P. v. Sanchez

Filed 9/4/07 P. v. Sanchez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Ronn M. Couillard, Judge.

William D. Farber, 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, Senior Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Victor Sanchez was convicted after jury trial of battery with injury on a peace officer, battery on a peace officer, two counts of resisting a peace officer and providing false information to a peace officer. The jury found true an enhancement allegation that appellant personally inflicted great bodily injury. The court found true a prior prison term enhancement allegation. (Pen. Code,  243, subd. (c)(2); 243, subd. (c); 148, subd. (a)(1); 148.9, subd. (a); 12022.7, subd. (a); 667.5, subd. (b).)^[1] Appellant was sentenced to an aggregate term of seven years imprisonment. He was ordered to pay direct victim restitution pursuant to section 1202.4 to the injured peace officer and to the peace officers employer, the Tulare County Sheriffs Department (Sheriffs Department).

Prior to trial, the court reviewed portions of the personnel files and related records of two peace officers during an in camera proceeding pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). It found that the records did not contain any relevant information. After conducting an independent review of the records, we conclude that the trial courts ruling was not an abuse of discretion.

Appellant also challenged imposition of direct victim restitution to the Sheriffs Department. This contention is meritorious; the Sheriffs Department is not a direct victim within the meaning of section 1202.4 and it is not entitled to restitution pursuant to this section. We will modify the judgment and, as modified, affirm.

FACTS

On the evening of March 11, 2006, Sergeant John Gonzalez, Detective Mark Wallace and Deputy Cox were dispatched to a street in Earlimart to investigate a reported prowler or intoxicated person. Two individuals were inside a car parked in an alleyway. Appellant falsely identified himself to Gonzalez as Juan. Gonzalez could not understand the last name appellant provided because appellants words were slurred.

Gonzalez arrested appellant for public intoxication. During a pat search, Gonzalez found a bindle in appellants front pocket that contained a white powdery substance. Gonzalez handed the bindle to Wallace.

When Gonzalez attempted to handcuff appellant, appellant twisted and jerked away. Appellant hit Gonzalez three or four times. Appellant lowered his head and rammed into Detective Wallace. When Wallace attempted to restrain appellant, appellant grabbed Wallaces right arm and twisted it upward. Wallace hit appellant above the left knee with a flashlight. Appellant continued to struggle with Wallace, who pushed or kicked appellant. During this struggle Wallace dropped the bindle. The officers eventually restrained appellant.

As a result of this struggle, Wallace suffered a complete or partial rupture of the large chest muscle. Wallaces treating physician, Dr. Thomas W. Thomas, opined that it is likely Wallace will continue to have permanent pain and some degree of weakness in his right shoulder and chest area.

Appellant testified that he did not struggle with the arresting officers or resist arrest. He did not intentionally strike an officer. An officer twisted his arm very hard to put handcuffs on him. He slipped. An officer hit him with a flashlight and knocked him into the mud. An officer handcuffed him, picked him up and then threw him to the ground. One of the officers kicked him.

Appellant admitted two prior felony convictions.

DISCUSSION

I. The trial courts ruling on the Pitchess motion was not an abuse of discretion.

A. Facts

On April 27, 2006, appellant moved pursuant to Pitchess, supra, 11 Cal.3d 531 for discovery of the personnel records, investigative documents and citizen complaints involving the falsification of police reports or the improper or excessive use of force by Sergeant Gonzalez and Detective Wallace (the Pitchess motion).

Over the prosecutors opposition, the court granted appellants request for in camera review of the personnel records and files of the two officers.

The court conducted an in camera proceeding on May 24, 2006, after which it ruled that there is no information in [the] files [that is] relevant to trial.

On June 20, 2007, this court ordered the superior court to conduct an in camera proceeding for the purpose of augmenting the appellate record with a certified copy of the portions of the personnel files and any other records that it examined during the in camera Pitchess proceeding. On July 18, 2007, the superior court complied with this order.

B. Analysis

Appellant asks this court to independently review the transcript of the in camera Pitchess proceeding and all material and documents submitted to the trial court to determine whether all potentially relevant documents were appropriately disclosed to the trial court for its review.

The statutory scheme for Pitchess motions is contained in Evidence Code sections 1043 through 1047 and Penal Code sections 832.5, 832.7 and 832.8. When a defendant seeks discovery from a peace officers personnel records, he or she must file a written motion that satisfies certain prerequisites and makes a preliminary showing of good cause. If the trial court determines that good cause has been established, the custodian of records brings to court all documents that are potentially relevant to the defendants motion. (People v. Mooc (2001)26 Cal.4th 1216, 1226 (Mooc).) The trial court examines these documents in camera and, subject to certain limitations, discloses to the defendant such information [that] is relevant to the subject matter involved in the pending litigation. [Citation.] (Ibid.) The ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330 (Hughes).)

