Opinion
H046490
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. SAMANTHA SELF, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 17CR01095)
Appellant Samantha Self pleaded no contest to knowingly permitting another person to discharge a firearm from a vehicle she was driving. The trial court suspended imposition of sentence, placed appellant on probation, and imposed a number of probation conditions on her, including that she pay victim restitution. She appeals the restitution order, contending the trial court erred in ordering her to pay $7,200 as restitution for lost wages to one of the victims. For reasons that we will explain, we affirm the order.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
Appellant was charged with shooting at an inhabited dwelling (Pen. Code, § 246; count 1), shooting at an unoccupied vehicle or uninhabited building (§ 247, subd. (b); count 2), and permitting another to shoot from a vehicle (§ 26100, subd. (b); count 3). There were numerous court appearances between appellant's arraignment on the complaint and February 21, 2018, when she pleaded no contest to count 3 and entered into a Harvey waiver for counts 1 and 2.
Unspecified statutory references are to the Penal Code.
At one of the pretrial hearings, the trial court issued a criminal protective order preventing appellant (who had been released on her own recognizance) from contacting or coming within 100 yards of the victim whose restitution order is at issue here.
A waiver by the defendant pursuant to People v. Harvey (1979) 25 Cal.3d 754 permits the trial court to order restitution on counts dismissed pursuant to a plea bargain. (§ 1192.3.)
As part of her plea, appellant admitted that she allowed her codefendant to discharge a firearm from a vehicle while she was driving, and that he shot at various targets, including the home of Brian E. We detail below the facts involving the crimes against Brian, as he is the sole victim for whom appellant challenges the restitution order.
To protect the victim's privacy, we here refer to him by his first name and the first initial of his last name and, in the rest of the opinion, by his first name only. (Cal. Rules of Court, rule 8.90(b)(4).)
At the time of the shootings, Brian lived with his wife and son. While they were sleeping, several gun shots were fired at their house. Law enforcement later found seven bullet holes in the front windows, door, and exterior of the residence. One of the bullets passed through Brian's son's bedroom and missed him by "a foot or two." The vehicle returned at least once to the house and fired 10 more rounds. A chainsaw was also stolen from Brian's vehicle.
The facts summarized here are taken from appellant's probation report.
Appellant later admitted to law enforcement that she had been driving the car from which her codefendant shot into Brian's house. The police found stolen items and the firearm at her home. Appellant does not dispute the assertion in the probation report that she encouraged her codefendant to select Brian's residence as a target of the crime.
In October 2018, the trial court suspended imposition of sentence, placed appellant on supervised probation for a term of three years, ordered her to serve 180 days in county jail with credit for time served, and imposed a number of fines and fees. The trial court ordered appellant to pay restitution to a number of victims, including Brian, in amounts to be determined by the court at a future restitution hearing.
B. Victim Restitution Proceedings in the Trial Court
Brian submitted a variety of documents, which were provided to defense counsel and to the trial court, supporting his request for restitution from appellant and her codefendant. Brian requested $8,426.18 in restitution, comprised of $626.18 for property damage and $7,800 for lost wages. With respect to his lost wages, Brian stated his hourly wage was $75 per hour, and he asserted that he had had to take 8 hours "PTO" for each day he missed work, amounting to a loss of $600 per day. Brian's request for restitution included a spreadsheet listing 13 days that he had missed work, made up of one day for the "day of shooting" and 12 days he described as involving a "court appearance." Based on these 13 days of missed work, he asserted that his loss in gross wages was $7,800. He also attached a printout from a website associated with his employment that stated his hourly pay rate was $75.
Appellant challenges on appeal only the restitution order for Brian's lost wages. Brian's wife and son did not submit separate claims for restitution.
Brian missed work on February 27, 2017 and noted the shooting had happened "before midnight" on February 26, 2017. The probation report describes the shooting as beginning late at night on February 26, 2017, and the vehicle returning to fire 10 more rounds at the residence shortly after midnight (that is, on February 27, 2017).
Brian initially provided alternate calculations based on net versus gross income. The trial court ruled that gross income was the appropriate amount to use in calculating the restitution owed to Brian. Appellant does not challenge that aspect of the trial court's order.
