Filed 7/10/14 P. v. Arrellano CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,
                                                                                           F066951
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF139481B)
                   v.

GREGORIO ENRIQUE ARRELLANO,                                                              OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen McKenna and Amanda
D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Poochigian, J. and Detjen, J.
        After a jury convicted appellant Gregorio Enrique Arellano of multiple felonies,
and the court imposed a prison term of four years eight months and ordered appellant to
pay victim restitution “in an amount to be determined by the Probation Department at the
direction of the Court.”
        On appeal, appellant’s sole contention is that the court improperly delegated to the
probation department the authority to impose victim restitution. We affirm.
                                      DISCUSSION1
        Penal Code section 1202.4, subdivision (f) (section 1202.4(f)) provides, in relevant
part:

                “[I]n 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. If the amount of loss cannot be ascertained at
        the time of sentencing, the restitution order shall include a provision that
        the amount shall be determined at the direction of the court.” (Italics
        added.)
        Appellant first challenges the court’s order that the amount of victim restitution be
determined by the probation department on statutory grounds. He contends section
1202.4(f) “requires the trial court, and not the Probation Department, to impose
restitution if the amount of restitution is unknown at the time of sentencing.” He argues
that victim restitution is often determined in contested “fact finding hearings” of a sort
the probation department is “not equipped” to conduct, and that the “delega[tion]” of the
“imposition of restitution” to the probation department deprives appellant of his “right to
confront the prosecution evidence and present his own evidence.” We disagree.2



1     The facts of the instant offenses are not relevant to the issues raised on appeal.
We therefore forgo a recitation of those facts.
2      We assume without deciding that appellant’s challenge to the restitution order is
not forfeited by his failure to raise his objection in the trial court.


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       As appellant does not dispute, People v. Lunsford (1998) 67 Cal.App.4th 901
(Lunsford) is directly on point. In that case, the trial court ordered the defendant to pay
restitution “‘in an amount determined by the Office of Revenue and Reimbursement.’”
(Id. at p. 903.) The Court of Appeal held the court’s order “complies with [section
1202.4(f)] in that it ‘directs’ the Officer of Revenue and Reimbursement to ‘determine’
the amount of victim restitution because the proper amount could not be ascertained at
the time of sentencing.” (Ibid.) The court noted, “If defendant is dissatisfied with the
agency’s determination, he may obtain judicial review in accordance with Penal Code
section 1202.4, subdivision (f)(1), which provides: ‘The defendant has the right to a
hearing before a judge to dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of the district attorney, the
victim or victims, or the defendant. If a motion is made for modification of a restitution
order, the victim shall be notified of that motion at least 10 days prior to the proceeding
held to decide the motion.’” (Id. at p. 904.)
       Appellant contends Lunsford “reached the wrong conclusion.” We disagree. In
our view, the court’s conclusion that a trial court may, under section 1202.4(f), direct an
outside entity to determine the amount of restitution, and the reasoning underlying that
conclusion, were correct.
       Appellant also relies on People v. Bernal (2002) 101 Cal.App.4th 155 (Bernal). In
that case, the defendant, following a felony conviction, was placed on probation, one of
the conditions of which was that he make restitution to the victim. After the defendant’s
insurer made a payment to the victim and she executed a release, the defendant sought an
order determining that his restitution obligation had been satisfied. The trial court issued
such an order, and the People appealed.
       The Court of Appeal reversed and remanded the matter to the trial court to
determine the defendant’s remaining restitution obligation. The appellate court reasoned
that the objectives of restitution included not only indemnifying the victim, but also


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rehabilitating the defendant and deterring the defendant and others, and that while the
victim’s act of executing the release “may have reflect[ed] [her] willingness to accept the
amount paid in full satisfaction for all civil liability, it does not reflect the willingness of
the People to accept the sum in satisfaction of the defendant’s rehabilitative and deterrent
debt to society.” (Bernal, supra, 101 Cal.App.4th at pp. 161, 162.) Remand was
necessary because the trial court, having mistakenly concluded that the victim’s
settlement release precluded an increase of the restitution award, had “failed to exercise
its discretion, as it must do.” (Id. at p. 164.)
       Appellant relies specifically on the first sentence of the following statement in
Bernal: “Although the trial court could properly refer the restitution determination to the
probation department, the parties were entitled to a court review of that department’s
determination, in accordance with section 1202.4, subdivision (f)(1). As a result of the
trial court’s erroneous belief that the settlement release barred further restitution as a
matter of law, the parties did not receive such a hearing.” (Bernal, supra, 101
Cal.App.4t at p. 164, italics added.)
       Appellant’s argument, however, ignores the second sentence. Here, the court was
under no erroneous belief that precluded appellant from having a hearing on the amount
of restitution. As indicated above, if appellant is dissatisfied with the probation
department’s determination of the amount of restitution due, he is entitled to a hearing
under section 1202.4, subdivision (f)(1). Bernal is thus distinguishable, and does not
support appellant’s position.
       Finally, appellant argues he was denied his due process rights under the United
States Constitution because, he asserts, as a result of the challenged restitution order, (1)
“[t]he trial court could not exercise its discretion regarding the proper amount of
restitution,” and (2) appellant was ‘denied the opportunity to be heard regarding the
amount of victim restitution.” Again, we disagree.




                                                   4
       “Due process is satisfied if appellant is given notice of the amount sought and a
hearing to contest that amount.” (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.)
There is nothing in the record to suggest that appellant has not been given the required
notice or that he has been denied his right to a hearing. Indeed, there is no indication the
probation department has yet made a determination of the amount of restitution. Thus,
the record does not support the claim of a due process violation.
                                      DISPOSITION
       The judgment is affirmed.




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