Filed 11/2/15 P. v. Howell CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041544
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1476269)

         v.

ERIC AUSTIN HOWELL,

         Defendant and Appellant.



         Defendant Eric Austin Howell pleaded no contest to stalking in violation of a
restraining order (Pen. Code, § 646.9, subd. (b)).1 The trial court suspended imposition
of sentence, placed defendant on probation for three years, and ordered that he serve eight
months in county jail. Defendant contends: there was insufficient evidence to support a
restitution award of $1,900 for a lost rental deposit; and the trial court erred in awarding
restitution for attorney’s fees for a restraining order. We find no error and affirm.


                                                I. Statement of Facts2
         Defendant and Nikki Howell have two children and had been divorced for two
years when the proceedings were held. After their divorce, defendant stalked, threatened


1
         All further statutory references are to the Penal Code.
2
         The underlying offenses were described in the probation report.
and harassed her. In September 2013, the court issued a no contact order protecting
Nikki Howell and her boyfriend Chris Overheul. The restraining order was valid until
March 5, 2014. While the restraining order was in effect, defendant contacted the victims
hundreds of times via text and e-mail, showed up at their home, and vandalized
Overheul’s vehicle. Defendant also threatened to “pull [Overheul’s] daughters[’] panties
off,” “tak[e] out” Overheul’s knees, blow up his car, and borrow his friend’s gun and end
the battle with Nikki Howell. Defendant reminded Nikki Howell that he was a former
Marine and knew how to hurt people.
       On October 19, 2013, defendant texted Nikki Howell 27 times and called her 34
times. On October 21, 2013, defendant called her and threatened to come to her place of
business if she did not respond.
       The police responded to the victims’ home several times between
September 12, 2013 and December 2, 2013. Defendant was eventually arrested in
April 2014.


                                   II. Restitution Hearing
       The prosecutor submitted copies of various documents to his brief in support of
the victims’ restitution request. These exhibits included: (1) a receipt for moving costs
of $490; (2) a residential agreement requiring a $2,500 deposit for their new residence;
(3) a declaration by Detective James Gonzalez regarding the need for relocation costs; (4)
a declaration by Wendy Lun in which she stated that she charged Nikki Howell $2,968
for representation in obtaining a restraining order; and (5) a declaration by Kristin Love
Boscia in which she stated that she charged Overheul and Nikki Howell $3,150 for
representation in obtaining a restraining order. The probation officer attached a copy of
an e-mail from Nikki Howell to a supplemental memorandum to the probation report.



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The e-mail stated that Nikki Howell’s losses included $1,900 for moving out of her
residence earlier than permitted.
       Following argument, the trial court ordered victim restitution: $490 for moving
expenses, $1,900 for having to vacate the premises prior to expiration of the lease, and
$6,118 in attorney’s fees.


                                       III.   Discussion
       Defendant contends that the trial court abused its discretion in awarding restitution
for the victims’ loss of a rental deposit of $1,900 and for attorney’s fees of $6,118.


                A. Legal Principles Governing Victim Restitution Awards
       Victims of crime have a state constitutional right to restitution for losses resulting
from criminal acts against them. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) The
Legislature has implemented this right through section 1202.4, which provides in relevant
part: “[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 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.” (§ 1202.4, subd. (f).)
       A defendant has the right to a restitution hearing “to dispute the determination of
the amount of restitution.” (§ 1202.4, subd. (f)(1).) “The standard of proof at a
restitution hearing is preponderance of the evidence, not reasonable doubt.” (People v.
Holmberg (2011) 195 Cal.App.4th 1310, 1319-1320, citing People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542 (Gemelli).) A prima facie case for restitution is made by the
prosecution “based in part on a victim’s testimony on, or other claim or statement of, the
amount of his or her economic loss.” (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
“Section 1202.4 does not, by its terms, require any particular kind of proof.” (Gemelli, at

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pp. 1542-1543.) After the prosecution has made a prima facie showing of the victim’s
loss, “the burden shifts to the defendant to disprove the amount of losses claimed by the
victim.” (Id. at p. 1543.)
       This court reviews a restitution order under the abuse of discretion standard.
(People v. Giordano (2007) 42 Cal.4th 644, 663.) “ ‘When there is a factual and rational
basis for the amount of restitution ordered by the trial court, no abuse of discretion will
be found by the reviewing court.’ [Citations.]” (People v. Mearns (2002) 97
Cal.App.4th 493, 499.)


