Filed 2/26/15 P. v. Whicher CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040201
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS122470)

             v.

TIMOTHY RYAN WHICHER,

         Defendant and Appellant.



         Defendant Timothy Ryan Whicher appeals an order of restitution following his no
contest plea to numerous counts of domestic abuse. On appeal, defendant asserts the trial
court abused its discretion in ordering restitution for his victim’s relocation, as well as by
refusing to allow him to present evidence that his victim’s restitution request was
opportunistic.
                                  STATEMENT OF THE FACTS AND CASE
         This case arises out of an incident of domestic violence, as well as some past
incidents of violence perpetrated by defendant on his then wife of 22 years. The primary
offense occurred on December 27, 2012, when defendant and the victim were in Carmel
for an overnight trip. When they arrived, defendant, who is an alcoholic, had several
drinks, which concerned the victim because of the way defendant acted toward her when
he was drunk. During dinner at the hotel, defendant and the victim began arguing and
defendant told her their marriage was over. The victim left the restaurant and went back
to their room to pack her belongings so she could leave and return home.
         While the victim was packing, defendant came into the room and began arguing
with her again. Defendant physically prevented the victim from leaving the room. The
victim then went out onto the deck outside the room to get away from defendant, but he
followed her. Defendant grabbed the victim by reaching his arm around her, and grabbed
the back of her head and neck. Defendant pulled the victim in and put his other hand over
her mouth and nose. As the victim was struggling with defendant, defendant knocked her
to the ground. Defendant had his body weight on the victim, and again tried to put his
hand over her mouth and nose. Defendant put his fingers in the victim’s mouth, and she
bit his finger. Defendant said, “I’m going to kill you.” The victim begged defendant to
stop and to think of their daughters.
         While the victim was pinned on the deck, another hotel guest came out onto the
deck of her room next door and asked if everything was okay. The victim yelled for help,
and defendant got off of her and left the deck area.
         Employees from the hotel arrived, and separated defendant and the victim.
Defendant said to the victim, “don’t do this.” The victim stated she thought defendant
was going to kill her, and if it were not for the neighboring guest’s intervention, he would
have succeeded. The victim stated that defendant was physically violent with her
throughout their entire marriage. She never reported the incidents, and told herself that
she would get out of the marriage when her three daughters were grown and out of the
house.
         Defendant was arrested at the scene. Defendant’s three adult daughters were
interviewed following his arrest. Each of them attested to the fact that they had witnessed
their father drink excessively and physically and verbally abuse their mother for years.



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       As the result of the incident in Carmel as well as other incidents of domestic
violence perpetrated by defendant on his then wife, defendant was charged by
information in February 2013, with attempted first-degree murder (Pen. Code,
§§ 664/187, subd. (a)1; count 1); four counts of assault with a deadly weapon (§ 245,
subd. (a)(4); counts 2, 6, 8, 9); one count of making a criminal threat (§ 422, subd. (a);
count 3); one count of witness dissuasion (§136.1, count 4); and two counts of infliction
of corporal injury on a spouse (§ 273.5, subd. (a); counts 5, 7).
       Defendant pleaded no contest to counts 4, 5, 7 and 9, in exchange for an eight-year
suspended prison sentence and probation. As part of the negotiated plea, defendant
agreed to pay restitution in an amount to be determined at a later date, and agreed to
waive all appellate rights.
       On September 13, 2013, following a contested hearing, the court ordered
defendant to pay $18,608.25 in direct restitution. The victim had originally requested an
amount of $29,410.92.
       Appellant filed a notice of appeal on September 24, 2013. This Court denied
without prejudice appellant’s application for a certificate of probable cause on
March 6, 2014, ordering that the application would be considered with the appeal.
                                         DISCUSSION
       Defendant asserts on appeal that the trial court erred in ordering restitution to the
victim for her relocation expenses, because the request for restitution did not meet the
statutory requirements. In addition, defendant argues the court erred in refusing to allow
him to present evidence at the hearing that the restitution request was opportunistic.
       The Attorney General asserts defendant may not bring these claims on appeal,
because he did not secure a certificate of probable cause from this court, and he waived
his appellate rights as part of his plea agreement.

