Filed 1/15/14 P. v. Scott CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065665
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 11CM1270)
                   v.

MARK ANTHONY SCOTT,                                                                      OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         Robert L.S. Angres, 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, Catherine Chatman and Michael
Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
       Defendant Mark Anthony Scott pled no contest to attempted second degree
murder and was sentenced to nine years in prison. He now claims the trial court erred in
awarding victim restitution. We affirm.
                      FACTS AND PROCEDURAL HISTORY1
       Shortly after 7:00 p.m. on April 18, 2011, defendant was driving a Mustang near
Home and Third in Hanford. Dante Patterson was sitting in the front passenger seat, and
Robert Ellis was in the rear passenger seat. Alonzo Curry was driving a Malibu in the
opposite direction. Tony Townsend was in the front passenger seat, and Bryan Walker
was seated behind Curry. Ellis “waved down” the Malibu, whereupon both vehicles
made U-turns and headed toward each other. They stopped driver’s side to driver’s side,
about 15 feet apart. Townsend and Ellis, who had nearly had a fist fight earlier in the
day, started arguing from inside their respective vehicles. After about five minutes of
verbal exchanges, Ellis yelled, “Shut up,” brought up a chrome pistol, and began firing at
Walker, Curry, Townsend, and the Malibu. Walker, who ducked when he saw the gun,
heard about seven shots. They sounded different, like they were from three different
guns. Walker was shot in the back, and Curry was shot in the ankle. Curry was able to
put the Malibu in gear and drive away.
       Law enforcement investigation revealed more than 10 bullet holes in the
windshield and driver’s side of the Malibu. A 7.62 millimeter by 39 millimeter shell
casing was found in the street where the shooting occurred. The Mustang was found
abandoned in Visalia the day after the shooting. A spent nine-millimeter shell casing was
found under the driver’s seat. On April 22, 2011, the three suspects were arrested in New
Mexico as they were on a bus together. A .45-caliber revolver was found concealed on
defendant.


1      The facts are taken from the preliminary hearing transcript.



                                            2.
       As a result of the incident, defendant, Ellis, and Patterson were jointly charged
with discharging a firearm at an occupied motor vehicle (Pen. Code,2 § 246; count 1),
attempting to murder Walker, Townsend, and Curry (§§ 187, subd. (a), 664; counts 2-4,
respectively), and assaulting Walker, Townsend, and Curry with a firearm (§ 245,
subd. (a)(2); counts 5-7, respectively). Various firearm enhancement allegations were
appended to some of the charges. (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d),
(e)(1).)
       On July 3, 2012, defendant pled no contest to one count of attempted second
degree murder in which Curry, Walker, and Townsend were all named as victims. In
return for his plea, the remaining counts and allegations were dismissed.
       According to the probation officer’s report, investigation at the scene of the
shooting revealed that a black Dodge Durango parked in the driveway just north of the
crime scene had a small dent in the right rear quarter panel that appeared to be a fresh
impact point from a bullet. The vehicle also had a mark on, and paint chipped off, the
quarter panel. Pauline McDowell, who lived at the address at which the vehicle was
parked, reported she had heard the shooting, and her vehicle did not have the mark before
the incident. She requested restitution in the amount of $350 for the damage to her
vehicle, and submitted a receipt for that amount. The probation officer’s report
recommended defendant pay restitution in that amount to McDowell, and that said
restitution be made joint and several.
       Sentencing took place on August 6, 2012. Defense counsel objected to
Townsend’s request for relocation expenses, and asked for a hearing thereon. No
mention was made of McDowell’s request by either party. The trial court sentenced
defendant to nine years in prison and, insofar as is pertinent to this appeal, originally
reserved restitution to all victims pending a restitution hearing. When the probation
2      All statutory references are to the Penal Code.



