Opinion
A146867
02-09-2017
THE PEOPLE, Plaintiff and Respondent, v. OSIS FRANK SMITH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR286010)
This is an appeal from an order holding defendant Osis Frank Smith jointly and severally liable with four co-defendants for $68,187.50 in restitution to the surviving spouse of a 70-year old man killed in the course of their burglary of his convenience store. Having concluded the trial court acted within the proper scope of its discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 19, 2011, an amended criminal complaint was filed charging defendant, as well as four co-defendants, with murder (Pen. Code, §§ 187/1192.7) (count one), and second-degree robbery (Pen. Code, § 211) (count two). It was further alleged each defendant committed acts in aggravation of these crimes. (Cal. Rules of Court, rules 4.408, 4.421.)
Unless otherwise stated, all statutory citations herein are to the Penal Code.
These charges and allegations stemmed from the following course of events. At about 7:50 p.m. on June 28, 2011, defendant, then a minor, and the four co-defendants participated in a robbery of the Travis Dairy, a small convenience store in Fairfield. During this robbery, one of the co-defendants sprayed the 70-year-old store owner, Ho Kim (the victim), with pepper spray. Another of the co-defendants fled the store with the cash register. This co-defendant, once outside, removed $40 from the cash register and left it by the side of the road. Defendant and two co-defendants fled the scene by car, while the remaining co-defendants fled on foot.
The victim called 911. However, by the time law enforcement arrived, the victim, who had severe heart disease and an enlarged heart, was slumped over on a chair. He later went into cardiac arrhythmia and, ultimately, died of cardiac arrest while on the way to the hospital.
Defendant later acknowledged receiving $20 to $30 from the proceeds of their theft.
On February 21, 2013, as part of a plea bargain, an amended complaint was filed adding as to defendant count three, manslaughter (§ 192) and count four, burglary (§ 459). On the same day, defendant pled no contest to counts three and four, and the remaining counts were dismissed.
On April 17, 2015, the trial court sentenced defendant to a total term of three years in prison, with credit for time served.
On August 19, 2015, the prosecution moved for a restitution order payable to the victim's surviving spouse in the amount of $68,187.50. The motion was based on a request by the Victim Compensation and Government Claims Board (VCB), which listed claims submitted by the victim's family for lost support ($52,889.60 in loss of income and $10,110.40 in estimated future income loss), funeral expenses ($5,000), and medical bills for mental health counseling for the victim's only daughter ($187.50). To calculate the amount owed for lost support, the VCB relied upon two years of federal tax documents submitted by the victim as sole proprietor of his Fairfield convenience store. Specifically, the VCB took the average of the victim's gross profits for tax years 2009 and 2010.
At the restitution hearing on September 14, 2015, defense counsel challenged the $63,000 figure for lost income support, arguing that the trial court should base its restitution award on the victim's average annual net revenue (to wit, approximately $8,500), rather than his average gross revenue (to wit, $35,731.50), given that a significant portion of the store's profits were used by the victim to pay operating costs. The trial court rejected this argument and adopted the VCB's calculations. As such, the trial court found defendant and his co-defendants jointly and severally liable to the victim's surviving spouse for restitution in the total amount of $68,187.50. This timely appeal followed.
DISCUSSION
The sole issue on appeal is whether the trial court abused its discretion in calculating the amount of restitution owed to the surviving victim for her economic loss of support. The governing law is not in dispute.
Defendant does not challenge on appeal the amount of restitution ordered to cover the victim's funeral expenses and his daughter's medical bills.
Article I, section 28, subdivision (b)(13)(A)(B) to the California Constitution provides: "(A) It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] (B) Restitution shall be ordered from the convicted wrong doer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss."
With respect to the amount of restitution owed by a criminal defendant, Penal Code section 1202.4 begins: "It is the intent of the Legislature that a victim of a 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." . . . [This] 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 . . . ." (Id., subd. (f)(3).) In addition, "[t]he court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (Id., subd. (g), italics added.) Thus, as the California Supreme Court elaborates: "With the exception of restitution orders relating to felony convictions for lewd or lascivious acts (Pen. Code, § 288), for which noneconomic losses may be included in a direct restitution order, Penal Code section 1202.4 does not authorize direct restitution for noneconomic losses. (Id., subd. (f).) Apart from this categorical limitation, the Legislature has not further limited the types of economic loss that must be included in a restitution order." (People v. Giordano (2007) 42 Cal.4th 644, 656.)
