P. v. Rubio

Filed 5/1/07 P. v. Rubio CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.

Jose R. Rubio appeals a restitution order of the superior court following his plea of guilty to felony drunk driving causing great bodily injury. He contends that the court erred in ordering him to pay $8,426.56 in restitution to the victim because (1) the court lacked jurisdiction to alter the original sentence it imposed based on his guilty plea; (2) even if the court had jurisdiction to make such an order, it abused its discretion in doing so; and (3) the order violated his due process rights. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2003, Rubio pleaded guilty to one count of felony driving under the influence causing great bodily injury and admitted that he suffered a strike prior. Prior to the sentencing hearing, Rubio's victim, Miguel Jaramillo, notified the probation department that his $4,000 car had been totaled in the accident and that he had been billed $400 for towing and storage fees and requested restitution of $4,400. In December 2003, the court sentenced Rubio to prison for four years and imposed a restitution fine of $800. The court did not order any direct restitution to Jaramillo at that time.

In February 2006, the prosecutor informed the court that Jaramillo had reported losses of $8,426.56 from the accident ($5,126.56 of which expenses were for orthopedic surgery Jaramillo underwent as a result thereof) and requested that the court order direct restitution to Jaramillo for those losses. After a continuance of the hearing to ensure that Rubio received appropriate notice thereof, the court awarded the requested restitution in April 2006. Rubio appeals from the order making that award.

DISCUSSION

Victim restitution is mandated by the California Constitution, which provides in relevant part "[r]estitution 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." (Cal. Const., art. I,  28, subd. (b).) Penal Code section 1202.4, subdivision (f) implements the constitutional mandate of restitution for crime victims by specifying that a trial court "shall require that the defendant make restitution to the victim or victims [of the crime]" and must order "full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." (All further statutory references are to the Penal Code.) A victim restitution award is required, regardless of whether the amounts awarded are to be paid directly to a victim or to the restitution fund for expenses incurred on behalf of the victim. ( 1202.4, subds. (f)(2), (f)(4).)

A sentence that fails to make an award of victim restitution is invalid. (People v. Bernal (2002) 101 Cal.App.4th 155, 164-165; People v. Rowland (1997) 51 Cal.App.4th 1745, 1751.) Thus, a trial court has no discretion over the issue of whether to make an award and very little discretion over the amount of the award. ( 1202.4, subd. (f); People v. Rowland, supra, 51 Cal.App.4th at pp. 1751-1752, 1754.) When a sentence is invalid due to the omission of a restitution award without a finding of compelling and extraordinary reasons, a victim, the district attorney, or the court on its own motion may at any time request correction of the sentence to include such an award. (See  1202.46.)

Rubio contends that the trial court here lacked jurisdiction to order him to pay direct restitution because the original sentence did not include a victim restitution award and thus the order effectively increased his sentence in violation of the law. (See  1170, subd. (d).) He concedes that this precise argument was rejected in People v. Moreno (2003) 108 Cal.App.4th 1 (Moreno), but asserts that Moreno is contrary to the California Supreme Court's holding in People v. Tillman (2000) 22 Cal.4th 300, 303 (Tillman). We disagree.

In Tillman, the People argued on appeal that the trial court erred in part by failing to impose a restitution fine, which is required under section 1202.4, subdivision (b), unless the trial court finds "compelling and extraordinary reasons" for not doing so. The California Supreme Court rejected the Court of Appeal's conclusion that it could order the statutorily-mandated fine, holding that the People had waived the right to challenge the defendant's sentence on appeal because they failed to raise the issue in the trial court in the first instance. (Tillman, supra, 22 Cal.4th at p. 302, citing People v. Scott (1994) 9 Cal.4th 331, 353, & People v. Welch (1993) 5 Cal.4th 228, 236.)

