Filed 7/9/19
                 CERTIFIED FOR PUBLICATION

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                          DIVISION EIGHT

DEMETRIUS CRUMP et al.,                B292786

       Petitioners,
                                       (Los Angeles County
       v.                              Super. Ct. App. Div. No. BR053255;
                                       Los Angeles County
THE SUPERIOR COURT OF                  Super. Ct. No. 6SC00433)
LOS ANGELES COUNTY,

       Respondent;

THE PEOPLE et al.,

        Real Parties in Interest.



      ORIGINAL PROCEEDINGS in mandate. Patti Jo McKay,
Tony L. Richardson, and Sanjay T. Kumar, Judges; Alan S.
Rosenfield, Judge. Petition denied in part and granted in part with
directions.
      Grignon Law Firm, Margaret M. Grignon, Anne M. Grignon;
Brentford Ferreira; Parris Law Firm, R. Rex Parris, Patricia K.
Oliver; Panish Shea & Boyle, Brian Panish and Robert Glassman
for Petitioners.
      Mariam El-Menshawi, Victims of Crime Resource Center, for
The National Crime Victim Law Institute as Amicus Curiae on
behalf of Petitioners.
      No appearance for Respondent.
      Jackie Lacey, District Attorney, Phyllis C. Asayama and
Cassandra Thorp, Deputy District Attorneys, for Real Party in
Interest The People of the State of California.
      Morgan, Lewis & Bockius, James J. Dragna, David L.
Schrader, Yardena Zwang-Weissman, Thomas M. Peterson, Nathan
Hochman; Latham & Watkins and Manuel A. Abascal for Real
Party in Interest Southern California Gas Company.
                             SUMMARY
      This case has its origin in a leak of natural gas from a
Southern California Gas Company (SoCalGas) storage facility in
Aliso Canyon, adjacent to the residential community of Porter
Ranch, that began on October 23, 2015. The gas leak continued for
months, causing damage to thousands of residents of the area, and
generated a great deal of litigation. In addition to civil lawsuits
brought by affected residents and businesses, the District Attorney
for Los Angeles County filed a misdemeanor criminal complaint
against SoCalGas (defendant).
      The resolution of the criminal charges by a plea agreement
generated further litigation by residents of the Porter Ranch
community (petitioners here). In the plea agreement, defendant
pleaded no contest to a charge of failure to immediately report the
release of a hazardous material, and obtained dismissal of other
charges, including a count alleging the discharge of air
contaminants. Petitioners, numbering more than 7,000, sought to
set aside the plea agreement and obtain restitution under the
California Constitution, which gives victims the right “to seek and
secure restitution from the persons convicted of the crimes causing



                                 2
the losses they suffer.” (Cal. Const., art. I, § 28, subd. (b)(13)(A).)
At the sentencing hearing, the trial court considered petitioners’
written submissions, oral argument and testimony, but denied their
motion to vacate the plea and require restitution. Further litigation
in the Appellate Division of the Superior Court was likewise
unsuccessful, leading to a petition for writ of mandate in this court.
       We hold that the Victims’ Bill of Rights in the California
Constitution (art. I, § 28), as amended in 2008 by Proposition 9
(Marsy’s Law or section 28) does not authorize a victim to appeal
from a judgment or order in a criminal case. Section 28 does
require the court in every case to order restitution to crime victims
“from the persons convicted of the crimes causing the losses they
suffer.” (Id., subd. (b)(13)(A).) And section 28 does authorize a
victim to enforce the right to seek and secure restitution (along with
many other enumerated rights) “in any trial or appellate court with
jurisdiction over the case as a matter of right,” and further requires
the court to “act promptly on such a request.” (Id., subd. (c)(1).)
But nowhere does section 28 state or imply, nor does its history
suggest, that a victim may enforce his or her right to restitution by
direct appeal from a criminal judgment or order.
       Instead, in those rare cases where the trial court fails in its
duty to order restitution from the convicted wrongdoer to the
victims of the crime, the victims may do what petitioners have done
in this case: seek a writ of mandate. This is consonant with section
28, and at the same time does not interfere with “the public
prosecutor’s exclusive discretion in the conduct of criminal cases.”
(Dix v. Superior Court (1991) 53 Cal.3d 442, 451 (Dix).)
       Here, however, the trial court did not fail in its duty when it
refused to order restitution for all losses caused by the gas leak. We
reject the contention that the release of air contaminants was
“encompassed in” the reporting failure of which defendant was



                                   3
convicted. We also decline to extend the right to restitution to
dismissed charges that are “transactionally related” to the crime of
which defendant was convicted. And although we find no error in
the trial court’s conclusion that there was no evidence or proffer of
evidence to establish that defendant’s failure to report the gas leak
for three days was a substantial factor in causing the harm victims
suffered from the gas leak, for the reasons set out below we do
remand for a hearing on whether petitioners can prove damages
from the three-day delay in reporting the leak, as charged in the
criminal complaint.
       We note as well that no injustice results from any of the legal
conclusions we have reached. Petitioners continue to have recourse
against defendant in numerous pending civil suits and class actions,
in a civil court specifically designed to handle complex proceedings.
                                 FACTS
1.     The Background and the Criminal Complaint
       SoCalGas owns a massive natural gas storage field in Aliso
Canyon, near the Porter Ranch community. On October 23, 2015, a
leak of natural gas began from a well at the Aliso Canyon facility.
The leak continued for months, and was finally successfully
controlled in February 2016.
       On February 2, 2016, the district attorney filed a
misdemeanor criminal complaint against defendant, alleging
violations of the Health and Safety Code and other state and county
regulations. There were four counts.
       Count 1 alleged that, from October 23 to October 26, 2015,
defendant failed to report the release of hazardous material, in
violation of Health and Safety Code section 25510, subdivision (a),




                                  4
“to the California Emergency Management Agency and to the
unified program agency.”1
       Counts 2 and 3 alleged failures to report the release of
hazardous material, during the same period, under Los Angeles
County Code section 12.56.030 and title 19 of the California Code of
Regulations.
       Count 4 alleged that, from October 23, 2015 to the present
(February 2, 2016), defendant committed the crime of discharge of
air contaminants, in violation of Health and Safety Code section
41700, subdivision (a), by discharging natural gas or its
components.2
       A few days after the complaint was filed, attorneys
representing many of the victims of the discharge notified the
district attorney’s office that they sought restitution.


1     Health and Safety Code section 25510 provides in pertinent
part: “[T]he handler or an employee, authorized representative,
agent, or designee of a handler, shall, upon discovery, immediately
report any release or threatened release of a hazardous material, or
an actual release of a hazardous substance, . . . to the UPA [unified
program agency], and to the office, in accordance with the
regulations adopted pursuant to this section.” (Id., subd. (a).) The
term “office” means the Office of Emergency Services. (§ 25501,
subd. (o).) The UPA in this case was the Los Angeles County Fire
Department.

