Filed 8/11/16 P. v. Ramirez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051046

         v.                                                            (Super. Ct. No. 11NF0916)

CHARLES THOMAS RAMIREZ, JR.,                                           OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
James A. Stotler, Judge. Affirmed.
                   John N. Aquilina, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Quisteen
Shum, and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              In a prior appeal from his first degree murder conviction, defendant Charles
Thomas Ramirez, Jr. contended the court improperly instructed the jury. (People v.
                                                        1
Ramirez (Sept. 2, 2015, G049845) [nonpub. opn.].) We affirmed the judgment.
              Defendant now appeals from the court’s victim restitution order, arguing
the court abused its discretion and violated his due process rights by relying on the
determination of the Victim Compensation and Government Claims Board (the board)
that certain claimants were entitled to restitution. The contention has no merit. We
affirm the postjudgment order.


                        FACTS AND PROCEDURAL HISTORY


              A jury convicted defendant of the first degree murder of Larry Ruiz. The
court sentenced defendant to a prison term of 50 years to life for the murder and an
attached firearm enhancement.
              Subsequently, the court conducted a restitution hearing, where the People
introduced into evidence some certified records from the board. The court admitted the
certified records into evidence as People’s exhibit 46 (exhibit 46).
                                                    2
              Exhibit 46 consists of the following. The first two documents (the
certificates) are entitled “Certification of Records for Restitution Hearing,” and state they
concern defendant’s case number 11NF0916 (the superior court case number). The
certificates are on the board’s letterhead and bear the board’s embossed seal. The board’s
authorized custodian of records signed the certificates under penalty of perjury.


1
             We grant defendant’s motion for judicial notice of the record in People v.
Ramirez, supra, G049845.
2
              Pursuant to California Rules of Court, rule 8.224(d), we directed the
superior court to transmit exhibit 46 to this court.

                                              2
              The certificates state the attached documents are the records of seven
claimants and specify each claimant’s identification number (with one claimant listed
twice because he has two identification numbers). The certificates then report the dollar
amount paid by the board’s victim compensation program with respect to each
identification number for “Mental Health” and, as to one claimant, for “Funeral/Burial”
expenses.
              The board’s custodian of records certified that the records attached to the
certificates were accurate copies of bills submitted to and paid by the board’s victim
compensation program, but that the records were redacted pursuant to Penal Code section
                               3
1202.4, subdivision (f)(4)(B) and Government Code section 13954, subdivision (d), to
protect the victims’ privacy and safety or consistently with any legal privilege. The
redacted records consisted of many “Health Insurance Claim Forms” per claimant,
detailing the dates of service (apparently for mental health counseling) and the charges
per service date. The health insurance claim form itself does not ask the applicant to
specify his or her relationship to the actual victim of the crime, nor does it contain any
space to do so. Thus, even if the forms in exhibit 46 had not been redacted, they would
have shed no light on each claimant’s relationship to Larry Ruiz.
              Based on exhibit 46, the court ordered defendant to pay $23,460 to the
board as reimbursement for its payments to the claimants, as well as 10 percent interest
from the date of sentencing.


                                       DISCUSSION


              Defendant challenges the court’s restitution order as to all claimants other
than Larry Ruiz’s father. As to the other six claimants (the disputed claimants),

3
              All statutory references are to the Penal Code unless otherwise stated.

                                              3
defendant contends the prosecution failed to meet its burden of proof to show they were
“victims” within the meaning of section 1202.4 or “derivative victim[s]” as defined in
Government Code section 13955. He asserts there is no statutory presumption that an
applicant is entitled to reimbursement for expenses, and that no statute authorizes the
board to determine who is a victim or derivative victim. He further argues the board had
no official duty (within the meaning of Evidence Code section 664) to determine whether
the disputed claimants qualified for reimbursement. He concludes the prosecution failed
to meet its burden of proof merely by submitting exhibit 46, which showed only that the
board had paid financial assistance to the disputed claimants. He concludes that the
court, in the absence of evidence of the disputed claimants’ relationship to Larry Ruiz,
abused its discretion and violated his due process rights by delegating to the board the
determination of the disputed claimants’ eligibility for reimbursement.


