Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS061436A
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Defendant Joe Albert Ramirez pleaded no contest to one count of first degree residential robbery (Pen. Code, § 212.5, subd. (a)), three counts of residential burglary (§ 459), and one count of vehicle theft (Veh. Code, § 10851, subd. (a)). Defendant also admitted as to each of the burglary counts that a person other than an accomplice was present in the residence at the time of the burglary (§ 667.5, subd. (c)(21)). Defendant was sentenced to eight years eight months in prison. Following sentencing, a restitution hearing was held concerning one of defendant’s victims, Janet A. At the hearing, the trial court stated, “... I believe the law’s very clear that I have to order the amount that the [Victim Compensation and Government Claims Board (Board)] has paid on behalf of [Janet A.].” Defendant was ordered to pay $19,699.15, which reflected the amount that the Board had paid Janet A. for lost income.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court incorrectly believed that the amount the Board paid the victim was a “conclusive presumption of the restitution amount.” He also argues that the court erroneously ordered restitution for the victim’s lost income, which was not attributable to his conduct.
The amount of assistance provided by the Restitution Fund and paid by the Board creates a rebuttable, not a conclusive, presumption that the amount was the “direct result of the defendant’s criminal conduct....” (§ 1202.4, subd. (f)(4)(A); see also § 1202.4, subd. (f)(4)(C).) Because we are not able to determine from our review of the record whether, and to what extent, the trial court treated the amount of assistance provided by the Restitution Fund and paid by the Board as a rebuttable presumption, we will reverse the restitution order and remand the matter to the trial court for further hearing.
II. FACTUAL AND PROCEDURAL BACKGROUND
Information and Plea
On August 23, 2006, defendant was charged by information with one count of first degree residential robbery (§ 212.5, subd. (a); count 1), four counts of residential burglary (§ 459; counts 2, 5, 6, 7), one count of threats of violence (§ 422; count 3), one count of assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 4), one count of vehicle theft (Veh. Code, § 10851, subd. (a); count 8), and one count of misdemeanor unauthorized entry of a noncommercial dwelling (§ 602.5, subd. (a); count 10). The information also alleged as to counts 2, 6, and 7 that a person other than an accomplice was present in the residence at the time of the burglary (§ 667.5, subd. (c)(21)), and as to counts 1 through 8 that defendant had served two prior prison terms (§ 667.5, subd. (b)).
On November 7, 2006, the information was orally amended to add the allegation to count 5 that a person other than an accomplice was present in the residence at the time of the burglary (§ 667.5, subd. (c)(21)). Defendant pleaded no contest to one count of first degree residential robbery (§ 212.5, subd. (a); count 1), three counts of residential burglary (§ 459; counts 5, 6, 7), and one count of vehicle theft (Veh. Code, § 10851, subd. (a); count 8). Defendant also admitted as to counts 5, 6, and 7 that a person other than an accomplice was present in the residence at the time of the burglary (§ 667.5, subd. (c)(21)). Defendant entered the no contest plea with the understanding that the maximum term would be eight years eight months. The remaining counts and enhancements were taken under submission for dismissal at the time of sentencing, and defendant agreed that the trial court could consider the dismissed counts for purposes of setting the victim restitution order. (See People v. Harvey (1979) 25 Cal.3d 754.)
Sentencing
A probation officer’s report and an addendum were filed in the trial court prior to the sentencing hearing. According to the probation officer’s report, which was based on a Monterey County Sheriff’s Office crime report, one of the victims, Janet A., called deputies on April 18, 2006, to report that a male, later determined to be defendant, entered her home and tied her up. Defendant wanted her car keys and was still in the home. When deputies entered the home, they found Janet A. “on the floor and injured by [defendant].” Janet A. stated that defendant had threatened to kill her because he believed that she was lying about not knowing where her keys were located. He threw her on the kitchen floor and tried to tape her legs together. Janet A. was able to run to another room and call deputies. She was later taken to the hospital. Defendant was found hiding in the backyard of a home. The probation officer recommended in an addendum that defendant be ordered to pay restitution to Janet A. in an amount to be determined, including for medical treatment and “any lost wages proximate to injury.”