                                  B. Award for a Lost Deposit
       Section 1202.4, subdivision (f)(3) sets forth several categories of losses for which
a victim may claim reimbursement, including “[e]xpenses incurred by an adult victim in
relocating away from the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging and food expenses,
clothing, and personal items. Expenses incurred pursuant to this section shall be verified
by law enforcement to be necessary for the personal safety of the victim . . . .” (§ 1202.4,
subd. (f)(3)(I).)
       Defendant argues that the victim’s unverified statement is insufficient to sustain a
restitution order for $1,900 for a lost rental deposit. 3
       Gemelli, supra, 161 Cal.App.4th 1539 is instructive. In that case, the owner of a
restaurant, which had been burglarized by the defendant, provided the probation officer
with a list outlining the losses resulting from the defendant’s conduct. (Id. at p. 1541.)
There were no receipts attached to the list. (Ibid.) The list explained how each of the
claimed losses was related to the burglary and “an amount spent on materials, an hourly
3
        Defendant points out that the victims provided receipts for their other claimed
losses. However, as the prosecutor explained, they were not given a receipt for the loss
of the rental deposit.
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rate for labor or professional services, and the amount of time it took to complete the
necessary work.” (Id. at p. 1544.) Gemelli held that there was sufficient evidence to
constitute a prima facie showing of losses to support a restitution award. (Ibid.)
       Similarly, here, the victim’s e-mail stated that her relocation costs included $1,900
for early termination of her lease. Her statement was corroborated by documentation that
she had changed residences in the middle of July. Detective Gonzalez’s declaration also
stated that, based on his investigation, “it was reasonably necessary for the safety of the
victims, and the victims’ children, that they relocate so that [defendant] could not find
them and carry out the threats.” Thus, the prosecutor made a prima facie case showing to
support the $1,900 victim restitution award and shifted the burden to defendant to refute
this amount. Since defendant failed to carry his burden, the trial court did not err when it
included $1,900 in its order awarding restitution.
       Defendant argues that Gemelli is distinguishable. He claims that the victim’s
statement in the present case “lacked the detail and credibility” of the statement in
Gemelli. Gemelli involved several losses, including the repair of back gate fencing and
boards, installation of a new latch, replacement of a metal shelf, purchase of a new
security camera and monitor, replacement of a carving knife, purchase of a filing cabinet,
repair of a doorjamb, and reconstruction of paperwork taken from a filing cabinet.
(Gemelli, supra, 161 Cal.App.4th at p. 1544.) Here, defendant is only challenging a
single loss by the victim. However, the issue is the same in both Gemelli and the present
case, that is, whether the victim’s unverified statement was sufficient to establish a prima
facie case for entitlement to restitution under section 1202.4.
       Defendant also contends that the victim’s e-mail is not as “credible as the list in
Gemelli because it does not include [an] explanation for the expenses incurred, how they
were related to [defendant’s] conduct, or why they were necessary.” This contention has
no merit. In Gemelli, it was not readily apparent why the victim was claiming certain

