Filed 1/10/14 P. v. Ambriz CA4/3



                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047906

                   v.                                                  (Super. Ct. No. 08NF2205)

ROBERTO BEDOLLA AMBRIZ,                                                OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Daniel B.

McNerney, Judge. Affirmed as modified.

                   Jan B. Norman, under appointment by the Court of Appeal, for Defendant

and Appellant.

                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and

Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                   A jury convicted defendant Roberto Bedolla Ambriz of several offenses
relating to his molestation of two children. The trial court subsequently ordered Ambriz
to reimburse the State Victim Compensation Board (Board) for restitution payments it
made to one Leonard Rutkevicius. Ambriz contends the court abused its discretion in
ordering restitution for assistance the Board provided to Rutkevicius because the
prosecution did not prove Rutkevicius was a victim as defined in Penal Code section
1202.4 (all statutory references are to the Penal Code unless noted). For the reasons
expressed below, we agree and modify the order.
                                              I

                        FACTUAL AND PROCEDURAL BACKGROUND

               A jury convicted Ambriz of sodomizing a child age 10 or younger (§ 288.7,

subd. (a)), kidnapping to molest a child (§ 207, subd. (b)), forcible lewd act upon a child

under the age of 14 (§ 288, subd. (b)) and seven charges of lewd acts on children younger

than age 14 (§ 288, subd. (a)). Ambriz sexually molested 12-year-old Kenny M. and 9-

year-old Jesus N. On October 28, 2011, the trial court sentenced Ambriz to an aggregate

of 55 years to life in prison. The court reserved jurisdiction over the issue of victim

restitution.

               The prosecution filed a request for restitution on behalf of the Board. The

request sought restitution for mental health services, totaling $12,815, including $825 for
Jesus N., $3,300 for his mother, $2,860 for one of his brothers, $2,750 for another

brother, and $3,080 to Rutkevicius. On January 9, 2013, the trial court conducted a

hearing on the prosecution’s request. At the hearing, the prosecution provided

Rutkevicius’s health insurance claim form, showing the dates on which he received

mental health services. Ambriz objected to any award for Rutkevicius, arguing his name

appeared nowhere in the police reports or court file and his relation to the case was
unknown. Nevertheless, the trial court found that by proving the Board made payments

to Rutkevicius, the prosecution had met its burden under section 1202.4, and ordered



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Ambriz to pay restitution in the amount of $12,815, including the $3,080 payment to

Rutkevicius.
                                              II

                                         DISCUSSION

               We review the trial court’s restitution order for abuse of discretion. (People
v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).) “[A]n order resting on a

demonstrable legal error constitutes such an abuse.” (People v. Hume (2011) 196

Cal.App.4th 990, 995 (Hume); See also In re S. S. (1995) 37 Cal.App.4th 543, 550.)

               The California Constitution entitles crime victims to restitution. (Cal.

Const., art. I, § 28(b)(13).) Accordingly, section 1202.4 provides when “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 . . . .” (§ 1202.4, subd. (f).)

Section 1202.4, subdivision (k), defines “victim” for purposes of section 1202.4.

The term includes three categories of natural persons: (1) “The immediate surviving
family of the actual victim;” (2) any “person who has sustained economic loss as the

result of a crime” and who satisfies specific conditions pertaining to the person’s relation

to the actual victim; and (3) “[a] person who is eligible to receive assistance from the

Restitution Fund” pursuant to the Government Code. (§ 1202.4, subd. (k); Giordano,

supra, 42 Cal.4th at p. 653, fn. 3 [“definition of ‘victim’ found in Penal Code section

1202.4, subdivision (k) was amended Stats. 2004, ch. 223, § 2) to incorporate the persons

identified as ‘derivative victims’ in Government Code former section 13960, without

substantive change”].)

               Ambriz contends the prosecution failed to show Rutkevicius was a victim
entitled to restitution under section 1202.4. “The burden is on the party seeking

restitution to provide an adequate factual basis for the claim.” (Giordano, supra,
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42 Cal.4th at p. 664.) “At a victim restitution hearing, a prima facie case for restitution is

made by the People. . . . Once the victim has [i.e., the People have] made a prima facie
showing … the burden shifts to the defendant . . . . [Citations.]” (People v. Millard

(2009) 175 Cal.App.4th 7, 26.) Here, as the party seeking restitution, the prosecution had

the burden to make a prima facie showing Rutkevicius was a victim under section 1202.4.
              At the restitution hearing, the prosecution presented no evidence

establishing Rutkevicius’s relation to either of the actual victims, nor did the prosecution

present evidence establishing Rutkevicius was eligible to receive assistance from the

Restitution Fund. Instead, the prosecution merely provided evidence Rutkevicius

received assistance from the Board. The trial court, relying on section 1202.4,

subdivision (f)(4), found Rutkevicius’s receipt of assistance from the Board for mental

health services gave rise to “a presumption with respect to the validity of these restitution

charges that must be rebutted by the defense with evidence.” Because the defense

presented no evidence in rebuttal, the court ordered Ambriz to pay restitution for the
Board’s assistance to Rutkevicius.

              Section 1202.4, subdivision (f)(4)(A) provides, “If, as a result of the

defendant's conduct, the Restitution Fund has provided assistance to or on behalf of a

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 the restitution

ordered.” (Italics added.) The presumption is one of causation. If the Board has provided

assistance to a victim or derivative victim, the prosecution need not show the victim’s

economic loss was “a result of the defendant’s conduct,” as subdivision (f) would

otherwise require, unless the defense rebuts the presumption. But that does not relieve
the prosecution of its burden to provide evidence the person is, in fact, a victim. Thus,


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under section 1202.4, subdivision (f)(4)(A), the Board’s assistance to Rutkevicius does

not give rise to a presumption Rutkevicius was a victim.
              Thus, the prosecution had the burden to show Rutkevicius was a victim

under section 1202.4. (See Giordano, supra, 42 Cal.4th at p. 664 [burden on the party

seeking restitution to provide an adequate factual basis for the claim].) Because the
prosecution failed to present any evidence showing Rutkevicius was a victim, the trial

court erred in including the amount Rutkevicius received in its restitution order. Having

found the trial court’s order rested upon a demonstrable legal error, we conclude the court

abused its discretion in ordering Ambriz to pay restitution for the monetary assistance the

Board provided Rutkevicius. (See Hume, supra, 196 Cal.App.4th at p. 995.)
                                             III

                                       DISPOSITION

              The order is modified (§ 1260) to reflect defendant is ordered to pay

restitution to the Board in the amount of $9,735, plus a 10 percent administrative fee.

The trial court is directed to prepare an amended abstract of judgment and to serve a copy

on defendant and the California Department of Corrections and Rehabilitation. The

judgment is affirmed in all other aspects.



                                                   ARONSON, J.

WE CONCUR:



O’LEARY, P.J.



BEDSWORTH, J.
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