Filed 8/21/14 P. v. Medina CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138496
v.
NATHAN MEDINA,                                                       (Contra Costa County
                                                                     Super. Ct. No. 05-080656-2)
         Defendant and Appellant.


         Pursuant to Penal Code1 section 1237, subdivision (b), defendant Nathan Medina
appeals the trial court’s postjudgment order of restitution in favor of victim Beverly
Rhoads in the amount of $120,037.84. As explained below, we shall affirm Beverly’s
award in part, reverse in part, and modify the restitution order accordingly.
                                FACTS AND PROCEDURAL BACKGROUND
         “Defendant Nathan Medina invaded the home of Beverly Rhoads, who was
involved in civil litigation with defendant’s mother and stepfather. He assaulted
[Beverly] with pepper spray, shot her son [Joshua] to death, tried to shoot her, and tried
to shoot a family friend.” (People v. Medina (Feb. 24, 2012, A125850) [nonpub. opn.] at
p. 1.) A jury convicted defendant of the first degree murder of Joshua, the attempted
murders of Beverly and her friend, and first degree residential burglary. Further, the jury
found that in committing each offense defendant personally used and personally
discharged a firearm causing great bodily injury. The trial court sentenced defendant to
         1
        All further unspecified statutory references are to the Penal Code unless
otherwise noted.


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25 years to life on the murder conviction, with a consecutive enhancement of 25 years to
life for personal use of a firearm; life in prison with a consecutive 20 years for the firearm
enhancement on each attempted murder conviction; and a concurrent term of four years
for the burglary. We rejected defendant’s contentions on appeal and affirmed the
judgment. (People v. Medina, supra, A125850.)
       On August 11, 2011, the court prepared and served “Notice to Defendant
Regarding Restitution,” enclosing a proposed order for restitution and abstract of
judgment in the amount of $41,960.09, comprising $18,699.45 to compensate Clarence
Rhoads III and $23,260.64 to reimburse the Victim’s Compensation Board. On
October 5, 2011, defendant’s mother appeared and requested a hearing on the proposed
restitution. The public defender was appointed to represent defendant and the matter was
set for a restitution conference. At a subsequent restitution hearing, it appears the court
ordered the restitution described above, as well as direct restitution in the amounts of
$6,191.46 to Brandy Rhoads and $11,049.74 to Beverly Rhoads.2
       At a further hearing on restitution held on November 5, 2012, the court addressed
a claim for direct restitution submitted by Beverly Rhoads based on the loss of services
and income formerly provided to her by her murdered son, Joshua. Beverly prepared a
spreadsheet classifying Joshua’s contributions into those he made on a monthly,
quarterly, semiannual and annual basis. The document listed Joshua’s monthly
contributions of $500 for rent; $300 for groceries; $120 for yard services; $50 for meals
out; $60 for meals cooked by Joshua; and $500 for loss of companionship. Also, the
document listed a quarterly contribution of $150 for oil/filter changes. Semiannual
contributions included $400 for yard cleanup and $375 for gutter cleaning. Annual
expenses included $2,550 for major car services/repairs; $450 for garden rototill; and
$2,400 for various household maintenance. In sum, Beverly claimed Joshua’s total
annual contributions to her amounted to $25,910.



