart from Evidence Code section 500.

Appellant’s final argument on the burden-shifting standard is that it was not triggered here because the probation officer recommended awarding the amount in the probation report only after the trial judge had decided to award that amount, and thus the burden never shifted to appellant to disprove the victim’s prima facie showing of loss. Appellant premises this argument on the conclusion that the probation officer’s oral recommendation of the award during the restitution hearing is the “triggering event.” This premise is incorrect.

Appellant cites People v. Harvest, supra, for this proposition but, in that case there was no mention of an oral recommendation in support of the restitution amount. The Harvest court reversed a grant of restitution because the claim was only “mention[ed]” in the probation officer’s report, not because the probation officer’s award recommendation was “untimely.” (People v. Harvest, supra, 84 Cal.App.4th at pp. 652-653.) Appellant’s due process rights were satisfied when he received the probation officer’s report listing the amount of restitution sought. (People v. Keichler, supra, 129 Cal.App.4th at p. 1048; People v. Fulton, supra, 109 Cal.App.4th at pp. 886-887.) Receipt of the probation report is the “triggering event” for the burden shifting where the report contains a prima facie showing of loss. “Once the victim has 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.]” (People v. Prosser (2007) 157 Cal.App.4th 682, 691, italics added.) As we have concluded, such a showing was made adequately here to sustain the order of restitution.

Appellant asserts the Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856 (Cunningham) and People v. Black (2007) 41 Cal.4th 799 cases rejecting imposition of a sentence on a defendant based on facts found by a judge, and not submitted to the jury for determination, are applicable to restitution hearings. Appellant rests this assertion on a footnote in our Supreme Court’s decision in People v. Giordano. (42 Cal.4th at p. 662, fn. 6.) There, the court acknowledged that some courts have based the lessened due process protections available at a restitution hearing on the premise that restitution hearings are sentencing hearings. (Ibid.) The court states this premise may be called into question because of the high court’s holding that “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 127 S.Ct. at pp. 863-864, italics added.)

To the contrary, recent courts have clarified that, rather than directed at punishment, the primary purpose of restitution is “reimburse[ing] the victim for his or her economic losses. [Citation.]” (People v. Jennings (2005) 128 Cal.App.4th 42; see, e.g., People v. Harvest, supra, 84 Cal.App.4th at pp. 647-651.) In People v. Harvest, supra, in the context of double jeopardy, the court analyzed whether direct victim restitution was civil or criminal and found direct victim restitution “qualitatively different from . . . restitution fine[s],” which were deemed a criminal penalty in People v. Hanson, supra, 23 Cal.4th at pages 361-362. (People v. Harvest, supra, at p. 647.) Since direct victim restitution serves a compensatory purpose, rather than serving to increase the “potential sentence” described by the high court, the civil standards for due process do not conflict with Cunningham v. California. (Cunningham, supra, 127 S.Ct. at pp. 863-864.)

C. Victim’s Evidence of Loss was Sufficient

Appellant lastly argues that there was insufficient evidence presented at the restitution hearing upon which to base the award of restitution. Appellant also claims that victim’s lost wages claim was really one for lost commission income and, as such, should have been determined in the manner described in Penal Code section 1202.4, subdivision (f)(3)(E).

As we have already observed, the victim’s evidence of loss was fully contained in the probation report, including a “description of loss” form itemizing his damages as a result of appellant’s conduct. The probation report also included victim’s explanation of his lost wages—as a result of appellant’s identity theft victim could not make his 2000 mile per week “dedicated run to California” for eight weeks.

The standard on review is abuse of discretion, and the trial court has broad discretion in setting the amount of restitution. (People v. Akins, supra, 128 Cal.App.4th at p. 1382; People v. Baker, supra, 126 Cal.App.4th at p. 467.) The court did not abuse its discretion in basing the amount of restitution on the victim’s prima facie showing. Since appellant did not present evidence sufficient to rebut the prima facie showing, “an award of the amount specified in the probation report is not an abuse of discretion. [Citation.]” (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.)

The thrust of appellant’s final argument is that subdivision (f)(3)(E) of Penal Code section 1204.4 specifically describes the manner in which lost wages on commission are to be calculated. “Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.” (Pen. Code, § 1202.4, subd. (f)(3)(E).)

An inquiry under subdivision (f)(3)(E) was unnecessary because the victim’s losses in this case are not “commission income.” Black’s Law Dictionary defines “commission” as “5. A fee paid to an agent or employee for a particular transaction, [usually] as a percentage of the money received from the transaction[.] [A] real-estate agent’s commission[.]” (Black’s Law Dict. (8th ed. 2004) pp. 286-287, cols. 2 &1, respectively.) The 2000 miles victim was unable to drive because of appellant’s use of his identification is not commission since it is only contingent on making the “dedicated run to California.” The contingency of a purchase or sale does not exist in this context because absent the identity theft, victim would have made the California run. The commission standard is therefore inapplicable.

IV. Dispostion

The judgment, including the award of victim restitution, is affirmed.

We concur: Reardon, J., Rivera, J.


Summaries of

People v. Jones

California Court of Appeals, First District, Fourth Division
Jul 18, 2008
No. A118285 (Cal. Ct. App. Jul. 18, 2008)
Case details for

People v. Jones

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANNY RAY JONES, Defendant and…

Court:California Court of Appeals, First District, Fourth Division

Date published: Jul 18, 2008

Citations

No. A118285 (Cal. Ct. App. Jul. 18, 2008)