Opinion
F072909
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN HERNANDEZ, Defendant and Appellant.
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F10905457)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
In a companion appeal, we affirmed appellant Juan Hernandez's first degree murder, attempted murder, and street terrorism convictions. (People v. Hernandez et al. (Mar. 8, 2017, F067543 [nonpub. opn.].)
We granted Hernandez's motion for judicial notice of the record and briefing in People v. Hernandez et al, supra, F067543.
Hernandez now appeals from the trial court's victim restitution order, arguing it was unauthorized because the Victim Compensation and Government Claims Board (the board) determined the amount of support-loss assistance before sentence was imposed, but the reimbursement claim was not submitted until two years later, making it untimely and unauthorized. We disagree, but agree with his claim that his custody credits should be amended.
FACTUAL AND PROCEDURAL HISTORY
Juan Negrete died of gunshot wounds suffered on September 12, 2010, leaving a spouse and three minor children. On November 2, 2012, a jury convicted Hernandez of first degree murder and other crimes.
The surviving family victims submitted an application to the board in November 2010 seeking reimbursement for funeral/burial expenses, along with payment of unspecified future benefits. The funeral/burial expenses were paid the following month. On December 19, 2012, the board submitted a reimbursement request for $6,436 for assistance for the funeral and burial expenses. The reimbursement request also listed the deceased's three minor children, but did not state any requested amounts.
On May 24, 2013, the trial court sentenced Hernandez to a prison term of life without the possibility of parole for the murder, plus a determinate term of two years four months for the attempted murder, and attached a 25-year-to-life firearm enhancement to both counts. The trial court ordered Hernandez to pay $6,436 in restitution to the board under Penal Code section 1202.4, subdivision (f)(2) for funeral and burial expenses. The court also ordered that restitution be reserved for possible future victim expenses under section 1202.4, subdivision (f).
All subsequent undesignated statutory references are to the Penal Code.
On April 1, 2015, the board submitted a "Certification of Records for Restitution Hearing," which indicated the board had paid, in 2014 and 2015, three additional claims for "Support Loss" to the decedent's minor children totaling $70,000. The claim numbers for each minor matched those for which restitution had been reserved at the original May 2013 sentencing hearing.
At the August 14, 2015, hearing on the issue, Hernandez's counsel objected to the $70,000 amount, stating that, if the trial court imposed the joint and several restitution order, support loss should be limited to $63,000 pursuant to California Code of Regulations, title 2, former section 649.3, subdivision (b). The trial court postponed a decision in order to address counsel's concern.
At a subsequent hearing November 20, 2015, the trial court amended Hernandez's restitution order to $76,436, consisting of the original amount of $6,436 for funeral and burial expenses and two claims for $23,333.33 each and one for $23,333.34 (a total of $70,000) for income support loss.
DISCUSSION
I. RESTITUTION ORDER
Hernandez contests his amended restitution order on two grounds. To address both, we first set out the applicable statutory sections. Former section 1202.4, subdivision (f) provides in pertinent part as follows:
"[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. 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. The court shall order full restitution unless it finds compelling and extraordinary reasons
for not doing so and states them on the record .... [¶] (1) The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion. [¶] ... [¶] (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 defendant's criminal conduct. [¶] ... [¶] (4)(A) If, as a result of the defendant's conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative 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 restitution ordered."
Former section 1202.4 provides further: "(g) The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record .... [¶] ... [¶] (k) For purposes of this section, 'victim' shall include all of the following: [¶] ... [¶] (3) A person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions: [¶] (A) At the time of the crime was the ... child ... of the victim."
Former section 1202.46 provides:
"Notwithstanding Section 1170, when the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined. Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to Section 1202.4."
A. Is the Restitution Modification Order Untimely?
Hernandez first contends the trial court's order modifying the restitution order to include the $70,000 in reimbursement to the board for support-loss payments was untimely and, therefore, unauthorized because the board had "determined the amount of support-loss assistance to the decedent's three minor children before sentence was imposed" but "inexplicably failed to include that amount in its reimbursement claim."
Hernandez cites to People v. Moreno (2003) 108 Cal.App.4th 1 (Moreno), which he attempts to distinguish. In Moreno, a jury convicted the defendant of, inter alia, first degree murder, and the trial court sentenced the defendant to a total of 52 years in state prison. In the absence of any request, the court did not direct the defendant to pay restitution to the murder victim's family pursuant to section 1202.4, subdivision (f). But a month prior to sentencing, the Victims of Crime Program had paid the victim's family for burial expenses, information that was not relayed to the trial court in time for sentencing. (Moreno, supra, at p. 3.) Nor did the subject come up at the sentencing hearing. (Id. at p. 4.) While the defendant's appeal was pending, the probation officer asked the trial court for a restitution order directing the defendant to reimburse the Victims of Crime Program for the payment it made earlier to the family. The trial court granted the request. (Ibid.)