In addition to this documentation, Brian also provided an email that explained the reasons he was claiming eight hours of lost wages for each court date. Brian stated that his employer preferred that he schedule "full days off" as "[u]ncertainty about when I would be able to be on site precludes scheduling partial day work." Brian also noted that his work was located in San Francisco and it was a "2 hour plus commute" from his residence in Santa Cruz County. He concluded that "[g]iven the above facts and the fact that I had to use vacation time in 8 hour blocks, I feel that it is/was reasonable for me to document full days off of work for each court date we attended."
In November 2018, the parties jointly moved to continue the hearing on restitution for "further investigation regarding lost wages." In early December 2018, the trial court conducted the restitution hearing. Appellant did not contest the amount of restitution claimed by Brian for property damage, and she agreed to pay the restitution amounts requested by the other three victims. However, appellant argued that the trial court should not award Brian $7,800 in restitution for lost wages.
Appellant was not personally present at the restitution hearing. Her appearance had been previously excused by the trial court; she was represented at the hearing by her defense counsel.
Appellant contended that the "eight-hour" per day figure and the 13 requested days were excessive. In particular, appellant objected to paying for eight hours for each day there had been a court appearance, because Brian "was never in court for eight hours a day." Brian's company's preference that he take full days off was "not a law" and "shouldn't be controlling."
Appellant also pointed out that one of the court appearances for which Brian requested restitution had been vacated by the trial court and had not taken place. Appellant requested that the trial court deduct that day from the amount awarded. Appellant also asserted that, although Brian may have come to court on each day the case was scheduled for a hearing, Brian had left before the court appearance "many days," and he should not be awarded restitution for the days on which he left court before the calling of the case. Appellant did not identify the days on which Brian had been present in court but left before the case was called.
The trial court agreed with appellant that Brian should not be awarded restitution for the vacated court date but otherwise rejected her arguments. The trial court stated, "I'm going to deduct $600 for the fact that the June 5th appearance was not handled. So I'll deduct $600. It'll be $7,200. I'm coming to the $7,200 figure for a few reasons. This is a case that had some significant actions by both defendants. This was a case that I am certain had a significant impact upon the individuals who were directly involved. [¶] There is a certain history, unfortunately, to this neighborhood and these families, which played into the perception from [Brian's family] that they need to be here for every single appearance. I felt that, not only do they have a right to be here, but in light of the circumstances surrounding this incident, it was understandable that they were here."
Regarding Brian's request for lost wages, the trial court found, "I think the documentation provided by [Brian] is appropriate. I don't believe the Court is allowing the employer to then dictate what the restitution would be. I think [Brian] is working within certain restraints dealing with his employer that is appropriate to take into accounting regarding the fact that he had to take full days off." After deducting $600 from the total request for the vacated hearing date, the trial court awarded Brian $7,200 in lost wages and $626.18 for property damage, for a total restitution award of $7,826.18.
The trial court subsequently issued a formal restitution order which ordered appellant to pay restitution to Brian in the amount of $7,826.18, jointly and severally with her codefendant. Appellant timely appealed the order.
II. DISCUSSION
Appellant challenges the trial court's restitution order for Brian's lost wages. While appellant agrees that Brian is entitled to some restitution for having missed work for court appearances, she contends the amount ordered by the trial court is "excessive." In particular, she argues the trial court's order that she pay $7,200 in restitution for Brian's lost wages violates section 1202.4, the statute authorizing victim restitution, because her criminal acts were not the proximate cause of Brian's employer's policy that Brian had to take vacation in eight-hour increments. She also contends the amount ordered by the trial court constitutes an impermissible "windfall" for Brian because he was not in court for the full eight hours he requested in lost wages.
Although the trial court also ordered appellant's codefendant to pay restitution, the codefendant has not participated in this appeal, and we do not address the merits of any claims he might have with respect to the restitution order.
The materials Brian submitted to the trial court as part of his request for restitution for his lost wages asserted variously that he had to take "PTO" (which we understand as "paid time off") and "vacation time" from his employment. However, the record does not clarify whether Brian's employer paid him for this time or whether Brian's employer limited the amount of "PTO" or "vacation time" Brian was entitled to take. Appellant did not assert in the trial court or here on appeal that, if Brian's employer paid him for the missed time and Brian's employer did not limit the time he could take in paid vacation, then Brian did not in fact suffer any economic loss. Instead, appellant focuses on the discrepancy between the total amount of hours Brian claimed in lost wages and the time Brian actually spent in court.
