Filed 3/13/17

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D070569

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. JCF35431)

STEVEN PAUL SALAS,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of Imperial County, Christopher

J. Plourd, Judge. Judgment modified with directions.

        Jason L. Jones, under appointment by the Court of Appeal; Steven Paul Salas, in

pro. per., for Defendant and Appellant.

        Kamala D. Harris, Attorney General and Kathryn Kirschbaum, Deputy Attorney

General, for Plaintiff and Respondent.


        Steven Paul Salas pleaded no contest to domestic violence (Pen. Code, §273.5,

subd. (a))1 and the trial court sentenced him to three years in prison. The trial court also


1       All further statutory references are to the Penal Code unless otherwise stated.
ordered Salas to pay victim restitution of $17,194.45, including $14,055.48 for security

windows and an alarm system. Section 1202.4, subdivision (f)(3)(J) (hereinafter, section

1202.4(f)(3)(J)) authorizes sentencing courts to award restitution "to fully reimburse the

victim . . . for every determined economic loss incurred as the result of the defendant's

criminal conduct, including, but not limited to . . . , [¶] (J) Expenses to install or increase

residential security incurred related to a violent felony, as defined in subdivision (c) of

Section 667.5, including, but not limited to, a home security device or system, or

replacing or increasing the number of locks." (Italics added.)

       On appeal, Salas contends that because he was not convicted of a "violent felony"

as defined in section 667.5, subdivision (c), the trial court erred in awarding victim

restitution for residential security expenses.2 Based on the statutory definition of a

"violent felony," we agree and modify the judgment accordingly.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In September 2015, Salas and his wife, Veronica, were drinking beer in the garage

of their home. Salas became angry with Veronica, grabbed her throat, and bashed her

head against the floor. Veronica lost consciousness; suffered a cracked skull; sustained

multiple contusions and lacerations throughout her body; and lost four to five pints of

blood. She was treated at a hospital, where she received seven staples in her head.




2      On August 31, 2016, Salas's attorney filed a brief in accordance with People v.
Wende (1979) 25 Cal.3d 436 raising no specific issues on appeal. We requested and
received supplemental briefing from Salas and the People on the issue of whether the trial
court erred in ordering victim restitution for certain residential security devices.
                                               2
       Salas was subsequently charged with domestic violence (§ 273.5, subd. (a); count

1) and false imprisonment by violence (§ 236; count 2). The People initially alleged a

great bodily injury enhancement (§ 12022.7, subd. (e)) to count 1, but eventually

dismissed both that enhancement and count 2. Salas pleaded no contest to count 1

(§ 273.5, subd. (a)) and was sentenced to three years in prison. Salas's plea did not

include a Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey)

[holding that a court may not consider facts underlying a dismissed count for purposes of

aggravating or enhancing a defendant's sentence].)

       At Salas's sentencing hearing on April 5, 2016, the trial court heard testimony

from both Salas and Veronica. Veronica explained that Salas continued to send

threatening e-mails and make threatening phone calls from jail and that she was afraid

whenever someone knocked on her door or when she noticed cars idling across the street

from her house. Salas also stated in a Valentine's Day card to Veronica that he was going

to kill her. To address her fears arising from these threats, she spent $14,055.48 for new

security measures for her home—$221.26 for an ADT security alarm system3, and

$13,834.22 for new security windows. Salas asked the court to order Veronica to

reimburse him for money she allegedly took from his bank account during the marriage.

After hearing this testimony, the trial court ordered "full and complete restitution" paid to

Veronica in an amount to be determined at a subsequent restitution hearing.




3      Veronica actually spent $1,221.26 for the security system, but she received $1,000
from the State's victim compensation fund.
                                              3
       At the May 27 restitution hearing, Salas conceded victim restitution of $3,095.59

to compensate Veronica for repairs to the washer/dryer ($292), two medical bills

($2,537.49), and a new cell phone ($266.10). Salas, however, contested restitution for

the security windows and alarm system. He argued he should not have to pay restitution

for Veronica's residential security expenses because he was not convicted of a "violent

felony" as required by section 1202.4(f)(3)(J) and as defined in section 667.5, subdivision

(c). He further argued a nexus was lacking between his crime and the installation of the

security windows.

       The prosecutor argued Veronica was entitled to additional restitution for newly

installed steel doors, a video intercom smart doorbell, a dual lens rear view mirror car

camera, and a retainer payment for a divorce attorney. The prosecutor did not address the

defense's contention that the violent felony restriction precluded an award of residential

security expenses.

       The trial court ultimately ordered victim restitution in the amount of $17,194.45,

which included $14,055.48 for the security windows and alarm system.4 The trial court

recognized section 273.5, subdivision (a) does not constitute a statutory "violent felony,"

but concluded that because the probation report clearly showed Salas's conduct caused




4      The court disallowed the other items advocated for by the prosecutor.

                                             4
Veronica to suffer great bodily injury as defined in section 12022.7,5 the court was

nonetheless authorized to order restitution for residential security expenses.