The trial court received a written statement by Janet A. before the sentencing hearing. In the statement, Janet A. described the incident involving defendant and its impact on her. At the time defendant entered her home, Janet A. was “wearing a neck collar and using a walker, having just been recovering from fracturing c-1 and c-2 in [her] neck.” Defendant wanted her car keys and threatened to kill her. He threw her down on the floor, taped her wrists together, and tried to tape her legs. He then pointed a knife at her. Janet A. escaped to another room and called 911. Janet A. stated that “because of the trauma to [her] head and back and hips,” she had “been diagnosed... with Diffuse Idiopathic Skeletal Hyperostosis.” She stated that the “traumatic event had finished off [her] ability to work” and the incident “has affected [her] physically, mentally, emotionally, spiritually, and financially.”
The sentencing hearing was held on May 2, 2007. The prosecutor indicated that he had a “final figure” regarding restitution for Janet A. Defense counsel objected to restitution for Janet A. and questioned whether a “nexus” had been established between the medical care that Janet A. had received and the “incident in this case.” The court indicated that the matter would be set for a restitution hearing.
Janet A. addressed the court before defendant was sentenced. She stated: “When he broke into my house, he threw me down on the floor, and taped my mouth and my hands, and threatened to kill me; and he grabbed a knife, put it by my throat, and... I thought I was going to die on the kitchen floor. And I’m scared all the time. I wasn’t disabled before, and now I have to use a walker or a cane, and it’s permanent damage. [¶] And I can’t answer my front door anymore. I thought he needed help. And I just went to pick up the phone, and he ripped everything out of the walls. And I was ministering, and I can’t work anymore. And I’m -- I have nightmares, and I can’t sleep. And I’m -- I will never forget. [¶] The physical pain is constant, but the emotional pain is also constant, so hard, you know, really horrible. Please God forgive me. ‘I don’t know why on earth you did that. You did that. You ruined the quality of my life.’ I guess that’s all I have to say.”
After Janet A. spoke, the prosecutor acknowledged that when defendant entered Janet A.’s residence, she was “seriously injured already” and was “recuperating from a broken neck.” The prosecutor argued, however, that defendant’s conduct “has certainly impacted” Janet A., that “you take your victims like you find them,” and defendant “had little care of anyone else but himself in doing this.”
The trial court sentenced defendant to eight years eight months in accordance with the stipulated sentence. The remaining counts and enhancements were dismissed. Defendant was granted a total of 152 days of custody credits and ordered to pay various fines and a fee. He was also ordered to pay restitution to several victims.
Regarding Janet A.’s loss, the trial court set a restitution hearing. The court told the prosecutor that it did not think that Janet A.’s presence at the restitution hearing was necessary. The court stated: “Just have somebody confirm -- I know she had a pre-existing condition, but we can confirm one way or the other if there are additional expenses she’s asking as a result of what [defendant] did.”
Restitution Hearing
On June 6, 2008, prior to the restitution hearing, a certification of records from the custodian of records for the “Victim Compensation and Government Claims Board, Victim Compensation Program” was filed with the trial court. Attached to the certification was a compilation of bills prepared by the custodian of records pertaining to Janet A. In the certification, the custodian of records declared under penalty of perjury that “the records are accurate reproductions of bills that were submitted to and paid by the Board in the amounts indicated, by or on behalf of” Janet A. According to the compilation of bills, for the period May 1, 2006, to December 31, 2006, Janet A.’s income loss, less estimated taxes, was $25,539.15. After subtracting social security payments totaling $5,840 for the same time period, Janet A.’s total net loss was $19,699.15. This amount ($19,699.15) was paid by the Board on behalf of Janet A.
On June 19, 2008, the prosecutor filed a memorandum of points and authorities in support of a request that the trial court order restitution of $19,699.15 to “THE CALIFORNIA VICTIM COMPENSATION BOARD.”
The restitution hearing was held on July 17, 2008. The trial court stated that it had read and considered the prosecutor’s memorandum of points and authorities and an attachment from the Board. After referring to the “Penal Code section” and People v. Rowland (1997) 51 Cal.App.4th 1745, the court stated, “... I believe the law’s very clear that I have to order the amount that the Compensation Board has paid on behalf of [Janet A.].” (Italics added.)