       2
           These restitution orders are not contested on appeal and do not concern us here.


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       In a letter to the court dated May 23, 2012, and titled, “Explanation of Joshua’s
Contribution,” Beverly stated she had “done my best to outline the economic value my
son contributed to me.” Beverley’s letter to the court also states, Joshua was happy living
at home, had no plans to move out, and in particular states, “I believe Joshua would have
lived at home for another five years minimum and would have still continued to help me
with maintenance on the house for the rest of my life had he been able to be here to do so.
He would have never been very far from me. I was a single mom and my son was
extremely protective of his mother. He always told me he would always take care of me.
We had a very strong bond. The loss is extremely difficult to live with every day. [¶] I
broke down the numbers into categories and I now have to pay for all these services. My
expenses have increased as I have to pay someone for everything. This is a lifetime
hardship I am forced to bear. I submit this breakdown of figures and my explanation to
the best I can describe.”
       In a document entitled “Joshua’s Contributions,” Beverly provided more
information on the line items in the spread sheet. For example, the line item of $2,400
annually for various household maintenance includes “garbage disposal, plumbing,
heating and air maintenance, fireplace, lock repair, painting, dump runs, moving, loading
and unloading, dryer vent clearing [and other] miscellaneous jobs.” Also, the line item of
$500 per month for loss of companionship includes, “Gifts and personal [s]ervice
[r]unning errands, car rescue example dead battery, flat tire etc. Helped with household
cleaning. And was always there for me protecting me. Loss of companionship.”
       At the restitution hearing, Beverly testified in support of her restitution claim as
follows: Joshua was 25 years old when he was murdered in March 2008; Joshua lived in
her home all his life with the exception of one year living with his father. Joshua started
paying rent when he was 18 years old at the rate of $500 per month. Regarding the $300
per month loss for groceries, Joshua would either give her “cash money extra to help with
the groceries or he would go and purchase and cook the meals for me.” Regarding the
annual loss for vehicle maintenance, Beverly stated, “Joshua worked on cars, and he
could take [them] apart and put [them] back together, and he kept my car going and


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maintained it all the time. So we would go often to the auto parts store and buy all the
parts to fix it and keep it going.” In addition, she estimated she spent $150 per quarter on
oil and filter changes “after he was not there.” Further, Beverly works in insurance,
drives “all over Northern California for my job” and puts well over 20,000 miles per year
on her vehicle. Beverly provided a receipt from Frank’s Auto Service in the amount of
$488.20 in support of her claim for vehicle expenses and acknowledged “[t]hat’s not
equivalent to $2,550”; however, she stated that was “one bill I could find,” she had paid
for other repairs by a friend of Joshua’s, but had no “paperwork on that,” and has to
replace tires and brakes on a regular basis. The sum of $2,550 per year represents her
estimate of what she has to spend on maintaining her vehicle after losing Joshua.
       Beverly further testified that every week Joshua used to mow the lawn, carry out
any “blowing and trimming” required, and make adjustments to the sprinkler system as
needed; she now pays $120 a month to Tice Valley Landscape for that service. Also, she
has a “lot of foliage” in the yard and the trees and bushes require twice yearly trimming
and pruning to “keep things under control.” Joshua used to do these semiannual
cleanups, which now cost her $400 each. The number of trees around the house mean
that the rain gutters on the eaves have to be cleaned out twice a year; Joshua used to do
that, but now Beverly pays $375 each time to have the gutters cleaned. Additionally, she
has a vegetable garden and every year Joshua rototilled the vegetable garden and helped
plant the vegetables; she now pays $450 for this service.
       In regard to the sum of $2,400 claimed for annual household maintenance, Beverly
explained that “Joshua changed my heating and air conditioning vents or the filters . . . he
did everything at the house . . . he put in a new hot water heater. He did everything I
needed done there, you know. So without him, I have to pay someone every time to do
every single thing now.” Beverly testified she often pays for home maintenance jobs in
cash, depending “on who’s doing the work, . . . so I don’t always have receipts for things
like that.” However, she provided receipts for plumbing ($136.80) and electrical repairs
($996.62 and $560) carried out after Joshua was murdered.