The record in this case is adequate to permit meaningful appellate review. It contains a full transcript of the May 24, 2006, in camera Pitchess proceeding and a certified copy of the records that were actually examined by the trial court. (People v. Prince (2007) 40 Cal.4th 1179, 1285 (Prince); Hughes, supra, 27 Cal.4th at p. 330.)^[2]

Having independently reviewed the transcript of the Pitchess proceeding and the records examined by the trial court and submitted under seal, we conclude that the trial court did not abuse its discretion in determining that none of the records were relevant to the issues presented in this case. Accordingly, we uphold the ruling on the Pitchess motion. (Prince, supra, 40 Cal.4th at p. 1286; Hughes, supra, 27 Cal.4th at p. 330.)

II. The Sheriffs Department is not a direct victim within the meaning of section 1202.4.

Appellant was convicted of battery with injury upon Detective Mark Wallace; an enhancement allegation that appellant personally inflicted great bodily injury upon Wallace was found true. The court ordered appellant to pay restitution to Detective Wallace and the Sheriffs Department in an amount to be determined in the future.

The trial court has broad discretion in fixing a restitution order, but it abuses that discretion if the order rests on a demonstrable error of law. (People v. Boudames (2006) 146 Cal.App.4th 45, 53.) Appellant argues that the Sheriffs Department is not a direct victim of his offenses within the meaning of section 1202.4 and, therefore, the restitution order is premised on a legal error. Thus, he concludes that the restitution order constitutes an abuse of discretion. As we will explain, appellant is correct.^[3]

Statutes are to be interpreted by ascertaining the Legislatures intent in enacting them. [Citation.] The first step in making this determination is to scrutinize the statutes actual words, giving them their plain and commonsense meaning. [Citation.] If the language is clear and unambiguous, there is no need for construction. [Citation.] (People v. Boudames, supra, 146 Cal.App.4th at p. 51.)

In 1982, the voters of California adopted Proposition 8, an initiative amending the California Constitution. In relevant part, it established a constitutional right for crime victims to receive restitution from defendants convicted of crimes causing the victims to suffer economic loss. Section 1202.4 was enacted to implement this mandate. (Martinez, supra, 36 Cal.4th at p. 388.)

Section 1202.4, subdivision (a)(1), provides 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.

Section 1202.4, subdivision (f), provides, in pertinent part: [I]n 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.

Subdivision (k) of section 1202.4 defines the term victim. Governmental subdivisions and agencies are included within the definition of a victim whenthat entity is a direct victim of a crime. ( 1202.4, subd. (k)(2).) Whether a party is a direct victim of a crime is a legal issue subject to the appellate courts independent review. (People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1084 (Saint-Amans).)

We are mindful of the liberal construction rule favoring restitution. (Saint-Amans, supra, 131 Cal.App.4th at p. 1084.) Nonetheless, in this instance we conclude that the fact that the Sheriffs Department may ultimately sustain economic losses due to Detective Wallaces injuries does not make the Sheriffs Department a direct victim within the meaning of section 1202.4. In reaching this determination, we primarily rely on our Supreme Courts recent decision in Martinez, supra, 36 Cal.4th 384.

In relevant part, the high courtdetermined in Martinez that the California Department of Toxic Substances Control (Department) was not a direct victim of defendants attempt to manufacture methamphetamine because defendants attempt to manufacture methamphetamine was not an offense committed against the Department, nor was the Department the immediate object of his crime. (Martinez, supra, 36 Cal.4th at p. 393.) Therefore, the Department was not entitled to a restitution order pursuant to section 1202.4 for recovery of its clean-up costs. In reaching this conclusion, the Martinez court explained the parameters of the direct victim requirement contained in subdivision (k) of section 1202.4.

Martinezexplained that in 1994 the Legislature amended section 1202.4 to expressly permit restitution to an entity, governmental or otherwise, when it is a direct victim of a crime. Prior to 1994, case law recognized that restitution to a governmental entity was proper when it was a victim of crime but improper when the loss resulted from prosecuting a crime. For example, People v. Narron (1987) 192 Cal.App.3d 724 determined that a government entity is a direct victim of a crime, when it is a victim of tax evasion or theft of its property. However, it is not a direct victim within the meaning of section 1202.4 when the claimed loss is recoupment of cleanup costs associated with a defendants marijuana cultivation. (Id. at pp. 731-733.)

In a footnote, Martinez explained that [c]ases decided after the Legislatures 1994 addition of the direct victim language to Penal Code section 1202.4 have preserved [this] distinction. (Martinez, supra, 36 Cal.4th at p. 393, fn. 1.) For example, in People v. Torres (1997) 59 Cal.App.4th 1, 4-5 (Torres), the appellate court invalidated a restitution order to a police department for money its undercover officers used to buy illegal drugs during an investigation, but which it never recovered from the sellers. And in People v. Ozkan (2004) 124 Cal.App.4th 1072 (Ozkan), the appellate court held that a state agency is not entitled to restitution for investigative costs incurred to uncover tax fraud and mislabeling of gasoline octane ratings. The Martinez court quoted with approval the following observation made in Ozkan, Under the relevant case law and the statutory scheme, public agencies are not directly victimized for purposes of restitution under Penal Code section 1202.4 merely because they spend money to investigate crimes or apprehend criminals. [Citation.] (Martinez, supra, 36 Cal.4th at p. 393, fn. 1, quoting Ozkan, supra, 124 Cal.App.4th at p. 1077.)

