Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC782275 & CC785755
RUSHING, P.J.
I. STATEMENT OF THE CASE
Defendant Juan Arturo Hernandez appeals from a judgment entered after he pleaded no contest to voluntary manslaughter and assault with a deadly weapon and admitted gang and/or knife-use enhancement allegations for each offense. (Pen. Code, §§ 192, subd. (a), 245, subd. (a)(1), 186.22, subd. (b)(1)(C), 12022, subd. (b)(1).) The plea was part of an agreement that resolved two separate cases against him: CC782275 (charging murder) and CC785755 (charging assault). Under the agreement, the court sentenced defendant to a total term of 19 years and eight months. The court imposed a $3,400 restitution fine in Case No. CC782275 and a $400 restitution fine in Case No. CC785755 and corresponding parole revocation restitution fines in each case along with a court security fee. In the homicide case, the court also entered an order making defendant and his codefendants jointly and severally liable for victim restitution, specifically, $2,828.74 in funeral expenses and lost wages to two of the victim’s family members ($1,348.74 for Monica Perez; $1,480 for Sandra Perez); $7,500 in reimbursement to the Victim Compensation and Government Claims Board; and $57,600 as child support to Elvira Pena, the mother of the victim’s child. (§ 1202.4.)
All unspecified statutory references are to the Penal Code.
In Case No. CC782275, defendant was jointly charged along with two other codefendants with murder.
On appeal, defendant claims he was denied his constitutional right to a jury trial on the amount of victim restitution. He also claims the court erred in imposing fines in both cases and that the abstract of judgment must be corrected to reflect joint and several liability with his codefendants for victim restitution.
We find no merit to these claims and affirm the judgment.
II. FACTS
In Case No. CC785755, defendant and a group of others approached Jesus Zopena-Garcia and his brother Jose on September 17, 2007, and assaulted and beat them with fists and a baseball bat.
In Case No. CC782275, the victim Adrian Figueroa and his girlfriend Elvira Pena were in a park on September 29, 2007, when defendant and his two codefendants threw Figueroa to the ground and then kicked, punched, and stabbed him with a knife. He later died from the knife wounds.
III. JURY TRIAL ON VICTIM RESTITUTION
Defendant contends that he was denied his constitutional right to a jury trial concerning the amount of victim restitution. Defendant asserts that because victim restitution constitutes criminal punishment, it comes within the requirement under the Sixth Amendment that a jury determine any fact that exposes a defendant to “a greater potential sentence” (Cunningham v. California (2007) 549 U.S. 270, 281), that is, any fact that increases punishment “ ‘beyond the prescribed statutory maximum.’ ” (Blakely v. Washington (2004) 542 U.S. 296, 301, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
Although defendant correctly asserts that he has a state constitutional right to a jury trial (Cal.Const., art. I, § 16), he offers no argument or authority in support of a claim that the court’s determination of the amount of restitution violated his state constitutional right. Thus, we do not address that claim, if, indeed, defendant is asserting it. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.”]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”].)
As we shall explain, defendant did not have a constitutional right to a jury trial concerning victim restitution.
In People v. Harvest (2000) 84 Cal.App.4th 641(Harvest), the court held that victim restitution does not constitute criminal punishment; therefore, restitution may be imposed for the first time at resentencing following an appeal without violating the constitutional prohibition against double jeopardy. (Id. at pp. 645, 650.) The court acknowledged that victim restitution has “an element of deterrence” but found that its primary purpose was remedial: to compensate persons injured by criminal offenses. (Id. at p. 648.) The court observed that compensation was a “defining feature of civil law” and that “[p]ostcriminal proceedings vindicating the remedial purpose of reimbursement have long been treated as not constituting punishment for double jeopardy purposes.” (Id. at pp. 648-649.) The court concluded “from the language of the governing statutes that the Legislature intended victim restitution as a civil remedy rather than as a criminal punishment.” (Id. at p. 649.)