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       Concerning the items for “Meals Out” ($50 per month) and “Cooking For Me”
($60 per month), Beverly testified, “Joshua would always cook, or he cooked for me
often because I traveled so much, and I worked really long hours, so I [didn’t] get home
until late, and so he would prepare dinner lots of times . . . .” Also, Joshua paid when
they went out for breakfast a couple of times a month or when they went out for dinner
occasionally.
       Regarding the item for loss of companionship at $500 per month, Beverley
testified that if her car broke down “he would get in—drop what he was doing and come
across the bay and fix my car in the middle of the night . . . . What[ever] I needed, my
son would do, you know, and so he was my whole world. I don’t know what else to say.”
       At the conclusion of the hearing, and following argument of counsel, the court
ruled Beverly had substantiated her claim “through both documentary as well as
testimonial evidence,” and found “that the amount of $25,910 a year is both reasonable
and appropriate . . . by a preponderance of the evidence.” Further, the court found
“defendant is responsible for the victim’s loss over the past . . . four years, eight months,
and so the Court is going to grant the request for payment from the date of [the victim’s]
death until today.” 3 Thereafter, the court awarded Beverly restitution in the amount of
$120,037.84.
                                        DISCUSSION
   A. Applicable Legal Principles
       The California Constitution provides that crime victims have a right to restitution
when they suffer losses as a result of criminal activity. (Cal. Const., art. I, § 28, subd.
(b), par. (13) (A) & (B); see People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).)
This constitutional mandate is implemented by section 1202.4 (see Giordano, at p. 656),

       3
         The district attorney (DA) asked whether it would be “sufficient for the Court’s
purpose if I divide 25,910 by 365 and then multiply by the number of days between
March 20, 2008, and today?” The court concurred and the DA stated, “when I divide
25,910 by 365 I get 70.9863. I then multiply this between the March 20, 2008, and
today, which I calculate to be 1,691 [days], I get $120,037.84.” After defense counsel
stated she agreed with the calculation, the court ordered restitution in that amount.


                                               5
which provides in pertinent part: “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 . . . .” (§ 1202.4, subd. (f).) The restitution order
“shall be of a dollar amount that is sufficient to fully reimburse the victim . . . for every
determined economic loss incurred as the result of the defendant’s criminal conduct, . . .”
(§ 1202.4, subd. (f)(3).) Further, “[t]he court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so and states those reasons on the
record.” (§ 1202.4, subd. (g).)
       A trial court’s restitution order is reviewed for abuse of discretion. (Giordano,
supra, 42 Cal.4th at p. 663.) The abuse of discretion standard “ ‘[a]sks in substance
whether the ruling in question “falls outside the bounds of reason” under the applicable
law and the relevant facts [citations].’ [Citation.] Under this standard, while a trial court
has broad discretion to choose a method for calculating the amount of restitution, it must
employ a method that is rationally designed to determine the . . . victim’s economic loss.”
(Id. at pp. 663–664.) The standard of proof at a restitution hearing is preponderance of
the evidence, not proof beyond a reasonable doubt. (See People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542.) “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.” (Id. at p. 1543.)

   B. Analysis
       Preliminarily, we reject defendant’s contention the court lacked jurisdiction for its
restitution order. Section 1202.46 confers continuing jurisdiction for a court to determine
the correct amount of restitution pursuant to section 1202.4, subdivision (f). (See People
v. Bufford (2007) 146 Cal.App.4th 966, 970.)
       Regarding the propriety of the restitution award itself, defendant contends the trial
court abused its discretion “in failing to explain its method of calculating the total amount
based on various component[s] of the claim.” In particular, defendant asserts Beverly’s
claim did not constitute the “right kind of ‘direct’ economic loss that is legally

