Opinion
F053818
7-1-2008
THE PEOPLE, Plaintiff and Respondent v. PHILLIP CASTILLO RIOS, Defendant and Appellant.
Kenneth J. Hutz, 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, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Phillip Castillo Rios was convicted of felony false imprisonment and misdemeanor battery and vandalism, arising out of a domestic violence incident. He was acquitted of the additional felony charge of attempted robbery. On appeal, he contends the trial court lacked jurisdiction to order him to pay victim restitution (Pen. Code, § 1202.4, subd. (f)), and improperly imposed the upper term. We affirm.
FACTS
Around 2:30 a.m. on March 17, 2007, Hanford Police Officer Machado responded to the residence where defendant lived with his wife, Irene. Irene was very nervous, extremely shaken, and visibly scared, and her eyes were puffy from crying. Her finger was bleeding and wrapped in a bloody tissue.
Irene reported that she argued with defendant after he had been drinking all evening and demanded money from her. Irene said defendant walked out of the house and shattered the windshield of her car. Defendant ordered her into the bedroom and said "she could come the easy way or the hard way." Irene was frightened and followed him into the bedroom. He shut and locked the door, grabbed her hair and pushed her around, screamed at her for money, and struggled with Irene over her debit card. Defendant bit Irenes fingers as he tried to wrest control of the debit card from her. Irene ran from the house and found refuge with her neighbors.
At trial, however, Irene testified that she never called the police that night, she was not scared or crying, and she only appeared at trial because she had been ordered to do so by the court. Irene admitted she was upset that night and she injured her finger, but denied it was bleeding and claimed the officer made up certain facts about the incident. She insisted she did not argue with defendant about money and they did not fight over the debit card. Irene testified they only argued about whether defendant was cheating on her, he did not bite her finger or push her around, he did not threaten her, and she had no idea how the car windshield was shattered.
Defendant testified he argued with Irene about whether he was cheating on her and shattered the windshield in the course of that argument, but he did not think it was a big deal because they both owned the car and he intended to repair the windshield. Defendant denied struggling with Irene, threatening her, or fighting over the debit card. Defendant admitted he suffered a prior felony conviction in 1995 and served prison time.
DISCUSSION
I. Victim Restitution
Defendant raises a rather unique argument as to why the trial court herein lacked jurisdiction to order him to pay victim restitution to Irene for the replacement of the shattered windshield. Defendant posits the trial evidence showed the subject vehicle and all of his financial resources were community assets, and argues that a court in a criminal matter lacks jurisdiction to order a defendant to use community funds to pay victim restitution under such circumstances. "[T]he courts order would only nullify itself, if [defendant] were to provide funds from his and his wifes joint account" to repair their jointly owned car, and "repairing the broken windshield of [their] car . . . is a family financial matter." Defendant contends that only a court in a civil case has jurisdiction to order him to use community assets to pay such a debt. He complains the trial court herein effectively "held [him] liable to reimburse the marital community for his wrongful actions, but while such reimbursement might be appropriate in certain family law matters, it is not appropriate under these facts." Respondent argues defendant has waived this issue because he did not raise any objections at the sentencing hearing.
"[W]hen a defendant is convicted of a crime involving a victim who `has suffered economic loss as a result of the defendants conduct [citation], the court must require the defendant to pay full restitution directly to the victim or victims of the crime `unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. [Citation.] A `defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 651-652, citing § 1202.4, subds. (f) & (g).)
There are several problems with defendants jurisdictional argument, the most obvious being that it is based upon the false premise that the court herein actually ordered him to pay victim restitution to reimburse Irene for the shattered windshield. At the sentencing hearing, the court imposed the upper term of three years for felony false imprisonment, ordered defendant to pay a $600 restitution fine pursuant to section 1202.4, subdivision (b), and imposed another $600 restitution fine that was stayed pending successful completion of parole pursuant to section 1202.45. Thereafter, the following exchange ensued:
"THE CLERK: Is restitution reserved to the victim?
"THE COURT: The court is going to reserve restitution."
The court did not make any further findings or orders as to victim restitution, and the probation report was silent on the issue.
While a trial court is required to impose victim restitution, "[i]f the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court." (§ 1202.4, subd. (f).) That is what happened in this case. The court reserved the right to order victim restitution, if any, at a future time and it never ordered defendant to pay any amount for victim restitution. Based on this statute, if the victim makes such a claim, defendant then has the right to a hearing to determine whether there is any economic loss, and, if so, the amount and whether there is a compelling reason why the court should not order payment. Indeed, Irenes victim-impact questionnaire stated the incident never happened and she did not make any claim for victim restitution.
