Opinion
H044359
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMEILIA LOANIE MCCURIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1507278)
Jameilia Loanie McCurin pleaded no contest to pandering (Pen. Code § 266i, subd. (a)(1)), and was sentenced to three years in state prison. The court ordered McCurin to pay restitution to the two minor victims in the amounts of $929.89 and $820.94 respectively.
All further statutory references are to the Penal Code.
McCurin challenges the restitution order on appeal, arguing that the trial court abused its discretion because there is not substantial evidence to support the amount of the order, and there is not a sufficient nexus between the pandering crime and the victims' financial losses to demonstrate a rational and factual basis upon which to issue the order. We affirm the judgment.
I. STATEMENT OF THE FACTS AND CASE
There are no facts stated in the probation report. The facts in this opinion are taken from counsels' statements at a bail hearing on August 21, 2015, and the sentencing hearing on December 7, 2016.
McCurin recruited three victims-two minors and one adult-to work as prostitutes. To facilitate the business, McCurin placed ads on the internet, rented hotel rooms, and styled the victims' hair. McCurin took money from the victims that they had earned as prostitutes. During the prostitution enterprise, McCurin and the victims moved among the cities of Sacramento, Modesto and San Jose.
On April 4, 2016, McCurin was charged with two counts of human trafficking—causing a minor to engage in a commercial sex act (§ 236.1, subd. (c); counts 1 & 2); one count of human trafficking—intent to effect or maintain a felony violation of sections 266, 266h, and 266i (§ 236.1, subd. (b); count 3); and pandering by procuring three victims for prostitution (§ 266i, subd. (a)(1); count 4).
McCurin pleaded no contest to pandering (§ 266i, subd. (a)(1); count 4). In exchange for her plea, McCurin was promised that she would be sentenced to a three-year prison term, and that the remaining charges would be dismissed. McCurin also would not be required to register as a sex offender pursuant to section 290. On June 29, 2016, McCurin was sentenced to three years in prison.
On August 30, 2016, the trial court ordered McCurin to pay $3,620.45 in restitution to the adult victim. On December 7, 2016, the trial court ordered McCurin to pay $929.89 in restitution to the minor victim, C., and $820.94 in restitution to the minor victim, A. McCurin filed a timely notice of appeal on December 7, 2016.
On appeal, McCurin does not contest the restitution award to the adult victim. --------
II. DISCUSSION
A. Victim Restitution
Persons who suffer losses as a result of a defendant's criminal activity are entitled as a matter of constitutional right to be made whole for their loss. (Cal. Const., art. I, § 28.) "In 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." (§ 1202.4, subd. (f).) "To the extent possible, the restitution order . . . 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." (§ 1202.4, subd. (f)(3).)
While restitution orders must be supported by substantial evidence, there is no requirement that the evidence provided be from a particular source. "Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner's statement made in the probation report about the value of stolen or damaged property." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli), citing People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster), superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) The trial court applies a standard of proof of preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045 (Keichler).)
The victim must make a prima facie showing of the loss, which the defendant is entitled to rebut. "Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. [Citation.] The defendant has the burden of rebutting the victim's statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]" (Gemelli, supra, 161 Cal.App.4th at p. 1543; see also Foster, supra, 14 Cal.App.4th at p. 947.)
B. Standard of Review
Restitution awards are vested in the trial court's discretion and will be disturbed on appeal only when the defendant has shown an abuse of discretion, demonstrating that the court's order was arbitrary and capricious. (People v. Fortune (2005) 129 Cal.App.4th 790, 794; Keichler, supra, 129 Cal.App.4th at p. 1045.) The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644.) " 'When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
C. Substantial Evidence to Support Restitution Award
In this case, the court first considered the probation report, which included supplemental information from both victims with itemized lists of the property they had lost while serving as prostitutes for McCurin. The letters requested $1,078.89 in losses suffered by C., and $969.94 in losses suffered by A. The itemized lists included articles of clothing and were identical for each victim, with the exception that C.'s list also included a flat iron valued at $19.99 and a blow dryer valued at $39.99. The lists also included lost cell phones valued at $149.00 for each victim.
At the hearing on August 30, 2016, the court expressed skepticism about the victims' claims because the two lists of lost clothing items were nearly identical for both girls. The court stated: "I also agree with the defense that these identical items of clothing for each one of the victims seems implausible that they would have had identical pieces of clothing of identical value, and that they lost those each." The court denied the victims' requests at that time, but told the deputy district attorney that if he could secure additional information about the lost items, he could renew the request at a subsequent hearing.
The court reconsidered the victims' restitution requests at the sentencing hearing on December 7, 2016. The court considered two letters submitted by the prosecutor from the minors' guardian. As a result, the court ordered restitution to C. in the amount of $929.89, and to A. in the amount of $820.94. The court noted that the prosecutor had "provided additional information from Cheryl, [], who was either the mother or the grandmother of these minor victims, and who appears to have authored all of the requests for restitution on their behalf, and that clarifies that they do wear the same clothing, and I believe that there is enough based on the two letters from Ms. Cheryl to order the restitution to the—for the two minor victims." The court also specifically denied the victims' requests for restitution for their lost cell phones, because the cell phones remained in police custody at the time, and could be returned to them.
