Opinion
F059572 Super. Ct. No. MF44940
04-14-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CHARLES THOMAS, Defendant and Appellant.
John P. Dwyer, 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, and Raymond L. Brosterhous, II, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Poochigian, J., and Vortmann, J.(Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)
APPEAL from a judgment of the Superior Court of Merced County. John D. Kirihara, Judge.
John P. Dwyer, 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, and Raymond L. Brosterhous, II, Deputy Attorney General for Plaintiff and Respondent.
In July 2008, a jury convicted appellant, Richard Charles Thomas, of participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), but was unable to reach a verdict on two other felony charges. In August 2008, the court found true a "strike" allegation and enhancement allegations that appellant had suffered a prior serious felony conviction (§ 667, subd. (a)) and had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). In May 2009, a jury acquitted appellant of one of the remaining charges and was unable to reach a verdict on the other charge, and in October 2009, the prosecutor announced the People would not seek a retrial on the remaining count. In January 2010, the court imposed an aggregate sentence of 12 years in state prison, consisting of six years on the substantive offense, five years on the prior serious felony enhancement and one year on the prior prison term enhancement. In February 2010, following a hearing, the court ordered that appellant pay victim restitution (§ 1202.4, subd. (f)) in the amount of $2,600.
All statutory references are to the Penal Code.
We use the term "strike" as a synonym for "prior felony conviction" within the meaning of the "three strikes" law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant challenges a portion of the restitution award and argues that because the prior prison term enhancement and the prior serious felony enhancement were based on the same conviction, the prior prison term enhancement must be stricken. We will strike the prior prison term enhancement, vacate the challenged portion of the restitution award and remand for a new restitution hearing.
FACTUAL AND PROCEDURAL BACKGROUND
The Instant Offense
On the evening of November 22, 2006, Everado Garza (Everado) and his wife, Josephine Garza, went to a nightclub in Merced. At one point they went outside, and while Everado was standing on the sidewalk outside the club talking to an acquaintance, Carlos Lomeli, appellant and Ismael Noriega came out of the club. Everado heard someone say, apparently to Lomeli, "Oh, shut up you fuckin snitch." Shortly thereafter, appellant shouted, "Its all about Dead End." About the same time, Adrian Noriega (Adrian) and another man approached.
Except as otherwise indicated, our summary of the facts of the instant offense is taken from the testimony of Everado and Josephine Garza.
Everado told these men he had "nothing to do with" gangs. Adrian said "Its cool, " and he and Everado shook hands. However, at that point appellant struck Everado on the side of his head, knocking him to the ground and rendering him unconscious for a few seconds. While Everado was on the ground, appellant stomped on the back of Everados head with his (appellants) foot.
A prosecution expert witness testified to the following: The Nortenos are a criminal street gang; The "Dead End Locs" are a "sect" of the Norteno gang; and appellant is a Norteno gang member.
Josephine Garza testified to the following: On one occasion after the events described above, a car drove into the driveway of the Garzas home, the occupants of the car shouted, "Dead End"; and their car hit the Garzas parked car. On a subsequent occasion, "a few girls came by and... they yelled out Youre going to get it. Dead End." As a result of these incidents, she and her family "had to move." She and her husband decided to move "so that nobody would know where we... lived and just for the safety of our family."
Additional Background
The probation officer, in her presentence report, stated that Everado had submitted to the Victim Compensation and Government Claims Board (the Board) "a claim for relocating," and that, based on documents indicating the Board had "awarded" Everado $2,000, she "recommended that restitution be ordered to [the Board]" in that amount.
At the sentencing hearing on January 28, 2010, appellant argued that the court should not order victim restitution. Later in the hearing, the court ordered that appellant pay to the Board $2,000 in victim restitution. At that point, the prosecutor told the court: "theres an additional restitution amount related to relocation, and Ill show it to the defense here. [¶]... [¶]...[t]he victim had to pay this additional 600. It was all for relocation, and it was all as a result of this case.... I can show Ms. Rhodes [defense counsel] the information that I have.... I can show the receipts and things like that."
Further references to dates of events are to dates in 2010.
The court then posed the question of whether a hearing should be held, in order to give the defense "a fair opportunity to review" the matter and the opportunity to present argument. Defense counsel reiterated that appellant was "opposed to the $2,000," and stated that the award of an additional $600 "would definitely be something we want to have a hearing on." The court set the hearing for February 4.
At the hearing on that date, there was a brief discussion regarding presentence custody credit, but the portion of the hearing related to restitution, in its entirety, is as follows:
"MS. RHODES: Ready on Thomas?
"THE COURT: Richard Thomas.
"MS. RHODES: Were ready to submit.
"THE COURT: On Richard Thomas the matter is submitted on the report regarding Victim Compensation Board. Mr. Thomas is ordered to pay restitution to Victim Compensation Board in the sum of $2,000. Hes ordered to pay restitution to Everado Garza in the sum of $600."