On appeal, the defendant in Moreno argued section 1202.46 did not authorize the trial court to order direct restitution because, referring to the first part of the statute, the losses could have been, but were not, ascertained at the time of the original sentencing due to neglect. He further argued the trial court failed to reserve the issue of direct restitution when it sentenced him initially. (Moreno, supra, 108 Cal.App.4th at p. 7.) We disagreed, concluding that,
"notwithstanding a trial court's failure to retain jurisdiction to retain jurisdiction to impose or modify a restitution order, the second part of section 1202.46 permits the prosecutor, at any time, to request correction of a sentence that is invalid because, as in the present case, the court at the initial sentencing had neither ordered restitution nor found 'compelling and extraordinary reasons' for ordering less than full restitution. The victim too may make such a request, or the trial court may act on its own motion. It follows that the court is not barred from correcting the invalid sentence
simply because the prosecutor failed to object when it was imposed. An invalid or unauthorized sentence is subject to correction whenever it comes to the court's attention. [Citations.]" (Moreno, supra, 108 Cal.App.4th at p. 10.)
Hernandez argues Moreno is distinguishable because here, unlike Moreno, the trial court did order reimbursement to the board during the original sentencing. Hernandez claims the "amount of reimbursement was based on [the board's] inaccurate representation that the burial expense reimbursement was the only ascertained loss-assistance amount determined at that time." We disagree.
To support his claim that the board knew of the support-loss amount prior to sentencing, Hernandez cites to the record, which shows the computation of recommended payments for decedent's three minor children. However, the dates on these computations are between August 22, 2014, and March 18, 2015, and cover the decedent's employment dates from September 2010 through December 2014. Thus, the total amount of support-loss was not yet determined at the May 2013 sentencing hearing, as suggested by Hernandez. We reject his claim to the contrary.
In any event, whether the support-loss payments may have been ascertainable before the May 2013 sentencing hearing has no bearing on the trial court's ability to later modify the order to reflect the appropriate amount owed. In addition, unlike the court in Moreno, the trial court here specifically retained jurisdiction to correct the amount of restitution at a later date in accordance with section 1202.46 and then later modified the restitution order to reflect the correct total amount owed. (See People v. Harvest (2000) 84 Cal.App.4th 641, 652 [where trial court retains jurisdiction over restitution at initial sentencing, principles of waiver and estoppel do not foreclose a request for restitution made for the first time upon resentencing following an appeal].)
The order was lawfully imposed and we reject Hernandez's claim to the contrary.
B. Does the Reimbursement Amount Exceed the Authorized Limits?
Hernandez also contends the amount of reimbursement owed the board must be corrected as it exceeded the authorized limit. We disagree.
As argued by Hernandez, on April 1, 2011, the California Victim Compensation Program reduced the total amount victims can claim for loss of support from $70,000 to $63,000. (Cal. Code. Regs., tit. 2, former § 649.3.) As such, he argues, the $70,000 paid out was beyond the $63,000 allowed.
At the time of the restitution hearing at issue in June of 2015, California Code of Regulations, title 2, former section 649.3 provided, in relevant part: "(a) The amount of reimbursement paid by the Board shall not exceed the maximum rate set by the Board, if any, less the amount of reimbursement from other sources. [¶] (b) The total award to or on behalf of each victim or derivative victim may not exceed $63,000...."
However, Government Code section 13959, subdivision (d), provides: "[I]n making determinations of eligibility for compensation and in deciding amount of compensation, the board shall apply the law in effect as of the date an application was submitted." Here, the crime occurred in September of 2010, and the victims submitted an application to the board in November 2010 seeking reimbursement for funeral/burial expenses, along with payment of unspecified future benefits. As such, under Government Code section 13959, subdivision (d), the decedent's minor children's claim for loss of income support could not exceed $70,000, the limitation in effect at the time the application was submitted.
The amount the board paid the decedent's minor children in connection with their claim for loss of income was $23,333.33 for two of the minors and $23,333.34 for the remaining minor, for a total of $70,000. Under former section 1202.4, subdivision (f) and (f)(4)(A), Hernandez is required to reimburse the restitution fund for the amount of payment to the decedent's minor children in connection with the crime, absent a finding by the trial court that "compelling and extraordinary" reasons justify a lesser amount. No such finding was made, and Hernandez is obligated to reimburse the board for the full $70,000 reimbursement amount paid to the decedent's children for loss of income support. (Former § 1202.4, subd. (f), (f)(4)(A).)
We note that California Code of Regulations, title 2, former section 649.3, subdivision (b) specifically stated the total award "to or on behalf of each victim or derivative victim may not exceed $63,000 ...." (Italics added.) We have found no such wording in connection with the $70,000 amount at issue here. In any event, whether the amount allowed is $70,000 for the total claim for loss of support or whether it applies to each victim or derivative victim, there was no error here, as the amount totaled $70,000 for the three victims combined.
We reject Hernandez's claim to the contrary.
II. CUSTODY CREDITS
The trial court modified the judgment when it issued a new restitution order and filed a new abstract of judgment to reflect the modification. However, Hernandez contends, and respondent agrees, as do we, that the court failed to recalculate actual custody credits from arrest to sentence modification. (People v. Buckhalter (2001) 26 Cal.4th 20, 23-24, 37, 40-41.)
We therefore order the abstract of judgment amended to show that Hernandez received 1,852 days of custody credits, which reflects the actual time he spent in custody from his arrest on October 26, 2010, to the date his sentence was modified on November 20, 2015.
DISPOSITION
The matter is remanded to the trial court with instructions to correct the December 4, 2015, amended abstract of judgment to reflect that Hernandez is entitled to 1,852 days of actual custody credits. In all other respects, the judgment of conviction is affirmed.
See also the disposition in People v. Hernandez et al., supra, F067543. --------