Filed 9/13/16 P. v. Silva 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                            C080378

                   Plaintiff and Respondent,                               (Super. Ct. No. 15F01466)

         v.

CARLOS ALBERTO SILVA,

                   Defendant and Appellant.




         A jury found defendant Carlos Alberto Silva guilty of assault by means likely to
produce great bodily injury (Pen. Code, § 245, subd. (a)(4))1 and burglary (§ 459). In a
bifurcated proceeding, the trial court found true the special allegations that defendant had


1 Undesignated statutory references are to the Penal Code.



                                                             1
served two prior prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant
to an aggregate term of six years in state prison. The trial court also awarded victim
restitution in the amount of $1,200.

       On appeal, defendant contends the trial court erred in awarding victim restitution.2
We agree and modify the judgment accordingly.

                 FACTUAL AND PROCEDURAL BACKGROUND

       In light of the limited issue raised on appeal, we recite only those facts relevant to
the resolution of this appeal. Around 1:00 a.m. on March 8, 2015, defendant forcibly
entered the front door of Hostelling International USA, a youth hostel in downtown
Sacramento. Defendant, who later tested positive for methamphetamine, was able to gain
entry to the hostel by aggressively pulling on the front door until he defeated the
electromagnetic locking system. Once inside, defendant ran toward the manager of the
hostel and attempted to tackle him. As defendant was wrapping his arms around the
manager, his head hit the manager’s chin. The manager also hurt his hand during the
altercation. Eventually, defendant was removed from the hostel and arrested.

       At trial, the manager of the hostel testified that the electromagnetic locking system
was designed to release when force in excess of 300 pounds was applied so that police
officers and/or fire fighters could gain entry in the event of an emergency. Although the
locking system continued to work after defendant’s forceful entry, the hostel decided to
install a new security system at a cost of $1,200.

       The jury found defendant guilty of assault by means of force likely to produce
great bodily injury (§ 245, subd. (a)(4)) and burglary (§ 459). In a bifurcated proceeding,


2 Defendant also contends that the abstract of judgment contains errors that must be
corrected. However, because the trial court has issued an amended abstract of judgment
correcting these errors, this issue has become moot.


                                              2
the trial court found true the special allegations that defendant had served two prior
prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to an aggregate
term of six years in state prison. The trial court also ordered, among other things, victim
restitution in the amount of $1,200 to compensate the hostel for the economic loss it
incurred in installing a new security system.

       Defendant filed a timely notice of appeal.

                                       DISCUSSION

1.0    Victim Restitution

       Defendant contends the trial court erred in awarding victim restitution in the
amount of $1,200. According to defendant, the trial court’s restitution order granted an
improper windfall to the hostel because he did not damage the hostel’s security system.3

       The California Constitution provides that crime victims have a right to restitution
when they suffer losses as a result of criminal activity. (Cal. Const., art. I, § 28, subd.
(b)(13); see People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) This
constitutional mandate is implemented by section 1202.4. (See Giordano, at p. 656.) It
provides, in relevant part, “in every case in which a victim has suffered economic loss as
a result of the defendant’s conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by court order, based on the
amount of loss claimed by the victim or victims or any other showing to the court. If the
amount of loss cannot be ascertained at the time of sentencing, the restitution order shall
include a provision that the amount shall be determined at the direction of the court. The
court shall order full restitution unless it finds compelling and extraordinary reasons for


3 At sentencing, defendant did not object to the amount of the restitution awarded.
Instead, defendant argued, as he does on appeal, that the restitution award was improper
(i.e., unauthorized) because he did not damage the hostel’s security system.


                                                3
not doing so and states them on the record. . . .” (§ 1202.4, subd. (f).) “Restitution under
this provision ‘shall be of a dollar amount that is sufficient to fully reimburse the victim
or victims for every determined economic loss incurred as the result of the defendant’s
criminal conduct, including, but not limited to’ a list of enumerated items, including
medical care, losses to property, and even security measures. (§ 1202.4, subd. (f)(3).)”
(People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)

       When calculating the amount of restitution, the court must “ ‘use a rational method
that could reasonably be said to make the victim whole, and may not make an order
which is arbitrary or capricious.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 498.)
The amount of restitution must have a “ ‘factual and rational basis.’ ” (Id. at p. 499.)
“We review a restitution order for an abuse of discretion.” (Id. at p. 498.) “An order
resting upon a ‘ “demonstrable error of law” ’ constitutes an abuse of the court’s
discretion.” (People v. Busser (2010) 186 Cal.App.4th 1503, 1508.)

       Both the People and defendant note the enumerated category of the statute that
provides for recovery of expenses related to an installation of or increase in residential
security, including a home security device or system. (§ 1202.4, subd. (f)(3)(J).)4 The
parties acknowledge that this provision is not directly applicable because it specifically
refers to expenses related to the commission of a violent felony. (See fn. 4, ante.)
However, the People argue that while victim restitution is not mandatory in this case, the
trial court was authorized to compensate the hostel for a loss that is not specifically
enumerated in the statute because the list of items in section 1202.4, subdivision (f)(3) is
a nonexclusive list.



4 Section 1202.4 expressly authorizes reimbursement of a victim’s “[e]xpenses to install
or increase residential security incurred related to a violent felony, as defined in
subdivision (c) of Section 667.5, including, but not limited to, a home security device or
system, or replacing or increasing the number of locks.” (§ 1202.4, subd. (f)(3)(J).)


                                              4
       The People are correct that section 1202.4, subdivision (f)(3) sets forth a
nonexclusive list of losses that may be the subject of a restitution order. But the People’s
argument fails to address the dispositive question here—that is, where the Legislature has
drafted a statute that contains subparagraphs enumerating a nonexclusive list, is it
consistent with legislative intent to override limitations expressly contained within one of
the subparagraphs? As we shall explain, we conclude it is not.

