P. v. Vargas

Filed 4/7/10 P. v. Vargas CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

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Defendant Luis Arturo Barba Vargas pled no contest to false imprisonment of an elder -- his former mother-in-law -- by use of deceit (Pen. Code,[1] 368, subd. (f)) and carrying a concealed weapon in a vehicle ( 12025, subd. (a)). In accordance with the plea, the trial court sentenced defendant to prison for four years eight months. Over defendants objection, the court also ordered him to pay $1,871 in victim restitution for the cost of installing a security system in the victims home. ( 1202.4, subd. (f).)

Defendant appeals, arguing the trial court erred in ordering him to compensate the victim for increased security pursuant to section 1202.4, subdivision (f)(3)(J) because he was not convicted of a violent felony. We agree the trial court erred in ordering victim restitution for the installation of a security system and shall order the award stricken.

BACKGROUND

Sometime in the month after his ex-wife fled to a safe house with their two children to escape domestic violence and threats, defendant brought a gun to the home of his former in-laws, threatened them with the loaded revolver, and demanded they tell him where their daughter and her children were hiding themselves.

When the police learned of the situation, they summoned the SWAT team and a hostage negotiations team. Defendants former father-in-law eventually was able to escape, but defendant held his former mother-in-law for five more hours, pointing the gun at her head and using her as a human shield.

The probation report notes that, according to the victims[2] insurance company, she suffered a loss in the amount of $4041.20 which included their $1,000 deductible and it requested that defendant be ordered to pay that amount.

A memo from the probation officer to the judge sent prior to the probation report states: Regarding victim restitution, this officer met with the victims at the probation department . . . . They are requesting additional restitution for a security system installed at their home in the amount of $2,286. . . . Supporting documentation for the additional restitution requested is also attached.[3]

At sentencing, defense counsel objected to awarding the victim restitution for the security system defendants former in-laws chose to install after the fact, particularly given that [t]here was no security system in the home that they can indicate that [defendant] damaged . . . so that it would be appropriate to be reimbursed for that. The prosecutor responded that the security system was paid for by the Victims of Crime state fund, and my understanding is statutorily theyre entitled to reimbursement, and it was a direct result of the defendants conduct in that theyve made an attempt at this point to protect themselves, which they didnt realize was necessary before this event occurred.

The court ruled that entitlement to restitution is controlled by Penal Code Section 1202.4. [Section] 1202.4, subdivision 3, subdivision J authorizes the Court to impose a restitution fine for the creation of a residential security system. . . . [] . . . So I do find and order that the defendant pay a total of two thousand two hundred and eighty-six dollars for the security system that was installed in the [victims] residence.[4] Following further discussion about particular components of the system, the court reduced defendants restitution obligation for the home security system to $1,871.

The abstract of judgment reflects that defendant was ordered to pay restitution to [the] victims pursuant to section 1202.4, subdivision (f) in the amount of $1,871.

DISCUSSION

Section 28 of the California Constitution was added to article I by voters in the June 1982 primary election, and was amended and renumbered in the 2008 general election. Commonly known as the Victims Bill of Rights, it gives all crime victims the constitutional right to receive restitution from the persons convicted of the crimes causing the losses they suffer. (Cal. Const., art. I, 28, subd. (b)(13)(A).) The Legislature has enacted various provisions to implement [section 28]s call for mandatory restitution from persons convicted of crimes to their victims. (People v. Birkett (1999) 21 Cal.4th 226, 236.)

Section 1202.4 is one such enactment. Subdivision (a)(1) provides: It 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.

Here, the court required defendant to pay for the installation of a security system at the victims home as an element of victim restitution pursuant to section 1202.4, subdivision (f). Defendant contends on appeal that the statute does not permit the courts action. He is correct.

Section 1202.4, subdivision (f), reads in relevant part:

(3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and 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 defendants criminal conduct, including, but not limited to, all of the following: [] . . . [] (J) Expenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks.