2     Health and Safety Code section 41700 states that “a person
shall not discharge from any source whatsoever quantities of air
contaminants or other material that cause injury, detriment,
nuisance, or annoyance to any considerable number of persons or to
the public, or that endanger the comfort, repose, health, or safety of
any of those persons or the public, or that cause, or have a natural
tendency to cause, injury or damage to business or property.” (Id.,
subd. (a).)


                                  5
       On February 17, 2016, defendant waived arraignment and
pleaded not guilty to all four counts.
       On September 12, 2016, the district attorney’s office notified
attorney Paul Kiesel that a proposed plea agreement had been
reached with defendant to settle the criminal complaint.
(Mr. Kiesel had been appointed as liaison counsel for the thousands
of plaintiffs and 86 law firms involved in 157 coordinated civil suits
and class actions filed against SoCalGas over the gas leak.)
Mr. Kiesel was informed there would be a pretrial conference the
following day. He said he would discuss the matter with co-leads of
the plaintiff steering committee, and would send a representative
from leadership to the hearing. He was not consulted about the
terms of the plea or given advance notice of the terms.
2.     The Plea Agreement
       On September 13, 2016, the proposed settlement agreement
was submitted to the trial court and its terms were read into the
record.
       Under the plea agreement, defendant pleaded no contest to
count 1, “for failing to timely report the natural gas leak to the
proper authorities, specifically the California Office of Emergency
Services . . . and . . . the Los Angeles County Fire Department.” The
parties acknowledged that any subsequent violation of Health and
Safety Code section 25510 “may be charged as a felony.” Other
terms were:
       The court would impose the maximum fine of $75,000
($25,000 per day of violation) in exchange for the plea to count 1.
The court would also impose state penalty assessments “currently
estimated to be approximately $232,500”; $246,672.88 for response
costs; and “all mandatory fines and fees as required by the court,
including any restitution fine to the State Restitution Fund.”




                                  6
       Defendant agreed to comply with six other terms and
conditions, all to be completed prior to sentencing. “In total,
SoCalGas will be required to pay and commit approximately
$4,004,172 to $4,304,172 to fully complete and satisfy the complete
terms of this settlement agreement.”3
       “Provided the terms of this Agreement are complied with by
SoCalGas,” the district attorney agreed to dismiss the remaining
three counts of the complaint at the time of sentencing. And
“[g]iven that all of the terms and conditions of this agreement will
be required to be completed at or prior to the date of sentencing,”
the district attorney agreed not to seek or require probation as a
condition of the agreement.
       After discussion and questions from the court, the court
accepted defendant’s plea of no contest to count 1, and signed the
settlement agreement. The court set the matter for sentencing on
November 29, 2016.
3.     Proceedings After the Plea
       On October 18, 2016, attorneys for victims filed a request for
withdrawal of the plea agreement. They pointed out victims have a
constitutional right to be heard, and a right to restitution under


3      These conditions included installing an infrared methane leak
detection system capable of detecting methane crossing from the
facility into the community; a binding agreement to hire and
maintain six full-time employees to operate and maintain the leak
detection systems for at least three years; installation of real-time
pressure monitors at each natural gas storage well as required by
various orders; testing and certification of the new monitoring
systems by an outside third party company; revision and adoption
of new reporting policies regarding releases or threatened releases
of hazardous materials; and proof that it conducted training courses
for employees responsible for leak detection or reporting at all Los
Angeles County facilities on specified topics.


                                  7
section 28. They contended the district attorney failed to notify or
confer with them before entering the plea agreement, and the plea
should be withdrawn. They requested a hearing to consider their
claims for restitution “before the court sentences SoCalGas or
accepts the plea agreement.” They contended a sentence without an
award of victim restitution is invalid, and the court has discretion
to retain jurisdiction to provide for full restitution to the victims.
       On November 7, 2016, the trial court issued a minute order
stating the victims “have standing to be heard and express their
views concerning the negotiated disposition at the sentencing
hearing.” The minute order stated that on November 29, 2016, “the
court will hear input, comments and objections by victims, and
further argument by the parties before proceeding with the
sentencing.”
       On November 22, 2016, defendant opposed the request for
withdrawal of the plea agreement. Defendant contended, among
other things, that a third party has no right to compel or control the
prosecution of an offense, and that restitution was not available on
the only count of which defendant was convicted. The district
attorney also opposed the request for withdrawal of the plea
agreement. The district attorney argued the victims had a right to
be heard at sentencing, and a right to lawful restitution, but that
count 1 was the only crime from which a victim could receive
restitution and there were “no natural direct victims of Count One.”
       The victims filed a reply, arguing they were entitled to
restitution for the failure to report conviction because failure to
report an emission cannot occur without an emission, so count 4
was “transactionally related” to count 1.
4.     The Sentencing Hearing
       Four attorneys, plus Mr. Kiesel as liaison counsel for
plaintiffs in the civil actions, appeared at the sentencing hearing,



                                  8
representing more than 7,000 victims.4 The court stated that “the
whole point of the hearing today was to allow people who wish to be
heard to be heard about their concerns with regard to victim
restitution as an issue in the case.” The court recognized it had “an
independent duty to make an order which satisfies the interests of
the victim and protects the victim.”
       The four attorneys presented arguments to the court on
behalf of victims, and six victims also addressed the court.
       After the victim statements and argument, the court imposed
the agreed sentence and dismissed the remaining counts. The court
explained governing principles of prosecutorial discretion and
control of the case by the parties to the litigation. While the victims
had the right to be heard at the sentencing hearing to express their
views on the propriety of the negotiated disposition, they had no
right to intervene in the negotiated disposition itself. “So really this
boils down to whether the prosecutor has properly exercised their
discretion, whether the court should approve the disposition
finally.”
       The court concluded that “in the final analysis . . . the People
have not abused their discretion. They actually did something quite
constructive to move forward immediately with protective
measures, which have been accomplished . . . .”5 The court issued a
detailed written order, including a finding that the prosecutors
complied with their duty under Marsy’s Law to give notice to the
victims prior to the taking of the plea; that it could not impose a

4     Counsel for victims stated that the 7,225 victims were “just
the ones that our office and Mr. Panish’s office represents. There’s
twice that out there.”
5    The prosecutor stated for the record that defendant “did
comply with all of the terms and have shown us proof of all of that.”



