Filed 9/27/13 P. v. Frasure 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)


THE PEOPLE,                                                                                  C072029

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM035348)

         v.

ADRIAN DASHUN FRASURE,

                   Defendant and Appellant.




         After defendant Adrian Dashun Frasure pled guilty to inflicting corporal injury
upon a spouse or cohabitant (Pen. Code,1 § 273.5, subd. (a)), the trial court awarded
$5,000 in victim restitution (§ 1202.4, subd. (f)). Defendant did not object.
         Defendant contends the victim restitution award was an abuse of discretion and
unauthorized by statute because it was based in part on noncompensable “emotional
damages.” We conclude defendant‟s contention is forfeited. We shall affirm.




1        Undesignated section references are to the Penal Code.

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                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was charged by information with felony corporal injury to a spouse or
cohabitant (count 1; § 273.5, subd. (a)), misdemeanor false imprisonment (count 2;
§ 236), and misdemeanor interference with a wireless communication device (count 3;
§ 591.5). As to count 1, it was alleged that defendant had four prior strikes (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and five prior prison terms (§ 667.5, subd. (b)).
       Defendant pled guilty to count 1 and admitted one prior strike and five prior prison
terms, in exchange for a stipulated sentence of nine years in state prison. The preliminary
hearing provided the factual basis for defendant‟s plea.
       The evidence at the preliminary hearing showed that the victim, Andrea J., told
law enforcement on the evening of October 11, 2001, that defendant, her husband, had
returned to their residence after his release from prison, but she did not want him there.
They argued verbally. During the argument the telephone rang. She went into the
bathroom to take the call, which was from one of her male friends. Defendant became
upset and asked who was calling. He forced his way into the bathroom and tried to take
the phone from Andrea J. After he got the phone away from her, she tried to leave the
apartment, but defendant blocked her exit. He threw her down on the floor and tried to
strangle her. She punched him with her keys, then got hold of the house phone and called
a friend, asking her to call the police. Defendant grabbed the phone from her and broke
it, then took a knife and cut off his ankle monitor. The officer who responded to her
apartment observed redness on her neck consistent with strangulation, a cut on her lip,
and a cut above her eye.
       The trial court sentenced defendant to the agreed nine-year state prison term,
consisting of four years on count 1 (the low term, doubled for the strike) and five years
for the five prior prison terms. The court also ordered defendant to pay Andrea J. $5,000
in victim restitution.



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                                        DISCUSSION
        Background
        At the sentencing hearing, Andrea J. made a statement to the trial court. As to
victim restitution, she said:
        “This left me bruises on my face, neck, arm and chest. My throat hurt for several
weeks. Because of this incident, my life, as well as my 13 year old son [sic], has changed
forever. . . .
        “[E]very time I close my eyes, I relive the nightmare. I am scared. I do not trust
anyone anymore, and I have panic attacks on a daily basis now. I spent time at
Behavioral Health, and spent six weeks at an extensive outpatient basis [sic]. I still have
therapy once a week, as well as my son.
        “I have used all of my family medical leave, and there still are days when I cannot
make it to work, let alone get out of my bed. I know I am close to getting fired at work
because my entire personality has changed. . . .
        “I am in financial ruins because he left me to pay all of the bills, which I was fully
capable of doing when I was healthy. . . . [¶] . . . [¶]
        “I do want restitution for what he has done. I request $5,000 for medical bills, lost
wages, and emotional damage. . . .” (Italics added.)
        The trial court asked how often Andrea J. went to counseling. She said: “[O]nce
or twice a week.”
        Defense counsel asked the trial court to impose only the minimum restitution fine
(§ 1202.4, subd. (b)), claiming defendant could not pay a higher amount, “so that
restitution to Ms. J[.] can be addressed first and foremost.”
        After imposing a $400 restitution fine (§ 1202.4, subd. (b)), and a suspended
restitution fine in the same amount (§ 1202.45), the trial court stated: “In terms of the
description of the injury to the victim, the counseling and medical bills that have been



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incurred, court would be inclined to order a $5,000 restitution payment. I will hear from
counsel.” (Italics added.) Defense counsel submitted the matter.
       The trial court ordered: “$5,000 to Ms. J[.], restitution. I reserve jurisdiction to
modify the amount upon appropriate showing.” The record does not show that defendant
sought any such modification.
       Analysis
       “[I]n every case in which a victim has suffered economic loss as a result of the
defendant‟s conduct, the court shall require that the defendant make restitution to the
victim . . . in an amount established by court order, based on the amount of loss claimed
by the victim . . . or any other showing to the court.” (§ 1202.4, subd. (f).)
       Compensable losses under section 1202.4, subdivision (f), include the value of
stolen or damaged property, medical expenses, mental health counseling expenses, and
lost wages or profits, inter alia. (§ 1202.4, subd. (f)(3)(A)-(E).) “Noneconomic losses,
including, but not limited to, psychological harm,” are recoverable only where the
defendant has committed a felony violation of section 288. (§ 1202.4, subd. (f)(3)(F).)
       “A defendant is entitled to a restitution hearing to „dispute the determination of the
amount of restitution.‟ (§ 1202.4, subd. (f)(1).) As recently explained, „At a victim
restitution hearing, a prima facie case for restitution is made by the People based in part
on a victim‟s testimony on, or other claim or statement of, the amount of his or her
economic loss. [Citations.] “Once the . . . People have . . . made a prima facie showing
of [the victim‟s] loss, the burden shifts to the defendant to demonstrate that the amount of
the loss is other than that claimed by the victim.” ‟ (People v. Millard (2009)
175 Cal.App.4th 7, 26 (Millard); see also [People v.] Giordano [(2007)] 42 Cal.4th [644,]
664 . . . .)” (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 (Chappelone).)
       “We review the trial court‟s restitution order for abuse of discretion. [Citations.]”
(Chappelone, supra, 183 Cal.App.4th at p. 1173.) Where there is a factual and rational