Defense counsel responded that the Board “needlessly made out that amount.” He argued that although Janet A. claimed “her ongoing disability and everything was due to [defendant], it was actually due to an injury and a fall that she had experienced in October of the year prior.” According to defense counsel, Janet A.’s medical records showed that “she was not reinjured in the incident” involving defendant. Defense counsel believed that the Board “did not really investigate” Janet A.’s claim and simply “took her word for it.” He asserted that defendant’s “participation, whatever happened, did not cause a reinjury,” and Janet A.’s medical records showed that “she has a form of rheumatitis that is ongoing.”
The prosecutor contended that defendant had tied up Janet A. and that she was taken to the hospital as a result. According to the prosecutor, Janet A. claimed that defendant’s actions had “increased” her previous injuries. The prosecutor believed that the Board had used this information in making its determination.
The trial court believed that the Board “clearly... evaluated” Janet A.’s claim and “determined” the amount of compensation to which she was “entitled,” in view of the fact that Janet A. had requested more than $25,000 but the Board only compensated her $19,699.15. The court ordered defendant to reimburse the “Victim’s Compensation Board” in the amount of $19,699.15. The court stated it would retain jurisdiction “because... there may be restitution owed for future expenses.”
At the conclusion of the restitution hearing, defense counsel sought to confirm that the trial court’s file included a May 16th letter from Dr. Marc Lieberman. The court told defense counsel that he could look at the file and, if the letter was not in there, the court would have it “file stamped and included in the Court’s file.”
Two doctors’ letters regarding Janet A. were filed in the trial court that day. In one letter, dated April 19, 2006, Dr. Christopher C. Carver, explained to another doctor that Janet A. was seen on that day “for her scheduled visit.” Dr. Carver found Janet A. to have “a well-healed C1-C2 fracture.” He further stated: “Additionally, [Janet A.] fell down and was evaluated in the emergency department yesterday, including repeat x-rays of her cervical spine, which demonstrate, to my reading, ankylosing spondylitis, which would account for her ongoing and severe neck pain. That does not make it a surgical process, it makes it a rheumatological process and I have advised her, at this point, she does not need neurosurgery.” Dr. Carver referred Janet A. to Dr. Lieberman.
Dr. Lieberman, in a letter dated May 16, 2006, informed Dr. Carver that he had seen Janet A. upon Dr. Carver’s “referral for her arthritis.” Janet A. reported to Dr. Lieberman that she “fell down the steps at home and suffered a fracture of C1-C2” in October. She “has had severe neck pain” since removal of a “firm neck collar,” and she “has been unable to do without at least a soft cervical collar.” Further, “[t]wo weeks ago she was thrown to the ground [i]n a robbery with an exacerbation of her pain and had re- x-rays which showed no new fracture and no re-injury at the previous fracture site.” Janet A. also complained of pain throughout her entire back and hips. Janet A.’s x-ray reports were reviewed and a musculoskeletal examination was conducted. Next to the heading “IMPRESSION,” Dr. Lieberman wrote: “Probable DISH.” As to disposition, Dr. Lieberman indicated that “diagnosis, prognosis and management were discussed” with Janet A.
Defendant filed a notice of appeal on July 23, 2008.
III. DISCUSSION
On appeal, defendant contends that the trial court erred by ordering restitution for Janet A.’s lost income, which was not attributable to his conduct. He asserts that Janet A. “was severely disabled from a fall that occurred six months prior to the incident” with him, she “had not recovered from these injuries,” and “[h]er encounter with [him] did not re-injure her.” Defendant also argues that the court “did not base its restitution award on any rational or factual basis.” Rather, “[t]he court believed that the Board determination was a conclusive presumption of the restitution amount,” and “[i]t did not inquire further into the review made by the Board.” Further, according to defendant, the court “misinterpreted the Board’s deductions from Social Security payments, required by statute, as an indication of the Board’s review of the legitimacy of [Janet A.’s] claims for lost wages.” Defendant argues that the restitution hearing was therefore “fundamentally unfair.”
In response, the Attorney General argues that defendant “did not overcome the statutory presumption that the Board’s payments were a direct result of his criminal conduct.” The Attorney General contends that “[Janet A.’s] testimony and the Board’s restitution payment was prima facie evidence of the appropriate amount of restitution,” defendant “failed to present any information to rebut [Janet A.’s] claim that, due to [defendant’s] conduct, she suffered a wage loss,” and “[a]ccordingly, the trial court properly exercised its discretion when it set the amount of restitution.”