McCurin argues that the trial court abused its discretion because there is not substantial evidence to support the restitution order, basing his argument in part on the fact that at the first restitution hearing, the trial court "doubted the credibility of the restitution requests because they were both identical, save 2 [sic] items." McCurin asserts that when the prosecutor returned to court, "he failed to produce any additional evidence." McCurin argues that the court's expression of doubt about the victims' restitution claims at the first hearing was tantamount to a finding that there was not substantial evidence to support the claim. She thus reasons that because the prosecutor did not add additional evidence to an already deficient claim, there was no "rational and factual basis for the amount of the restitution ordered." (People v. Lehman (2016) 247 Cal.App.4th 795, 800.)
While it is true that at the first hearing the court found it "implausible" that the victims lost the same items of clothing, the court later found the claims to be valid when considered with the additional information that was provided to the court by the prosecutor. The court was satisfied that this information, coupled with the original itemized letters detailing the victims' losses, sufficiently established the claim for restitution.
The weight of authority holds that a court may order restitution based on a probation officer's report and a victim's statement alone. (Foster, supra, 14 Cal.App.4th at p. 946; Keichler, supra, 129 Cal.App.4th at p. 1048; Gemelli, supra, 161 Cal.App.4th at p. 1543; People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320.) In this case, the probation report included the victims' letters that attached an itemization of the property that they had lost while they were moving among three cities to work as prostitutes for McCurin. " 'When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.' [Citation.] Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion." (Keichler, supra, at p. 1048.) Here, McCurin did not present any evidence to disprove the amount of loss claimed by the victims. (Gemelli, supra, at p. 1543.)
Citing People v. Harvest (2000) 84 Cal.App.4th 641 (Harvest), and People v. Vournazos (1988) 198 Cal.App.3d 948 (Vournazos), McCurin asserts that a victim's statement of losses in a probation report is not sufficient by itself to support a restitution order. In Harvest, the defendant was convicted of murdering two people. The trial court ordered the defendant to pay restitution to each of the victims' families for expenses they incurred for the funerals of the victims. (Harvest, supra, at p. 652.) The Court of Appeal reversed one of the orders, noting that the first victim's family "could support their claim with documentation and stood ready to testify, but the [other] claim had neither of these supports." (Id. at p. 653.) Rather "[t]here was [just] mention of the . . . claim in the probation officer's report." (Ibid.) The court noted that information in the probation report "may satisfy notice requirements for due process [citation], but it cannot take the place of evidence." (Ibid.)
In Vournazos, supra, the defendant was convicted of car theft and receiving stolen property. The trial court ordered the defendant to pay $2,180 in restitution based on the recommendation of the probation officer. (Vournazos, supra, 198 Cal.App.3d at pp. 953, 958.) The Court of Appeal reversed the restitution order, stating, "[T]he trial court relied entirely on the recommendation of defendant's probation officer who, in turn, derived the figure solely from [the victim's] statement of loss and his discussions with [the victim]. Neither the statement nor the testimony of the probation officer established that the sum claimed by [the victim] for loss of property was based on the replacement cost of the property. . . . While a defendant bears the burden of proving that the amount of restitution claimed by the victim exceeds repair or replacement cost of lost or damaged property [citation], defendant here was not required to meet that burden inasmuch as the replacement . . . cost of [the victim's] property was not established." (Id. at pp. 958-959.)
We find both Harvest and Vernazos unpersuasive insofar as they conclude that a victim's itemized statement of loss without further documentation is insufficient to establish the prima facie case of what restitution is due to the victim of a crime. The weight of authority supports the conclusion that the trial court may appropriately rely on such statements. In Foster, the court of appeal upheld a restitution order to replace the value of items taken in the burglary of a cabin. The restitution amount was based on the recommendation of the probation officer which incorporated the victim's statement of loss and law enforcement's discussions with the victim. Similarly, in Gemelli the court affirmed a restitution order based on the probation officer's report with an attached handwritten statement from the victim of the burglary of a restaurant regarding sustained losses. The court in Foster specifically criticized Vernazos, finding the requirement that a victim provide more than a statement of losses to establish replacement cost, "imposes an unwarranted burden on the trial court, the prosecutor, and the victim" in the context of a sentencing hearing. (Foster, supra, 14 Cal.App.4th at p. 946.) We agree that requiring the victim of a crime to provide more than a statement of loss for purposes of establishing a prima facie case of loss is inconsistent with the public policy and the constitutional requirement that victims of crime be made whole (Cal. Const., art. I, § 28, subd. (b).) We also agree that if a defendant wishes to contest a restitution claim, it is possible to request a hearing to probe the claimed loss through cross-examination or the presentation of contrary evidence.