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basis for the order under the substantial evidence standard, an abuse of discretion will not
be found. (Millard, supra, 175 Cal.App.4th at p. 26.)
       Here, defendant did not request a restitution hearing. The victim‟s statement
constituted a prima facie case that her economic damages, including medical expenses to
treat her undisputed injuries and six weeks‟ worth of counseling expenses, totaled $5,000.
Absent contrary evidence, the trial court could properly exercise its discretion to award
the victim that sum in restitution. By enumerating only the victim‟s compensable
damages, the court impliedly rejected her claim for noncompensable “emotional
damages.” Thus, contrary to defendant‟s argument on appeal, the court‟s award was not
based to any extent on such damages.
       Admittedly, an unsworn statement without supporting documentation, and making
no attempt to break down the components of the claimed total amount, was not the
strongest possible evidence of the victim‟s damages. But it was sufficient to shift the
burden to defendant to rebut her claim. (§ 1202.4, subd. (f); Chappelone, supra,
183 Cal.App.4th at p. 1172.) Instead, defendant submitted the matter without asking for
documentation or a restitution hearing. Thus, he conceded the validity of the claimed
victim restitution and forfeited any challenge to it on appeal. (People v. Garcia (2010)
185 Cal.App.4th 1203, 1218; see People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).)
       Defendant asserts that he may challenge the victim restitution award for the first
time on appeal because it was unauthorized (see Scott, supra, 9 Cal.4th at p. 354) and
because the issue presents a pure question of law (see People v. Mitchell (2012)
209 Cal.App.4th 1364, 1370). Defendant is wrong on both points.
       An unauthorized sentence is one which could not lawfully have been imposed
under any circumstances in the case at hand. (Scott, supra, 9 Cal.4th at p. 354.)
Defendant has not shown that a restitution award of $5,000 for the victim‟s properly
compensable damages could not lawfully have been made under any circumstances. Nor,
as we have explained, has he shown that the trial court based any part of its award on

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noncompensable damages: the fact that the court awarded the total amount the victim
requested does not show this, because the court carefully omitted her alleged emotional
damages when it stated the basis for its award. Thus, defendant‟s claim that the award
was unauthorized fails.
       So does his claim that the issue is a pure question of law. The amount of victim
restitution to which Andrea J. was entitled, and the specific damages on which that
amount could be calculated, are quintessential questions of fact. If defendant questioned
those points, it was incumbent on him to say so at the time of sentencing.
       Defendant also asserts that the issue presents a question of the sufficiency of the
evidence to support the restitution award, and insufficient-evidence claims can never be
forfeited by the failure to raise them in the trial court. He relies principally on People v.
Pacheco (2010) 187 Cal.App.4th 1392, 1397 (Pacheco), which so held as to a
defendant‟s ability to pay attorney fees. But after defendant filed his opening brief, our
Supreme Court disapproved Pacheco on this point and held that the general forfeiture
rule of Scott, supra, 9 Cal.4th 331 and People v. Welch (1993) 5 Cal.4th 228 applies to
such claims. (People v. McCullough (2013) 56 Cal.4th 589, 591, 594, 599
(McCullough).) The high court further found that People v. Viray (2005)
134 Cal.App.4th 1186 and People v. Lopez (2005) 129 Cal.App.4th 1508, also cited by
defendant, did not hold that challenges to a defendant‟s ability to pay fees may be raised
first on appeal. (McCullough, supra, 56 Cal.4th 589, 599-600, fn. 2.)
       Here, defendant does not claim, as in Pacheco that he cannot pay the awarded
amount. But we see no basis to distinguish his insufficient-evidence claim in principle
from those addressed in McCullough with respect to the forfeiture rule. The question
whether an award of victim restitution is properly supported, like most sentencing issues,
is a fact-based question as to which the defendant must raise an objection to the trial
court‟s order at the time of sentencing. If he does not, it is forfeited. (See Scott, supra,
9 Cal.4th at p. 354.)

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                                    DISPOSITION
     The judgment is affirmed.


                                        BLEASE    , Acting P. J.


We concur:


        ROBIE                    , J.


        MAURO                    , J.




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