To the extent that there is an argument Brian did not suffer any economic loss depending on the facts of the terms of his employment, appellant has forfeited this contention by failing to raise it. (People v. Brasure (2008) 42 Cal.4th 1037, 1075 [holding defendant forfeited claim that victim failed to show economic loss by documentation or sworn testimony because "by his failure to object, defendant forfeited any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute"]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" 'We are not bound to develop appellants' argument for them.' "].)
Appellant repeatedly claims that Brian was awarded $7,800 in lost wages. However, the record is clear the trial court subtracted $600 from that amount and awarded him restitution of $7,200 for his lost wages. While the trial court awarded Brian $7,826.18 in restitution, this figure includes $626.18 for property damage, an aspect of the order appellant does not contest.
Appellant also maintains that Brian is not entitled to restitution for any days on which Brian left court before the case was called, and she requests we reverse the restitution order and remand the matter to the trial court for further factfinding on this issue. Finally, appellant contends that Brian is entitled to restitution for lost wages for days he attended court proceedings only if "his presence was necessary or useful to the prosecution and thus falls within the purports [sic] of [section] 1202.4. subdivision (f)(3)(E)." She requests that we remand the matter to the trial court for a hearing on whether the requested days meet this standard.
A. General Principles of Victim Restitution
The California Constitution provides that crime victims have a right to receive "restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const., art I, § 28, subd. (b)(13)(A).) Section 1202.4 implements this constitutional mandate and requires full victim restitution in criminal cases. (§ 1202.4, subd. (f).)
Subdivision (f) of section 1202.4 provides 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 that the restitution order "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct."
Wages lost by a victim as a result of a crime fall within section 1202.4, subdivision (f), under a variety of circumstances. (See § 1202.4, subd. (f)(3)(E) ["[w]ages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution"]; People v. Moore (2009) 177 Cal.App.4th 1229, 1233 [holding court did not abuse its discretion in ordering defendant to pay the victim of a residential burglary $6,250 for the wages he lost while attending court proceedings]; In re K.F. (2009) 173 Cal.App.4th 655, 665-666 [sick leave used by assault victim was compensable loss even though showing to support claim was "inferential at best" because depletion of sick leave represented a "loss" to the victim].)
Trial courts also have the authority to order victim restitution for defendants placed on probation pursuant to their broad authority to fashion probation conditions under section 1203.1, subdivision (j). (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 (Carbajal).) The California Supreme Court has described the trial court's power to order victim restitution in probation cases as "broader than its power to order direct victim restitution under section 1202.4 in cases in which the defendant receives a nonprobationary sentence." (People v. Martinez (2017) 2 Cal.5th 1093, 1101 (Martinez) [comparing "direct victim" restitution under section 1202.4 and the trial court's power to order restitution as a condition of probation]; see also People v. Anderson (2010) 50 Cal.4th 19, 29 ["Trial courts continue to retain authority to impose restitution as a condition of probation in circumstances not otherwise dictated by section 1202.4."].)
Section 1203.1, subdivision (j), provides in relevant part that "[t]he court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer."
Under either type of restitution, we review a restitution order for abuse of discretion. (See Luis M. v. Superior Court (2014) 59 Cal.4th 300, 305; Carbajal, supra, 10 Cal.4th at pp.1120-1121.) " ' " 'Where there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " ' " (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) " 'In reviewing the sufficiency of the evidence [to support a factual finding], "the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the trial court's findings.' " (Ibid.)
" 'Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact.' " (Millard, supra, 175 Cal.App.4th at p. 26.) " '[T]he court's discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.' " (Ibid.)
As we explain below, we conclude that the trial court's restitution order for Brian's lost wages fell within the trial court's authority under section 1202.4, subdivision (f), and the trial court did not abuse its discretion in selecting the amount of restitution ordered. We therefore do not address the application of section 1203.1, subdivision (j).