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compensable” and that her claimed losses are “too speculative” because they lack both “a
direct and proximate link” to the crime. We respectfully disagree.
       In Giordano, our Supreme Court addressed the issue of whether the deceased
victim’s spouse could recover restitution from the defendant for loss of her dead
husband’s future earnings. (Giordano, supra, 42 Cal.4th at p. 657.) The court first noted
“[m]any, if not all, of the categories of loss compensable as direct restitution include
losses that are incurred after the occurrence of the crime, and which may continue to be
incurred for a substantial period of time following a restitution hearing.” (Id. at pp. 657–
658.) Second, in rejecting the defendant’s contention that the victim’s spouse “did not
personally suffer an economic loss,” the court concluded that, as in civil wrongful death
actions governed by Code of Civil Procedure section 377.60, the restitution statutes allow
a victim to “ ‘recover compensation for the economic loss . . . they suffer as a result of the
death,’ ” including financial support which the victim “would have received from the
deceased except for the death.” (Giordano, at pp. 658–659, original italics.) Third, the
court rejected the “defendant’s argument that the doctrine of ejusdem generis limits the
categories of loss that may be compensable by a direct restitution order.” (Id. at p. 660.)
Accordingly, the court concluded “a surviving spouse may receive as direct restitution
the amount of lost economic support incurred due to a criminal act that resulted in the
death of his or her spouse.” (Id. at p. 662.)
       Here, based on the rationale expounded in Giordano, the trial court appropriately
awarded direct restitution to a mother in compensation for lost economic support incurred
due to defendant’s criminal act in murdering her son. With the exception of the award
for loss of consortium (see post, p. 8), all the items comprising the restitution award
constituted economic and financial losses incurred by Beverly because she was deprived
of her son’s support by defendant’s murderous act. Whereas the amounts claimed in
economic losses were not all calculated with steely precision, they were all supported by
credible testimony and documentation where available, and proven by a preponderance of
the evidence. (See Giordano, supra, 42 Cal.4th at p. 665 [restitution award “is



                                                7
committed to the sound discretion of the trial court” and the court’s discretion may be
guided by “the particular factors at play in each individual claim”].)
       Nevertheless, we are troubled by the award for loss of consortium and conclude it
cannot stand. On this point, we agree with defendant that loss of consortium does not
constitute a compensable economic loss. Direct victim restitution compensates for
economic losses incurred as a result of the defendant’s criminal conduct. (See People v.
Garcia (2011) 194 Cal.App.4th 612, 617.) A restitution order is not meant to reimburse a
crime victim for noneconomic losses. (See People v. Vasquez (2010) 190 Cal.App.4th
1126, 1132.) “Economic damages are ‘objectively verifiable monetary losses including
medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or
replacement, costs of obtaining substitute domestic services, loss of employment and loss
of business or employment opportunities.’ [Citation.] Noneconomic damages are
‘subjective, non-monetary losses including, but not limited to, pain, suffering,
inconvenience, mental suffering, emotional distress, loss of society and companionship,
loss of consortium, injury to reputation and humiliation.’ [Citation].” (People v. Smith
(2011) 198 Cal.App.4th 415, 431, italics added.) Because loss of consortium is a
noneconomic loss, the trial court abused its discretion in including that item in its
restitution order. Therefore, the loss of consortium claim must be excluded from
Beverly’s award of direct restitution. After excluding loss of consortium, Beverly’s
economic losses amount to $92,240.57.4
       In all other respects, the trial court’s restitution order must be affirmed. The trial
court clearly explained its method of calculation. Whereas Beverly claimed loss of
support for five years at $25,910, the trial court allowed restitution in an amount
reflecting Beverly’s loss of economic support from the time of her son’s murder to the


       4
         The trial court based its restitution award on annual economic loss of $25,910.
Excluding loss of consortium at $500 per month, Beverly’s annual economic loss is
reduced to $19,910. Employing the same method as the trial court ($19,910/365 x 1,691
days), in which defense counsel concurred, results in a revised restitution award of
$92,240.57.


                                              8
date of the restitution hearing, a period of approximately four years eight months. The
trial court’s determination of economic loss was “reasonable, producing a nonarbitrary
result,” and therefore does not constitute an abuse of discretion. (Giordano, supra, 42
Cal.4th at p. 665; see also People v. Keichler (2005) 129 Cal.App.4th 1039, 1045 [no
abuse of discretion where there is a “factual and rational basis for the amount of
restitution ordered by the trial court”].)
                                         DISPOSITION
       The trial court’s order of direct restitution in favor of Beverly Rhoads is modified
to restitution in the amount of $92,240.57. So modified, the restitution order is affirmed.



                                                  _________________________
                                                  Becton, J.*



We concur:


_________________________
Dondero, Acting P.J.


_________________________
Banke, J.




       *
           Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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