                                   9
Harvey waiver6 (under which a dismissed charge may be considered
at sentencing on charges to which the defendant has pleaded guilty)
because a defendant’s Harvey waiver must be voluntary; and there
was no basis for restitution under count 1 because the delay in
notification “did not cause the damage occasioned by the leak.”
       The court concluded: “The District Attorney’s Office has
chosen terms that include proactive, extensive and costly repairs,
hiring of additional personnel, testing, monitoring, and inspection
and safety protocols, all funded by the defendant moving forward
into the future for the general protection of a vast number of
citizens in the Northern San Fernando Valley . . . . [T]he Court is
persuaded that the District Attorney has acted to protect the
greater public interest to achieve a result that protects not only the
potential direct victims in this case, but the larger general citizenry,
and does so by agreement thereby avoiding costly and protracted
efforts at achieving the same remedies through the courts with civil,
eminent domain, condemnation, or injunctive relief litigation. . . .
Count 4’s dismissal is warranted without a Harvey waiver in such
circumstances, in the exercise of the People’s discretion, and the
Court is well within its reasoned discretion to approve this
settlement in light of the immense overall public benefit to be
derived thereby.”
5.     Postsentencing Proceedings
       On December 28, 2016, the victims filed a notice of appeal to
the appellate division from the judgment of conviction and from the
denial of their request for restitution. The next day, the victims
filed a petition for writ of mandate, asking the appellate division to
set aside the trial court’s order denying direct victim restitution. A
few days later, the appellate division denied the writ petition “on


6     People v. Harvey (1979) 25 Cal.3d 754 (Harvey).


                                  10
the ground the victims have an adequate remedy at law via their
direct appeal from the order denying restitution.”
       On August 7, 2018, the appellate division issued an opinion
concluding the victims lacked standing to appeal the order, but had
a right to seek a writ of mandate. Treating the appeal as a writ
petition, the court denied it. The court held (1) there was no right
to restitution under count 4, because defendant was not convicted of
that crime; (2) there was no right to restitution under count 1 based
on its “transactional relationship” to count 4; and (3) as for count 1,
the victims did not establish “that any economic losses they
sustained resulted from the criminal conduct for which defendant
was convicted.”
       On September 21, 2018, the victims petitioned this court for a
writ of mandate directing the appellate division to vacate its
opinion and to remand the matter to the trial court “for a proper
hearing on restitution.” We issued an order to show cause why
petitioners are not entitled to the relief requested in the petition.
       We now deny the petition in part and remand to permit
petitioners to prove damages stemming only from the three-day
delay in reporting the leak.
                            DISCUSSION
1.     The Direct Appeal Issue
       As stated at the outset, we conclude the California
Constitution does not authorize a direct appeal by a victim from a
judgment or order in a criminal case. Section 28 authorizes a
victim to enforce his or her right to restitution in trial and appellate
courts, but does not specify enforcement by way of direct appeal.
The right to appeal is ordinarily conferred by statute, and to date
has been conferred only upon the parties to an action.
       While the voters could authorize a right of direct appeal by
constitutional amendment, they did not do so here. We cannot



                                   11
infer, based on the language of section 28, that the voters intended
a fundamental change in longstanding criminal and appellate
procedure without expressly so stating. This is particularly so in
light of Supreme Court precedent, well-established at the time
Marsy’s Law was approved by the voters, that “recognition of citizen
standing to intervene in criminal prosecutions” would “undermine
the People’s status as exclusive party plaintiff in criminal actions,
interfere with the prosecutor’s broad discretion in criminal matters,
and disrupt the orderly administration of justice.” (Dix, supra,
53 Cal.3d at pp. 453-454.)
       We describe the governing constitutional and statutory
provisions and case precedents that inform our decision, and then
turn to the petitioners’ contentions.
       a.    Section 28, implementing statutes,
             and principles of construction
       The Supreme Court described the background of direct victim
restitution under the California Constitution in People v. Martinez
(2017) 2 Cal.5th 1093, 1100 (Martinez). The court explained that in
1982, by Proposition 8, “commonly known as The Victims’ Bill of
Rights,” the electorate declared “an ‘unequivocal intention . . . that
all persons who suffer losses as a result of criminal activity shall
have the right to restitution from the persons convicted of the
crimes for losses they suffer,’ and instruct[ed] the Legislature to
adopt legislation to implement this directive.” (Ibid.)
       “The Legislature’s response, currently codified in [Penal Code]
section 1202.4, similarly declares that it is the Legislature’s intent
‘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.’ ” (Martinez, supra, 2 Cal.5th at
p. 1100, quoting § 1202.4, subd. (a)(1).) “To that end, section
1202.4 provides that, with certain exceptions not relevant here, ‘in



                                 12
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.’ ” (Ibid.,
quoting § 1202.4, subd. (f).) “The statute further provides that the
court’s restitution order shall, ‘[t]o the extent possible . . . fully
reimburse the victim or victims for every determined economic loss
incurred as the result of the defendant’s criminal conduct.’ ” (Id. at
p. 1101, quoting § 1202.4, subd. (f)(3).) “This provision, as the
Courts of Appeal have uniformly held, . . . authorizes trial courts to
order direct victim restitution for those losses incurred as a result of
the crime of which the defendant was convicted.” (Ibid.)
       In addition to the right to restitution, section 28 as originally
approved in 1982 gave victims the right to attend, to adequate
notice of, and to express views on restitution at “all sentencing
proceedings.” (Pen. Code, § 1191.1.) As amended by Marsy’s Law
in 2008, section 28 refers to the right “to seek and secure
restitution” (§ 28, subd. (b)(13)(A)), and enumerates 16 other rights
as well. Victims are entitled to these 17 rights “[i]n order to
preserve and protect a victim’s rights to justice and due process.”
(§ 28, subd. (b).) The rights include, as relevant here, the right to
“reasonable notice of and to reasonably confer with the prosecuting
agency, upon request, regarding . . . the charges filed,” and “to be
notified of and informed before any pretrial disposition of the case”
(id., subd. (b)(6)); to reasonable notice of and to be present at “all
public proceedings . . . at which the defendant and the prosecutor
are entitled to be present” (id., subd. (b)(7)); and “[t]o be heard . . .
at any proceeding . . . involving a . . . plea, sentencing, . . . or any
proceeding in which a right of the victim is at issue” (id.,
subd. (b)(8)).
       The Marsy’s Law amendment to section 28 also changed the
Constitution in two other ways relevant here. It specified that



                                   13
restitution must be ordered in every case (deleting the 1982
language that required restitution “unless compelling and
extraordinary reasons exist to the contrary” (id., former subd. (b)).
And it added the provision allowing a victim to enforce the 17 rights
enumerated in section 28: “A victim, the retained attorney of a
victim, a lawful representative of the victim, or the prosecuting
attorney upon request of the victim, may enforce the rights
enumerated in subdivision (b) in any trial or appellate court with
jurisdiction over the case as a matter of right. The court shall act
promptly on such a request.” (Id., subd. (c)(1); see id., subd. (f)
[referring to the subdivision (b) enumerated rights “that are
personally enforceable by victims as provided in subdivision (c)”],
and subd. (a)(3) [referring to victims’ rights as including “personally
held and enforceable rights described in paragraphs (1) through
(17) of subdivision (b)”].)
       When we construe an initiative such as Marsy’s Law, “we
apply the same principles governing statutory construction. We
first consider the initiative’s language, giving the words their
ordinary meaning and construing this language in the context of
the statute and initiative as a whole. If the language is not
ambiguous, we presume the voters intended the meaning apparent
from that language, and we may not add to the statute or rewrite it
to conform to some assumed intent not apparent from that
language. If the language is ambiguous, courts may consider ballot
summaries and arguments in determining the voters’ intent and
understanding of a ballot measure.” (People v. Superior Court
(Pearson) (2010) 48 Cal.4th 564, 571.) “[W]hen construing
initiatives, we generally presume electors are aware of existing
law.” (California Cannabis Coalition v. City of Upland (2017)
3 Cal.5th 924, 934.)




