Filed 9/26/16 P. v. Arce CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----




THE PEOPLE,                                                                                  C080836

                   Plaintiff and Respondent,                                   (Super. Ct. No. S15CRF0052)

         v.

OLGA NAYELI PENA ARCE,

                   Defendant and Appellant.




         Defendant Olga Nayeli Pena Arce pled no contest to various counts related to
driving under the influence of alcohol, including gross vehicular manslaughter while
intoxicated. On appeal, she contends the trial court erred in the amount it ordered her to
pay in direct victim restitution, in that the amount payable to the decedent’s family
included amounts the family received from two third parties. Acknowledging she did not
object to the restitution order in the trial court, defendant also argues her trial counsel was
ineffective. We agree trial counsel was ineffective and order the restitution order
modified.

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                                     BACKGROUND
       After spending the early morning hours drinking with her friends, defendant was
driving approximately 93 miles per hour, lost control of her car, and crashed into a
retaining wall. Passenger Aimee Campos was fatally injured in the crash, and both
defendant and passenger Wayne Walker sustained serious injuries. Two and one-half
hours after the collision, defendant’s blood-alcohol content measured at 0.12 percent.
       Defendant pled no contest to gross vehicular manslaughter while intoxicated,
driving under the influence of alcohol and causing injury, and driving with a 0.08 percent
blood-alcohol content causing injury, and she admitted she had personally inflicted great
bodily injury upon Walker and had caused death or great bodily injury to more than one
victim. The trial court sentenced defendant to an aggregate term of seven years eight
months.
       The Campos family filled out a “VICTIM IMPACT STATEMENT” in which they
claimed “[m]onetary [l]osses” totaling $25,771.29. On a line for “Expenses resulting
from stolen or damaged property,” they claimed $21,111.01 and added the following
explanation: “(FUNERAL EXPENSE) INCLUDING LIFE INSURANCE.” On a line
for “Wages or profits lost due to injury or time spent as a witness,” they circled the word
“Wages,” claimed $2,016.28, and added the following explanation: “(A MONTH NO
PAY) DAUGHTERS DEATH FUNERAL.” And finally, on a line for “Actual and
reasonable attorney fees and other costs of collection accrued by a private entity on your
behalf,” they claimed $2,644.
       To the victim impact statement, the Campos family attached four documents. The
first was a statement of goods and services from McFarlane Mortuary showing a total
cost of arrangements amounting to $10,099.50. The second was a copy of a check for
and record of a deposit of $10,004.93, which was identified as “AIMEE’S LIFE
INSURANCE THROUGH MOTHER’S EMPLOYER.” The third was an invoice from
Cornerstone Monuments showing the cost of a grave marker as $506.58. And the fourth

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was a letter and check from Harrah’s in the amount of $500, made payable to McFarlane
Mortuary, “to assist . . . with funeral expenses.”
       The figures shown on the four documents attached to the victim impact statement
add up to $21,111.01, which is the amount the Campos family entered on the line of the
statement with the explanatory note, “(FUNERAL EXPENSE) INCLUDING LIFE
INSURANCE.” Also, a notation on the statement from the mortuary shows that the $500
check from Harrah’s was applied against the $10,099.50 cost of arrangements.
       Upon being asked if there was any opposition to the restitution request for
$25,771.29, defense counsel answered, “No.” Accordingly, the trial court ordered direct
victim restitution in that amount to the Campos family. After the trial court made the
order, defense counsel indicated she was not opposing the request for attorney fees, if
they were incurred, but she did not see an attachment supporting it. The court put that
issue over to be addressed at the next hearing. At the next hearing, defense counsel stated
she was satisfied with the documentation received for the attorney fees, which was the
only question she had regarding restitution. The trial court held a third restitution
hearing, at which defense counsel detailed the restitution sought by the Campos family,
“it’s 21,100, looks like, and eleven -- and one cent for funeral expenses. Then there is
wage loss for $2,016.28 -- 28 cents. . . . [¶] . . . [¶] And then there is attorney’s fees
which were verified, in the amount of $2,644, so total restitution requested was
$25,771.29, and none of that’s opposed.” The trial court struck the prior order and
imposed “the total amount, which is unopposed, is $25,771.29 plus a 10 percent
administrative fee of $2,577.13.”