       1
           All further statutory references are to the Penal Code.
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       Certificate of Probable Cause and Waiver2
       In this case, defendant’s failure to obtain a certificate of probable cause does not
bar his claim on appeal. A defendant must obtain a certificate of probable cause to
challenge the validity of a guilty plea. (§ 1237.5; People v. Panizzon (1996) 13 Cal.4th
68, 74.) However, a defendant need not obtain a certificate if the appeal does not
challenge the validity of the plea, but instead relates to discretionary sentencing matters
that occurred after entry of the plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1096.)
Here, defendant challenges the imposition of $18,608.25 in victim restitution, which was
a discretionary sentencing choice made by the trial court after defendant entered his plea.
Therefore, the lack of a certificate of probable cause does not bar his claim on appeal.
       In addition, although defendant waived his right to appeal as part of his plea
bargain in this case, such waiver does not apply to future errors that defendant may not
have contemplated at the time the waiver was executed. (People v. Panizzon, supra, 13
Cal.4th at pp. 84-86.) Here, at the time defendant executed the waiver of his right to
appeal, he had agreed to pay restitution to the victim in an amount to be determined by
the trial court. However, the error alleged by defendant here, is that the court abused its
discretion in ordering him to pay restitution for the victim’s relocation expense when the
statutory requirements for such an award were not met. In addition, defendant asserts the
court erred in failing to allow him to present evidence at the restitution hearing that the
victim’s request was opportunistic. These alleged errors occurred after defendant’s
waiver of appellate rights, and as a result, we will consider them on appeal.
       Restitution for Relocation Expenses
       Defendant argues that the court’s order that he pay his victim $18,608.25 for
relocation expenses was improper, because the request did not meet the statutory


       2
          Defendant filed an application for a certificate of probable cause with this court
prior to filing his appeal. We ordered that the application be considered with the appeal.
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requirements. In addition, defendant argues the court erred in failing to allow him to
present evidence that the victim’s request was opportunistic given their divorce
proceedings.
       When considering restitution, the court “ ‘must use a rational method that could
reasonably be said to make the victim whole, and may not make an order which is
arbitrary or capricious.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 498.)
Restitution orders are reviewed for abuse of discretion. (Ibid.) “ ‘When there is a factual
and rational basis for the amount of restitution ordered by the trial court, no abuse of
discretion will be found by the reviewing court.’ ” (Id. at p. 499.)
       Section 1202.4, subdivision (a), sets forth the requirements for ordering restitution
by stating that “a victim of a crime who incurs economic loss as a result of the
commission of a crime shall receive restitution directly from any defendant convicted of
that crime.” The statute further provides: “[I]n every case in which a victim has suffered
economic loss as a result of 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).)
       Section 1202.4, subdivision (f)(3)(I) allows restitution for: “Expenses incurred by
an adult victim in relocating away from the defendant, including, but not limited to,
deposits for utilities and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred pursuant to this
section shall be verified by law enforcement to be necessary for the personal safety of the
victim or by a mental health treatment provider to be necessary for the emotional well-
being of the victim.”
       Defendant asserts the court erred in ordering restitution for the victim’s moving
expenses because the law enforcement officer who submitted the declaration in support

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of the request, Deputy Kathy Palazzolo, did not verify that the victim’s move was
“necessary for [her] personal safety.” (§ 1202.4, subd. (f)(3)(I).) Therefore, defendant
argues, the request fails to satisfy the requirements set forth in section 1202.4,
subd. (f)(3)(I), and may not be ordered.
       While Deputy Palazzolo’s declaration does not use the word “necessary” in
connection with the victim’s relocation, it most certainly conveys the need for the move
to protect the victim’s personal safety. Deputy Palazzolo stated that she had personally
spoken to the victim and her children many times, and that the victim described the
history of “verbal, mental and physical abuse” she endured while married to defendant
while living in her prior residence with him. The victim told Deputy Palazzolo that she
was afraid for her safety at the time she moved, she continues to be afraid for her safety
and fears retaliation by defendant. The victim also stated that she moved to a location
that is unknown to defendant, and is remaining there “out of safety concerns” because she
fears defendant.
       Deputy Palazzolo’s declaration, when viewed in its entirety, supports a finding
that the move was “necessary for the personal safety” of the victim. (§ 1202.4,
subd. (f)(3)(I).) Despite defendant’s argument to the contrary, the declaration’s use of the
present tense with regard to the victim’s continuing fear of defendant does not prove that
the relocation was not “necessary for [her] personal safety.” (Ibid.)
       Moreover, the fact that the victim’s original residence may have been secure by
objective standards does not itself obviate the need to relocate the victim for her personal
safety. Here, defendant relies heavily on the case of People v. Mearns, supra, 97
Cal.App.4th 493, wherein the court ordered restitution for a rape victim’s relocation from
her existing mobile home to a new mobile home that was more structurally secure. The
court ordered restitution in Mearns based in part on the police officer’s statement that the
victim’s “original mobile home was incapable of being secured from intruders because of