                                  14
       b.    Dix v. Superior Court
       We are also and necessarily guided by the Supreme Court’s
discussion in Dix of the “general rule that neither a crime victim
nor any other citizen has a legally enforceable interest, public or
private, in the commencement, conduct, or outcome of criminal
proceedings against another.” (Dix, supra, 53 Cal.3d at p. 450.)
       Dix involved the trial court’s recall of the defendant’s
sentence under Penal Code provisions that allowed the court to
resentence “for any reason that could influence the exercise of
sentencing discretion generally, including events which have
occurred since the original sentence was imposed.” (Dix, supra,
53 Cal.3d at p. 448 [describing Pen. Code, § 1170, subd. (d)].) The
victim of the defendant’s crime sought a writ of mandate to
overturn the recall order and prevent substitution of a new
sentence. (Dix, at p. 447.) The Court of Appeal issued the writ, but
the Supreme Court found the Court of Appeal erred when it held
the victim had standing to litigate the sentencing issue. (Id. at
pp. 447-448.) The Supreme Court concluded that “[n]either a crime
victim nor any other member of the public has general standing to
intervene in an ongoing criminal proceeding against another
person.” (Id. at p. 448.) Dix stands for several pertinent points.
       The court found the victim could not “intervene by writ in [the
defendant’s] sentencing. Except as specifically provided by law, a
private citizen has no personal legal interest in the outcome of an
individual criminal prosecution against another person. Nor may
the doctrine of ‘public interest’ standing prevail over the public
prosecutor’s exclusive discretion in the conduct of criminal cases.”
(Dix, supra, 53 Cal.3d at p. 451.)
       The court explained that “[t]he parties to a criminal action
are the People, in whose sovereign name it is prosecuted, and the
person accused [citations]; the victim of the crime is not a party



                                 15
[citation].” (Dix, supra, 53 Cal.3d at p. 451.) “The prosecutor
ordinarily has sole discretion to determine whom to charge, what
charges to file and pursue, and what punishment to seek.” (Ibid.)
A private person cannot institute criminal proceedings
independently, “and the prosecutor’s own discretion is not subject to
judicial control at the behest of persons other than the accused.”
(Ibid.) “An individual exercise of prosecutorial discretion is
presumed to be ‘ “legitimately founded on the complex
considerations necessary for the effective and efficient
administration of law enforcement.” ’ ” (Ibid.)
       Further, “[e]xclusive prosecutorial discretion must also extend
to the conduct of a criminal action once commenced.” (Dix, supra,
53 Cal.3d at p. 452.) It is the prosecutor’s responsibility “to decide
in the public interest whether to seek, oppose, accept, or challenge
judicial actions and rulings,” and “[t]hese decisions, too, go beyond
safety and redress for an individual victim; they involve ‘the
complex considerations necessary for the effective and efficient
administration of law enforcement.’ ” (Ibid.) “There is no place in
this scheme for intervention by a victim pursuing personal concerns
about the case.” (Ibid.)
       c.     Contentions and conclusions
       It is against the backdrop just described that we assess
petitioners’ contention that they have “an independent right to
appeal” a trial court’s denial of their request for restitution.
       As we have stated, the right of victims to “enforce the rights
enumerated . . . in any trial or appellate court with jurisdiction over
the case” (§ 28, subd. (c)(1)) – and the court’s corresponding duty to
“act promptly on such a request” (ibid.) – do not suggest to us an
“independent right to appeal” a restitution order. The recognition
of such a right in the absence of language expressly conferring it is
inconsistent both with the prosecutor’s exclusive discretion to



                                  16
conduct a criminal case, including whether to challenge judicial
actions, and with the fundamental principle that the only parties to
a criminal action are the prosecutor and the defendant. (Dix, supra,
53 Cal.3d at pp. 451-452.)
      Petitioners resist this conclusion with several arguments.
              i.    The constitutional language
       Petitioners tell us they have a constitutional right to enforce
their restitution rights in “any trial or appellate court with
jurisdiction over the case . . . .” (§ 28, subd. (c)(1).) Indeed they do.
But petitioners simply assume this means they have an
independent right to a direct appeal. They do not. Neither the
language of section 28 nor the ballot materials accompanying
Marsy’s Law give any indication the voters intended to change
current statutory provisions on the right to appeal in a criminal
case. Several points are pertinent.
       First, an appellate court has “jurisdiction over the case” when
one of the parties – the prosecutor or the defendant – takes an
appeal. For misdemeanor cases, Penal Code section 1466 delineates
all the cases in which an appeal may be taken “[b]y the people” (id.,
subd. (a)) and “[b]y the defendant” (id., subd. (b)). Nothing in
Marsy’s Law makes the victim a party to the case, or purports to
change Penal Code section 1466. Without party status, there is no
basis for a direct appeal. Of course, once the appellate court has
jurisdiction over the case, Marsy’s Law gives victims the right to
participate in those proceedings to enforce the rights conferred on
victims in section 28.
       Second, nothing in the ballot materials accompanying Marsy’s
Law suggested any change in the right to appeal from a criminal
judgment. The ballot materials described the changes that would




                                   17
be made by the amendment.7 The legislative analyst described the
changes the initiative would make in “notification and participation
of victims in criminal justice proceedings” this way: “As noted
above, Proposition 8 [the 1982 initiative] established a legal right
for crime victims to be notified of, to attend, and to state their views
at, sentencing and parole hearings. This measure expands these
legal rights to include all public criminal proceedings, including the
release from custody of offenders after their arrest, but before trial.
In addition, victims would be given the constitutional right to
participate in other aspects of the criminal justice process, such as
conferring with prosecutors on the charges filed. Also, law
enforcement and criminal prosecution agencies would be required to
provide victims with specified information, including details on
victim’s rights.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2008)
analysis of Prop. 9 by Legislative Analyst, pp. 58-59.) In short,
there is no intimation that the changes included a right of direct
appeal for victims from a restitution order or any other order in a
criminal case.
       Third, and perhaps most importantly, the Constitution’s
appellate jurisdiction clause establishes and allocates judicial
authority; it does not define or guarantee a litigant’s right to
appeal. (See Leone v. Medical Board (2000) 22 Cal.4th 660, 665-666
(Leone) [“the appellate jurisdiction vested in the Courts of Appeal
by article VI, section 11, of the California Constitution encompasses
review by extraordinary writ as well as review by direct appeal”].)


7     In addition to amending the Constitution and various state
laws to “expand the legal rights of crime victims and the payment of
restitution by criminal offenders,” Marsy’s Law “restrict[ed] the
early release of inmates” and “change[d] the procedures for granting
and revoking parole.” (Voter Information Guide, Gen. Elec. (Nov. 4,
2008) analysis of Prop. 9 by Legislative Analyst, p. 58.)