Martinez compared Ozkan with In re Johnny M. (2002) 100 Cal.App.4th 1128, 1130-1131 (Johnny M.). There, the minor twice burglarized a school. The appellate court upheld direct victim restitution pursuant to Welfare and Institutions Code section 730.6, subdivision (k). The minor caused physical damage to the school that required clean up and repairs before normal school operations could resume. Therefore, the school district was a direct victim of the burglaries of its school building. (Martinez, supra, 36 Cal.4th at p. 393, fn. 1.)

Finally, Martinez highlighted its decision in People v. Birkett (1999) 21 Cal.4th 226 (Birkett). Birkett concluded that insurance companies are not direct victims of car thefts by virtue of the fact that they pay the policy holders from whom the cars were stolen. Birkett described a provision in Penal Code former section 1203.4 permitting restitution to entities that are direct victims of crime as limiting restitution to entities against which the probationers crimes had been committed--that is, entities that are the immediate objects of the probationers offenses. [Citation.] (Martinez, supra, 36 Cal.4th at p. 393.)

Here, appellants acts of resisting arrest and battering Gonzalez and Wallace were not crimes committed against the Sheriffs Department and the Sheriffs Department was not the immediate object of these crimes. As explained above, losses associated with the apprehension of a criminal are not recoverable pursuant to section 1202.4. (Martinez, supra, 36 Cal.4th at p. 393, fn. 1.) The economic losses suffered by the Sheriffs Department, resulting from Wallaces injury, are properly viewed as costs associated with the apprehension of a criminal. A governmental entity, such as the Sheriffs Department, is not a direct victim within the meaning of section 1202.4 solely because one of its employees is a victim of a crime and the entity suffers indirect losses that can be traced back to the crime, such as payment of insurance or health benefits to the injured employee or costs associated with training replacement personnel. The Sheriffs Department was not defrauded; property belonging to the Sheriffs Department was not stolen and its buildings were not burglarized or intentionally damaged. (See, e.g., Saint-Amans, supra, 131 Cal.App.4th at pp. 1086-1087 [defendant pled guilty to commercial burglary; bank was direct victim].) There is only one direct victim of appellants crime of battery with injury upon a peace officer and that victim is Detective Wallace. Therefore, we conclude that the Sheriffs Department is not entitled to restitution pursuant to section 1202.4.^[4]

The appropriate remedy for this error is to modify the judgment to delete the Sheriffs Department from the restitution order and, as modified, affirm the judgment. (People v. Torres, supra, 59 Cal.App.4th at p. 5.)

DISPOSITION

The judgment is modified to delete the reference to the Tulare County Sheriffs Department in the restitution order. As modified, the judgment is affirmed. The clerk of the Tulare County Superior Court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Vartabedian, Acting P.J.

_______________________________

Gomes, J.

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^[1] Unless otherwise specified all statutory references are to the Penal Code.

^[2] Augmentation of the appellate record with the entire personnel files of Gonzalez and Wallace would have been improper. In People v. Mooc, supra, 26 Cal.4th 1216, our Supreme Court ruled that the appellate court erred by ordering the custodian of records to lodge with the appellate court the entire personnel file of the named officer. It explained that the appellate court had no way to know how much of the complete file the trial court had reviewed before ruling on defendants Pitchess motion. (Id. at p. 1231.) The better solution is to order the trial court to hold a hearing to augment the record with the evidence it considered in chambers when it ruled on the Pitchess motion. (Ibid.) Our augmentation order complied with Moocs guidance.

^[3] Appellant did not object to inclusion of the Sheriffs Department in the restitution order. Generally, failure to object in the trial court to a discretionary sentencing decision waives challenge to the decision on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353.) However, an exception to this general rule exists when the challenged term of the sentence is unauthorized or beyond the courts jurisdiction. (Id. at p. 354.) The unauthorized sentence exception applies in this instance because the challenged restitution could not lawfully be imposed under any circumstances in this particular case. (See also People v. Martinez (2005) 36 Cal.4th 384, 392 (Martinez) [it is within courts discretion to decide recurring restitution issue to provide guidance].)

^[4] Respondent urges this court to follow People v. Rugamas (2001) 93 Cal.App.4th 518. There, defendant was shot by a peace officer and the police department was responsible for the cost of defendants medical care. As a condition of probation, a restitution fine for the cost of this care was imposed. Rugamas is inapplicable because it involves a fine imposed as a condition of probation pursuant to section 1203.1. Probation restitution pursuant to section 1203.1 has a far broader scope and reach than direct victim restitution under section 1202.4. This distinction was recognized in Rugamas itself. (Id. at pp. 521, 523; see also, e.g., People v. Narron, supra, 192 Cal.App.3d at pp. 731-733.)