                                              3.
officer pointed out that McDowell submitted a receipt for the $350 she requested, the
court asked defense counsel if there was any objection to that restitution. Counsel
replied, “That is submitted.” The court then ordered defendant to pay $350 in restitution
to McDowell.
                                      DISCUSSION
       The sole issue on appeal concerns the validity of the restitution award to
McDowell. Subdivision (a)(1) of section 1202.4 provides: “It is the intent of the
Legislature that a victim of crime who incurs an economic loss as a result of the
commission of a crime shall receive restitution directly from a defendant convicted of
that crime.” To this end, subdivision (f) of the statute provides, with exceptions not
pertinent here, that “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 … in an amount established by court order, based on the amount of loss
claimed by the victim .… The court shall order full restitution unless it finds compelling
and extraordinary reasons for not doing so and states them on the record.”
       Defendant contends the restitution award to McDowell cannot stand because her
loss did not stem from conduct for which defendant was convicted. He reasons that
McDowell’s loss stemmed from vandalism to her vehicle; defendant was never charged
with or convicted of any sort of vandalism; when he entered his plea, he admitted only
that he tried to kill Walker, Curry, and Townsend, not that he damaged the car of a third
party in the process of committing his crime; and the preliminary hearing transcript,
which constituted the factual basis for the plea, made no mention of damage to
McDowell’s vehicle. Defendant further says he was never on notice, when he entered his
no contest plea, that his liability would extend to McDowell’s vehicle.3

3      Defendant also says that if, by submitting the matter instead of objecting, defense
counsel forfeited the right to contest the restitution award on appeal, then defendant
received ineffective assistance of counsel. The Attorney General does not assert


                                             4.
       “We review the trial court’s allocation of responsibility for restitution for an abuse
of discretion, mindful that an order resting on a demonstrable legal error constitutes such
an abuse. [Citation.]” (People v. Hume (2011) 196 Cal.App.4th 990, 995; see People v.
Giordano (2007) 42 Cal.4th 644, 663, fn. 7 [“we review all restitution orders for abuse of
discretion”].) A victim’s restitution right and, hence, section 1202.4, are to be broadly
and liberally construed. (People v. Moore (2009) 177 Cal.App.4th 1229, 1231; People v.
Baker (2005) 126 Cal.App.4th 463, 467.)
       The intent of the enactors of section 1202.4 is plain: Every victim who suffers a
loss has the right to restitution “‘“‘from those convicted of the crime giving rise to that
loss.’ [Citation.] … [A] trial court may compensate a victim for any economic loss
which is proved to be the direct result of the defendant’s criminal behavior .…”
[Citation.]’ [Citation.] ‘The only limitation the Legislature placed on victim restitution
is that the loss must be an “economic loss incurred as the result of the defendant’s
criminal conduct.” [Citations.]’ [Citation.]” (People v. Moore, supra, 177 Cal.App.4th
at pp. 1231-1232, fn. omitted.)
       In interpreting the requirement that the victim’s economic loss be the result of the
defendant’s criminal conduct, People v. Holmberg (2011) 195 Cal.App.4th 1310
(Holmberg) is instructive. In that case, the defendant was convicted by plea of
concealing stolen property and using an altered, stolen, or counterfeit access card. He
was ordered to pay more than $18,000 in victim restitution, an award he claimed was



forfeiture and, because defendant’s challenge is not to the amount of restitution ordered
but rather involves the interpretation of section 1202.4 and whether McDowell
constituted a victim of defendant’s crime under that statute, we would not find forfeiture
in any event. (Compare People v. Anderson (2010) 50 Cal.4th 19, 26 with People v.
Garcia (2010) 185 Cal.App.4th 1203, 1218.) Since we address defendant’s challenge to
the restitution award on the merits, we do not reach his claim of ineffective assistance of
counsel. Were we to reach the claim, we would reject it.



                                              5.
improper because the victims’ damages were due to the burglary of the victims’ premises
and not his conduct. (Id. at p. 1313.) In disagreeing, the appellate court stated:

       “Interpreting the requirement that the damages result from the defendant’s
       criminal conduct, the court in People v. Jones (2010) 187 Cal.App.4th 418,
       424-427 (Jones) held that tort principles of causation apply to victim
       restitution claims in criminal cases. The court observed that there ‘are two
       aspects of causation …: cause in fact (also called direct or actual
       causation), and proximate cause.’ [Citation.] The court explained that
       ‘“[a]n act is a cause in fact if it is a necessary antecedent of an event”’ and
       that ‘“proximate cause ‘is ordinarily concerned, not with the fact of
       causation, but with the various considerations of policy that limit an actor’s
       responsibility for the consequences of his conduct.’”’ [Citation.] [¶] … [¶]

              “‘“The first element of legal cause is cause in fact.… The ‘but for’
       rule has traditionally been applied to determine cause in fact…. [¶] The
       Restatement formula uses the term substantial factor ‘to denote the fact that
       the defendant’s conduct has such an effect in producing the harm as to lead
       reasonable men to regard it as a cause.’”’ [Citation.]