However, a " 'defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.' (1202.4, subd. (f)(1).)" (People v. Giordano, supra, 42 Cal.4th at pp. 651-652.) At this hearing, "a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once the victim has [i.e., the People have] 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.]' [Citation.]" (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
The Penal Code defines "victim" to include the actual victim's immediate surviving family members, including specified relatives and members of the actual victim's household. (Pen. Code, § 1202.4, subd. (k).) --------
The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed." (People v. Mearns (2002) 97 Cal.App.4th 493, 500.) Thus, while the amount of restitution cannot be arbitrary or capricious, "[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement that the order reflect the amount of damages that might be recoverable in a civil action." [Citation.]' [Citation.]" (People v. Millard, supra, 175 Cal.App.4th at pp. 26-27.) So long as " '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. Mearns, supra, at p. 499; see also People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
In this case, evidence was presented at the restitution hearing in the form of defendant's probation report. According to this report, the surviving spouse made a claim to the Victim's Compensation Board (VCB) for, among other things, loss of income support in the amount of $63,000. This amount, as mentioned above, was based on the average gross annual revenue from the victim's sole proprietorship for tax years 2009 and 2010. According to the People, this award is thus presumptively valid under section 1202.4, subdivision (f)(4)(A), which provides: "If, as a result of the defendant's conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative 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." (See also § 1202.4, subd. (f)(4)(B) [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 medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation"].)
Defendant disagrees, arguing that the evidence in this case suffices to overcome this Penal Code presumption because, according to the same tax documents relied upon by the trial court, the victim's gross annual revenue was significantly more than his net revenue once he paid off the business's operating costs, and net revenue, not gross revenue, is the proper measure of a surviving spouse's lost support. (See People v. Giordano, supra, 42 Cal.4th at p. 664 [ "a surviving spouse may receive restitution only in the amount of his or her own economic loss," rather than "the wages or income that the deceased spouse would have earned but for his or her death"].) Accordingly, defendant concludes, the restitution award here is excessive and unreasonable, as it permits the surviving spouse to recover more than the actual amount of support she would have received had the victim lived, particularly in light of the fact that the victim was a 70-year-old man with serious heart disease. Defendant thus asks that we reverse the restitution order and remand the matter to the trial court with instructions to recalculate the award based on the victim's net revenue rather than his gross revenue. We decline this request.
As mentioned above, under section 1202.4, restitution "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 . . . ." (Id., subd. (f)(3); see also In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) Moreover, when applying this statute, the "term 'economic losses' is . . . . entitled to an expansive interpretation." (Id., at pp. 1132-1133 [applying Welfare and Institutions Code section 730.6, which "parallels" section 1202.4, to a juvenile restitution matter].) Indeed, "[i]n determining the amount of restitution, all that is required is that the trial court 'use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' [Citations.] The order must be affirmed if there is a factual and rational basis for the amount." (People v. Akins (2005) 128 Cal.App.4th 1376, 1382; see also In re K.F. (2009) 173 Cal.App.4th 655, 663 ["To constitute evidence of a 'loss incurred,' there need only be "some basis to conclude that the victim is 'liable or subject to' a charge"].) In addition, the court may consider the secondary goals of rehabilitating the defendant and deterring future criminal conduct when making this conclusion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1124 ["restitution is also related to the goal of deterring future criminality"]; accord People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184.)
Here, we conclude the trial court met this standard. Contrary to defendant's suggestion, nothing in section 1202.4 limits the calculation of "economic loss" to net revenue, rather than gross revenue. And as we just explained, "both the People of this state when they passed Proposition 8 and extensive case authority express that restitution statutes are to be interpreted broadly and liberally." (In re Johnny M., supra, 100 Cal.App.4th at pp. 1132-1133 [the "term 'economic losses' is thus entitled to an expansive interpretation"] accord People v. Mearns, supra, 97 Cal.App.4th at p. 499.) As such, "[a]ny interpretation that limits a victim's right to restitution "would be in derogation of the expressed intent and purposes of Proposition 8 and the provisions adopted by the Legislature to implement this measure." [Citation.]' (People v. Carbajal (1995) 10 Cal.4th 1114, 1122 [43 Cal.Rptr.2d 681, 899 P.2d 67.)" (In re Johnny M., supra, 100 Cal.App.4th at pp. 1132-1133.)