In Moreno, the trial court sentenced the defendant, who was convicted of first degree murder, and included a $10,000 restitution fine payable to the state's victim restitution fund but did not order the defendant to pay restitution to the victim's family or expressly retain jurisdiction to make such an award. (Moreno, supra, 108 Cal.App.4th at pp. 3-4.) More than one and a half years later (after Moreno's judgment of conviction was affirmed on appeal), the probation department asked the trial court to enter a restitution order requiring the defendant to reimburse the state Victims of Crime Program for $4,346.35 it had paid to the victim's family for burial expenses. (Ibid.) The trial court granted the request and the defendant appealed.

The appellate court in Moreno upheld the trial court's order. In doing so, it rejected the defendant's arguments that the People had waived the right to seek such an order by failing to raise the direct restitution issue in connection with the original sentence and that the trial court's failure to make such an award or to reserve jurisdiction over the issue precluded it from making a subsequent order. (Moreno, supra, 108 Cal.App.4th at pp. 7-12.) The appellate court concluded that the absence of a restitution award or an express reservation of jurisdiction over the issue rendered the original sentence invalid and thus subject to correction at any time. (Id. at p. 10, citing, inter alia,  1202.46 & People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)

As noted above, Rubio makes the virtually same arguments here as did the defendant in Moreno. However, we agree with the analysis of the Moreno court that, in light of the constitutional and statutory provisions mandating victim restitution, the trial court's failure to either make such an award under section 1202.4 or expressly reserve jurisdiction over the issue pursuant to section 1202.46 renders the original sentence invalid and subject to correction by a subsequent restitution award. (See also People v. Valdez (1994) 24 Cal.App.4th 1194, 1198-1202.) The holding of Tillman that the People waive the right to seek the imposition of a restitution fine, which is essentially payable to a state fund, by failing to timely raise the issue in the trial court is simply not dispositive of whether the trial court's failure to make a mandatory restitution award to the victim renders the original sentence invalid. Similarly, we do not read Tillman as indicating that the People's failure to raise the victim restitution issue at the sentencing hearing waives the victim's constitutional and statutory rights to restitution.

Rubio nonetheless contends that the court's imposition of such an award here, more than two years after the original sentence, violated his due process rights. However, a defendant's due process rights relating to the imposition of a restitution award are satisfied if he is given notice in the probation report of the amount of restitution sought and a hearing at which he has an opportunity to challenge the request. (People v. Thygesen (1999) 69 Cal.App.4th 988, 993; see Pen. Code,  1203.1, subds. (a)(3), (b), 1203.1k.) Here, Rubio received notice of the amount sought and had the opportunity to be heard on the issue at the April 2006 hearing and did not claim otherwise in the proceedings below.

Rubio makes a related argument that the trial court abused its discretion in making the award because the passage of such a period of time alone constituted a "compelling and extraordinary reason[]" to decline the request for restitution. More specifically, he argues that he was not at fault for the delay, there was no showing of justification for the delay and he was prejudiced thereby in that it was more difficult for him to investigate the propriety of the amount requested at that late date. This argument is unavailing.

First, the probation report for the original sentencing hearing did not include any amounts for medical expenses Jaramillo incurred as a result of the injuries he suffered in the accident, which suggests that those amounts had either not been incurred or were not finalized as of the time of the sentencing. Under such circumstances, the trial court was required to retain jurisdiction over the matter. ( 1202.46.)

Moreover, Rubio does not offer any explanation as to precise difficulties he would have had in investigating the requested restitution amounts, other than to argue that the fact Jaramillo no longer had the car at the time of the April 2006 hearing somehow prejudiced him. Notably, however, the evidence in the record shows that although Rubio was on notice Jaramillo was claiming damages of $4,000 for the value of the car before the original sentencing hearing occurred, he apparently did not seek to conduct an investigation into the claimed value at that time. More importantly, Rubio did not raise any objection in the trial court that he was having problems investigating the matter, nor did he request that the court grant him a continuance of the April 2006 hearing to allow such an investigation. Under such circumstances, we cannot conclude that the trial court abused its discretion or violated Rubio's due process rights in ordering restitution to Jaramillo.

DISPOSITION

The victim restitution order is affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P.J.

HUFFMAN, J.

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