We requested and received supplemental briefing from the parties on whether the California Supreme Court's recent case of In re Ricardo P. (2019) 7 Cal.5th 1113, which analyzed probation conditions, affects the legal analysis in this appeal. We decide that In re Ricardo P. does not compel a different result, based on our conclusion that the trial court had the authority to issue the restitution order at issue here under section 1202.4. We therefore do not address the trial court's "broader" power to award restitution under section 1203.1, subdivision (j) in probation cases. (Martinez, supra, 2 Cal.5th 1093, 1100.)
B. Analysis
1. Restitution under Section 1202.4
a. Proximate Cause
Appellant contends the trial court abused its discretion under section 1202.4 because her criminal conduct was not the proximate cause of the "entirety" of Brian's lost wages. She argues the necessary causal chain was broken by two independent, intervening causes: first, Brian's employer's preference that he only take time off in eight-hour increments and, second, Brian's decision to attend court for "inconsequential" hearings and then "leave before the case was even heard."
Section 1202.4, subdivision (f), limits a victim's restitution award to "economic loss[es incurred] as a result of the defendant's conduct." California courts have applied principles of proximate cause developed in tort to analyze whether victim restitution is a "result" of the crime. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321-1322 (Holmberg).) Both in tort and criminal restitution cases dealing with causation issues, "California courts have adopted the 'substantial factor' test in analyzing proximate cause." (Id. at p. 1321.)
" ' "The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical." [Citation.] Thus, "a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage or loss is not a substantial factor" [citation], but a very minor force that does cause harm is a substantial factor.' " (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 102.) " '[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the [fact finder], though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus.' " (Id. at p. 104.)
In circumstances where causes other than the defendant's criminal conduct also contribute to the victim's economic loss, courts consider the impact of these other contributors to determine if they act to absolve defendant from paying restitution. (People v. Foalima (2015) 239 Cal.App.4th 1376, 1397.) " ' " 'In general, an "independent" intervening cause will absolve a defendant of criminal liability. [Citation.] However, in order to be "independent" the intervening cause must be "unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." [Citation.] On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] '[ ] The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. [ ] The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act." ' " ' " (Ibid.)
Appellant characterizes Brian's employer's preference that he take full days off as an "independent" intervening cause that precludes awarding the entire amount as victim restitution under section 1202.4. We disagree.
The documents Brian submitted to the trial court explained that Brian had to schedule time off in advance so that his "employer can have time to adjust work [and] test schedules to account for [his] absence," and that his employer therefore preferred that he scheduled "full days off." He further noted that "[u]ncertainty about when [he] would be able to be on site precludes scheduling partial day work," and also noted that his work was located in San Francisco and it was a "2 hour plus commute" from his residence in Santa Cruz County. The trial court in turn found that "the documentation provided by [Brian] is appropriate" and Brian "is working within certain restraints dealing with his employer that is appropriate to take into account[ ] regarding the fact that he had to take full days off." Further, the court proceedings themselves—like Brian's residence—were in Santa Cruz County.
In her briefing, appellant makes no meaningful attempt to attack these factual findings, which we review for substantial evidence. (Millard, supra, 175 Cal.App.4th at p. 26.) "Absent structural error, it is the well-established California rule in both civil and criminal appeals that the judgment is presumed correct, and a record silent on a point cannot overcome this presumption." (People v. Singh (2015) 234 Cal.App.4th 1319, 1330, italics omitted.)
Because Brian submitted sufficient documentation as to his lost wages, including an explanation for why he was required to take a full day off from work when attending court, it was incumbent on appellant to prove the amount was "overstated." (Millard, supra, 175 Cal.App.4th at p. 30; see also People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 ["Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim."].)
Appellant's assertion on appeal that the employer's preference for an employee to take a full day off when the employee had personal appointments in the morning is "unique and uncommon and therefore unforeseeable" is conclusory and not supported by any fact in the record. We are not persuaded that this requirement was so unforeseeable that it broke the chain of causation under these circumstances.
Appellant also argues that Brian's choice to attend "unimportant" court appearances and his leaving court on occasion before the case was called were similarly unforeseeable, and therefore restitution for lost wages for this time falls outside the scope of section 1202.4. Appellant's argument necessarily asks that we overlook several other factual findings made by the trial court, namely that Brian regularly attended court appearances (which included the hearings in which Brian obtained a protective order against appellant and appellant pleaded no contest) and that these hearings were consequential to Brian and his family under the circumstances of the case.
