People v. Dalbalcon

1

THE PEOPLE, Plaintiff and Respondent, v. ANTONIO JOSEPH DALBALCON, Defendant and Appellant.

A169180

California Court of Appeals, First District, Third Division

November 22, 2024

NOT TO BE PUBLISHED

Sonoma County Super. Ct. No. SCR763965-1.

Fujisaki, J.

Defendant Antonio Joseph Dalbalcon pleaded no contest to one count of possession of controlled substances in jail. The trial court imposed a sentence to be followed by mandatory supervision and ordered restitution based on facts relating to a different count that was dismissed as part of the plea agreement. On appeal, defendant contends: (1) a portion of the trial court's restitution order is unsupported by a rational basis; (2) two of the written conditions of defendant's mandatory supervision are contrary to the court's oral pronouncement and must be excised; and (3) alternatively, one of these mandatory supervision conditions must be vacated as it is an improper delegation of judicial authority.

The People concede that one of the written conditions of mandatory supervision must be modified to conform to the court's oral pronouncement of judgment. We accept that concession and will remand the matter for correction of the written condition. In all other respects, we will affirm.

Factual and Procedural Background

The People charged defendant with receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a), count 1^[1]) and possession of controlled substances (fentanyl and methamphetamine) in jail (§ 4573.6, subd. (a), count 2). The People further alleged a number of aggravating circumstances. Defendant pleaded no contest to the section 4573.6, subdivision (a) count, and admitted to an aggravating circumstance (Cal. Rules of Court, rule 4.421(b)(2)). Per the terms of his plea agreement, count 1 would be dismissed, but the court could consider the dismissed charge in determining the appropriate sentence and restitution. (People v Harvey (1979) 25 Cal.3d 754.)

In accord with the plea agreement, the trial court sentenced defendant to the upper term of four years pursuant to section 1170, subdivision (h), ordering that after 18 months in custody, the remainder of the term would be suspended and defendant would be placed on mandatory supervision. After a subsequent hearing in which the court ordered restitution defendant filed this appeal.

Discussion

A. Victim Restitution

Defendant contends there was no rational foundation for ordering him to pay $1,100 in restitution for lost wages. We set out some additional facts before examining this claim.

1. Additional Facts

Count 1 involved a vehicle that was stolen from an elderly victim. At the sentencing hearing, defendant stipulated to paying $430 in restitution to the victim for the cost of towing and storage. But defendant objected to and requested a hearing to address a request for $1,177.54 in restitution for the victim's adult son.^[2] The trial court reserved its ruling on this portion of victim restitution and set a separate restitution hearing.

At the restitution hearing, the prosecutor submitted evidence, which was admitted without objection, concerning the contested amount. In short, the son of the victim submitted a letter entitled "Statement of Lost Wages and Cost to Travel to Sonoma County to Retrieve Stolen Jeep" which stated: "I am the sole owner of a one-man shop, all work and labor performed only by me at my place of business. I work a minimum of 6 days per week, 10 hours per day. My hourly rate is $110.00 per hour. [¶] On Friday, June 2, 2023 I lost a full day of work to travel to Sonoma County to pick up a 1946 Willys Jeep CJ2A and transport it to a safe and secure location: [¶] 10 hours of work at $110.00 per hour $1,100.00. [¶] Used my work vehicle and car trailer traveling from Ukiah to Sonoma County Sheriff's Dept: 55 miles at 65.5 cents per mile. $36.02 [¶] Mileage from Sonoma County Sheriff's Dept to Cream's Dismantling and Towing 3621 Copperhill Ln Santa Rosa 5.7 miles. $3.73 [¶] Mileage from Cream's Dismantling and Towing to Empire Lane in Ukiah, CA 57.5 mile $37.79 [¶] Grand Total: $1,177.54[.]" (Capitalization omitted.)

Defense counsel objected to the request for $1,177.54, arguing there was no proof the victim whose vehicle was stolen ever paid this amount to his son. Defense counsel also argued the victim's son was claiming an unreasonable amount of time, there was no proof he had to work on the day he chose to do the task, and the request was neither sworn under penalty of perjury nor supported by any additional information.

