Opinion
A142714
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD SALTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 159648)
Defendant Ronald Salter appeals a post-judgment victim restitution award made payable to the California Victim Compensation Board for the funeral and burial costs it paid to the family of Salter's murder victim. We affirm.
BACKGROUND
Salter was previously convicted after a jury trial of first degree murder, and we recently affirmed his conviction. The facts of the underlying crime are recounted in our prior opinion. (See People v. Salter (Apr. 25, 2018), No. A139766.)
At the parties' requests, we take judicial notice of the record and briefing in the prior appeal.
After the jury returned its verdict, the probation department recommended a restitution award made payable to the California Victim Compensation Board (Board) in the amount of $7,479.15, to reimburse the Restitution Fund for funeral and burial expenses the Board had paid the victim's family. At the sentencing hearing on August 15, 2013, Salter requested a hearing on restitution and the trial judge (the Hon. Morris Jacobson) put the matter over.
The contested restitution hearing took place on June 13, 2014, before another trial court judge (the Hon. Trina Thompson). Salter's sole objection was that restitution should be denied in its entirety under Government Code section 13956, subdivision (c), and the Board's award "set aside," because his victim, Anthony Custard, had initiated and exacerbated the situation that led to his death by brandishing a gun before Salter shot him. In support, he offered portions of the trial testimony of eyewitness Ira Hayes, Jr. (whose preliminary hearing testimony was read at trial).
Government Code section 13956 is part of the statutory scheme governing "the procedure by which crime victims may obtain compensation from the Restitution Fund." (Gov. Code, § 13950, subd. (b).) At the time of the contested restitution hearing, subdivision (c) stated in relevant part: "An application for compensation may be denied, in whole or in part, if the board finds that denial is appropriate because of the nature of the victim's . . . involvement in the events leading to the crime or the involvement of the persons whose injury or death gives rise to the application." (§ 13956, subd. (c); Stats. 2002, ch. 1141, §2, amended by Stats. 2005, ch. 240, §5, italics added.)
Unless otherwise noted, all further statutory references are to the former Government Code in effect at the time of the 2014 restitution hearing.
The trial court overruled Salter's objection and ordered him to pay $7,479.13 to the Board for his victim's funeral and burial costs, and this appeal followed.
DISCUSSION
Salter's principal argument is the restitution award should be vacated and remanded for a new hearing because the trial court's comments on the record reflect that it misapplied the law. Rather than apply the above-quoted standard set forth in subdivision (c) of section 13956, he contends, the record reflects that the trial court erroneously applied a more stringent standard, set forth in subdivision (a), applicable when a victim is also an actual participant in the underlying crime. Accordingly, because the trial court failed to exercise its discretion to reduce or deny the award based upon the nature of Custard's own actions in the underlying incident, Salter maintains the matter must be remanded for a new hearing in which the proper legal standard is applied.
Former subdivision (a) stated in relevant part: "An application shall be denied if the board finds that the victim, or, where compensation is sought by or on behalf of a derivative victim, either the victim or derivative victim knowingly and willingly participated in the commission of the crime that resulted in the pecuniary loss for which compensation is being sought pursuant to this chapter." (§ 13956, subd. (a).)
We disagree. We review the court's ruling not its reasons (see People v. Selivanov (2016) 5 Cal.App.5th 726, 774), and here the court correctly awarded the full amount of burial costs claimed. The fundamental flaw in Salter's position is his contention (apparently questioned by no one, not even the court below) that section 13956 applies in superior court because, he says, "it stands to reason that what is objectionable at the Board level is objectionable in Superior Court." Section 13956 does not apply, and so it is unnecessary to consider whether the trial court erred in the manner in which it analyzed and applied that statute. As set forth above, that statute on its face governs proceedings before the Victim Compensation Board. (See § 13950, subd. (b), quoted ante.)
The applicable statute, rather, is Penal Code section 1202.4, subdivision (f). It states in relevant part that "in 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 or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court," and further states that "[t]he court shall order full restitution." And, as Salter acknowledges, Penal Code section 1202.4 presumes that the amount of any assistance paid by the Fund is "a direct result of the defendant's criminal conduct and shall be included in the amount of the restitution award." (Id., subd. (f)(4)(A).) The presumption is a rebuttable one, imposing upon a convicted criminal the burden to prove his conduct "is not a cause in fact of the Board's payment." (People v. Lockwood (2013) 214 Cal.App.4th 91, 101.) Penal Code section 1202.4, subdivision (f) further directs that "[r]estitution ordered pursuant to this subdivision shall be ordered to be deposited in the Restitution Fund to the extent that the victim . . . has received assistance from the California Victim Compensation and Government Claims Board." (Id., subd. (f)(2).) Penal Code section 1202.4 thus is clear and unambiguous on its face. It requires only a causal connection between the defendant's conduct and the victim's economic losses. There is no exception conferring discretion on the court to award less than full restitution based on its assessment of the victim's conduct, as the Board is permitted to do under section 13956, subdivision (c) when awarding victim assistance out of the Restitution Fund. Salter's argument boils down to the assertion that section 13956 necessarily applies in court, because that is a criminal defendant's only opportunity to object to a restitution award. But the conclusion by no means follows, neither as a matter of cogent legal analysis nor logic. Simply put, we cannot rewrite these statutes to say what they do not, and insert language the Legislature did not place there. (See Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 571.)
