Filed 6/23/17 P. v. Rodriguez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO RODRIGUEZ,

Defendant and Appellant.


E064989

(Super.Ct.No. SWF1302909)

OPINION


APPEAL from the Superior Court of Riverside County. Michael J. Rushton and Kelly L. Hansen, Judges. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Mario Rodriguez attacked his roommate with a baseball bat. Following a jury trial, defendant was convicted of simple assault (Pen. Code, § 240). Defendant was thereafter placed on formal probation for a period of three years on various terms and conditions. After an evidentiary hearing, the trial court ordered defendant to pay $1,960 in victim restitution. Defendant’s sole contention on appeal is that the trial court erred in awarding victim restitution for amounts incurred for relocation expenses. We reject this contention and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
In August 2013, X.L. verbally agreed to rent three rooms for herself and her two minor children in a home occupied by defendant and another woman. The agreement was that X.L. and the other woman would share the common areas, including the laundry room, kitchen, and garage. The situation deteriorated when the other woman living in the home antagonized X.L.’s six-year-old autistic son and told him “he was an animal.”
A therapist came to the home two to three times per week to assist X.L.’s son. As part of the therapy, X.L.’s son had a pet dog, and his therapist drew chalk drawings in the backyard to assist in the therapy. Defendant objected to X.L.’s son having a dog and the chalk drawings in the backyard. Although X.L. showed defendant documentation requiring that her son have the dog, defendant responded, “ ‘No. You get your animal out of here.’ ” At the end of August, defendant ordered X.L. and her children out of the home. X.L. did not leave because she could not afford to move out.
As X.L. believed defendant’s behavior to be discriminatory, in early September 2013, she made a complaint with the housing department. The complaint included a written declaration. The housing department in turn contacted defendant who consequently agreed to abide by the agreement.
On September 26, 2013, defendant became upset that X.L. had her boyfriend at the home. Defendant ordered X.L.’s boyfriend to leave and threatened to kill X.L. and her boyfriend. Following a verbal argument, defendant attacked X.L. and her boyfriend with a baseball bat. As a result of the incident, X.L. suffered bruising to her knee, and the boyfriend suffered a cut on his arm.
Defendant claimed that he had grabbed the baseball bat to defend himself. Defendant had made two small swinging motions with the bat as a warning and to show X.L. and her boyfriend he was not intimidated. He did not intend to hurt anyone. Defendant further claimed that X.L. grabbed the bat with both hands and her boyfriend hit him in the forehead. The woman roommate stated that she did not know who initially had the bat, but believed X.L. and her boyfriend were going to kill defendant.
Following a jury trial, on August 15, 2014, defendant was convicted of one count of simple assault (§ 240), a lesser included offense of assault with a deadly weapon (§ 245, subd. (a)(1)).
On December 3, 2015, the trial court suspended imposition of sentence and placed defendant on probation for a period of three years on various terms and conditions. Victim restitution was also ordered to be set at a later court hearing.
An evidentiary hearing regarding victim restitution was held on February 17, 2016. The People sought reimbursement in the amount of $1,960 for money paid to X.L. as relocation expenses, and submitted certified records of the costs paid by the Victim Compensation and Government Claims Board (hereafter Victim Compensation Board). The People’s exhibits also included a “Law Enforcement Relocation Verification Form,” which indicated that it was necessary to relocate the victim for personal safety. Defendant objected on the grounds that the expenses were not incurred by X.L. as a direct result of defendant’s criminal conduct. Defendant testified on his own behalf. He stated that he had rented rooms in his residence to X.L. and that she had moved into the residence approximately two weeks before August 1, 2013. Their verbal agreement was that X.L. would pay $1,100 per month but she ended up paying $1,050. After she moved into the residence, defendant began having issues with X.L., and on September 4, 2013, he gave X.L. a letter written by his niece to move out. X.L. did not pay rent for the month of September, but did pay utilities. Defendant told X.L. that she did not need to pay rent because he wanted her to have enough money to move out. X.L. moved her furnishings and belongings out of the house around September 30, 2013, about four days after the September 26, 2013 incident. Defendant acknowledged that X.L. had a restraining order against him, preventing him from coming near X.L.