                                  18
Leone construes the clause of the Constitution that gives Courts of
Appeal “ ‘appellate jurisdiction when superior courts have original
jurisdiction,’ ” and tells us that “[n]othing in this language conveys
an intention to grant litigants a right of direct appeal from
judgments in proceedings within the superior courts’ original
jurisdiction.” (Leone, at p. 666; see ibid. [“In particular, the
reference to ‘appellate jurisdiction’ does not imply a right of
litigants to bring direct appeals.”]; see id. at p. 667 [“Nor does the
ballot pamphlet for the November 1966 election mention a right of
appeal under the state Constitution.”].)
       We see no reason for a different construction of the
constitutional right under section 28 to “enforce” the victim’s rights
“in any trial or appellate court with jurisdiction over the case as a
matter of right.” (Id., subd. (c)(1).) That is to say, the right to
enforcement in an appellate court is not necessarily the equivalent
of a right to direct appeal. “[A] reviewing court may exercise
appellate jurisdiction – that is, the power to review and correct
error in trial court orders and judgments – either by a direct appeal
or by an extraordinary writ proceeding.” (Leone, supra, 22 Cal.4th
at p. 668.) An extraordinary writ proceeding is particularly
appropriate in circumstances where the person with the
enforcement right is not a party to the proceeding.
       Thus, in the unusual case where the trial court improperly
refuses or otherwise errs in awarding restitution, and no appeal is
taken, the victim may enforce the right to restitution in the
appellate courts by seeking a writ of mandate.
       We recognize that the Dix case involved a writ of mandate,
and that Dix rejected “the holding below that [the victim] may
intervene by writ in [the defendant’s] sentencing.” (Dix, supra, 53
Cal.3d at p. 451.) But the court prefaced its ruling with the caveat,
“[e]xcept as specifically provided by law.” (Ibid.) Dix preceded the



                                  19
passage of Marsy’s Law, which allows crime victims to enforce their
enumerated rights in appellate courts. It seems clear to us that the
right specified in Marsy’s Law, unlike the circumstances in Dix,
satisfies the principle that “[o]rdinarily, the writs will be issued
only to persons who are ‘beneficially interested.’ ”8 (Dix, at p. 450.)
A victim is necessarily “beneficially interested” in an award – or a
refusal to award – restitution.
       In short, our conclusion – that the enforcement right in
section 28 is not a right of direct appeal, but a right to obtain
appellate review by seeking a writ of mandate – is consonant both
with the language and intent of Marsy’s Law, and with principles of
prosecutorial discretion and appellate review that were well
established when the voters approved Marsy’s Law.9

8      Dix did not involve restitution. Dix recognized that the
Constitution and statutes at that time accorded individual felony
victims certain rights, including the right to restitution in
appropriate circumstances, and concluded that “[w]hatever special
considerations of standing may apply to this limited category of
‘victims’ rights,’ ” challenges based on the recall statute did not
implicate those rights. (Dix, supra, 53 Cal.3d at p. 453.)

9      Petitioners’ next argument is that the Legislature may not, by
failing to amend the Penal Code with express statutory language
stating victims have the right to appeal, abridge their
constitutionally granted right to appeal. They cite Byers v. Smith
(1935) 4 Cal.2d 209, 214 (Legislature has no power “either through
direct enactment or indirect device, to destroy or abridge the right
of an appeal constitutionally granted”). As we have just discussed,
section 28 does not grant a “right to appeal.” Moreover, in Leone
the court found reliance on Byers for a constitutional right to appeal
was “misplaced,” among other reasons because Byers did not
construe the clause at issue and did not distinguish between review
by writ petition and review by direct appeal. (Leone, supra,
22 Cal.4th at pp. 667-668.)


                                  20
             ii.   The case authorities
      Petitioners contend that appellate decisions have
acknowledged a crime victim’s right to appeal, citing Melissa J. v.
Superior Court (1987) 190 Cal.App.3d 476 (Melissa J.) and People v.
Hannon (2016) 5 Cal.App.5th 94 (Hannon). Petitioners misconstrue
these cases.
                   Melissa J.
      Petitioners contend that, even before Marsy’s Law gave
enforcement rights to victims, Melissa J. recognized that crime
victims had the right to appeal. That is not so.
      In Melissa J., the court granted the victim’s petition for writ
of mandate, and set aside the trial court’s order terminating a
restitution provision in the defendant’s probation order. The court
held that, as to restitution, “the notice and right to appear
requirements [in the Victims’ Bill of Rights] are mandatory,” and if
those requirements are not satisfied, “the victim may challenge a
ruling regarding restitution.” (Melissa J., supra, 190 Cal.App.3d at
p. 478.) The court held the trial court erred “in terminating
restitution without first satisfying itself that petitioner had been
properly notified of the hearing.” (Ibid.)
      Melissa J. did not recognize a victim’s right to appeal.
Indeed, the court observed that the petitioner “could have received
the same relief by moving the trial court to vacate its ruling
terminating restitution.” (Melissa J., supra, 190 Cal.App.3d at
p. 479.) The court explained that the victim is not considered a
party to a criminal proceeding, but “where the court has issued an
order concerning restitution, the victim may assert his or her
legitimate rights by the procedures available to parties. Thus, in
future cases, victims not notified of proceedings will be required to
exhaust their remedies in the trial courts before seeking relief in
appellate courts.” (Ibid.)



                                 21
       Petitioners assert – with no rational basis – that by the
language just quoted, Melissa J. establishes that, like parties,
“future victims would have standing to appeal.” The contention is
patently wrong. Melissa J. supports the proposition that, in future
cases, a writ would be denied if the victims did not exhaust
remedies in the trial court. It neither says nor implies anything
about a right to appeal.
                   Subramanyan
       Before we turn to Hannon, we pause to describe the case to
which Hannon refers: People v. Subramanyan (2016)
246 Cal.App.4th Supp. 1 (Subramanyan). Petitioners describe that
case as an “Appellate Division outlier[].”
       Subramanyan was an appeal by a victim from a trial court’s
order denying him additional restitution for attorney fees he
incurred in a civil action against the defendant. (Subramanyan,
supra, 246 Cal.App.4th at p. Supp. 4.) The court saw “no provision
in Marsy’s Law that specifically permits a victim to appeal a
restitution order,” while the Penal Code “specifically directs that
appeals are limited to the People or the defendant,” citing section
1466. (Subramanyan, at p. Supp. 7.) The court found that
“[n]othing in the legislative intent or [Marsy’s Law] itself allows the
victim to substitute in and replace the role of the prosecutor.”
(Ibid.) Subramanyan concluded that, “once the judgment was
entered at the trial court, only the prosecutor, acting on behalf of
the People, or the defendant could initiate the appeal. If such an
appeal were initiated, the victim could then participate pursuant to
Marsy’s Law.” (Id. at p. Supp. 8.) Thus, the court dismissed the
appeal for lack of standing. (Ibid.)
                   Hannon
       That brings us to Hannon, on which petitioners place their
principal reliance. In Hannon, the defendant appealed from the