The Law Governing Victim Restitution
              Every person who suffers a loss as a result of criminal activity has a
constitutional right to restitution from the convicted wrongdoer. (Cal. Const., art. I, § 28,
subd. (b)(13).) Victims may obtain restitution (1) directly from the defendant pursuant to
                                                                                  4
a court restitution order, and/or (2) indirectly from the board’s restitution fund. (People
v. Giordano (2007) 42 Cal.4th 644, 651-653 (Giordano).)


              Indirect victim restitution from the board
              Government Code section 13950 et seq. governs the procedure by which
crime victims obtain compensation from the board’s restitution fund. (Gov. Code,
§13950, subd. (b).) A claimant must file an application with the board, and verify it

4
              We use the adverbs, “directly” and “indirectly,” and the adjectives, “direct”
and “indirect,” to describe whether the defendant is ordered to make, or the board makes,
a payment.

                                              4
under penalty of perjury. (Gov. Code, § 13952, subds. (a), (b)(1).) The board’s staff
determines whether an application contains all the information required by the board.
(Gov. Code, § 13952, subd. (c)(2).) The board must verify any pertinent information it
deems necessary (for example, by contacting hospitals or physicians) and must keep any
information it receives confidential. (Gov. Code, § 13954, subds. (a), (d)(2).)
              Government Code section 13951, subdivision (c) defines a “derivative
victim” as “an individual who sustains pecuniary loss as a result of injury or death to a
victim.” As relevant here, the definition of “derivative victim” includes any person who
at the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild
of the victim, or was living in the victim’s household, or was another family member who
witnessed the crime. (Gov. Code, § 13955, subd. (c)(1), (2), (4).)
              A derivative victim may be reimbursed for outpatient mental health
counseling in an amount up to $5,000 or $10,000, depending on his or her relationship to
the victim of the crime. (Gov. Code, § 13957, subds. (a)(2)(A), (B).) If the board’s staff
recommends denial of an application, the applicant is entitled to a hearing before the
board, where the applicant bears the burden of establishing, by a preponderance of the
evidence, the elements for eligibility under Government Code section 13955 (which
includes derivative victim requirements). (Gov. Code, § 13959, subds. (a), (c).)
              Under the board’s regulations, an application is deemed complete only if,
inter alia, the applicant designates whether he or she is a victim, derivative victim, or
other person. (Cal. Code Regs., tit. 2, § 649.7, subd. (a)(2).) The victim compensation
program’s application form requires the applicant to specify his or her relationship to the
victim in a box (in section 1 of the application) where a scroll-down menu provides the
following exclusive choices for describing the relationship: “Self (I am the victim),”
“Paying the Deceased Victim’s Crime-Related Expenses,” “Victim’s Child,” “Victim’s
Parent,” “Victim’s Adoptive Parent,” “Victim’s Spouse,” “Victim’s Brother or Sister,”
“Victim’s Grandparent,” “Victim’s Grandchild,” “Victim’s Foster Parent,” “Victim’s

                                              5
Legal Guardian,” “Living in the Household of the Victim,” “Previously Lived in
Household of the Victim,” “Family Member that Witnessed the Crime,” “Primary
                                                                                              5
Caretaker of Victim,” or “Other.” (http://www.vcgcb.ca.gov/victims/howtoapply.aspx.)
These choices correspond to the Government Code’s requirements for a person’s
eligibility for victim compensation. (Gov. Code, § 13955, subds. (a), (c).)