Following argument, the trial court ordered defendant to pay $1,960 in restitution to the Victim Compensation Board. The court explained: “I have a case here in which [defendant] was convicted by a jury of assaulting the victim in this case; that following the incident, there was a no contact order that was attained. Frankly, [defendant] is lucky that the victim moved out of his house, because she could have stayed in the house, and he would have had to go out and find accommodations elsewhere. [¶] She was the protected party, and he would have had no right to immediately return to his home, and she could have stayed in the house and fought the eviction, and he would have had to ultimately file an unlawful detainer action, which would have taken weeks, if not months, for it to come to its conclusion. [¶] He should be lucky. He should consider himself lucky that she moved out of the house as quickly as she did, because she could have stayed in the house and done whatever she wanted to the house, had whoever she wanted in the house, and he would not have been able to do anything about it because of the protective order. [¶] She paid him over $1,000 when she moved in in August and she paid him another over $1,000 in September for miscellaneous bills. He told her she didn’t have to pay rent in September. She was the victim in this case. She had to move out because she did not feel safe. [¶] And because of that, because he has been convicted of the crime which led to her leaving the home, he’s responsible for those costs. The Court orders him to pay $1,960 to the Victim Compensation Board based upon their finding.”
On February 18, 2016, defendant filed a notice of appeal from the restitution order.
III
DISCUSSION
Defendant argues the trial court’s restitution order must be reversed because it awarded restitution for expenses not directly caused by defendant’s conduct and the undisputed evidence showed the victim was already planning to move before the incident occurred. We disagree.
In 1982, California voters passed Proposition 8, also known as The Victims’ Bill of Rights, which “established the right of crime victims to receive restitution directly ‘from the persons convicted of the crimes for losses they suffer.’ ” (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano), quoting Cal. Const., art. I, § 28, subd. (b).) 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 wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.”
Section 1202.4, subdivision (a), sets forth the requirements for ordering restitution by stating that “a victim of a crime who incurs economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.” With respect to the amount of restitution owed by a criminal defendant, 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.’ [Citation.] . . . [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), italics added.) Additionally, ‘[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.)” (Giordano, supra, 42 Cal.4th at p. 656.) 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.” (Giordano, supra, 42 Cal.4th at p. 656.)
Section 1202.4, subdivision (f)(3)(I), allows restitution for: “Expenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim.”
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).)” (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 (Millard).) “[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.” (People v. Baker (2005) 126 Cal.App.4th 463, 469.)
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 (Mearns).) 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 the order reflect the amount of damages that might be recoverable in a civil action. [Citation.]’ [Citation.]” (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.’ ” (Mearns, supra, at p. 499; see People v. Dalvito (1997) 56 Cal.App.4th 557, 562.) When the propriety of a restitution order turns on the interpretation of a statute, a question of law is raised and we review the matter de novo. (People v. Garcia (2011) 194 Cal.App.4th 612, 617; In re Tommy A. (2005) 131 Cal.App.4th 1580, 1586.)
In the present matter, the People presented certified records showing $1,960 was paid to X.L., the statutory victim under section 1202.4, from the Victim Compensation Board for relocation expenses. The People’s records also included a “Law Enforcement Relocation Verification Form,” which noted it was necessary for the victim to relocate for personal safety. It is presumed under section 1202.4, subdivision (f)(4)(A), that the amount of assistance provided to the victim by the Victim Compensation Board is a “direct result” of the defendant’s criminal conduct. (§ 1202.4, subd. (f)(4)(A) [“If, as a result of the defendant’s conduct, the Restitution Fund has provided assistance to or on behalf of a 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”].) “The statute’s use of the word ‘direct’ signifies that the payment is presumed to have resulted directly, or in fact, from the defendant’s criminal conduct. [Citation.] Stated differently, the defendant’s conduct is presumed to be a cause in fact of the Board’s payment.” (People v. Lockwood (2013) 214 Cal.App.4th 91, 101 (Lockwood), italics omitted.)