                                  22
trial court’s restitution award, and the court granted the victim’s
request to file an impact statement on appeal. The court held that
Marsy’s Law “entitles a victim to file an impact statement on appeal
but does not obligate this court to consider new issues and facts in
such a statement.” (Hannon, supra, 5 Cal.App.5th at p. 101,
capitalization omitted.) The court observed its interpretation of
section 28 “means the victim’s claims of error will remain
unresolved. That is because, absent those circumstances where
writ proceedings are appropriate, the mechanism by which claims of
error are properly brought to this court’s attention is through the
filing of an appeal,” and the victim did not attempt to appeal the
trial court’s restitution order. (Hannon, at p. 107.) Then the court
stated, “We recognize there is some uncertainty whether the victim
would have had standing to appeal the restitution award, but we do
not have occasion in the present case to decide that issue.” (Ibid.)
       Thus, far from “recogniz[ing] that crime victims must have a
right to appeal,” Hannon did not decide the issue, saying it was “for
future courts to address.” (Hannon, supra, 5 Cal.App.5th at p. 107,
fn. 7.) Petitioners point to Hannon’s comments, by way of footnote,
that if there is no right to appeal, “then the victim’s claims of error
may go unheard,” and “[a]rguably, a victim has a right to appeal
under” section 28’s enforcement provision. (Hannon, at p. 107,
fn. 7.) Hannon then described the Subramanyan opinion, and
suggested that it “did not explain how its result was consistent with
the language of Section 28, subdivision (c)(1) and did not explain
how, consistent with due process, a victim could enforce the right to
restitution without the ability to appeal an erroneous restitution
award. Those issues, including any conflict between the rights
given victims under Marsy’s Law and the People’s prosecutorial
authority, are for future courts to address.” (Hannon, at p. 107,
fn. 7.)



                                  23
       We are not persuaded by Hannon’s comments on an issue it
did not consider, analyze or decide. We have explained our analysis
in detail, and we summarize it again: Nowhere does section 28
state or imply that a victim may enforce his or her right to
restitution by appealing from a criminal judgment or order. Nor is
there any evidence the voters intended that the enforcement
provision of section 28 would expand the limitations in the Penal
Code on the right to appeal. In light of settled principles that the
only parties to a criminal case are the People and the accused; that
the prosecutor has exclusive discretion in the conduct of criminal
cases (Dix, supra, 53 Cal.3d at p. 451); and that a right to appellate
review does not necessarily imply a right of direct appeal, we can
only conclude that victims do not have that right under Marsy’s
Law.
       Accordingly, we turn to the merits of the victims’ writ
petition.
2.     The Claim that the Criminal Conduct for which
       Defendant Was Convicted “Encompassed” the
       Criminal Discharge of Hazardous Substances
       Petitioners argue that, because defendant was convicted of
failure to immediately report the release of a hazardous material, a
“criminal release of hazardous materials” must have occurred.
Ergo, defendant’s “criminal discharge of hazardous materials is
criminal conduct encompassed in its criminal failure to timely
report that discharge,” entitling them to restitution for losses
caused by the criminal discharge of hazardous materials.
       This facile contention cannot survive serious scrutiny. It
omits the fundamental requirement of an actual verdict after trial
or an admission by the defendant to a specific criminal charge. We
are unaware of any principle under which we may conclude a
defendant has been “convicted of the crime[]” (§ 28, subd. (b)(13)(A))



                                  24
in the absence of a verdict on or plea to that crime. And nothing in
the case petitioners cite (People v. Walker (2014) 231 Cal.App.4th
1270 (Walker)) persuades us otherwise. Walker does not stand for
the proposition that restitution may be ordered for “criminal
conduct” to which the defendant has not pleaded or been found
guilty.
       In Walker, the defendant pleaded no contest to four counts of
“DUI causing injury” based on a single incident in which he hit
eight different vehicles carrying nine passengers. (Walker, supra,
231 Cal.App.4th at p. 1273.) The defendant contended that the
court imposed restitution for crimes of which he was not convicted,
because two of the victims to whom restitution was awarded were
not named in the charging document. (Id. at p. 1274.) The court
concluded that, “[b]ecause there was only one instance of driving
under the influence,” and the defendant pleaded no contest to that
instance, the losses suffered by anyone involved in that instance
arose out of “ ‘the criminal conduct for which the defendant has
been convicted.’ ” (Id. at pp. 1275-1276.) “Whether these potential
victims were specifically named in the charging document is
irrelevant.” (Id. at p. 1276.)
       In assessing defendant’s claim, Walker stated, at the
beginning of its analysis, that “understand[ing] the conduct of
which [the defendant] stands convicted . . . turns on what conduct is
encompassed by the crime of DUI causing injury.” (Walker, supra,
231 Cal.App.4th at p. 1275.) Petitioners seize on those words as, in
effect, establishing a rule of law that any conduct “encompassed” in
the elements of the crime of which a defendant is convicted is itself
“criminal conduct” of which the defendant has been convicted.
Walker suggests nothing of the sort.
       In Walker, the defendant pleaded no contest to committing the
criminal act – driving under the influence causing injury – that



                                 25
caused the economic loss to the victims. While two of the victims
were not named in the charges, the defendant conceded they were
among the nine passengers in the eight different vehicles the
defendant hit in the accident he caused. (Walker, supra,
231 Cal.App.4th at p. 1273.) Those circumstances fit well within
the principle courts are required to apply: that “the court may
order restitution only for losses arising out of the ‘criminal conduct
for which the defendant has been convicted.’ ” (Id. at p. 1274, italics
added; see ibid. [“This result is dictated by the language of [Penal
Code] section 1202.4 . . . and by the unfairness that would result if a
defendant were held responsible for losses caused by conduct
underlying charges that were dismissed or of which he was
acquitted,” italics added].)
       A conviction of a failure-to-report violation is not a conviction
for the underlying conduct that was not reported. Any other
conclusion is rationally unsustainable.
3.     The “Transactionally-related” Argument
       Next, petitioners tell us that, because the dismissed count 4 is
“transactionally related” to the crime to which defendant pleaded no
contest, restitution must be ordered for economic losses caused by
the dismissed count. We disagree. The legal authorities petitioners
cite do not support their claim.
       In Harvey, supra, 25 Cal.3d 754, the Supreme Court
concluded it would be “improper and unfair” to permit a sentencing
court to consider any facts underlying a dismissed count “for
purposes of aggravating or enhancing defendant’s sentence.” (Id. at
p. 758.) Implicit in the plea bargain, Harvey stated, was “the
understanding (in the absence of any contrary agreement) that
defendant will suffer no adverse sentencing consequences by reason
of the facts underlying, and solely pertaining to, the dismissed
count.” (Ibid.)