                                        DISCUSSION
       Defendant contends the trial court imposed an unauthorized sentence by ordering
direct victim restitution in the amount of $25,771.29, an amount which included
payments of $10,004.93 from a life insurance policy and $500 from the victim’s

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employer. The People claim the error is forfeited because defendant failed to object.
Defendant argues if the claim is forfeited, then she received ineffective assistance of
counsel. We find the claim forfeited for failure to object but we agree with defendant
that counsel’s failure to object to the direct victim restitution award, which clearly
included payments received of approximately $10,500, was ineffective assistance of
counsel.
       A crime victim is entitled to restitution for economic losses caused by a
defendant’s criminal conduct. (Cal. Const., art. I, § 28, subd. (b); Pen. Code,1 § 1202.4,
subds. (a)(1) & (f).) The amount of restitution “shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every determined economic loss
incurred as the result of the defendant’s criminal conduct.” (§ 1202.4, subd. (f)(3).)
“Thus, restitution not only requires a crime, a victim, and an economic loss, but the
victim must have actually suffered the economic loss because of the criminal conduct.”
(People v. Busser (2010) 186 Cal.App.4th 1503, 1508, italics added.) “The Legislature
intended restitution to ‘restore the economic status quo’ by returning to the victim
‘ “funds in which he or she has an ownership interest” ’ following a criminal conviction.
[Citation.] However, ‘a restitution order “is not . . . intended to provide the victim with a
windfall. [Citation.]” ’ [Citation.] Therefore, ‘restitution of the victim is only ordered if
the victim suffers economic loss.’ [Citation.] . . . Victims are only entitled to an amount
of restitution so as to make them whole, but nothing more, from their actual losses arising
out of the defendants’ criminal behavior. [Citation.]” (Busser, at p. 1510.) “[V]ictim
restitution is limited to economic loss but is unlimited in the amount that can be ordered.”
(People v. Harvest (2000) 84 Cal.App.4th 641, 649.)




1      Undesignated statutory references are to the Penal Code.

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       When calculating the amount of restitution, the court must use a “ ‘rational method
that could reasonably be said to make the victim whole.’ ” (People v. Mearns (2002)
97 Cal.App.4th 493, 498.) The amount of restitution must have a “ ‘factual and rational
basis.’ ” (Id. at p. 499.) “We review a restitution order for an abuse of discretion.” (Id.
at p. 498.) “The abuse of discretion standard is ‘deferential,’ but it ‘is not empty.’
[Citation.] ‘[I]t asks 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. To facilitate appellate review of the trial
court’s restitution order, the trial court must take care to make a record of the restitution
hearing, analyze the evidence presented, and make a clear statement of the calculation
method used and how that method justifies the amount ordered.” (People v. Giordano
(2007) 42 Cal.4th 644, 663-664.)
                                              A
                                          Forfeiture
       Initially, we reject defendant’s contention that the restitution award was
unauthorized. As the People correctly argue, defendant is not challenging whether direct
victim restitution could or should have been awarded, but rather she is challenging the
amount of that award. “[T]he ‘unauthorized sentence’ concept constitutes a narrow
exception to the general requirement that only those claims properly raised and preserved
by the parties are reviewable on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 354.)
The direct victim restitution in question was not unauthorized in a jurisdictional sense.
Generally, a sentence is “ ‘unauthorized’ where it could not lawfully be imposed under
any circumstance in the particular case. Appellate courts are willing to intervene in the
first instance because such error is ‘clear and correctable’ independent of any factual
issues presented by the record.” (Ibid.) The direct victim restitution award does not meet