               Direct victim restitution ordered by a court
               Section 1202.4 implements the funding of both direct and indirect victim
compensation by requiring a convicted criminal generally to pay both a “restitution fine”
and restitution to his or her victims. (§ 1202.4, subds. (a)(3)(A), (B).) The restitution
fine — which is “separate and additional” to restitution payments to victims (§ 1202.4,
subd. (b)) — is deposited into the board’s restitution fund which funds its victim
compensation program. (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Introduction to Crimes, § 121, p. 198.) A defendant’s restitution payments, on the other
hand, are (1) paid directly to his or her victim(s), or (2) as reimbursement to the
restitution fund (to the extent the board has already compensated such victim(s)).
(§ 1202.4, subds. (f), (f)(2).)
               Section 1202.4 requires a sentencing court to order a defendant to pay
restitution to any victim who has suffered “economic” loss as a result of the defendant’s
conduct. (Id., subds. (a)(3), (f).) A “defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution.” (Id., subd. (f)(1).)
               At the restitution hearing, the victim or the People (on the victim’s or the
board’s behalf) bear the initial burden to make a prima facie showing of a compensable
loss. (People v. Fulton (2003) 109 Cal.App.4th 876, 886; Giordano, supra, 42 Cal.4th at

5
              The application form currently available on the board’s official Web site
was revised in February 2016, and collects information pursuant to Government Code
sections “13952 et seq. and 13954.”

                                              6
p. 664; § 1202.4, subd. (f) [court’s restitution order is based on the victim’s claimed
amount of loss or any other showing]; People v. Millard (2009) 175 Cal.App.4th 7, 26
[the People may make a prima facie showing on victim’s behalf].) Under a statutory
presumption described in section 1202.4, subdivision (f), the victim (or the People) may
make the prima facie showing based, at least in part, on the board’s prior payment to
such victim. Specifically, payments made from the board’s restitution fund to a victim or
derivative victim are “presumed to be a direct result of the defendant’s criminal conduct
and shall be included in the amount of the restitution ordered” by the court. (§ 1202.4,
subd. (f)(4)(A).) Furthermore, the dollar amount of such payments from the restitution
fund may be proved by submitting certified, redacted copies of bills showing the amount
paid by the board and whether the payments were made for, inter alia, funeral or burial
expenses, or mental health counseling, “together with a statement made under penalty of
perjury by the custodian of records that those bills were submitted to and were paid by
                                                  6
the board . . . .” (§ 1202.4, subd. (f)(4)(B).)


6
               The Legislature enacted these section 1202.4, subdivision (f) presumptions
in 1999. The legislative purpose was to protect the confidentiality of victims’ private
information and to better assure that defendants must reimburse the board for payments
made from the restitution fund: “The [board] works actively to ensure that the courts
order restitution on defendants for at least the amount of the [victim compensation
program] payments to a victim. In order to contest the courts’ determination of this
amount, defendants frequently request to review a victim’s [victim compensation
program] files. [Senate Bill] 1802 would create a statutory presumption that would
preclude this disclosure unless the defendant can demonstrate a reason to rebut this
presumption. This presumption would state that all amounts paid by the [victim
compensation program] to the victim are the result of the defendant’s criminal activity
and should, therefore, be included in a restitution order. [Senate Bill] 1802 would place
the burden of proof on the defendant and only allow disclosure after a judge reviews the
requested information in camera. Judges would, in turn, be required to redact the
requested information in such a manner to protect private or compromising information.”
(Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1802 (1999-2000 Reg. Sess.)
as amended Apr. 11, 2000, p. 3.)


                                                  7
              If the victim (or the People) succeed in making a prima facie case, the
burden shifts to the defendant to disprove the claim. (People v. Fulton, supra, 109
Cal.App.4th at p. 886; People v. Prosser (2007) 157 Cal.App.4th 682, 690-691; People v.
Gemelli (2008) 161 Cal.App.4th 1539, 1543.)
              As relevant to the case at hand, section 1202.4’s definition of “victim”
includes any person who sustained economic loss and was, at the time of the crime, the
parent, grandparent, sibling, spouse, child, or grandchild of the victim, or living in the
victim’s household, or another family member who witnessed the crime. (Id., subd.
(k)(3)(A), (B), (D).) This definition corresponds identically to Government Code
section 13955’s definition of “derivative victim.” Reinforcing this integration between
the two statutory schemes, section 1202.4’s definition of “victim” also includes a “person
who is eligible to receive assistance from the Restitution Fund pursuant to” Government
Code section 13950 et seq. (§ 1202.4, subd. (k)(4).)