In People v. Millard (2009) 175 Cal.App.4th 7 (Millard), the court addressed the Sixth Amendment claim raised here. Citing Harvest, the Millard court agreed with Harvest and held that victim restitution does not constitute increased punishment. Accordingly, it held that there is no constitutional right to jury trial concerning the amount. (Id. at p. 35.) The court further opined that “[t]o the extent a victim restitution order has the secondary purposes of rehabilitation of a defendant and/or deterrence of the defendant and others from committing future crimes, those purposes do not constitute increased punishment of the defendant....” (Id. at pp. 35-36.) The court also concluded that the trial court’s duty under section 1202.4 to provide for full restitution of a victim’s economic losses is not a sentencing choice. Rather, because full restitution is mandatory, “the court’s determination of the amount... by a preponderance of the evidence does not involve a defendant’s Sixth Amendment right to a jury or proof beyond a reasonable doubt.” (Millard, supra, 175 Cal.App.4th at p. 36; accord, People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184 [adopting Millard and rejecting the same claim]; see also People v. Wilen (2008) 165 Cal.App.4th 270, 283, 288-289 [victim restitution is not punishment.)
In People v. Giordano (2007) 42 Cal.4th 644, the California Supreme Court identified the issue but declined to address it. (Id. at p. 662, fn. 6.)
We find the analyses in Harvest and Millard persuasive and also reject defendant’s claim.
Defendant cites a number of federal cases from the Third Circuit in which the court viewed restitution as a criminal penalty. Although these cases are not binding on us (People v. Williams (1997) 16 Cal.4th 153, 190 [federal appellate cases not binding]), they nevertheless do not undermine the reasoning in Harvest and Millard or otherwise convince us that defendant was entitled to a jury trial on the amount of victim restitution.
He cites United States v. Syme (3d Cir.2002) 276 F.3d 131, United States v. Edwards (3d Cir.1998) 162 F.3d 87, United States v. Palma (3d Cir.1985) 760 F.2d 475, and United States v. Sleight (3d Cir.1987) 808 F.2d 1012.
On the contrary, other federal circuits disagree with the Third Circuit and find that restitution is a civil remedy, not a criminal punishment. (E.g., United States v. Visinaiz (10th Cir.2005) 428 F.3d 1300, 1316 [restitution not criminal punishment]; United States v. Carruth (8th Cir.2005) 418 F.3d 900, 904 [same]; United States v. George (7th Cir.2005) 403 F.3d 470, 473 [same].)
Moreover, only one of defendant’s cases involved a Sixth Amendment claim concerning victim restitution; and in that case, the court concluded that although victim restitution is a penalty, the defendant had no constitutional right to a jury trial. (United States v. Syme, supra, 276 F.3d at p. 159.) Noting that the federal restitution statute did not set a statutory maximum on victim restitution, the court opined that a determination by the judge does not violate the right to a jury trial because that determination does not expose a defendant to a potentially greater sentence or increase in punishment beyond a prescribed statutory maximum. (Ibid.;accord, United States v. Leahy (3d Cir.2006) 438 F.3d 328, 338.)
A majority of the federal circuits have reached the same conclusion. (See, e.g., United States v. Milkiewicz (1st Cir.2006) 470 F.3d 390; United States v. Reifler (2d Cir.2006) 446 F.3d 65, 118-120; United States v. Garza (5th Cir.2005) 429 F.3d 165, 170; United States v. Sosebee (6th Cir.2005) 419 F.3d 451, 461-462; United States v. Behrman (7th Cir.2000) 235 F.3d 1049, 1054; United States v. Carruth, supra, 418 F.3d at p. 904; United States v. Bussell (9th Cir.2005) 414 F.3d 1048, 1060; United States v. Wooten (10th Cir.2004) 377 F.3d 1134, 1143-1144; United States v. Williams (11th Cir.2006) 445 F.3d 1302, 1310-1311, abrogated on other grounds in United States v. Williams (11th Cir. 2007) 492 F.3d 1219, 1221-1222.)
The same analysis applies here. Like the federal restitution statute, section 1202.4 does not prescribe a statutory maximum for victim restitution. Thus, even if we considered victim restitution to be punishment, the trial court’s determination of the amount would not constitute a violation of defendant’s right to a jury trial.
For this reason, defendant’s reliance on People v. Hanson (2000) 23 Cal.4th 355 (Hanson), People v. Walker (1991) 54 Cal.3d 1013 (Walker), People v. Brown (2007) 147 Cal.App.4th 1213 (Brown), and People v. Hove (1999) 76 Cal.App.4th 1266 (Hove) for the proposition that in California, victim restitution constitutes punishment is misplaced. Moreover, those cases do not convince us that victim restitution constitutes punishment under the Sixth Amendment.