                                        DISCUSSION

       Salas contends restitution for residential security expenses is recoverable under

section 1202.4(f)(3)(J) only when "incurred related to" (ibid.) one of the violent felonies

defined in section 667.5, subdivision (c). The People acknowledge this violent felony

restriction, but argue the list articulated in section 1202.4, subdivision (f)(3) is merely a

nonexclusive list of examples, thus granting sentencing courts the power to compensate

victims for residential security expenses incurred as a result of any felony "justified under

the circumstances." As we shall explain, we conclude section 1202.4(f)(3)(J)'s explicit

limitation to violent felonies authorizes restitution for residential security expenses only

when those expenses are incurred related to a violent felony as defined by section 667.5,

subdivision (c).

                                      I. Applicable Law

       Ordinarily, the standard of review for a restitution order is abuse of discretion.

(People v. Moore (2009) 177 Cal.App.4th 1229, 1231.) However, when "the propriety of

a restitution order turns on the interpretation of a statute, a question of law is raised,

which is subject to de novo review on appeal." (People v. Williams (2010) 184

Cal.App.4th 142, 146.)


5      Section 667.5, subdivision (c)(8) includes within the definition of a violent felony
"[a]ny felony in which the defendant inflicts great bodily injury on any person other than
an accomplice which has been charged and proved as provided for in Section
12022.7 . . . ."
                                               5
       Section 1202.4, subdivision (f) provides, with exceptions not applicable here, that

"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."

       Subdivision (f)(3) of section 1202.4 further provides, in pertinent part: "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 a

result of the defendant's criminal conduct, including, but not limited to," specified

categories of losses. These losses include, for example, compensation for stolen or

damaged property, medical expenses, mental health counseling expenses, lost wages or

profits, noneconomic losses, attorney fees, and moving expenses. (§ 1202.4, subd.

(f)(3)(A)-(L).)

       We are concerned here with the category of loss embodied in section

1202.4(f)(3)(J), which authorizes an award of "[e]xpenses to install or increase residential

security incurred related to a violent felony, as defined in subdivision (c) of Section

667.5, including, but not limited to, a home security device or system, or replacing or

increasing the number of locks." (§ 1202.4(f)(3)(J).)

       Section 667.5, subdivision (c) defines a "violent felony" as any offense or category

of offenses specified in that subdivision. Section 273.5, subdivision (a) is not among

them. As noted, however, one category of offenses includes those in which the defendant



                                                6
has inflicted great bodily injury and a corresponding enhancement has been charged and

proved. (§ 667.5, subd. (c)(8).)

                                          II. Analysis

       We conclude the trial court erred by treating Salas's offense as a violent felony for

purposes of awarding restitution. "Under settled canons of statutory construction, in

construing a statute we ascertain the Legislature's intent in order to effectuate the law's

purpose." (Green v. State of California (2007) 42 Cal.4th 254, 260.) To determine

legislative intent, the court's first step in statutory construction is to "look to the words

themselves, giving them their ordinary meanings and construing them in context."

(People v. McCarthy (2016) 244 Cal.App.4th 1096, 1104.)

       The language of section 1202.4(f)(3)(J) is clear: it authorizes residential security

expenses "incurred related to a violent felony, as defined in subdivision (c) of Section

667.5." (§ 1202.4(f)(3)(J).) Although the People correctly point out that a victim's right

to restitution must be "broadly and liberally construed" (People v. Mearns (2002) 97

Cal.App.4th 493, 500), "the specific language of a statute must prevail over a general,

overarching policy . . . perceive[d] in the legislation" (City of San Jose v. Sharma (2016)

5 Cal.App.5th 123, 145).

       Further, even if the statutory language were ambiguous, legislative history

supports a narrow interpretation of section 1202.4(f)(3)(J). (See People v. Robles (2000)

23 Cal.4th 1106, 1111 ["If . . . the statutory language is susceptible of more than one

reasonable construction, we can look to legislative history in aid of ascertaining

legislative intent."].) When subdivision (f)(3)(J) of section 1202.4 was initially enacted,

                                               7
it stated restitution was available for "[e]xpenses to install or increase residential security

incurred related to a crime, as defined in subdivision (c) of Section 667.5 . . . ." (Stats.

1999, ch. 584, § 4, italics added.) In 2012, the Legislature revised this subdivision by

changing its language to "[e]xpenses to install or increase residential security incurred

related to a violent felony, as defined in subdivision (c) of Section 667.5 . . . ." (See Stats.

2012, ch. 868, § 3, italics added.) The fact that the Legislature revised—rather than

removed—this language indicates the Legislature intended that residential security

expenses remain recoverable via restitution only when they are incurred related to a

"violent felony." (See Estate of Simpson (1954) 43 Cal.2d 594, 600 ["[c]hanges in

wording and phraseology are presumed to have been deliberately made"].)