The Restitution Hearing and the Court’s Ruling in This Case
              At the restitution hearing, the prosecutor argued the People had met their
burden of proof by submitting exhibit 46 pursuant to the statutory presumption under
                                                  7
section 1202.4, subdivisions (f)(4)(A) and (B).
              Defense counsel disagreed. She observed that five of the claimants were
“not listed anywhere on the police report,” that their relationship to Larry Ruiz was not
stated anywhere in exhibit 46, and that they were not percipient witnesses.




7
              The prosecutor erroneously referred to section 1202.4, subdivisions
(j)(4)(A) and (B), which do not exist.


                                              8
                The prosecutor countered that the board had determined these claimants
                8
were victims.
                Defense counsel rejoined that the court was required under section 1202.4
to determine whether the claimants were victims. She argued that a victim’s niece or
nephew would not qualify for restitution under section 1202.4.
                The court noted that, because the documents in exhibit 46 were redacted, it
could not determine whether any claimant’s relationship fell within section 1202.4,
subdivision (k)(3)(A). The court observed that exhibit 46 did not specify the relationship
between the claimants and Larry Ruiz, and did not certify the claimants’ eligibility for
restitution, but did state that, under Government Code section 13954, subdivision (d), the
communications between the board and claimants were confidential and therefore the
attached bills had been redacted. The court suggested perhaps it could infer that the
board had ascertained the claimants’ status as victims. The court concluded the board
had performed an official duty. Based on exhibit 46 and Government Code
section 13954, the court ordered defendant to pay $23,460 (plus interest) to the board as
reimbursement for amounts paid to the victims from the restitution fund. The court
ordered the Department of Corrections to deduct such restitution from defendant’s
earnings.




8
              The prosecutor stated the claimants all lived at the house behind “Fullerton
where Larry Ruiz was murdered by” defendant, and specified their purported relationship
to Larry Ruiz. But when the court asked whether the prosecutor was making an offer of
proof, the prosecutor stated he was not doing so, because exhibit 46 “speaks for itself.”

                                              9
The Court Did Not Abuse Its Discretion or Violate Defendant’s Due Process Rights
              Defendant contends the court abused its discretion by delegating to the
board the determination of whether the disputed claimants were victims.
              Both parties argue this court should review the trial court’s restitution order
                           9
for an abuse of discretion. The abuse of discretion standard of review “‘asks in
substance whether the ruling in question “falls outside the bounds of reason” under the
applicable law and the relevant facts [citation].’” (Giordano, supra, 42 Cal.4th at p. 663.)
              As we shall explain, we conclude the trial court acted well within its
discretion by ordering defendant to pay restitution based on exhibit 46.
              In 1982, California voters passed Proposition 8 (the Victims’ Bill of
Rights), expressing their clear intent that victims should receive restitution from the
criminals who caused their losses. (Giordano, supra, 42 Cal.4th at p. 652; Cal. Const.,
art. I, § 28, subd. (b)(13).) Toward this end, the Legislature established a dual system
that provides victims with direct and indirect restitution. Direct restitution ensures that
criminals will pay for the costs of victim compensation to the greatest extent possible.
Indirect restitution enables victims to obtain compensation from a government agency.
Section 1202.4 (governing direct restitution) and Government Code section 13950 et seq.
(governing indirect restitution) work in tandem to enable and assist “‘victims to receive
restitution, both directly and from the restitution fund.’” (Giordano, at p. 653.)
              These parallel statutory schemes aim collectively to create a flexible,
accessible, and relatively speedy system for compensating victims of crime and for
funding such compensation with fines and restitution paid by the criminals who caused
the harm. The efficiency and financial sustainability of the system would be undercut if
sentencing courts were required to independently confirm the board’s determinations that
claimants qualified as derivative victims.
9
               Neither party requests this court to interpret section 1202.4 or to determine
its constitutionality.