Applying these guiding principles, we thus decline defendant's invitation to read into section 1202.4 language that would limit the surviving spouse's lost support award to the deceased victim's net revenue rather than gross revenue. In doing so, we find ample support in the case law. For example, "[People v.] Dalvito, supra, 56 Cal.App.4th at page 562, is particularly instructive on the rule that the victim need not demonstrate out-of-pocket loss to qualify for a restitution award. There, the trial court's order included $15,950 for the price of a necklace the defendant obtained from the victim under false pretenses. After the defendant absconded with the necklace, the victim stopped payment on the check he wrote to a third person (a jeweler) from whom he had purchased the necklace. The jeweler sued the victim and obtained judgment in the amount of the check, but the victim declared bankruptcy and the jeweler's judgment against the victim was discharged. (Id. at pp. 558-559.) The appellate court affirmed the restitution order, rejecting the defendant's contention that the victim had suffered no actual loss inasmuch as his debt to the jeweler was discharged. It reasoned that the victim had initially suffered an economic loss in a determined amount and it was immaterial what actions the victim took to mitigate his damages. (Id. at p. 561.) 'If defendant had not stolen the necklace for which [the victim] owed $15,950, then perhaps [the victim] would not have been obliged to seek refuge in the bankruptcy laws. [The victim] has had his debt to the jeweler for $15,950 discharged, but he suffered the consequences of that action. . . .' (Ibid.)" (In re Johnny M., supra, 100 Cal.App.4th at pp. 1133-1134.)
Similarly, in People v. Hove (1999) 76 Cal.App.4th 1266, 1272-1273, the reviewing court held that the victim need not suffer direct economic losses to recover restitution and, in fact, may recover "even though the victim could conceivably profit . . . if defendant complies with the restitution order and if Medicare and/or Medi-Cal does not pursue reimbursement."
Finally, in People v. Giordano, supra, 42 Cal.4th 644, a case relied upon by both parties, the state's high court was asked to consider whether the trial court abused its discretion in awarding a surviving spouse $167,711.65 in lost support following the death of her husband. In its analysis, the high court began by noting that "a surviving spouse's economic loss is not simply the wages or income that the deceased spouse would have earned but for his or her death;" rather, "a surviving spouse may receive restitution only in the amount of his or her own economic loss." (Id. at p. 664.) Then, turning to the restitution award under challenge, the high court noted "[the trial court] estimated [the surviving spouse's] loss by multiplying the deceased victim's approximate average annual earnings by five years. This method of calculation assumes that [the surviving spouse] was entitled to receive her husband's gross annual earnings, not just that portion of his earnings that went to her economic support. It also assumes that five years is the appropriate term for loss of support restitution. . . . In these ways, the trial court's method of calculation was not carefully designed to establish [the surviving spouse's] loss of support." (Id. at pp. 665-666.)
However, ultimately, while criticizing the trial court's restitution calculation as "imprecise," the California Supreme Court nonetheless concluded that "we are not persuaded that the trial court abused its discretion." (People v. Giordano, supra, 42 Cal.4th at p. 663.)
As the case law described above reflects, trial courts are afforded broad discretion to fashion restitution awards to crime victims in amounts that are reasonably related to their loss, even if not direct calculations of their actual loss. In other words, there is no requirement that the prosecution establish that, but for the defendant's crime, the victim would have received the given amount of economic support from his or her deceased spouse. (See People v. Chappelone, supra, 183 Cal.App.4th at pp. 1172-1173 ["While the court need not order restitution in the precise amount of loss, it 'must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious' "].)
Moreover, returning to the facts at hand with this case law in mind, we conclude that, while perhaps not as precise as it could have been, the restitution award for lost income support in the amount of $63,000 is within the broad definition of "economic losses" provided for under the Penal Code. Indeed, it is well-established that, on appeal, we must presume the lower court's order is correct, and indulge all intendments and presumptions in its support on matters to which the record is silent. (People v. Giordano, supra, 42 Cal.4th at p. 666.) And, here, while, as defense counsel notes, the victim historically had incurred significant expenses for operating his store, it is nonetheless reasonable to assume on this record that the surviving spouse's recovery of an amount inclusive of his gross revenue was needed to cover her economic loss. Specifically, the record reflects that the victim was sole proprietor of this business, and was the sole income provider for his family. The record further reflects that the surviving spouse had no involvement running this business, leading to the reasonable inference that she, following his death, would likely have sold or closed the store. We may therefore also infer, as did the trial court, that, following the victim's death, the surviving spouse would have been responsible for payment of some, if not all, of the business's operating costs in her efforts to wrap up the family's involvement in it. In fact, consistent with these inferences, the probation report notes that the surviving spouse and her daughter had struggled financially in the aftermath of defendant's crimes. And while there is little in the record by way of specific facts regarding their financial struggles or circumstances (other than the fact that the victim had been the sole economic provider for the surviving spouse and their daughter), defendant offers no contrary facts to overcome our presumptions in favor of the lower court's ruling. (People v. Foster (1993) 14 Cal.App.4th 939, 946-947 [defendant bears the burden of producing evidence sufficient to rebut a proposed restitution amount].) While defendant does point out the victim was elderly with serious medical concerns, the trial court's award factored in just two years of his gross revenue, a wholly reasonable limitation on the term for loss of support restitution.
Accordingly, we conclude that the restitution order must stand.
DISPOSITION
The restitution order is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.