Filed 4/29/14 P. v. Ramirez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048396

         v.                                                            (Super. Ct. No. 10HF0027)

JAIME ZAMORA RAMIREZ,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Kazuharu
Makino, Judge. Reversed and remanded.
                   Edward J. Haggerty, 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
Merissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
              This appeal comes to us following a remand for resentencing during which
the trial court ordered appellant to pay $5,685 in restitution. Appellant contends there is
insufficient evidence to support the order, and we agree. Because the prosecution failed
to provide sufficient documentation to justify the court’s restitution order, we reverse the
order and remand for further proceedings.
                                PROCEDURAL BACKGROUND
              In July 2011, appellant was convicted of raping Sonia C. and Leticia A., as
well as sexually penetrating Sonia with a foreign object. Pursuant to the One Strike Law,
the jury found true allegations appellant victimized multiple women and committed the
crimes against Sonia during the course of a burglary. Additionally, the trial court found
appellant had suffered a prior serious felony conviction within the meaning of Penal
Code section 667, subdivision (a) and the Three Strikes law.1 At the sentencing hearing,
the court sentenced appellant to multiple life terms in prison. The prosecution did not
request restitution on behalf of the victims at that time.
              We affirmed appellant’s convictions on appeal but reversed the true finding
on the prior serious felony allegation for insufficient evidence and vacated appellant’s
sentence. (People v. Ramirez (Dec. 18, 2012, G045950) [nonpub. opn.].) On remand,
the prosecution elected not to retry appellant on the allegation, and the matter proceeded
for resentencing. At that hearing, the prosecution moved for restitution on behalf of the
Victim Compensation and Government Claims Board (the Board). In support of the
motion, the prosecution presented two request forms it had received from the Board, one
on behalf of each victim. The forms – entitled “Request[s] for Restitution” – indicate the
Board paid $2,935 to Sonia and $2,750 to Leticia for medical treatment and mental health
expenses they incurred in connection with this case. Although the request forms include
the date of the underlying crimes and the date the forms were submitted to the


       1
              Unless noted otherwise, all further statutory references are to the Penal Code.


                                                      2
prosecution, they do not reflect when or where the victims were treated, nor do they
describe the particular type of services they received.
              At the sentencing hearing, defense counsel opposed the restitution request
on two grounds. First, she argued “there is nothing [in the request forms] that indicates
which services were sought” by the victims. Defense counsel also pointed out there was
no documentation as to “when these services were provided.” Defense counsel argued
that if the services were provided before the original sentencing hearing, then restitution
should have been requested at that hearing, and the present request was untimely. The
trial court was not persuaded. It ordered appellant to pay restitution to the Board in the
requested amount of $5,685.
                                        DISCUSSION
              Appellant contends the order should be reversed for lack of evidentiary
support. We agree.
              As a preliminary matter, the Attorney General asserts appellant forfeited his
right to challenge the sufficiency of the evidence to support the order. “‘Ordinarily, a
criminal defendant who does not challenge an assertedly erroneous [sentencing] ruling of
the trial court in that court has forfeited his or her right to raise the claim on appeal.’
[Citation.] ‘“The purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected. [Citation.]”’ [Citation.]”
(People v. McCullough (2013) 56 Cal.4th 589, 593.) The forfeiture rule is quite broad
and has even been applied in cases where the defendant’s sentencing claim is couched in
terms of a sufficiency-of-the-evidence argument. (Id. at pp. 593-599 [by failing to raise
issue in trial court, appellant forfeited claim there was insufficient evidence he had the
ability to pay booking fee].)
              Here, however, defense counsel opposed the prosecution’s restitution
request on the basis it failed to show which services the victims had received and when
those services were provided. Defense counsel did not believe there was an adequate

                                               3
evidentiary foundation for the prosecution’s request. Because defense counsel
challenged the sufficiency of the state’s evidence below, appellant has every right to do
so on appeal.
                In California, crime victims have the right to receive restitution for losses
attributable to the defendant’s actions. (Cal. Const., art. I, § 28, subd. (b)(13)(B);
§ 1202.4, subd. (a)(1)).) In fact, “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).) Generally, restitution hearings are informal, and the moving party is
not required to present any particular kind of proof. (People v. Lockwood (2013) 214
Cal.App.4th 91, 96.) However, “section 1202.4, subdivision (f)(4) includes special
provisions” that are applicable when, as here, “state funds are used to provide assistance
to or on behalf of a victim[.]” (Ibid.)
                In that situation, “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.” (§ 1202.4, subd. (f)(4)(A).) But, as a matter of proof, the
amount of assistance provided must “be established by copies of bills submitted to [the
Board] reflecting the amount paid by the [B]oard and whether the services for which
payment was made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation. Certified copies of
these bills provided by the [B]oard and redacted to protect the privacy and safety of the
victim or any legal privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were paid by the [B]oard,
shall be sufficient to meet this requirement.” (§ 1202.4, subd. (f)(4)(B); see, e.g., People
v. Lockwood, supra, 214 Cal.App.4th 91 [upholding restitution award where Board



                                                4
member supplied the victim’s medical records and billing information to the court and
testified at the restitution hearing about the victim’s expenses].)
              In making its claim for restitution in this case, the prosecution did not
provide any bill copies or sworn statements to the court. Rather, it simply submitted the
Board’s request forms indicating the victims had been reimbursed $5,685 for unspecified
medical and mental health services. Although the setting of restitution is largely a
discretionary matter, there must be “‘“a factual and rational basis for the amount of
restitution ordered by the trial court[.]”’” (People v. Millard (2009) 175 Cal.App.4th 7,
26, quoting In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) “The burden is on the
party seeking restitution to provide an adequate factual basis for the claim.” (People v.
Giordano (2007) 42 Cal.4th 644, 664.) Indeed, as explained above, the law is very
specific as to the type of documentation the movant must provide in cases such as this,
where the Board is seeking restitution for payments made to crime victims.
              Despite this statutory directive, the Attorney General argues the absence of
supporting documentation is immaterial here because, “Under Government Code section
13954, the [Board] must verify all victim restitution amounts with ‘hospitals, physicians,
law enforcement officials, or other interested parties involved’ to provide victim
restitution.” The Attorney General sees this as an assurance the Board’s restitution
request accurately reflected the amount of assistance it provided to the victims in this
case. The Attorney General also suggests the prosecution would have been happy to
supply supporting documentation for the Board’s request, had defense counsel objected
to the adequacy of its evidence below.
              But defense counsel did object to the sufficiency of the prosecution’s proof
at the restitution hearing. Apparently, the prosecutor did not have the supporting
documentation with her at the hearing, or she simply did not believe it was necessary to
provide it to the court. Either way, the end result is that the state did not present
sufficient evidence to support its claim for restitution. We therefore reverse the

                                               5
restitution award against appellant and remand for a new restitution hearing. (See People
v. Harvest (2000) 84 Cal.App.4th 641, 649 [victim restitution does not constitute
punishment for double jeopardy purposes]; People v. Thygesen (1999) 69 Cal.App.4th
988, 995-996.)
                                      DISPOSITION
              The trial court’s order requiring appellant to pay restitution in the amount
of $5,685 is reversed, and the matter is remanded for a new restitution hearing. In all
other respects, the judgment is affirmed.




                                                 BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.




                                             6