Defendants jurisdictional argument is further undermined by his supposition that the purported victim restitution order was for replacement of the shattered windshield. "The restitution statute allows for recovery of a broad variety of economic losses that are incurred as a result of the defendants criminal conduct. (§ 1202.4, subd. (f)(3).) The illustrative list of items for which restitution may be ordered `includ[es], but [is] not limited to payment for the value of stolen or damaged property, medical expenses, mental health counseling expenses, wages or profits lost by the victim, noneconomic losses including psychological harm, interest, attorney fees, moving expenses, extra security, and expenses to retrofit a house or car to make them accessible. (§ 1202.4, subd. (f)(3).)" (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046.) While the shattered windshield may have provided the most obvious basis for victim restitution, defendant also inflicted an injury to Irenes finger and threw her around by the hair. More importantly, as we have already noted, the court never imposed a victim restitution order, Irene did not request any restitution, the matter was not raised in the probation report, and the court never made any statements, express or implied, that it was inclined to impose victim restitution for repair of the shattered windshield.
Defendants jurisdictional argument is based upon the assertion that the destroyed windshield belonged to a community vehicle, all his financial assets were community property, he lacked any separate property assets, and the court herein lacked jurisdiction to order him to use community assets to pay victim restitution in this case. Without commenting on the merits of this unique argument, the record is rather sparse on his underlying factual claims. While there is some evidence that that the damaged vehicle may have been a community asset, the only evidence as to defendants financial assets was his own trial testimony that he and Irene shared the funds in their bank account, Irene allowed him to use her debit card, and he always paid back the money. Irene testified they had a "mutual account" and held credit cards in both their names. However, such testimony was introduced in support of his claim concerning his defense to the charged attempted robbery that he did not intend to permanently deprive Irene of her debit card and had a right to use the debit card in Irenes possession..
Defendant acknowledges the trial court did not order him to pay a specific amount of victim restitution, but asserts this omission does not prevent this court from addressing his jurisdictional arguments because "he is challenging the fact that restitution was ordered, and not the amount submitted by the prosecutor or parole officer." However, defendant was never ordered to pay any amount of victim restitution in this case, and such an order may never be issued. "`The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. [Citation.]." (People v. Johnson (2006) 142 Cal.App.4th 776, 789, fn. 4.) We decline to issue an advisory opinion about an issue that may never arise. If the matter of victim restitution is reopened, defendant has the right to a hearing at that time and will have the opportunity to raise these issues supported by the appropriate factual record and legal arguments.
II. Imposition of the Upper Term
Defendant next claims the imposition of the upper term for felony false imprisonment violated his federal constitutional right to have the jury determine all factual issues relating to a charged offense. (Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Cunningham v. California (2007) 549 U.S. 270 (Cunningham).)
In Apprendi, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) In Cunningham, the court held that Californias determinate sentencing law violated a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham, supra, 549 U.S. at p. ___ ; People v. Black (2007) 41 Cal.4th 799, 805 (Black); People v. Sandoval (2007) 41 Cal.4th 825, 831-832.)
Imposition of an upper term sentence "does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions." (Black, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (Id. at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial." (Black, supra, 41 Cal.4th at p. 812, italics in original.)
There are unique circumstances which support the courts imposition of the upper term in this case. Defendant was charged with count I, attempted robbery (§§ 664/211); count II, infliction of corporal injury on a spouse (§ 273.5, subd. (a)); count III, false imprisonment (§ 236), and count IV, misdemeanor vandalism (§ 594, subd. (a)). As to counts I and II, it was alleged defendant suffered a prior strike conviction for robbery in 1995 (§ 667, subds. (b)-(i), § 1170.12) and served a prior prison term for that robbery conviction (§ 667.5, subd. (b)). At trial, defendant testified and admitted he suffered a prior felony conviction and served time in prison. During the jurys deliberations, defendant waived his right to a jury trial as to the special allegations and admitted the prior strike and prior prison term enhancement. Defendant was found not guilty of counts I and II, guilty of misdemeanor battery as a lesser offense of count II, and guilty of counts III and IV.
At the sentencing hearing, the court was foreclosed from imposing a second strike sentence or a prior prison term enhancement since defendant was found not guilty of the two felony counts to which those allegations were attached. The court imposed the upper term for count III, felony false imprisonment, and found the aggravating circumstances were significant in this case: that defendant was an active participant in the offense and inflicted physical injury on the victim, his prior performance on parole was unsatisfactory and he violated parole, he failed to show any remorse in this case, and he had a prior conviction and had served a prior prison term. The court rejected defendants claim as a mitigating circumstance that he had the right to smash the windshield of his own car.
The trial court herein relied upon at least one constitutionally permissible factor, defendants prior felony conviction, to impose the upper term in this case. (See Black, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837 ["the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction"].) Moreover, defendant waived his right to a jury trial on the special allegations and admitted that he suffered a prior strike conviction and served a prior prison term, and even testified as to those facts. Defendants criminal history established an aggravating circumstance that independently satisfied Sixth Amendment requirements and rendered him eligible for the upper term, he was not legally entitled to the middle term, and his right to a jury trial was not violated. (Black, supra, 41 Cal.4th at p. 820.)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
WISEMAN, J.
HILL, J. --------------- Notes: All further statutory citations are to the Penal Code unless otherwise indicated.