Filed 3/27/14 P. v. Arreola CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039595
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 211737)

             v.

JOSE ALBERT ARREOLA,

         Defendant and Appellant.



                                                   INTRODUCTION
         Defendant Jose Albert Arreola pleaded no contest to kidnapping (Pen. Code,
§ 207, subd. (a))1, robbery of an inhabited place (§ 213, subd. (a)(1)(A), false
imprisonment (§§ 236 & 237), extortion (§§ 518 & 520), and theft or unauthorized use of
a vehicle (Veh. Code, § 10851, subd. (a)). Defendant was ordered to pay victim
restitution jointly and severally with his codefendant Christopher Martinez for damages
to the victim’s vehicle. On appeal, defendant argues that the trial court erred in ordering
him to pay victim restitution for the loss of the vehicle. He contends that the damage to
the car was due to Martinez’s negligent driving, which occurred after defendant’s
involvement in the unlawful taking had terminated.




         1
             All further statutory references are to the Penal Code unless otherwise specified.
                                      BACKGROUND2
       On or about February 9, 2010, defendant played dice with the victim, and the
victim won $200. Defendant did not have cash on him, so he gave the victim a laptop as
collateral.
       On February 10, 2010, defendant told the victim that he had the $200 he owed,
and defendant invited the victim to come to a residence so that they could exchange the
money for the laptop. The victim drove to the residence and met defendant and another
male. They played dice in the backyard of the residence, and the victim won. Defendant
and the other male punched and kicked the victim and took the victim’s wallet, phone,
car keys, and ring. Defendant demanded that the victim provide a personal identification
number (PIN) to the victim’s ATM account. The victim provided the numbers, but
defendant’s attempt to withdraw funds from an ATM machine was unsuccessful.
Defendant returned to the residence and called Martinez. When Martinez arrived at the
residence, he beat the victim with a metal pipe. Defendant and Martinez bound the
victim’s wrists and ankles with duct tape and put a plastic bag over the victim’s head.
When defendant and Martinez discussed whether to kill the victim, the victim suggested
that they take him to Bay 101 casino, where he could withdraw money.
       Defendant, Martinez, and the victim drove to the casino in the victim’s car. Inside
the casino, the victim wrote a personal check to defendant in the amount of $800. As
defendant began walking towards the exit, the victim ran away and flagged down a
security guard to call the police. Defendant and Martinez left the casino before the police
arrived. Defendant left on foot, and Martinez left in the victim’s car.
       On November 15, 2012, defendant pleaded no contest to kidnapping (§ 207,
subd. (a)), robbery of an inhabited place (§ 213, subd. (a)(1)(A)), false imprisonment
(§§ 236 & 237), extortion (§§ 518 & 520), theft or unauthorized use of a vehicle (Veh.


       2
           The factual background is taken from the probation report.
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Code, § 10851, subd. (a)), and admitted a great bodily injury enhancement (§§ 12022.7,
subd. (a) & 1203, subd. (e)(3)). Defendant also admitted a prison prior (§ 667.5,
subd. (b)).
       On March 15, 2013, the trial court sentenced defendant to 11 years 8 months in
state prison. Defendant was ordered to pay victim restitution in the amount of
$12,036.88, which represented the amount of damage to the victim’s vehicle. Defendant
contested the restitution order, arguing that he had no role in the loss or damage to the
vehicle. The trial court disagreed and imposed joint and several restitution.
                                        DISCUSSION
       Defendant contends that the trial court erred in ordering defendant to pay victim
restitution jointly and severally because he did not cause damage to the victim’s car. He
argues that the damage was done after Martinez left in the car and that the damage was
not a foreseeable consequence from defendant’s conduct.
       Section 1202.4, subdivision (f) provides: “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.”
       “ ‘ “[T]he standard of proof at a restitution hearing is by a preponderance of the
evidence, not proof beyond a reasonable doubt.” ’ [Citation.]” (People v. Gemelli (2008)
161 Cal.App.4th 1539, 1542.) On appeal, we review the trial court’s restitution order on
an abuse of discretion standard of review. (Ibid.) If there is a rational and factual basis
for the order, no abuse of discretion will be found. (Ibid.)
       Numerous courts, including this one, have upheld joint and several restitution
orders for compensating victims of crime. (People v. Zito (1992) 8 Cal.App.4th 736, 746