DISCUSSION
Victim Restitution
Appellant contends the award of $600 in victim restitution to Everado was not supported by the evidence and therefore must be reversed.
The Law of Restitution and Standard of Review
"In 1982, by initiative, the voters of California added a provision to the state Constitution establishing a new constitutional right: the right of every crime victim to obtain restitution from the perpetrator of the crime for losses suffered." (People v. Crow (1993) 6 Cal.4th 952, 956.) This provision—article I, section 28, subdivision (b) of the California Constitution—expresses "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," and directs the Legislature to enact implementing legislation. (Ibid.)
One of the statutes the Legislature enacted to comply with this constitutional mandate is section 1202.4. (People v. Chappelone (2010) 183 Cal.App.4th 1159.) Subdivision (a)(1) of section 1202.4 provides that "[i]t is the intent of the Legislature that a victim of 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." Consistent with this intent, subdivision (f) of the statute provides that (with certain exceptions not applicable here) "in every case in which a victim has suffered economic loss as a result of the defendants 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. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record."
A defendant is entitled to a restitution hearing to "dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) "The burden is on the party seeking restitution to provide an adequate factual basis for the claim." (People v. Giordano (2007) 42 Cal.4th 644, 664 (Giordano))
""A victims restitution right is to be broadly and liberally construed."" (People v. Moore (2009) 177 Cal.App.4th 1229, 1231.) We review a challenge to the amount of victim restitution for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) ""When 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."" (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) "To facilitate appellate review of the trial courts restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered." (Giordano, supra, 42 Cal.4th at p. 664.)
"In reviewing the sufficiency of the evidence [supporting a restitution award], 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 courts findings. [Citations.] 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 courts] 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. [Citations.]" (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.)
Forfeiture
The People argue that appellant has forfeited his challenge to the restitution award by failing to raise it at the February 4 restitution hearing. We disagree. On January 28, appellant objected to the award of any restitution and requested a hearing on the Peoples belated claim for an additional $600 in victim restitution. This was sufficient to preserve appellants claim that the restitution award was not supported by substantial evidence.
"Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception. [Citation] This principle of appellate review is not limited to judgments...." (People v. Butler (2003) 31 Cal.4th 1119, 1126.) The court in In re K.F. (2009) 173 Cal.App.4th 655 considered a waiver argument similar to that raised by the People here. There, as here, notwithstanding that a restitution hearing was held, the People argued that the minors "challenges to the restitution order have not been preserved for appeal." (Id. at p. 660.) The court rejected the argument, explaining that "the gist of the challenges is that certain components of the restitution order are not shown by substantial evidence.... Sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal." (Ibid.) Accordingly, we find no forfeiture of appellants challenge to the victim restitution order.
Sufficiency of the Evidence
Appellant argues there was no evidence adduced at the restitution hearing or set forth in the presentence report supporting the award of $600 in direct victim restitution. The People do not dispute this point. Nor is there any dispute that the court failed to provide any explanation of what evidence supported its restitution award or how the amount was calculated. We agree that the record is devoid of support for the challenged restitution award, and therefore, it must be vacated.
Appropriate Disposition
The People argue that if appellants claim is cognizable on appeal, this court must remand the matter for a restitution hearing "where the appropriate documentation can be produced in support of [the challenged order]." Appellant does not directly respond to this argument.
The record here indicates the prosecutor, at the January 28 sentencing hearing, had in her possession, and stood ready to produce, documentary evidence supporting the claim for the additional $600 in victim restitution. However, the record tells us nothing as to why the prosecutor did not produce this evidence at the February 4 restitution hearing. Given the strong public policy in favor of, and the constitutional mandate for, full restitution to victims of crimes, on this record we deem it an appropriate exercise of our discretion to remand the matter for a new restitution hearing. (§ 1260 [appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances"].)
Prior Prison Term Enhancement
In 2005, appellant was convicted of unlawful possession of a firearm (§ 12021, subd. (e)) and it was found that he committed that offense for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)). Based on this single prior conviction, the court here imposed both a five-year prior serious felony enhancement (§ 667, subd. (a)) and a one-year prior prison term enhancement (§ 667.5, subd. (b)). As appellant argues, and the People properly concede, this was an error: "[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (People v. Jones (1993) 5 Cal.4th 1142, 1150.) Thus, the one-year prior prison term enhancement imposed under section 667.5, subdivision (b) must be stricken. (Id. at p. 1153.)
DISPOSITION
The judgment is modified as follows: the prior prison term enhancement (§ 667.5, subd. (b)) is stricken and the award of victim restitution in the amount of $600 to Everado Garza is vacated. The matter is remanded to the trial court for a new restitution hearing. Following that hearing, the trial court shall prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.