In particular, the trial court found that the incident had "a significant impact upon the individuals who were directly involved" and that there was a prior "history" in the neighborhood that "played into the perception from [Brian's family] that they need to be here for every single appearance." The probation report further indicates appellant knew where Brian lived and had a prior "disagreement" with Brian and his family and suggests this may have played into why their residence was one of the targets of the shootings. Appellant does not dispute these statements.
As noted above, courts have upheld restitution awards of lost wages, even for victims attending court proceedings as an observer. "That the victim's attendance was not mandated by statute, that he was not required to address the court at those hearings, and that he chose to attend the proceedings of his own volition, do not relieve defendant from the responsibility to compensate him for the loss attributable to defendant's criminal conduct." (People v. Moore (2009) 177 Cal.App.4th 1229, 1233 (Moore).) Appellant argues Moore is distinguishable because it involved a "two[-]day trial" and that, here, there was no such trial "or any evidentiary hearings." We do not read Moore so narrowly.
As noted in Moore, a victim's right to receive restitution for economic losses is to be "broadly and liberally construed" and the court awarded wages the victim lost for attending pretrial proceedings and trial; the court did not limit pretrial proceedings to "evidentiary" hearings, as appellant suggests. (Moore, supra, 177 Cal.App.4th at p. 1231.) Moreover, appellant's unsupported assertion that restitution should not be provided to victims where there is no trial undercuts the constitutional mandate that victims "shall" be compensated if they suffer "losses." (Cal. Const., art I, § 28, subd. (b)(13)(B).) Given that appellant admitted to driving her codefendant to Brian's house, where her codefendant shot a number of bullets into Brian's home, narrowly missing Brian's child, and in light of the facts in the record suggesting that appellant herself participated in the selection of Brian and his family as targets, it is not unforeseeable that Brian would choose to be present at all court appearances involving this case. We therefore conclude the trial court did not abuse its discretion in awarding Brian restitution for all days he went to court for the case.
Appellant also argues the record reflects instances where Brian left early on some of the hearing dates, and the trial court abused its discretion in awarding restitution for his attendance in court for those dates. We are not persuaded that appellant has shown this aspect of the restitution order lacked substantial evidence of a causal connection to appellant's crimes. As the Attorney General points out, even assuming Brian left early on some days, the "record discloses nothing about why they left, nor does it reveal whether their absence was temporary." For example, on the day he and his family left early after two hours of calendar they may have "miscalculated when their hearing would be called." The limited record citations that appellant points to on appeal reflect only that Brian was present in court at some point but had to leave.
For example, one citation provided by appellant consists of a statement by defense counsel which acknowledged Brian and his family were present but " 'by the time that we got around to [the case], after two hours of calendar in the morning, they had already taken off.' " --------
The prosecutor stated at sentencing that Brian had been to "every court appearance," and defense counsel did not attack this assertion. In the hearing on restitution, defense counsel did not contest that Brian had been to court on each of the days on which the case was called (except for the single appearance that had been continued) but instead argued that on some days Brian left before the calling of the case.
Although appellant raised the argument in the trial court that Brian and his family left the court "many times" before the case was called, the trial court appears to have rejected that argument when it awarded Brian the full amount of his lost wages for all the hearings that occurred. From this ruling, we can infer that the trial court impliedly found that Brian was present in court on all days on which the case was called, as " '[w]e imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings.' " (People v. Francis (2002) 98 Cal.App.4th 873, 878.) The trial court's obvious familiarity with the case and the uncontradicted statement of the prosecutor at sentencing provide substantial evidence in support of this conclusion.
In sum, the record contains substantial evidence that Brian missed eight hours of work on the day of the crime and 88 hours of work to attend court for appearances in this case, resulting in $7,200 in lost wages. The trial court did not abuse its discretion in concluding that the number of work hours Brian had to miss was reasonably foreseeable, both because of his work demands and lengthy commute, and because hearings in the case stretched over a year before appellant pleaded no contest. Appellant's conduct in driving her codefendant to Brian's house where her codefendant fired multiple bullets into Brian's home while he and his family slept "played far more than a negligible or theoretical part in bringing about" Brian's damages and "was a substantial factor in causing the harm" he suffered. (Holmberg, supra, 195 Cal.App.4th at p. 1322.) Accordingly, we conclude that ample evidence supports that Brian's lost wages of $7,200 were proximately caused by appellant's crime and thus compensable under section 1202.4.
b. Windfall
Appellant also argues that reversal of the trial court's restitution order for lost wages is warranted, and that we should remand the matter to the trial court for a recalculation of the restitution amount, because it represents a "windfall" for Brian. In arguing the trial court abused its discretion in calculating the amount of restitution, appellant largely repeats her arguments that Brian left the hearings prematurely at times, and that the hearings themselves did not take the whole day.