       Three other principles of statutory construction further support Salas's

interpretation. The first is the principle "expressio unius est exclusio alterius, under

which 'the enumeration of things to which a statute applies is presumed to exclude things

not mentioned.' " (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223

Cal.App.4th 72, 89-90.) By expressly permitting recovery for "[e]xpenses to install or

increase residential security incurred related to a violent felony," the Legislature by

implication did not permit recovery of residential security expenses incurred related to an

offense that is not a violent felony. While "expressio unius est exclusio alterius is no

magical incantation, nor does it refer to an immutable rule," it "should be applied 'where

appropriate and necessary to the just enforcement of the provisions of a statute.' " (Estate

of Banerjee (1978) 21 Cal.3d 527, 539.)



                                               8
       The second principle is that "[s]ignificance should be given, if possible, to every

word, phrase, sentence and part of an act." (People v. Western Air Lines, Inc. (1954) 42

Cal.2d 621, 638.) The People ask us to interpret the phrase "including, but not limited to"

in subdivision (f)(3) of section 1202.4 to allow for recovery of residential security

expenses incurred related to any felony committed by a defendant. However, this

interpretation would render superfluous the phrase "incurred related to a violent felony,

as defined in subdivision (c) of Section 667.5." "[I]nterpretations which render any part

of a statute superfluous are to be avoided." (Wells v. One2One Learning Foundation

(2006) 39 Cal.4th 1164, 1207.) Therefore, to give meaning to all parts of section 1202.4,

subdivision (f)(3)(J) and to avoid a superfluous construction, the reference to "violent

felon[ies]" must limit the circumstances in which residential security expenses are

recoverable.

       The final principle is that courts look to "the entire substance of the statute . . . to

determine the scope and purpose of the provision . . . . [Citation.]" (West Pico Furniture

Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 608.) The language at issue "must

harmonize 'the various parts of a statutory enactment . . . by considering the particular

clause or section in the context of the statutory framework as a whole.' [Citation.]"

(People v. Mendoza (2000) 23 Cal.4th 896, 908.) Section 1202.4's other provisions

support a narrow interpretation of subdivision (f)(3)(J). For example, although section

1202.4, subdivision (f)(3)(A) permits recovery for stolen goods, the recoverable value of

any good is limited to either the replacement cost of the item or the cost to repair.

(§ 1202.4, subd. (f)(3)(A).) Likewise, although section 1202.4, subdivision (f)(3)(I)

                                               9
permits restitution for relocation expenses incurred as a result of moving away from the

defendant, a victim's expenses must be verified by either law enforcement or a mental

health professional as being necessary for the victim's safety. (§ 1202.4, subd. (f)(3)(I).)

Both provisions limit the extent to which restitution is available to victims. We thus

decline the People's invitation to broadly interpret subdivision (f)(3)(J) of section 1202.4

because doing so would undermine the explicit limitations contained in other provisions

of the statute. (See In re Greg F. (2012) 55 Cal.4th 393, 406 [courts seek to " 'avoid a

construction that would produce absurd consequences' "].)

       The statute's plain language and legislative history, and the cited principles of

statutory construction, support our conclusion that residential security expenses are

recoverable under section 1202.4(f)(3)(J) only when they are "incurred related to a

violent felony, as defined in section 667.5, subdivision (c)." Thus, because Salas was not

convicted of such an offense, the trial court erred in ordering restitution to Veronica for

the residential security expenses she incurred related to Salas's crime.6

       In reaching this conclusion, we recognize there are strong policy considerations

supporting an award of restitution for residential security expenses to compensate victims



6       We decline to address the Attorney General's argument that the trial court could
have considered Salas's post-plea "uncharged conduct" of threatening Veronica to justify
an award of residential security expenses. The trial court based its restitution order solely
on Salas's conduct related to his domestic violence conviction. Further, the People never
asserted this theory at either the sentencing or restitution hearings, thereby forfeiting the
theory on appeal. (People v. Smith (1977) 67 Cal.App.3d 638, 655 ["It is elementary that
a new a theory cannot be raised on appeal where, as here, the theory contemplates factual
situations the consequences of which are open to controversy and were not put in issue in
the lower court."].)
                                             10
of certain nonviolent felonies, such as stalking, domestic violence, and others where

ongoing security concerns are at issue. However, this is a matter for the Legislature, not

the judiciary (see People v. Rubalcava (2000) 23 Cal.4th 322, 333 [" '[t]he role of the

judiciary is not to rewrite legislation to satisfy the court's, rather than the Legislature's,

sense of balance and order' "]), and we would welcome such a review.

                                        DISPOSITION

       The May 27, 2016 victim restitution order of $17,194.45 is modified to strike the

$13,834.22 reimbursement for the security windows and $221.26 for the ADT security

alarm system. The trial court is directed to prepare an amended abstract of judgment to

reflect victim restitution in the amount of $3,138.97 and to forward a certified copy to the

Department of Corrections and Rehabilitation.



                                                                                    HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.




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