               “Defendant correctly notes that California courts have adopted the
       ‘substantial factor’ test in analyzing proximate cause. [Citation.] ‘“The
       substantial factor standard is a relatively broad one, requiring only that the
       contribution of the individual cause be more than negligible or theoretical.”
       [Citation.] Thus, “a force which plays only an ‘infinitesimal’ or
       ‘theoretical’ part in bringing about injury, damage, or loss is not a
       substantial factor” [citation], but a very minor force that does cause harm is
       a substantial factor [citation]. This rule honors the principle of comparative
       fault.’ [Citation.]

               “Defendant argues that the restitution award here was improper
       because his conduct was not a substantial factor in causing the victims’
       damages. He argues that the victims’ losses would have occurred even
       without his act and that the damages were due to the burglaries rather than
       his concealing the property. Defendant’s argument, however, ignores the
       fact that there can be more than one cause of injury and that multiple causes
       can combine to cause harm. [Citations.]

              “Although defendant denies burglarizing the victims’ premises, the
       evidence here supports the conclusion that defendant’s conduct was a
       concurrent cause of the victims’ losses and a substantial factor in depriving
       them of the use of their property.… Defendant’s conduct played far more
       than a negligible or theoretical part in bringing about the victims’ injuries

                                             6.
       and was a substantial factor in causing the harm they suffered.”
       (Holmberg, supra, 195 Cal.App.4th at pp. 1321-1322.)
       Defendant says Jones is distinguishable because the defendant in that case
received a grant of probation and the hit-and-run charge that resulted in the actual
property damage was dismissed with a waiver pursuant to People v. Harvey (1979) 25
Cal.3d 754 (Harvey).4 Here, by contrast, defendant was sentenced to prison.
       It is true that a trial court’s discretion to award restitution is broader when
restitution is imposed as a condition of probation than when the defendant is sentenced to
prison. (People v. Giordano, supra, 42 Cal.4th at p. 663, fn. 7.) “Probationary restitution
may be imposed even if a defendant has not been convicted for a particular offense .…”
(Ibid.) This does not mean, however, that the principles of causation explained in Jones
have no application when a prison sentence is involved, or that defendant could not be
ordered to pay restitution to McDowell unless he was convicted of vandalism or some
other crime committed directly against her property interests. Indeed, the defendant in
Holmberg was sentenced to prison. (Holmberg, supra, 195 Cal.App.4th at p. 1313.)
       By his no contest plea, defendant admitted attempting to murder all three people in
the Malibu. McDowell’s vehicle was damaged by one of the shots fired in the
commission of that crime. Under the facts established by the preliminary hearing
transcript, defendant either fired the shot directly or aided and abetted its firing. (Cf.
People v. Woods (2008) 161 Cal.App.4th 1045, 1049-1050, 1052 [defendant sentenced to
prison as accessory to murder could not be ordered to pay victim restitution for economic
loss stemming from said murder; loss did not arise out of criminal activity forming basis
of conviction because charge of accessory was based on conduct occurring only after loss
was sustained, and defendant was not convicted as coconspirator or aider and abettor of

4       Harvey holds that for purposes of sentence enhancement, a court may not consider
facts that pertain solely to a charge dismissed as part of a plea bargain. (Harvey, supra,
25 Cal.3d at pp. 758-759.)