                                  26
         The Harvey rule, however, does not preclude the sentencing
court “ ‘from reviewing all the circumstances relating to [the
defendant’s] admitted offenses to the legislatively mandated end
that a term, lower, middle or upper, be imposed on [the defendant]
commensurate with the gravity of his crime.’ ” (Harvey, supra,
25 Cal.3d at p. 758.) The court denominated such facts as
“transactionally related to the offense to which defendant pleaded
guilty.” (Ibid.)
         The Harvey rule (or its exception) has been applied in cases
involving increased prison terms, and to conditions of probation.
(E.g., People v. Klaess (1982) 129 Cal.App.3d 820, 823 [“facts used
. . . to aggravate defendant’s sentence were inseparably and
integrally a part of defendant’s admitted offense and were therefore
properly considered”; “[t]he Harvey court recognized that the rule
must give way . . . when it would prevent the trial court from
considering all the factors necessary to an informed disposition for
the offenses to which defendant has pleaded guilty”]; People v.
Beagle (2004) 125 Cal.App.4th 415, 421, 417-418 [“[w]e see no basis
for distinguishing conditions of probation from prison sentences in
this context”; “[a] condition of probation adding a restriction on the
defendant’s conduct is an ‘adverse sentencing consequence’ ”; trial
court could not impose a drug-related probation condition on a
defendant who pleaded guilty to a weapon charge, based on facts
relating to the dismissed drug charge].)
         Petitioners invoke the cases just cited to argue that the same
principle applies to restitution. We think not. The cases petitioners
cite involve a sentencing court’s authority to consider facts
underlying a dismissed count in deciding the length of a defendant’s
sentence, or the conditions of a defendant’s probation, on the
admitted charge. A court may consider those facts only if “some
action of the defendant giving rise to the dismissed count was also



                                  27
involved in the admitted count.” (Beagle, supra, 125 Cal.App.4th at
p. 421.) But those principles have nothing to do with a court’s
constitutionally mandated duty – not its discretionary authority –
to order the defendant to pay full restitution to victims who incur
an economic loss “as a result of the commission of a crime,” from
“a defendant convicted of that crime.” (Pen. Code, § 1202.4,
subd. (a)(1).)
       We are disinclined to apply legal rules for determining the
length of a defendant’s sentence or the conditions of his or her
probation to the entirely different question of the constitutionally-
prescribed circumstances for a restitution order. While restitution
may be an “adverse sentencing consequence” from the defendant’s
point of view, not all such consequences have the same
ramifications. For one thing, “direct victim restitution is not a
criminal penalty. [Citation.] ‘[D]irect victim restitution is a
substitute for a civil remedy so that victims of crime do not need to
file separate civil suits. It is not increased “punishment.” ’ ” (People
v. Foalima (2015) 239 Cal.App.4th 1376, 1398 (Foalima); see also
People v. Gross (2015) 238 Cal.App.4th 1313, 1315 [“[t]he obligation
to make a victim whole through direct victim restitution is a
constitutional mandate that serves to protect public safety and
welfare, rather than to punish the defendant”].)
       More importantly, restitution is governed by provisions of the
Constitution and implementing statutes that are explicit in their
scope and application. Restitution is not akin or even analogous to
the length of a prison term (e.g., upper, middle or lower) or to the
conditions of a defendant’s probation, both of which involve an
exercise of the sentencing court’s sound discretion, as guided by
statute and court rules. (E.g., Pen. Code, § 1170, subd. (b);
Cal. Rules of Court, rule 4.420; see also rule 4.421 [“Circumstances




                                  28
in aggravation include factors relating to the crime and factors
relating to the defendant.”].)
       Restitution, by contrast, “shall be ordered from the convicted
wrongdoer in every case, regardless of the sentence or disposition
imposed, in which a crime victim suffers a loss.” (§ 28,
subd. (b)(13)(B); Pen. Code, § 1202.4, subd. (f) [“The court shall
order full restitution.”].) No discretion is involved, and the award
does not depend on anything other than the crime of which
defendant was convicted and the economic loss caused by that crime
– no matter how “transactionally related” it may be to some other
charge of which a defendant has not been convicted. In short, the
appellate division did not “br[eak] with precedent,” as petitioners
claim, when it concluded that “transactional relationship is not the
test” for determining entitlement to direct victim restitution – quite
the contrary.10


10     The point is further demonstrated by the differences between
a court’s power to order direct victim restitution and a court’s power
to order restitution as a condition of probation. “[T]he restitution
power conferred by [Penal Code] section 1202.4 stands in contrast
to a court’s power to order restitution as a condition of probation.”
(Martinez, supra, 2 Cal.5th at p. 1101.) In the latter case, the
court’s discretion “has long been held to include the power to order
restitution ‘even when the loss was not necessarily caused by the
criminal conduct underlying the conviction,’ including in cases in
which ‘the loss was caused . . . by conduct underlying dismissed and
uncharged counts . . . .’ ” (Ibid.) “A trial court’s power to order
restitution in probation cases is thus broader than its power to
order direct victim restitution under section 1202.4 in cases in
which the defendant receives a nonprobationary sentence.” (Ibid.)
“ ‘When section 1202.4 imposes its mandatory requirements in favor
of a victim’s right to restitution, the statute is explicit and
narrow.’ ” (Id. at pp. 1101-1102.)



                                 29
       This is not to say, of course, that a defendant may not agree,
by way of a Harvey waiver, to the payment of direct restitution on a
dismissed count as a condition of the plea, if the plea is “freely and
voluntarily made” – Penal Code section 1192.3 specifically provides
for that circumstance. But those are not the facts here.
       In sum, the rules on restitution are set in constitutional and
statutory law, and we see no basis for construing them to say more
than they do. Direct victim restitution is available only for losses
resulting from the commission of a crime, from a defendant
convicted of that crime. (Cf. People v. Jessee (2013) 222 Cal.App.4th
501, 510 [“Based upon the plain language of these statutes, we
conclude restitution may only be awarded for crimes the defendant
is charged with and convicted of, even if the evidence shows beyond
a reasonable doubt and the trial court finds the defendant
committed an uncharged crime.”].)
4.     The Claim for Economic Losses Resulting
       From Defendant’s Failure to Report the Gas Leak
       Petitioners’ final contention is that they are entitled to
restitution for economic losses they incurred as a result of
defendant’s failure to report the gas leak for three days.
As stated earlier, the trial court rejected this claim, observing that
the failure to report was not “a crime that includes obvious
causation,” and that “[t]he delay in the defendant’s required
notifications to various authorities upon discovery of the gas leak
did not cause the damage occasioned by the leak; the damage would
have occurred with or without the timely notification.”
       The appellate division observed petitioners had the burden to
demonstrate defendant’s failure to report the gas leak was a
substantial factor in causing their injuries, and agreed with the
trial court that they “failed to establish a causal connection between
defendant’s failure to timely report the leak and any claimed



                                  30
injuries or losses they sustained as a result of that criminal
conduct.” The court elaborated:
       “The Victims offered no evidence in their written motion, nor
at the hearing on the motion, and they made no satisfactory offer of
proof to support the claim, made for the first time at the hearing,
that they were damaged by defendant’s three-day delay in reporting
the leak. They did assert at the hearing that, had defendant
reported the leak ‘immediately,’ the health department would have
‘red tagged’ the homes and then ‘all of this damage’ could have been
prevented. Notably, however, the Victims did not elaborate on what
damages were specifically attributable to defendant’s delay in
reporting the leak, as opposed to the leak itself. Indeed, the
individual victims who spoke at the hearing exclusively addressed
their right to restitution for the losses and injuries they suffered as
a result of the leak and their sustained exposure to the leaked
hazardous materials, not the delay in reporting the leak. No offer of
proof was made that certain victims would testify that, had the leak
been immediately reported, they could have responded immediately
by evacuating their homes, and they would not have sustained
injuries during the three days defendant did not report the leak.”
       Petitioners tell us the court applied an “erroneous strict
causation standard” that is “unprecedented,” “overly stringent” and
“unsupported by the law.” That is simply not the case. The court
applied the “substantial factor” standard just as it was required to
do.
       It is not enough to point out we are to give a “broad and
liberal construction” to the statute implementing the constitutional
right to restitution. (Martinez, supra, 2 Cal.5th at p. 1107.) As
Martinez states, “[e]ven giving broad and liberal construction to
[Penal Code] section 1202.4 [citation], we must give effect to the
unambiguous language the Legislature has chosen.” (Ibid.