As such, once the People made its prima facie showing of loss, the burden shifted to defendant to demonstrate that the amount of the loss was other than that claimed by the Victim Compensation Board. (Millard, supra, 175 Cal.App.4th at p. 26.) To rebut that presumption, defendant bore the burden to prove that his conduct was not a cause in fact of the Victim Compensation Board’s payment. (Lockwood, supra, 214 Cal.App.4th at p. 101.) “[T]o overcome the [section 1202.4,] subdivision (f)(4)(A) presumption that the assistance given the victim was ‘a direct result of the defendant’s criminal conduct,’ a defendant must prove that his criminal conduct played, at most, ‘ “ ‘only an “infinitesimal” or “theoretical” part in bringing about’ ” ’ the injury. [Citations.]” (Id. at p. 103, italics omitted.)
In the instant case, to meet his burden of proof defendant attempted to disprove the claimed loss. He testified that several weeks before the incident leading to his assault conviction against the victim, he had ordered the victim to move out of his home and had given her a letter written by his niece to move out. He also asserted that he had not taken any rent from the victim for the month of September so that she could afford to relocate. Defendant points out that X.L. had testified during trial that defendant had told her to move out but that she could not afford to move. Defendant further states that X.L.’s boyfriend had gone to the residence on September 26, 2013, to take X.L. to look for another place to live because X.L. intended to move out. Defendant, therefore, reasons that “undisputed evidence” shows his criminal conduct against the victim did not cause her to relocate, and thus did not cause her damages.
However, defendant offered no evidence suggesting he had the authority to ask the victim to vacate the residence without properly serving with an eviction notice, that the victim had agreed to move out, or that the victim left for reasons other than defendant’s criminal conduct. In fact, the victim had initiated a discrimination complaint with the housing department against defendant, implicitly showing she had no plans to leave. The relocation expenses were directly related to the victim’s need to leave defendant’s residence. These expenses readily qualify as “economic loss incurred as the result of the defendant’s criminal conduct” since they would not have been incurred had defendant not assaulted the victim. (§ 1202.4, subd. (f)(3).) Thus, the relocation expenses were an economic loss resulting from defendant’s conduct, under section 1202.4, subdivision (f). As the trial court reasoned, the victim relocated as a result of defendant’s criminal conduct and that “[s]he had to move out because she did not feel safe.” The governing statute allows restitution for “[e]xpenses incurred . . . in relocating away from the defendant,” but it specifies that such expenses “shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for emotional well-being of the victim.” (§ 1202.4, subd. (f)(3)(I).) The record includes a statement from law enforcement that relocation was necessary for the victim’s personal safety. Additionally, the record shows the victim’s relocation was a result of defendant’s criminal conduct. (See Mearns, supra, 97 Cal.App.4th at pp. 501-502 [awarding the $13,575 difference between the sale of old residence and purchase of new residence where relocation was a reaction to criminal act].) As such, the trial court properly ordered defendant to pay $1,960 to the Victim Compensation Board for the victim’s relocation expenses.
As in People v. Rowland (1997) 51 Cal.App.4th 1745, 1754 (Rowland), section 1202.4 requires that the trial court order restitution “in an amount which will fully reimburse the victim for his or her losses unless there are clear and compelling reasons not to do so.” (Rowland, supra, at p. 1754.) And, as noted, the right to restitution is to be liberally construed. (People v. Lyon (1996) 49 Cal.App.4th 1521, 1525.) We will only reverse where the restitution order “ ‘ “falls outside the bounds of reason” ’ ” (Giordano, supra, 42 Cal.4th at pp. 663-664), which, given the record before us, was not the case here.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



MILLER
Acting P. J.



SLOUGH
J.