                                              7.
the murder itself]; People v. Leon (2004) 124 Cal.App.4th 620, 621, 622 [defendant
sentenced to prison could not be ordered to pay restitution for loss resulting from second
defendant’s crime where record did not suggest defendant aided and abetted commission
of second defendant’s crime].) Under the circumstances, defendant’s conduct was at
least a concurrent cause of McDowell’s loss and substantial factor in the economic injury
she incurred. Restitution was not imposed based on a crime for which defendant was not
convicted; rather, restitution was imposed because the loss was “a result of the
defendant’s conduct” (§ 1202.4, subd. (f)), specifically, the crime to which he pled no
contest. Because his conduct “played far more than a negligible or theoretical part in
bringing about [McDowell’s] injuries and was a substantial factor in causing the harm
[she] suffered” (Holmberg, supra, 195 Cal.App.4th at p. 1322), the trial court did not
abuse its discretion by ordering defendant to pay McDowell restitution for the damage to
her vehicle (see id. at p. 1324).
       People v. Lai (2006) 138 Cal.App.4th 1227 (Lai), on which defendant relies, does
not assist him. In that case, the defendant was convicted of fraudulently obtaining aid in
the amount of $232,313.57 between January 1, 1985, and February 29, 2000. At
sentencing, the prosecution sought $261,543.57 in restitution, comprising (1) the jury’s
finding of $232,313.57; (2) an additional $18,000 in fraudulently obtained aid that was
shown by evidence at trial to be attributable to the charged crimes; and (3) $11,230 in
fraudulently obtained aid shown by evidence at trial, but occurring from September 1980
to March 1983, before the crimes of which the defendant was convicted. The trial court
ordered the defendant to pay the amount of restitution requested by the prosecution. (Id.
at p. 1246.)
       On appeal, the court held the defendant could not be required to pay the $11,230
attributable to aid fraudulently obtained before the charged period: Because the
defendant was sentenced to prison, as opposed to being placed on probation,
section 1202.4 limited restitution “to losses caused by the criminal conduct for which the

                                            8.
defendant was convicted.” (Lai, supra, 138 Cal.App.4th at p. 1246.) Construing article I,
section 28, former subdivision (b) (now subd. (b)(13)(A)) of the California Constitution
together with section 1202.4, the court determined the language of the Constitution
“grants the right to receive restitution for losses resulting from the crime of which the
defendant was convicted. Implementing that right, section 1202.4 requires a defendant to
pay restitution for losses resulting from the criminal conduct supporting the crimes of
which the defendant was convicted.” (Lai, supra, at p. 1247, italics added.) It
concluded: “[W]hen a defendant is sentenced to state prison, section 1202.4 limits
restitution to losses caused by the criminal conduct for which the defendant was
convicted. Therefore, section 1202.4 does not support that portion of the restitution order
… attributable to fraudulently obtained aid before the charged period.” (Id. at p. 1249,
italics added.)
       In Lai, the defendant’s conduct in fraudulently obtaining aid during the charged
period had no causal relationship to his fraudulently obtaining aid before that period. The
losses accruing before the charged period were not caused by the defendant’s criminal
conduct supporting his conviction. Here, by contrast, the damage to McDowell’s car
directly resulted from the criminal conduct supporting the crime to which defendant pled,
and of which the preliminary hearing transcript established the factual basis.5
       Defendant argues, however, that upholding the restitution award to McDowell
would undermine his constitutional right to notice. “[T]he central meaning of procedural


5      Defendant’s citation to People v. French (2008) 43 Cal.4th 36, 50-51 is
unavailing. The issue in that case was whether, and if so, under what circumstances, a
factual basis for a plea could be used to establish an aggravating sentencing factor
without violating a defendant’s Sixth Amendment jury trial right as set out in
Cunningham v. California (2007) 549 U.S. 270. (French, supra, at p. 40.) A criminal
defendant’s constitutional right to a jury trial is not implicated by victim restitution.
(People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184 & cases cited; see also People
v. Holman (2013) 214 Cal.App.4th 1438, 1451-1452.)



                                             9.
due process [is] clear: ‘Parties whose rights are to be affected are entitled to be heard;
and in order that they may enjoy that right they must first be notified.’ [Citations.]”
(Fuentes v. Shevin (1972) 407 U.S. 67, 80.) At the change of plea hearing, defendant was
notified that if “the victim suffered any financial loss as a result of [defendant’s] actions,”
defendant would have to pay the victim actual restitution. The circumstances
surrounding the damage to McDowell’s vehicle were clearly set out in the probation
officer’s report, and payment of restitution to her expressly recommended. This
constituted sufficient notice. (People v. Harvest (2000) 84 Cal.App.4th 641, 653;
compare People v. Collins (2003) 111 Cal.App.4th 726, 734 with People v. Sandoval
(1989) 206 Cal.App.3d 1544, 1550.) If defendant believed he did not fully understand
the scope of his liability when he entered into the plea bargain, as he now suggests, his
remedy was to move to withdraw the plea on that ground. He did not do so.
                                      DISPOSITION
       The judgment is affirmed.




                                             10.