The prosecutor indicated he was not in a position to explain why the victim's son chose to pick up the vehicle on a specific day, or whether it took him a full 10 hours to complete the task, but argued he was taking the statement "at face value." The trial court ruled that it had no reason to find the request unreasonable or to dispute it, and that the victim's son fell within the definition of being a victim insofar as he suffered out-of-pocket expenses due to defendant's commission of a crime. The court ordered defendant to pay the son $1,177.54 in victim restitution.

2. Analysis

Article I, section 28, subdivision (b)(13), of the California Constitution establishes that victims have a right "to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer" and that restitution shall be ordered from every convicted wrongdoer when a victim suffers a loss. Section 1202.4 implements this constitutional provision. (People v. Smith (2011) 198 Cal.App.4th 415, 431.) Subdivision (a)(1) of section 1202.4 declares: "It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." For purposes of the statute, "victim" is broadly defined and includes, inter alia, specified family members such as a child of a victim "who has sustained economic loss as the result of a crime." (§ 1202.4, subd. (k)(3)(A) ["victim" also includes a parent, grandparent, and grandchild of a victim].)

Section 1202.4, subdivision (a)(3), provides that courts must order victim restitution "in accordance with subdivision (f)." In turn, subdivision (f) of section 1202.4 states: "[I]n every case in which a victim has suffered economic loss as a result of the defendant's 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." (Italics added.) Subdivision (f)(3) of section 1202.4 requires, to the extent possible, that the restitution order constitute "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," including lost wages. (§ 1202.4, subd. (f)(3)(D).)

"Section 1202.4 does not, by its terms, require any particular kind of proof." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli).) The weight of authority holds that "[a] victim's statement of economic loss is prima facie evidence of loss." (See People v. Grandpierre (2021) 66 Cal.App.5th 111, 115 (Grandpierre); People v. Weatherton (2015) 238 Cal.App.4th 676, 684; Gemelli, at pp. 1542-1543; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407.) "Restitution hearings are intended to be informal" (Weatherton, at p. 684), and a victim's claim need not be substantiated through particular testimonial evidence or documentation (In re S.S. (1995) 37 Cal.App.4th 543, 547, fn. 2). For example, a trial court is entitled to accept as prima facie evidence of loss a property owner's statement made in a probation report about the value of stolen or damaged property. (Weatherton, at p. 684.) Courts have also accepted a victim's unsworn written itemization of losses as prima facie evidence of the loss. (E.g., S.S., at pp. 545, 548, fns. 1-2 [noting no apparent authority requiring a victim to "supply a sworn proof of loss or detailed documentation of costs and expenses"]; Gemelli, at pp. 1544-1545.) To rebut a prima facie case, the defendant must offer contrary information showing "the amount claimed is excessive." (Weatherton, at p. 684; Pinedo, at pp. 1406-1407 [probation report requested restitution award of $7,000 to cover attorney fees "and it was up to appellant to demonstrate this amount was unreasonable"].)

"The standard of proof at a restitution hearing is preponderance of the evidence," and generally "[w]e review a victim restitution order for abuse of discretion." (Grandpierre, supra, 66 Cal.App.5th at p. 115.) "When . . . the gist of the appellant's argument is that the evidence before the trial court was insufficient to establish the amount awarded, we review for substantial evidence." (In re Travis J. (2013) 222 Cal.App.4th 187, 203.)

Notably neither side disputes that the victim's son was himself a victim for purposes of restitution (§ 1202.4, subd. (k)(3)(A)), or that he submitted a written statement explaining and itemizing his claimed economic loss. Specifically, the son stated that his hourly rate is $110.00 per hour, that he works 10-hour days, and that he lost a full day of work on Friday, June 2, 2023 by carrying out the tasks of driving to Sonoma County to retrieve the stolen vehicle and transporting it to a safe and secure location in Ukiah. Accompanying the statement is a receipt from the towing company showing that the elderly victim paid towing and storage fees in cash at 4:41 p.m. that day, and that the victim accompanied the son in retrieving the vehicle in the late afternoon. The trial court was entitled to accept this as prima facie...