Moreover, restitution awards against a convicted person are constitutionally mandated "in every case . . . in which a crime victim suffers a loss" as a result of criminal activity, without limitation or qualification. (Cal. Const., art. I, § 28, subd. (b)(13)(B), italics added.) Construing the standards governing awards by the Victim Compensation Board of victim assistance from the Restitution Fund as applicable to court-ordered restitution awards against a criminal defendant would raise serious constitutional implications because it would limit a court's power to award restitution, insofar as it would confer discretion on superior courts to deny or reduce an award based on their assessment of victims' conduct. We will not interpret section 13956 in a manner that renders it potentially unconstitutional. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1102-1103 [statutes must be construed in a manner that "gives full effect to their language and purpose, but also 'eliminates doubts as to the statute's constitutionality' "].)
Salter wrongly contends this constitutional mandate contains an exception for "extraordinary and compelling reasons." That constitutional provision was repealed by the voters in 2008 as part of the Victim's Bill of Rights Act of 2008, and its statutory implementation (former Penal Code § 1202.4, subd. (f)) has since been repealed. (See People v. Pierce (2015) 234 Cal.App.4th 1334, 1338, fn. 2; Stats. 2016, ch. 37, § 3; see also generally People v. Rowland (1997) 51 Cal.App.4th 1745, 1750-1751 [discussing prior law].) Even under the constitution as it stood before passage of the amendment, though, Salter's interpretation would still raise serious constitutional issues. (Cf. Pierce, at p. 1338, fn. 2.)
In sum, the court did not err in refusing to reduce the amount of restitution for burial expenses the victim's family incurred. Under Penal Code section 1202.4, subdivision (f), those expenses, having been paid by the Board, were presumptively a direct result of Salter's criminal conduct and properly included in the amount of the restitution award. (Id., subd. (f)(4)(A).) Nothing in the evidence presented by Salter alters that conclusion.
In light of our determination, Salter's two remaining arguments merit little discussion. He contends that his due process rights were violated because the judge who rendered the restitution award, who did not preside over his trial, was unfamiliar with the facts of the case and therefore unable meaningfully to apply the standard set forth in section 13956, subdivision (c). The argument is beside the point, because section 13956 does not apply.
Citing our decision in People v. Jacobs (2007) 156 Cal.App.4th 728, Salter concedes at page 11 of his brief he did not have the right to have the trial judge preside at the restitution hearing. In Jacobs, we recognized as settled law that a defendant who has been convicted after trial has no right to be sentenced by the judge who tried the case. (Id. at p. 733.) --------
It also is wrong. None of the authorities Salter cites are on point, and he makes no attempt to explain their relevance. Two concern the exercise of judicial discretion (and in entirely different circumstances), not the requirements of constitutional due process (see People v. Davis (1984) 161 Cal.App.3d 796, 804; People v. Surplice (1962) 203 Cal.App.2d 784, 791), and the third upholds the constitutionality of California's statutory procedures governing charter revocations for public charter schools. (See Today's Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197.) Yet, as stated in that very case, "the precise dictates of due process are flexible and vary according to context." (Today's Fresh Start, Inc. at p. 212.) Salter makes no attempt to analyze the relevant due process factors discussed and applied in Today's Fresh Start, Inc. (see id. at p. 213).
We also reject his final argument, that counsel was ineffective for failing either to object to Judge Thompson's presiding over the hearing or to ask that she read the full trial transcript. There was no basis to object to Judge Thompson presiding over the hearing. And the full trial transcript was unnecessary. As explained, the Board's payment of burial costs was presumptively a direct result of Salter's criminal conduct, and he failed to rebut that presumption. (Pen. Code, § 1202.4, subd. (f)(A).) Nor could he. A jury convicted him of murdering Anthony Custard. Nothing in the full record of trial could overcome the fact that the burial expenses incurred by his victim's family were an economic loss "suffered . . . as a result of the defendant's conduct," and therefore properly awarded. (Id., § 1202.4 subd. (f).)
DISPOSITION
The restitution award is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.