In evaluating the parties’ contentions, we first set forth the legal principles governing victim restitution. “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (§ 1202.4, subd. (a)(1).) Thus, “[i]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim... in an amount established by court order, based on the amount of loss claimed by the victim... or any other showing to the court.” (§ 1202.4, subd. (f).)
The amount of restitution should be “sufficient to fully reimburse the victim... for every determined economic loss incurred as the result of the defendant’s criminal conduct, including” for “[w] ages... lost due to injury incurred by the victim....” (§ 1202.4, subd. (f)(3)(D).) The court must order “full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f).) Thus, “[r]estitution to the victim is mandatory, although the court retains discretion as to the amount. [Citation.]” (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.)
“The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).) “If, as a result of the defendant’s conduct, the Restitution Fund has provided assistance to or on behalf of a victim..., the amount of assistance provided shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of the restitution ordered.” (§ 1202.4, subd. (f)(4)(A), italics added.) “The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for... wage or support losses.... Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.” (§ 1202.4, subd. (f)(4)(B).) “If the defendant offers evidence to rebut the presumption..., the court may release additional information contained in the records of the board to the defendant only after reviewing that information in camera and finding that the information is necessary for the defendant to dispute the amount of the restitution order.” (§ 1202.4, subd. (f)(4)(C), italics added.)
We review a restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The abuse of discretion standard “ ‘asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’ [Citation.]” (Ibid.) “[A]n order resting upon a ‘ “demonstrable error of law” ’ constitutes an abuse of the court’s discretion. [Citation.]” (People v. Jennings (2005) 128 Cal.App.4th 42, 49.) Further, the trial court must have a factual and rational basis for the amount of restitution it orders. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
In this case, defendant argues that the trial court “treated the Board’s determination as a conclusive presumption of the restitution amount” and he “was not given the benefit of an independent, judicial review at the hearing.”
“Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.] [¶] Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] ‘ “[A] trial court is presumed to have been aware of and followed the applicable law.” [Citations.]’ [Citation.]” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229 (Brown).) Remand for resentencing is also unnecessary if the record indicates that the trial court would have reached the same conclusion even if it had been aware of its discretionary authority. (See People v. Fuhrman (1997) 16 Cal.4th 930, 944; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; People v. Fields (1984) 159 Cal.App.3d 555, 571.)
At the restitution hearing in this case, the trial court stated, “... I believe the law’s very clear that I have to order the amount that the Compensation Board has paid on behalf of [Janet A.].” (Italics added.) Although defense counsel argued that medical records showed that Janet A. was not reinjured in the incident involving defendant, and counsel later provided doctors’ letters concerning Janet A.’s injury, the court decided that, because the Board had “evaluated” Janet A.’s claim and “determined” that Janet A. “was entitled to be compensated the $19,000 figure,” it would “have to order” that amount as restitution. However, the Board’s calculation of Janet A.’s income loss was reduced from more than $25,000 to the “$19,000 figure” after taking into consideration social security payments, rather than from the Board’s consideration of whether Janet A.’s loss of wages was caused by defendant’s conduct.
The amount of assistance provided by the Restitution Fund and paid by the Board creates a rebuttable, not a conclusive, presumption that the amount was the “direct result of the defendant’s criminal conduct....” (§ 1202.4, subd. (f)(4)(A); see also § 1202.4, subd. (f)(4)(C).) Moreover, “[w]hile an award of victim restitution is mandatory, the court has limited discretion to award less than full victim restitution, provided it states compelling and extraordinary reasons on the record for a reduced award. (§ 1202.4, subd. (f).)” (Brown, supra, 147 Cal.App.4th at p. 1229.)
Because we are not able to determine from our review of the record whether, and to what extent, the trial court treated the amount of assistance provided by the Restitution Fund and paid by the Board as a rebuttable presumption, we believe remand is appropriate. On remand, the court should consider whether there are compelling and extraordinary reasons that would justify a reduced restitution award to the Board with respect to Janet A.
IV. DISPOSITION
The restitution order requiring defendant to pay $19,699.15 to the “Victim’s Compensation Board” is reversed and the matter is remanded to the trial court for further hearing. The trial court shall exercise its discretion under Penal Code section 1202.4, subdivision (f) and consider whether compelling and extraordinary reasons justify awarding less than $19,699.15 to the Victim Compensation and Government Claims Board with respect to Janet A.
WE CONCUR: McAdams, J., duffy, J.