A victims restitution right is to be broadly and liberally construed. People v. Mearns (2002) 97 Cal.App.4th 493, 500.) The trial courts allocation of restitutionary responsibility must be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law. [Citations.] (People v. Draut (1999) 73 Cal.App.4th 577, 581, italics added.)

Defendant cites a demonstrable error of law in this case. He argues that we must strike the order requiring him to reimburse the victim for installation of a home security system because he was not convicted of a violent felony as required under section 1202.4, subdivision (f)(3)(J). He notes that the Legislature has specifically addressed expenses incurred for installation of a residential security device and expressly limited them to those incurred related to a violent felony and [i]f the Legislature intended to allow courts to order restitution for the installation of security systems in all cases, it would not have put in the phrase that it did.

We agree. Notwithstanding the economic loss language contained in the general intent provision of section 1202.4, subdivision (a)(1), section 1202.4, subdivision (f)(3)(J), has specific provisions governing recovery as restitution [e]xpenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5 . . . . (Italics added.) The phrase as defined in subdivision (c) of Section 667.5 expressly limits this type of restitution to those crimes defined in section 667.5, i.e., violent felonies. Thus, we conclude the Legislature has foreclosed consideration of such expenses when defendant has not been convicted of a violent crime. No crime defined in section 667.5, subdivision (c) occurred here. We therefore strike the trial courts order for victim restitution in the amount of $1,871 that the court announced it was imposing pursuant to section 1204.4, subdivision (f)(3)(J).

The People concede no ground. They argue the court simply cited the wrong subdivision to support its order, and we should construe the award as having instead been made pursuant to section 1202.4, subdivision (f)(4)(A), which provides: If, as a result of the defendants conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative victim pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code, the amount of assistance provided shall be presumed to be a direct result of the defendants criminal conduct and shall be included in the amount of the restitution ordered.

The Peoples argument lacks merit. Nothing in the record supports the prosecutors suggestion the victim received assistance from the restitution fund to pay for a security system for which it would have been statutorily entitled to reimbursement under section 1202.4, subdivision (F)(4)(A). Although Government Code section 13957 permits the victims compensation and claims board to assist crime victims by [r]eimburs[ing] the claimant for the expense of installing or increasing residential security (Gov. Code, 13957, subd. (a)(2)(D)(ii)(6)), such reimbursement may be made only upon verification by law enforcement that the security measures are necessary for the personal safety of the claimant or verification by a mental health treatment provider that the security measures are necessary for the emotional well-being of the claimant and, in any event, such reimbursement for a home security system is not to exceed one thousand dollars ($1,000) (ibid.).

In this case, the record nowhere suggests the victim compensation and claims board funded the victims home security system. Had the expense been paid directly to the victim by the victim compensation and claims board as an element of assistance, the board would not have been paid $2,286, the amount claimed by the victim in restitution.

In sum, we agree with defendant that section 1202.4 forecloses consideration of such victim restitution expenses when defendant has not been convicted of a violent crime. The courts action is not authorized.

Pursuant to this courts miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to Penal Code section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitled him to additional presentence credits. As expressed in the recent opinion in People v. Brown (Mar. 16, 2010, C056510) ___ Cal.App.4th ___, we conclude that the amendments do apply to all appeals pending as of January 25, 2010. Defendant is among the prisoners entitled to the additional accrual of credit. (Pen. Code, 4019, subds. (b)(1) & (c)(1); Stats. 2009, 3d Ex. Sess., ch. 28, 50.) Consequently, defendant, having served 998 days of presentence custody, is entitled to 998 days of conduct credits.

DISPOSITION

The judgment is modified to strike victim restitution in the amount of $1,871 and to increase defendants credits (998 days) pursuant to section 4019. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect these modifications and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

ROBIE , J.

We concur:

SCOTLAND , P. J.

SIMS , J.

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[1] Undesignated statutory references are to the Penal Code.

[2] We refer to victim in the singular, although the probation report uses the plural, because defendant was acquitted in a prior jury trial of all charges related to alleged acts against his former father-in-law.

[3] The victim also sought restitution for attorney fees paid to private counsel, which were denied.

[4] The court denied the victims request for restitution to pay attorney fees.