       When the propriety of a restitution order turns on the interpretation of a statute, a
question of law is raised and we review the matter de novo. (In re Tommy A. (2005)
131 Cal.App.4th 1580, 1586.) As with all questions of statutory interpretation, our task is
to determine the intent of the Legislature. There are at least two principles of statutory
construction available to assist us in that inquiry here. First is the maxim expressio unius
est exclusio alterius, “under which ‘the enumeration of things to which a statute applies is
presumed to exclude things not mentioned.’ ” (Gonzalez v. Santa Clara County Dept. of
Social Services (2014) 223 Cal.App.4th 72, 89-90.)

       In subdivision (f)(3)(J) of section 1202.4, the Legislature specifically provided that
“[e]xpenses to install or increase residential security” qualify as a compensable economic
loss for purposes of victim restitution when those expenses are “incurred related to a
violent felony, as defined in subdivision (c) of Section 667.5.” Implicit in this provision
is the expression of legislative intent that expenses to install or increase security are not
compensable as victim restitution when they are incurred as a result of a crime that is not
a violent felony as defined in subdivision (c) of section 667.5. While “expressio unius est
exclusio alterius is no magical incantation, nor does it refer to an immutable rule,” it
“should be applied ‘where appropriate and necessary to the just enforcement of the
provisions of a statute.’ ” (Estate of Banerjee (1978) 21 Cal.3d 527, 539.)

       That leads us to the second applicable principle of statutory construction—that
“[s]ignificance should be given, if possible, to every word, phrase, sentence and part of


                                               5
an act.” (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 638.) If we were to
read the phrase at the beginning of subdivision (f)(3) of section 1202.4—“including, but
not limited to, all of the following”—as allowing victim restitution for “[e]xpenses to
install or increase residential security” that are incurred related to any crime,
notwithstanding the specific reference in section 1202.4, subdivision (f)(3)(J) to violent
felonies as defined in subdivision (c) of section 667.5, then we would essentially render
that specific reference superfluous. Of course, “interpretations which render any part of a
statute superfluous are to be avoided.” (Wells v. One2One Learning Foundation (2006)
39 Cal.4th 1164, 1207.) The only way to give meaning to all parts of section 1202.4,
subdivision (f)(3)(J), and to avoid a construction that renders part of that provision
superfluous, is to construe the reference to violent felony as defined in subdivision (c) of
section 667.5 as limiting the circumstances in which victim restitution is available for
expenses to install or increase residential security.

       We recognize that “an exception [to a general power] should not be construed to
limit the general power except to the extent that it clearly does so.” (Hurst v. City &
County of San Francisco (1949) 33 Cal.2d 298, 301.) Here, however, by specifically
referencing the definition of “violent felony” in subdivision (c) of section 667.5, the
provision in section 1202.4, subdivision (f)(3)(J) does clearly limit victim restitution for
expenses to install or increase residential security to those cases involving a violent
felony.

       Finally, even assuming victim restitution is not prohibited as a matter of law by
statute, we conclude that the trial court abused its discretion in awarding victim
restitution because the hostel’s installation of a new security system is not a reimbursable
economic loss incurred as a result of defendant’s criminal conduct. The primary purpose
of restitution is to restore the economic status quo by reimbursing the victim for any
losses suffered as a result of the defendant’s conduct. (Giordano, supra, 42 Cal.4th at


                                               6
p. 658.) Thus, restitution is limited to the amount necessary to make the victim whole.
(People v. Fortune (2005) 129 Cal.App.4th 790, 794-795.) The Legislature may have
determined that the victim of a violent felony is left feeling so vulnerable that the
installation or increase in residential security is a necessary element of making the victim
whole again. However, this is not so where, as here, a defendant is not convicted of a
violent felony and the existing security system is not damaged as the result of the
defendant’s criminal conduct. The installation of a new security system may well have
been a prudent step by the hostel management, but to award that by way of restitution
would leave the hostel better off, and thus constitutes an improper windfall. Accordingly,
the trial court erred in awarding the value of the new security system as victim restitution.
(See People v. Busser, supra, 186 Cal.App.4th at p. 1510 [“Victims are only entitled to
an amount of restitution so as to make them whole, but nothing more, from their actual
losses arising out of the defendant[’s] criminal behavior.”]; see also People v. Millard
(2009) 175 Cal.App.4th 7, 28 [“a restitution order ‘is not . . . intended to provide the
victim with a windfall’ ”].)

2.0    Application to Stay Victim Restitution Order

       On August 2, 2016, defendant filed an application with this court to stay execution
of the direct restitution order pending this appeal. His application includes a showing
that he first sought relief in the trial court to no avail. The People filed no opposition. In
light of our decision to reverse that order and strike the $1,200 victim restitution award,
we grant defendant’s application. (Cal. Rules of Court, rule 8.312(d).) The stay is
effective immediately and shall remain in effect until the judgment is final. Once the
judgment is final, the stay is vacated.

                                      DISPOSITION

       The victim restitution order is reversed and the judgment is modified to strike the
$1,200 victim restitution award. Defendant’s application to stay execution of the direct

                                              7
restitution order is granted and is effective immediately. The stay shall remain in effect
until the judgment is final. Once the judgment is final, the stay shall be vacated. As
modified, the judgment is affirmed. The trial court is directed to prepare an amended
abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation.




                                                          BUTZ                , J.



We concur:



      BLEASE                , Acting P. J.



      RENNER                , J.




                                             8