In McCurin's case, as in Foster and Gemelli, an itemized list of losses from the victims and their guardian was provided to the trial court and McCurin with the probation report. McCurin and court questioned one claim. Subsequently the deputy district attorney provided further information from the guardian of the minors that satisfied the court. The burden had shifted to McCurin at this point to prove that the claim was excessive or unfounded. If McCurin disagreed with the victims' claim of loss, she could have requested a further hearing to challenge the basis of the victims' assertions, and could have called the guardian of the minors as a witness. However, McCurin took none of these actions to challenge the claim. We therefore conclude that absent contrary evidence from McCurin, the victims' itemized statements of the amount of losses they suffered as the result of McCurin's crime in this case are sufficient to support the restitution order. (See, e.g., Keichler, supra, 129 Cal.App.4th at p. 1048.) The trial court did not abuse its discretion in ordering McCurin to pay $929.89 to C., and $820.94 to A.
D. Nexus Between Crime and Victims' Losses
Under section 1202.4, restitution is limited to compensation for "those losses arising out of the criminal activity that formed the basis of the conviction." (People v. Woods (2008) 161 Cal.App.4th 1045, 1049 (Woods).) McCurin argues that the trial court abused its discretion by issuing the restitution order because there is nothing showing that the victims lost their clothing and hair care items as the result of McCurin's crime of pandering.
In support of her argument that the restitution order was made in error because there was no causal connection between McCurin's crime and the victims' losses in this case, McCurin cites People v. Martinez (2017) 2 Cal.5th 1093 (Martinez), People v. Busser (2010) 186 Cal.App.4th 1503 (Busser), and People v. Williams (2017) 7 Cal.App.5th 644 (Williams). In Martinez, the court held that restitution under section 1202.4 could not be ordered for the injuries sustained as a result of a hit-and-run accident, because flight from the accident was the crime, not the accident itself. Therefore, the victim's injuries from the underlying accident were not caused by defendant's crime. The court stated, "Section 1202.4 does not . . . permit courts to order direct victim restitution for losses that occur as a result of an underlying accident that involves no criminal wrongdoing." (Martinez, supra, 5 Cal.5th at p. 1107.)
Similarly, in Busser, the defendant was convicted of flight from the scene of an accident. He was also convicted of making a false statement to his insurance company about the accident. The trial court ordered the defendant to pay restitution to the insurance company for the money it paid to cover the damage he caused in the accident. The Court of Appeal reversed the trial court's order, finding that the insurance company would have been required to pay for the damage caused by the defendant's accident regardless of the fact that he made false statements about the accident. The court concluded that the losses were not the result of crime, and therefore the insurance company was not entitled to restitution from him. (Busser, supra, 186 Cal.App.4th at p. 1511.)
In Williams, the defendant was charged with multiple commercial robberies. He was convicted of some charges, and other charges were dismissed. The trial court ordered him to pay restitution for the losses incurred as a result of all of the robberies, not just the robberies of which he was convicted. The Court of Appeal reversed the trial court's order of restitution for the losses that occurred as a result of all of the robberies. The court held that the restitution order was an abuse of discretion because when a defendant is " 'sentenced to a period of incarceration (in prison or jail), the court may order restitution only for losses arising out of the "criminal conduct for which the defendant had been convicted." ' [Citation.]" (Williams, supra, 7 Cal.App.5th at p. 697.)
McCurin's reliance on Busser, Martinez and Williams for the proposition that the victims' losses in this case are not compensable because they were not the result of McCurin's crime is without merit. Martinez is unlike the present case because here, the victims did not seek restitution for losses that occurred as the result of McCurin's noncriminal conduct. The unlawful movement of the minor victims from city to city was intrinsic to the pandering enterprise. Busser is similarly inapplicable, because there is no indication that the victims in this case would have lost their personal property had they not been procured for prostitution and moved from place to place as part of that criminal activity. Williams is distinguishable, because the victims in this case sought restitution only for the crime of which McCurin was convicted-pandering-not for the other charges that were dismissed.
The uncontradicted statements at the bail and sentencing hearings demonstrate that McCurin's crime of pandering caused the victims to lose their clothing and hair care items. Specifically, to effectuate the prostitution enterprise for which the victims were procured, McCurin advertised services and rented hotel rooms in Sacramento, Modesto and San Jose during the period between March 1, 2015, and March 25, 2015. The victims moved among these cities to act as prostitutes and in the process, lost their personal property during this time period. It was McCurin who moved the minor victims for purposes of furthering a prostitution enterprise, and the disruption of that movement contributed to the minor victims' loss of clothing and hair care items. Despite McCurin's arguments to the contrary, there is nothing in the record showing that the victims would have sustained the same losses had they not been victims of the movement associated with the business of pandering, nor is there anything showing that their losses were the result of some other criminal act not resulting in a conviction or noncriminal act.
We find that the trial court did not abuse its discretion in ordering restitution in this case, because the victims' loss of clothing and hair care items arose out of McCurin's crime of pandering. (See, e.g., Woods, supra, 161 Cal.App.4th at p. 1049.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.