                                  31
[referring to the limitation of restitution to losses incurred “ ‘as a
result of the commission of a crime’ ”].) As was the case before the
trial court and the appellate division, petitioners point to no
evidence, and refer to no offer of proof that would support a finding,
that the three-day failure to report was a substantial factor in
causing their injuries.
       Petitioners offer only counsel’s speculation that the losses
they suffered “could have been lessened or obviated altogether” by
reporting the leak three days earlier. Nothing in the record
suggests that is so. And the case petitioners cite for the (correct)
proposition that the substantial factor test should not be applied too
narrowly (Foalima, supra, 239 Cal.App.4th at p. 1397)
demonstrates the lack of merit in their claim. “The test, put simply,
is whether [the victim] would have incurred damages had there
been no [crime for which the defendant was convicted].” (Ibid.) In
Foalima, the answer was “clearly no.” (Ibid.) Here, the answer is
clearly yes. As the trial court stated, “the damage would have
occurred with or without the timely notification.” No evidence or
victims’ comments or other offer of evidence that could be produced
suggested otherwise.
       We agree with the trial court and appellate division that the
evidence presented at the sentencing hearing was woefully
insufficient to prove damages from the reporting delay itself – the
proper measure of restitution. Nonetheless, we believe there was
enough confusion about the scope of the sentencing hearing to
warrant a new hearing on the issue of restitution only for damages
occasioned by the three-day delay in reporting the leak. The trial
court stated at the start of the hearing that “the whole point of the
hearing today was to allow people who wish to be heard to be heard
about their concerns with regard to victim restitution as an issue in
the case.” Counsel later stated that “[w]e weren’t quite sure how



                                 32
the court wanted to proceed in regards to the victims,” and the court
responded that “the court wasn’t sure how you all wanted to
proceed, so I made arrangements to dedicate as much time as
necessary to resolve this.” These remarks establish that neither the
court nor counsel clarified in advance the proper legal parameters
of the hearing, that is, whether proof would be considered for all
losses stemming from the leak itself, or whether proof would be
limited to damages stemming only from the three-day delay in
reporting the leak.
       The district attorney, as the local prosecutor of this
environmental crime, was responsible in the first instance to
propose to the court and the parties a process by which the victims
might seek to enforce their rights to restitution. As the victims’
counsel pointed out at oral argument, this was not the first
environmental crime to be prosecuted by the district attorney, nor is
it likely to be the last. Because the scope of the restitution hearing
was not settled in advance, we believe it fair (and within the spirit
of Marsy’s Law) to remand for a further hearing to determine what,
if any, damages were caused only by the three-day delay in
reporting the leak to the proper authorities, to which SoCalGas
pleaded no contest as charged in count 1.
       There is one final point, however, regarding of the agreed-
upon plea bargain notice to the victims. In their reply to the
returns of defendant and the district attorney, petitioners offer, as a
basis for concluding the courts below applied an “overly-strict”
causation standard, the claim that the district attorney violated
Marsy’s Law by (among other things) failing “to give notice to each
of the Victims, or at the very least their attorneys, prior to” the trial
court’s acceptance of the negotiated plea at the September 13, 2016
hearing. They say this deprived them of “a meaningful opportunity




                                   33
to be heard or to submit evidence of their economic losses.” We
reject this contention for two reasons.
       Petitioners did not assert any notice violations of Marsy’s Law
in their petition as a basis for seeking writ review. (See
Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11
[“Obvious reasons of fairness militate against consideration of an
issue raised initially in the reply brief of an appellant.”].)11
       The district attorney notified Mr. Kiesel, liaison counsel in
the civil cases, the day before the hearing on the negotiated plea.
We agree with the trial court that this was satisfactory notice of the
proposed plea agreement. Petitioners have not explained how they
were prejudiced by the manner or timing of the notice to Mr. Kiesel
of the plea hearing.
                            CONCLUSION
       We conclude with the observation we made at the beginning:
No injustice flows from the legal principles we have applied. While
many petitioners have suffered greatly from the Aliso Canyon gas
leak, there is recompense to be had in the civil courts, and indeed a
specially assigned civil court to hear such cases.12


11    Amicus curiae raise the same issue: alleged violation of
victims’ constitutional rights “to be notified of a pending plea
agreement and to be present and heard at that hearing.” We
decline to consider it. “The general rule, which we apply here, is
that amicus curiae may not raise new issues but ‘must accept the
case as it finds it.’ ” (Bruno v. Superior Court (1990) 219 Cal.App.3d
1359, 1365.)

12    The prosecutor pointed out at the sentencing hearing that
some restitution had already been paid. “[A]t the time of the plea
over $500 million was expended on relocation costs, cleaning of the
homes, boarding animals, relocating schools, mileage if a victim’s
commute to work was longer in the relocated home than it would


                                 34
      We know, of course, that criminal restitution is an entirely
independent constitutional right, but it is available only for losses
resulting from crimes of which the defendant has been convicted.
Victims may seek writ review, as petitioners did here, when they
believe a trial court has failed to follow that constitutionally
mandated principle. Defendant pleaded no contest only to the
failure to report violation, and this court cannot interfere, in the
absence of any illegality, with the prosecutor’s discretion to accept
that plea. There was no illegality. The trial court found the plea
agreement “protect[ed] not only the potential direct victims in this
case, but the larger general citizenry.” We find no basis to say
otherwise.
                            DISPOSITION
      The issue of restitution for damages caused only by the three-
day delay in reporting the leak is remanded to the trial court for a
new hearing. Otherwise the petition for writ of mandate is denied.
Parties to bear their own costs.

                                 GRIMES, Acting P. J.

      WE CONCUR:
                        STRATTON, J.                RUBIN, J.*



have been in their original home, and meals if the housing that they
were provided didn’t include a kitchen. And these are the types of
expenses that would have been actual economic losses available as
restitution in count four. They were being paid out . . . before the
People, meaning the district attorney’s office, filed any charges.”

*     Presiding Justice of Division Five of the Second District Court
of Appeal, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.


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