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its shoddy construction.” (Id. at p. 497.) Defendant extrapolates from this that because
the victim’s original residence in the present case was more secure than the mobile home
in Mearns, relocation to a different residence was not necessary for personal safety.
       Here, the victim’s concern for her safety was not directly related to the objective
security of her original residence; rather, she feared retaliation and continued abuse if she
remained in the residence where she previously resided with defendant. Defendant
abused the victim repeatedly over the years of their marriage. In addition, defendant had
attempted to dissuade the victim from testifying against him. Under the circumstances, it
is clear that relocating to a place unknown to defendant was necessary for the victim’s
personal safety.
       The court did not err in ordering restitution for the costs of the victim’s relocation
in this case. Deputy Palazzolo’s declaration expressed a necessity for the relocation to
protect the victim’s personal safety, satisfying the requirements of section 1202.4,
subd. (f)(3)(I). In addition, there was a factual and rational basis for the restitution order,
and as result, there was no abuse of discretion. (See Mearns, supra, 97 Cal.App.4th at
p. 499.)
       Defendant’s Evidence at Restitution Hearing
       Defendant asserts the trial court erred in refusing to permit him to present
evidence at the restitution hearing that the victim’s restitution request was opportunistic.
He claims that the court’s refusal violated his constitutional right to present a complete
defense.
       We review the trial court’s decision to admit or exclude evidence for abuse of
discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.)
       The evidence at issue here is related to defendant’s position that the victim’s
request for relocation expenses was opportunistic, because she was planning a move for a
period of time before the assault in this case. Specifically, defendant wished to present

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his own testimony that his marriage to the victim was troubled, and that she provoked the
assault that is the subject of this case in order to gain access to monies in a joint checking
account shared by she and defendant. In support of his proffered testimony, defendant
offered evidence that the victim withdrew a total of $92,417 on dates when defendant
was in custody, a letter from the victim’s divorce attorney to defendant’s business
associate saying that she would not be returning the money to the joint account, and the
victim’s declaration in her divorce action saying that she told her daughters to withdraw
money from the joint account on the night of the assault.
          Defendant asserts all of this evidence he offered should have been admitted,
because it was relevant to the victim’s motivation in seeking reimbursement for her
relocation expenses. Defendant further argues that if the victim was already planning a
move, and was acting in ways to protect her financial interests in her divorce action, then
her move was not a result of his criminal acts, and was not necessary for her personal
safety.
          Here, the court’s decision to exclude defendant’s proffered evidence was based in
part on its finding that the prosecution had met its burden of establishing that the victim
relocated to protect her personal safety because of defendant’s criminal acts. As a result,
the court excluded defendant’s evidence, because the court deemed it irrelevant to the
amount of restitution requested.
          “At a victim restitution hearing, a prima facie case for restitution is made by the
People based in part on a victim’s testimony on, or other statement of, the amount of his
or her economic loss. [Citations.] ‘Once [a prima facie case is shown], the burden shifts
to the defendant to demonstrate that the amount of the loss is other than that claimed by
the victim. [Citations.]’ ” (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
          Here, defendant’s evidence was not related to the amount of loss claimed by the
victim; rather, it was meant to defend against the crime to which he pleaded. Defendant’s

                                                8
evidence would have shown that the victim provoked the fight at a specific time, so that
defendant would assault her and as a result, she could opportunistically seek money from
him for her previously intended move. This is unrelated to the amount of restitution the
victim was seeking in this case. Whether or not the victim had contemplated moving out
of her residence with defendant at a date prior to the assault in this case does not lessen
the economic loss she suffered as a result of defendant’s crimes against her. The court
did not abuse its discretion in denying defendant’s request to produce this evidence.
       Moreover, the court’s denial of defendant’s request to produce the evidence in this
case was not a denial of his constitutional right to due process. Because the issue of
restitution is part of sentencing, and not the defense of the case, a defendant is not
afforded the same constitutional rights he would have at trial. (People v. Cain (2000) 82
Cal.App.4th 81, 87.) “ ‘A defendant’s due process rights are protected when the
probation report gives notice of the amount of restitution claimed . . . , and the defendant
has an opportunity to challenge the figures in the probation report at the sentencing
hearing.’ ” (People v. Resendez (1993) 12 Cal.App.4th 98, 113, italics omitted.)
       Here, defendant’s proffered evidence challenged the victim’s actions and
motivations when she was assaulted by defendant. Defendant was provided with notice
of the amount of restitution claimed, and his evidence was not related to challenging that
amount. Defendant was afforded his due process rights in this case. (See People v.
Resendez, supra, 12 Cal.App.4th. at p. 113.)
                                        DISPOSITION
       The judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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