In Hanson, supra, 23 Cal.4th 355, the court held that a restitution fine constitutes punishment for the purpose of applying California’s constitutional prohibition against double jeopardy. (Id. at pp. 357, 361.) However, as part of its analysis, the court observed that restitution fines are mandatory and, unlike victim restitution, must be imposed even when there is no victim. (Id. at p. 362.)
As noted, the court in Harvest, supra, 84 Cal.App.4th 641, which was decided after Hanson, concluded that victim restitution does not constitute punishment for double jeopardy purposes. The court acknowledged Hanson but distinguished victim restitution from restitution fines. The court explained, “The circumstances in which victim restitution is ordered are not co-extensive with those in which a restitution fine is ordered. The recipients are not the same. The scope of a restitution fine is far different from a victim restitution order. A fine may take account of more diverse factors, but it cannot exceed $10,000. On the other hand victim restitution is limited to economic loss but is unlimited in the amount that can be ordered. The collection procedures for a restitution order are clearly meant to be civil. [Citations.] Most importantly, the purposes and objectives of each are not the same.” (Harvest, supra, 84 Cal.App.4th at p. 649.) Although victim restitution and restitution fines share a deterrent purpose, the primary purpose of victim restitution, unlike a restitution fine, is remedial and compensatory. (Id. at pp. 648-649.)
In Walker, supra, 54 Cal.3d 1013, the California Supreme Court held that although the purpose of a restitution fine is not punitive, its consequences are severe enough to qualify as “punishment” for the purpose of determining whether a sentence significantly exceeds the terms of a plea agreement in violation of section 1192.5. (Walker, supra, 54 Cal.3d at p. 1024.) Because Walker involved a restitution fine, not victim restitution, it too is inapposite and distinguishable for the same reasons that Hanson is distinguishable.
Section 1192.5 provides, in relevant part, “Where the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.” (Italics added.)
Defendant’s reliance on Brown, supra, 147 Cal.App.4th 1213 is more relevant. There, the court, citing Walker, held that victim restitution qualifies as punishment under section 1192.5. The court explained that from a defendant’s perspective and expectations under a plea agreement, the consequences of having to pay victim restitution and a restitution fine are indistinguishable. (Id. at pp. 1221-1222; but see People v. Campbell (1994) 21 Cal.App.4th 825, 829-830 [after plea, victim restitution imposed as condition of probation not punishment].)
We point out, however, that a plea agreement is a contract between the defendant and the prosecutor to which the court consents to be bound. (People v. Segura (2008) 44 Cal.4th 921, 931.) We interpret the terms of a plea agreement under fundamental contract principles. (People v. Armendariz (1993) 16 Cal.App.4th 906, 911; People v. Ames (1989) 213 Cal.App.3d 1214, 1217.) “ ‘The court should accord an interpretation which is reasonable (Civ.Code, § 1643) and which gives effect to the intent of the parties as it may be interpreted from their entire agreement....’ ” (People v. Haney (1989) 207 Cal.App.3d 1034, 1039, citing Addiego v. Hill (1965) 238 Cal.App.2d 842, 846.) Using the paradigm of contract law, “courts should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties’ reasonable expectations.” (People v. Nguyen (1993) 13 Cal.App.4th 114, 120, fn. omitted.)
In the plea-agreement context, any sort of burden imposed on the defendant as part of a sentence that arguably deviates from terms of the bargain and the parties’ reasonable expectation can reasonably be regarded as punishment for the purpose of determining whether the sentence violates section 1192.5-i.e., whether it is more severe than that contemplated by the parties and specified in the plea agreement. However, contract principles and the reasonable expectations of the parties are not relevant considerations in analyzing whether the constitutional right to a jury trial applies to a particular factual determination by a court at sentencing.
Indeed, the court in Brown expressly acknowledged that its view that victim restitution constituted punishment under section 1192.5 does not necessarily apply in other contexts. (Brown, supra, 147 Cal.App.4th at pp. 1222-1223.) The court noted, for example, that in Harvest, supra, 84 Cal.App.4th 641, the court held that victim restitution is not punishment under the double jeopardy clause. The Brown court explained that “the considerations underlying section 1192.5 are different from those relating to double jeopardy. Whereas it is relevant for purposes of a double jeopardy analysis whether victim restitution primarily serves a compensatory rather than a punitive function [citation], this distinction has little bearing on the analysis under section 1192.5. A substantial award of victim restitution has the same effect on a defendant as a substantial restitution fine. It is irrelevant that one may have a punitive purpose and the other may have a compensatory purpose. From the defendant’s viewpoint, the effect of a substantial award of victim restitution is punitive, and it is not unreasonable to expect that a defendant may be induced to enter into a plea based upon a promise that victim restitution, which could be substantial, will be limited to a nominal amount.” (Brown, supra, 184 Cal.App.4th at pp. 1222-1223, fn. omitted.)