The goal of direct restitution is to restore the victim to "the economic status quo." (People v. Giordano (2007) 42 Cal.4th 644, 658 (Giordano).) "A restitution order should compensate a victim for actual losses. [Citation.] But it should not overcompensate a victim with a windfall award." (People v. Erickson (2018) 30 Cal.App.5th 243, 246 (Erickson) [no windfall where defendant ordered to pay victim full value of the copper wire he stole, even though victim also retained some of the wire recovered by the police].)
For the reasons we have explained above, ample evidence supports the trial court's conclusion that Brian had to take a full day off of work to attend court hearings in this case, and section 1202.4 requires he receive full restitution for his economic losses. (§ 1202.4, subds. (a)(1), (f)(3).) In other words, Brian's travel to court and attendance at these hearings "cannot be characterized as a paid vacation, which is the import of defendant's implicit complaint of opportunistic behavior by the victim." (Moore, supra, 177 Cal.App.4th at p. 1233.) Appellant has presented no evidence—only argument and speculation—as to why Brian left early on occasion. Notably, appellant does not argue that Brian failed to appear at the courthouse on days for which the trial court ordered restitution for Brian's lost wages.
The record reflects the trial court was familiar with the facts of the case and Brian's attendance at the court appearances and concluded that it was understandable Brian and his family attended every appearance. Brian's restitution request included all the dates of hearings at which he appeared, and those dates correspond with the minutes of hearings in the clerk's transcripts, except for the June 5, 2018 hearing which the trial court did not include in the restitution order.
In short, this is not a case where the "victim was in a better position than before the [crime] occurred." (Erickson, supra, 30 Cal.App.5th at p. 246.) We therefore reject appellant's argument that Brian's restitution award constituted a "windfall."
c. Request for Remand for Further Factfinding
Appellant requests that we reverse the restitution order and remand to the trial court to "determine how many days [Brian] left court before the case was heard and determine if his presence was necessary or useful to the prosecution and thus falls within the purports [sic] of Penal Code § 1202.4, subdivision (f)(3)(e)." Subdivision (f)(3)(e) of section 1202.4 describes as an economic loss "[w]ages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution." The premise of appellant's request for a remand appears to be that the trial court was confined to awarding only lost wages if Brian spent time "assisting the police or prosecution" when Brian came to court. However, neither statutory nor case authority supports that premise.
While section 1202.4, subdivision (f), lists a number of categories of compensable loss—including subdivision (f)(3)(e)—that list is "nonexclusive." (Giordano, supra, 42 Cal.4th at pp. 656, 662 [affirming award of loss of financial support incurred by the spouse of a crime victim]. The "one limitation" supplied by the legislature is that restitution orders must relate "primarily to 'economic loss[es].' " (Id. at p. 656.)
For the reasons explained above, Brian's lost wages are compensable under section 1202.4 as an economic loss resulting from appellant's crime and "is akin to the categories of loss that require restitution for '[w]ages or profits lost' due to injury, time spent as a witness, or time spent assisting the police or prosecution." (Giordano, supra, 42 Cal.4th at p. 661.) As previously noted, the trial court has broad discretion with respect to the type of economic losses subject to a restitution order. (§ 1202.4, subd. (f)(3) ["loss[es] . . . including, but not limited to . . ."]; Moore, supra, 177 Cal.App.4th at pp. 1231-1233 [affirming restitution for a doctor's lost wages, which he incurred to attend court proceedings as a spectator].) As the trial court did not abuse its discretion in requiring appellant to pay for Brian's lost wages, there are no grounds upon which we must remand the matter to the trial court.
III. DISPOSITION
The order is affirmed.
/s/_________
DANNER, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.