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this definition because the amount could be lawfully imposed under circumstances
showing that amount of economic loss to the victim, a fact-bound determination. “In
essence, claims deemed [forfeited] on appeal involve sentences which, though otherwise
permitted by law, were imposed in a procedurally or factually flawed manner,” (ibid.)
which is exactly what happened here. Accordingly, the forfeiture exception does not
apply. (See People v. McCullough (2013) 56 Cal.4th 589, 599.) Defendant has forfeited
this claim by failing to object at the sentencing hearing, despite multiple opportunities to
do so.
                                               B
                              Ineffective Assistance Of Counsel
         “When challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. . . . On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) there simply could be no satisfactory
explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
         “Section 1202.4 does not, by its terms, require any particular kind of proof.
However, the trial court is entitled to consider the probation report, and, as prima facie
evidence of loss, may accept a property owner’s statement made in the probation report
about the value of stolen or damaged property.” (People v. Gemelli (2008) 161

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Cal.App.4th 1539, 1542-1543.) “Thus, a victim seeking restitution . . . initiates the
process by identifying the type of loss [citation] he or she has sustained and its monetary
value.” (People v. Fulton (2003) 109 Cal.App.4th 876, 886.) “ ‘When the probation
report includes information on the amount of the victim’s loss and a recommendation as
to the amount of restitution, the defendant must come forward with contrary information
to challenge that amount.’ (People v. Foster [(1993)] 14 Cal.App.4th [939,] 947.)
Absent a challenge by the defendant, an award of the amount specified in the probation
report is not an abuse of discretion. (People v. Pinedo (1998) 60 Cal.App.4th 1403,
1406-1407.)” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.)
       Here, the record is clear that the cost for funeral services was $10,099.50 and the
cost of the marker was $506.58. The record is equally clear that there were payments to
the family or on the family’s behalf of $500 from Harrah’s and $10,004.93 in life
insurance benefits. The Campos family was only entitled to receive restitution for
economic losses. The monies received by the family from third parties are not economic
losses sustained by the family, and are therefore not a valid part of the restitution order.
The family is not entitled to receive restitution from defendant for those amounts. The
victim impact statement and attachments make clear the request for restitution included
some $10,000 that was not for economic losses, but rather for benefits received. The
attachments were included with the victim impact statement and the probation report.
There were three hearings discussing restitution. Defense counsel objected to the award
of attorney fees included in the impact statement, indicating it was unclear what the


supporting documentation for that award was. We can discern no rational reason why
counsel would have failed to object to the inclusion of the payments from Harrah’s and




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Aetna Life Insurance in the restitution award.2 It is equally clear that this failure was
prejudicial. A restitution award is limited to economic losses sustained by the victim. A
contribution toward funeral expenses and the payment of life insurance benefits are not
economic losses. The victim impact statement and supporting documentation submitted
by the Campos family support a total award of direct victim restitution in the sum of
$14,766.36, consisting of the following: (1) $9,599.50 for the cost of arrangements with
the mortuary; (2) $506.58 for the grave marker; (3) $2,016.28 for lost wages; and (4)
$2,644 for attorney fees. Restitution for the mortuary arrangements is limited to
$9,599.50 because the evidence shows that $500 of the total cost was paid by means of a
check from Harrah’s made payable directly to the mortuary that the mortuary credited
against the total due. Thus, the Campos family never suffered an “economic loss” for
this $500.
                                      DISPOSITION
       The judgment is modified reducing the direct victim restitution award to the
Campos family to $14,766.36. The trial court is directed to prepare an amended abstract


of judgment and minute order and forward a copy to the Department of Corrections and
Rehabilitation and to the State Bar of California.




2       In a footnote, the People state: “[A] supervisor in the Probation Department
confirmed that the amounts received from Harrah’s ($500) and Aetna ($10,004.93) were
included in the calculation of the family’s expenses. He advised that the superior court
directs the department to include these amounts in all restitution calculations involving a
deceased victim and that the amounts are included in direct victim restitution in all
similar cases.” As the People note, these matters are not included in the record.
However, assuming this is true, we cannot understand why the superior court would have
a policy directing the inclusion of benefits paid to the victim as part of the claim for
restitution. Such amounts are plainly not proper restitution.

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                         /s/
                         Robie, J.



We concur:



/s/
Hull, Acting P. J.



/s/
Hoch, J.




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