In short, although Brown is more apposite than Hanson or Walker, it does not support defendant’s claim that victim restitution constitutes punishment under the Sixth Amendment.
Last, defendant’s reliance on general language in Hove, supra, 76 Cal.App.4th 1266 that restitution is “ ‘an effective rehabilitative penalty’ ” (id. at p. 1273) adds nothing to his claim. Hove did not involve a Sixth Amendment claim. Rather, the court upheld an order for restitution in the full amount of the victim’s medical expenses, even though the victim had no actual economic losses because his medical expenses were paid by Medicare and/or Medi-Cal. (Id. at p. 1272.)
In sum, we conclude that the trial court’s determination concerning the amount of victim restitution in this case did not violate defendant’s constitutional right to a jury trial.
IV. SEPARATE FINES IN TWO CASES
Defendant contends the court erred in imposing restitution and parole revocation restitution fines in both Case No. CC782275 and Case No. CC785755. He claims separate fines in both cases were unauthorized because the trial court had formally consolidated them into one case.
The trial court has a duty to impose a restitution fine and a parole revocation restitution fine in “every case” where a person is convicted of a crime and the sentence includes a period of parole. (§§ 1202.4, subd. (b); 1202.45.) However, in People v. Soria (2010) 48 Cal.4th 58, the court noted that where two cases against a single defendant are formally consolidated, the imposition of separate fines in each is not proper. On the other hand, even where unconsolidated cases are resolved jointly by a plea bargain, they remain formally distinct and, therefore, it is appropriate to impose separate fines in each. (Id. at pp. 62-65.)
Because we presume the judgment is correct, defendant has the burden to affirmatively demonstrate that the trial court erred. (People v. Garcia (1987) 195 Cal.App.3d 191, 198.) To show that the two cases were formally consolidated, defendant cites the clerk’s minutes of a hearing on November 8, 2007, in Case No. CC782275. He also urges us to infer consolidation from the fact that (1) the parties and the court viewed Case No. CC782275 as the “lead case”; (2) the court advised defendant of only an aggregate sentence with a single period of parole; (3) the court informed defendant only of the fines mandated in a single case; and (4) the probation report recommended only a single set of fines.
The record before us contains neither an order consolidating Case Nos. CC782275 and CC785755 nor a reference to such an order. Moreover, the minutes cited by defendant state, “CC785706 consolidate [sic] into this case.” (Italics added.) Case No. CC785706, however, is not the case defendant claims was consolidated; nor did the court impose any fines in that case. The record also reveals that on November 8, after a combined preliminary hearing in the homicide case against defendant and his two codefendants, the prosecutor filed a First Amended Consolidated Felony Complaint in cases CC782275 and CC785706 . There is also a notice and motion to consolidate and amend the informations and unseal the statement of probable cause in Case Nos. CC782275 and CC785706 .
Defendant does not claim, and has not shown, that there was no such case against him with the number CC785706. Nor has he shown that the clerk made a clerical mistake on the minute order and wrote that case number instead of CC785755. Moreover, the circumstantial evidence defendant lists does not conclusively establish that the cases were formally consolidated or compel us to draw that inference. Under the circumstances, therefore, defendant has failed to affirmatively demonstrate that the imposition of separate fines in the two cases was error.
The Attorney General submits information from the Santa Clara County Superior Court’s Web site that CC785706 is a valid number for a case filed against defendant. Defendant does not dispute that information.
V. THE ABSTRACT OF JUDGMENT
Defendant contends that the abstract of judgment must be corrected to confirm and reflect that his obligation to pay victim restitution is joint and several with his codefendants. However, the abstract of judgment states: “Court orders following restitution amounts to be collected jointly and severally w/co-defts: $7,500 VCGCB; $1,348.74 Monica Perez; $1480 Sandra Perez”; and “Restitution $57,000 Elvira Pena joint and several.”
Thus, the abstract conforms to the court’s oral pronouncement of judgment.
VI. DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, J.ELIA, J.