                                              3
(Zito) [decided under former Gov. Code, § 13967] 3; People v. Arnold (1994) 27
Cal.App.4th 1096; People v. Madrana (1997) 55 Cal.App.4th 1044, 1051 (Madrana);
People v. Blackburn (1999) 72 Cal.App.4th 1520.)
       In Zito, the defendant pleaded no contest to grand theft and failure to file a tax
return. (Zito, supra, 8 Cal.App.4th at p. 739.) The trial court found the defendant jointly
and severally liable for $300,000 in direct restitution. On appeal, the defendant argued
that the trial court erred in imposing restitution jointly and severally because he was less
culpable than his codefendant. (Id. at p. 746.) This court upheld the restitution order,
recognizing that “by pleading no contest to grand theft, [the defendant] admits
responsibility for the losses. (Pen. Code, § 1016, subd. 3.) He is therefore ‘culpable’ and
is responsible for the full amount of the victim’s losses.” (Ibid; see also Madrana, supra,
55 Cal.App.4th at p. 1051.) This court also noted that imposing joint and several liability
would be appropriate as it “bolsters the rehabilitative purpose of restitution. An order
imposing joint and several liability does not detract from the defendant’s responsibility to
compensate the victim for his or her losses. To the contrary, it underscores it.” (Zito,
supra, 8 Cal.App.4th at p. 746.)
       Similarly here, defendant pleaded no contest to theft or unauthorized use of the
victim’s vehicle. In doing so, defendant admitted he was culpable, and thus, he
undertook the risk of full liability for the victim’s losses. (See Zito, supra, 8 Cal.App.4th
at p. 746.) As we have expressed in Zito, holding defendant responsible for the full
amount of restitution would not only increase likelihood that the victim will recover
damages for the loss of his car, but it would also achieve the rehabilitative goals of
restitution. (Ibid.)



       3
         Although Zito involved former Government Code section 13967 and not section
1202.4, the pertinent provisions of the two sections are sufficiently similar that Zito’s
reasoning applies to the instant order.
                                              4
       We reject defendant’s assertion that People v. Leon (2004) 124 Cal.App.4th 620 is
similar to this case. In Leon, the defendant was ordered to pay joint and several
restitution despite the fact that defendant was only involved in and convicted of forging
one check while his codefendant was convicted of forging three other checks from the
same victim. (Id. at p. 622.) The court of appeal reversed, determining that the
defendant should only pay restitution for the one check he had forged since there was
nothing on the record indicating that he aided and abetted his codefendant in forging the
three other checks. (Ibid.) In contrast, here, the record reflects that defendant and
Martinez acted together in stealing the victim’s car, and defendant was ultimately
convicted of theft or unauthorized use of the car. The trial court was thus entitled to hold
defendant responsible for the loss resulting from a crime for which he was culpable. (See
Zito, supra, 8 Cal.App.4th at p. 746.)
       We also reject defendant’s contention that the damage to the victim’s car was not a
foreseeable consequence of defendant’s crime. Defendant’s argument appears to raise
the issue of whether there was a proximate causal connection between his crimes and the
damage to the victim’s vehicle. California has “adopted the ‘substantial factor’ test in
analyzing proximate cause.” (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321
(Holmberg); see also People v. Jones (2010) 187 Cal.App.4th 418, 425 (Jones) [there is
“no reason why the various principles involved in determining proximate causation . . .
should not also apply in awarding victim restitution”].) This standard is “ ‘ “relatively
broad” ’ ” and requires “ ‘ “only that the contribution of the individual cause be more
than negligible or theoretical.” ’ ” (Holmberg, supra, 195 Cal.App.4th at p. 1321.) A
force that plays only a theoretical or infinitesimal part of causing an injury or loss is not a
substantial factor, but a minor force that causes harm or loss is a substantial factor. (Id. at
p. 1322.) “ ‘ “ ‘A defendant may be criminally liable for a result directly caused by his
act even if there is another contributing cause. If an intervening cause is a normal and
reasonably foreseeable result of defendant’s original act the intervening act is
                                               5
“dependent” and not a superseding cause, and will not relieve defendant of liability.
[Citation.] “[ ] The consequence need not have been a strong probability; a possible
consequence which might reasonably have been contemplated is enough. [ ] The precise
consequence need not have been foreseen; it is enough that the defendant should have
foreseen the possibility of some harm of the kind which might result from his act.” ’ ” ’
[Citation.]” (Jones, supra, 187 Cal.App.4th at p. 427.)
       In this case, defendant and Martinez stole the victim’s car and then drove it to a
casino, where the victim was able to contact a security guard. At that point, both
defendants fled the scene of the crime to avoid arrest. Under these circumstances,
Martinez’s act of fleeing from the casino in the victim’s car and subsequent damage to
the car were reasonably foreseeable consequences. As noted, defendant need not have
foreseen this precise scenario. (See Jones, supra, 187 Cal.App.4th at p. 427.) It is
enough that defendant should have foreseen the possibility that the car would be damaged
in the course of committing his crimes. (See ibid.) Thus, as defendant’s conduct
proximately caused the damage to the victim’s car, the trial court properly ordered
defendant to pay restitution jointly and severally.




                                              6
                                     DISPOSITION
     The order of restitution is affirmed.


                                         ______________________________________
                                                    RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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