                                             10
              Nor is such duplicative decision making necessary. The Legislature has
charged the board with the duty of determining an applicant’s eligibility for
compensation from the restitution fund. Pursuant to Government Code section 13952,
the board’s regulations, and the victim compensation program’s claim application form,
an applicant must specify, under penalty of perjury, the basis for his or her claimed
victim status. Government Code sections 13952, 13954, and 13959 require the board and
its staff to obtain all necessary information either to verify the applicant’s eligibility for
compensation or to deny the application. Given their focused mission, the board and its
staff are arguably better suited than a sentencing court for the task of efficiently verifying
an applicant’s victim status.
              Furthermore, the board is a state agency (People v. Cain (2000) 82
Cal.App.4th 81, 88) and its actions taken pursuant to statutory mandates constitute
official duties (see County of Los Angeles v. Young (1961) 196 Cal.App.2d 405, 411
[administrative officers charged by the Legislature with administrative duties].) “[T]hese
statutory . . . duties are significant because, under Evidence Code section 664, ‘[i]t is
presumed that official duty has been regularly performed.’ This presumption ‘affect[s]
the burden of proof’ [citation], meaning that the party against whom it operates — here,
the defendant — has ‘the burden of proof as to the nonexistence of the presumed fact.’”
(People v. Martinez (2000) 22 Cal.4th 106, 125.) “[W]hat is actually presumed under
Evidence Code 664 is compliance with statutory and regulatory standards, which in turn
gives rise to an inference of reliability.” (Davenport v. Department of Motor Vehicles
(1992) 6 Cal.App.4th 133, 144.)
              One factor “to consider in evaluating whether the burden of proof should be
shifted from one party to the other is ‘the most desirable result in terms of public policy
in the absence of proof of the particular fact . . . .’” (People v. Fulton (2003) 109
Cal.App.4th 876, 887.) Here, the policy of fully reimbursing the victim would be



                                               11
defeated if the cohesive system designed by the Legislature were dissected into two
independent and duplicative spheres.
              The Legislature has clearly sought to minimize duplicative fact finding that
jeopardizes the confidentiality of victims’ information. Thus, section 1202.4 expressly
provides that payments made from the restitution fund to “a victim or derivative victim”
are “presumed to be a direct result of the defendant’s criminal conduct and shall be
included in the amount of the restitution ordered” (id., subd. (f)(4)(A)) and that copies of
redacted bills certified by the board’s custodian of records constitute sufficient evidence
of the “amount of assistance provided by the Restitution Fund” (id., subd. (f)(4)(B)).
Section 1202.4 further specifies that a “person who is eligible to receive assistance from
the Restitution Fund” is a “victim” for purposes of the statute. (Id., subd. (k)(4).)
              At the restitution hearing to which a defendant is entitled (§ 1202.4, subd.
(f)(1)), he or she may rebut section 1202.4’s presumption that the board has properly paid
a claimant. Here, defendant acknowledges he received notice and an opportunity to
disprove the eligibility of the disputed claimants. This is all the due process to which he
was entitled. (People v. Cain (2000) 82 Cal.App.4th 81, 86 [concerning restitution as a
condition of probation].) “[N]umerous courts have held that restitution hearings require
fewer due process protections than civil hearings or criminal hearings of guilt.”
(Giordano, supra, 42 Cal.4th at p. 662, fn. 6.) “The scope of a criminal defendant’s due
process rights at a hearing to determine the amount of restitution is very limited.” (Cain,
at p. 86.) Restitution hearings are intended to be “‘a summary proceeding ancillary to
sentencing for a criminal offense.’” (Giordano, at p. 670 (dis. opn. of Kennard, J.).)
              The court did not abuse its discretion or violate defendant’s due process
rights by ruling the People had met their burden of proof by introducing exhibit 46 into
evidence.




                                             12
                                  DISPOSITION


            The postjudgment order is affirmed.




                                             IKOLA, J.

WE CONCUR:



ARONSON, ACTING P. J.



FYBEL, J.




                                        13
