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People v. Starr

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Feb 9, 2012
B231770 (Cal. Ct. App. Feb. 9, 2012)

Opinion

B231770

02-09-2012

THE PEOPLE, Plaintiff and Respondent, v. GORDON STARR, Defendant and Appellant.

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. PA066581)

APPEAL from a judgment of the Superior Court of Los Angeles County, David B. Gelfound, Judge. Affirmed.

Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

After a jury found appellant Gordon Starr guilty of murder, the trial court ordered appellant to pay $7,500 in restitution to the Victim Compensation Board. Appellant contends the order must be reversed for want of evidence to support the amount of the payment. We conclude that he has forfeited this contention, and affirm.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

On June 14, 2010, an information was filed charging appellant with the murder of Martha Patricia Starr. (Pen. Code, § 187, subd. (a).) The information alleged that appellant had personally used, and intentionally discharged, a firearm, causing great bodily injury and death (§12022.53, subds. (b), (c), (d)). Appellant pleaded not guilty and denied the special allegations.

All further statutory references herein are to the Penal Code.

Prior to appellant's trial, the information was amended to allege that the murder was premeditated, willful, and deliberate. Appellant pleaded not guilty to the amended charge.

At trial, the prosecution presented evidence that appellant and his son owned a financially troubled company, and that appellant fatally shot his wife, Martha, after she had advised their son to pay company employees with funds appellant had earmarked for another purpose. A jury found appellant guilty of second-degree murder, and found the gun use allegations to be true. On March 18, 2011, the trial court sentenced appellant to a term of imprisonment of 40 years to life, and directed him to pay $7,500 to the Victim Compensation Fund in reimbursement for Martha's funeral costs. This appeal followed.

DISCUSSION

Appellant contends there was no evidence to support the amount of reimbursement he was ordered to pay to the Victim Compensation Fund. As explained below, he has failed to establish error.

A. Victim Restitution

The California Constitution requires that restitution be ordered in every criminal action in which the victim suffers a loss, absent extraordinary circumstances (Cal. Const., art. I, § 28). As this constitutional provision is not self-executing, the Legislature has enacted implementing legislation. (People v. Giordano, supra, 42 Cal.4th at p. 652.) Section 1202.4 authorizes restitution payments to victims and the imposition of restitution fines, which support the Victim Restitution Fund. (§ 1202.4, subds. (e), (f).) Under Government Code section 13957, the California Victim Compensation and Government Claims Board may direct the Victim Compensation Fund to compensate victims for enumerated losses due to crime, including up to $7,500 for a funeral (Gov. Code, § 13957, subd. (a)(9)(B)).

As our Supreme Court has explained: "In 1982, California voters passed Proposition 8, also known as The Victims' Bill of Rights. . . . Proposition 8 established the right of crime victims to receive restitution directly 'from the persons convicted of the crimes for losses they suffer.' [Citation.] The initiative added article I, section 28, subdivision (b) to the California Constitution: '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 restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.'" (People v. Giordano (2007) 42 Cal.4th 644, 652.)
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Pertinent here are the provisions of section 1202.4 regarding the amount of victim restitution. Subdivision (f) provides: "[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 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. If 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." Subdivision (f)(1) further provides that "[t]he defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution."

Also pertinent are the provisions of section 1202.4 regarding the Victim Restitution Fund's entitlement to reimbursement from the defendant. Subdivision (f)(3) authorizes the trial court to order the defendant to pay victim restitution directly to the Victim Restitution Fund, to the extent it disbursed funds on behalf of the victim. On this matter, subdivision (f)(4)(B) provides: "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 . . . funeral or burial expenses . . . ."

B. Underlying Proceedings

During the sentencing hearing, the trial court heard remarks from the prosecutor, Cathy Lee, and appellant's counsel, Michael-Lo Miller. Before the court imposed defendant's sentence, the following colloquy occurred:

"Ms. Lee: . . . There is one additional matter. There is a $7,500 cost that needs to be reimbursed to the Victim Compensation Board. So we are asking for that, your Honor. [¶] . . . [¶].
"The Court: Okay. And as to the amount, the $7,500 to the victim, you are requesting it on what basis?
"Ms. Lee: It's for the funeral costs.
"The Court: [W]hat the family was reimbursed for from this fund? "Ms. Lee: I believe it was the Victim Compensation Board who actually paid the cost of the funeral.
"The Court: Okay.
"Ms. Lee: I have paperwork to that effect in my office, your Honor. I can submit it to the court.
"The Court: Okay. All right. Mr. Miller?
"Mr. Miller: Submitted." (Italics added.)

Immediately afterward, the trial court sentenced appellant and ordered him to pay $7,500 in restitution to the Victim Compensation Fund. When the court asked whether appellant wished to speak, appellant addressed the court, but said nothing regarding the restitution order. No objection was otherwise raised to the order during the sentencing hearing.

C. Analysis

Appellant contends that the restitution order fails for want of substantial evidence, arguing that no evidence was submitted at the sentencing hearing to establish the amount of the restitution. We conclude that appellant has forfeited this contention.

In People v. Brasure (2008) 42 Cal.4th 1037, 1074-1075 (Brasure), the defendant challenged a victim restitution order on the ground that the victim's losses "was not shown by documentation or sworn testimony." In holding that the defendant had not preserved the contention for appeal, our Supreme Court stated: "[B]y his failure to object, defendant forfeited any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute. [Citation.] As the order for restitution was within the sentencing court's statutory authority, and defendant neither raised an objection to the amount of the order nor requested a hearing to determine it [citation], we do not decide whether the court abused its discretion in determining the amount." (Id. at p. 1075.) In view of Brasure, we reach the same conclusion, as the same circumstances are presented here.

Appellant's reliance on In re K.F. (2009) 173 Cal.App.4th 655 is misplaced. There, during a restitution hearing arising from a juvenile delinquency proceeding, the trial court denied a request by the juvenile's counsel for a continuance to permit him to obtain records related to the victim's medical expenses; it then declined to stay the proceedings pending an appeal by the juvenile, and issued a restitution order. (Id. at pp. 658-659.) The appellate court held that notwithstanding Brasure, the juvenile had not forfeited his challenges to the sufficiency of the evidence supporting the amount of restitution ordered. (Id. at pp. 660-661.) Here, unlike In re K.F., appellant neither objected to the amount of restitution nor requested an evidentiary hearing. Under the circumstances, the holding in Brasure is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In sum, appellant has forfeited his contention of error regarding the restitution order.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.


Summaries of

People v. Starr

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Feb 9, 2012
B231770 (Cal. Ct. App. Feb. 9, 2012)
Case details for

People v. Starr

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GORDON STARR, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Feb 9, 2012

Citations

B231770 (Cal. Ct. App. Feb. 9, 2012)