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losses. Here, Detective Gonzalez’s declaration established why the victims needed to
relocate as a result of defendant’s criminal conduct.
       Defendant argues that it was not his “burden to seek out the landlord to provide
documentation to confirm the claimed loss.” However, once the victim established a
prima facie case that she was entitled to restitution, the burden shifted to him to disprove
the claimed loss. (Gemelli, supra, 161 Cal.App.4th at p. 1543.) Defendant failed to
make any attempt to do so.
       Defendant’s reliance on People v. Vournazos (1988) 198 Cal.App.3d 948 is
misplaced. In Vournazos, the victim listed damage to his Mercedes, loss of some
personal property, and loss of wages for a total of $2,180 resulting from the defendant’s
theft of his vehicle. (Id. at p. 952.) The probation officer testified that he discussed the
matter with the victim and he determined that the defendant should pay the victim $2,180
in restitution. (Id. at pp. 952-953.) He further testified that he had asked the victim’s
bookkeeper to send him documentation of the losses, but he did not receive it. (Id. at
p. 953.) The trial court ordered restitution in the amount of $2,180. (Ibid.) Vournazos
considered the relevant statutory language, which provided that when a victim seeks
restitution for stolen or damaged property, “the value of such property ‘shall be the
replacement cost of like property, or the actual cost of repairing the property when repair
is possible.’ [Citations.]”4 (Id. at p. 958.) Vournazos observed that neither the victim’s
statement nor the probation officer’s testimony established that the victim’s losses were
based on the replacement cost of the property. (Ibid.) Vournazos also pointed out that
there was no evidence that the amount claimed for the repair of the damage to the
Mercedes was the actual cost of the repair. (Ibid.) Thus, Vournazos concluded that since
the victim had failed to state a prima facie case, the burden never shifted to the defendant.
4
      Vournazos, supra, 198 Cal.App.3d at p. 958 cited former section1203.04,
subdivision (d), which contained the same language as section 1202.4,
subdivision (f)(3)(A).
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(Id. at p 959.) In contrast to Vournazos, here, the victim’s e-mail and the detective’s
declaration established a prima facie case for restitution of the claimed loss.


                                C. Award for Attorney’s Fees
       Defendant next contends that the trial court erred in awarding attorney’s fees as
restitution. We disagree.
       As previously stated, section 1202.4, subdivision (f)(3) identifies several
categories of economic losses. Defendant focuses on paragraph (H) of the statute, which
provides that the restitution order shall include “[a]ctual and reasonable attorney’s fees
and other costs of collection accrued by a private entity on behalf of the victim.”
(§ 1202.4, subd. (f)(3)(H).) Thus, he claims that section 1202.4 does not authorize
restitution for a victim’s attorney fees for obtaining a restraining order.
       However, “[i]n examining the restitution statute, ‘[t]he intent of the voters is plain:
every victim who suffers a loss shall have the right to restitution from those convicted of
the crime giving rise to that loss.’ [Citation.] As a result, ‘the word “loss” must be
construed broadly and liberally to uphold the voters’ intent.’ [Citation.] Because the
statute uses the language ‘including, but not limited to’ these enumerated losses, a trial
court may compensate a victim for any economic loss which is proved to be the direct
result of the defendant’s criminal behavior, even if not specifically enumerated in the
statute.” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046.) Thus, here, the trial
court properly compensated the victims for attorney’s fees to obtain a restraining order.
Though this economic loss is not enumerated in section 1202.4, it was a direct a result of
defendant’s constant threats and harassment.
       Defendant relies on People v. Fulton (2003) 109 Cal.App.4th 876 to support his
position. However, Fulton is not relevant to the present case. In Fulton, the defendant
argued that “attorney fees are recoverable as restitution only to the extent they are

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incurred to collect a recoverable restitution item, such as medical expenses and lost
wages, and not to collect a nonrecoverable item such as pain and suffering noneconomic
damages.” (Id. at p. 883.) In interpreting section 1202.4, subdivision (f)(3)(H), Fulton
reasoned that “the Legislature provided for the victim’s recovery of reasonable attorney
fees incurred to collect economic damages. But the Legislature additionally made an
express policy determination that noneconomic damages are not recoverable as restitution
and therefore a victim will not be reimbursed for those losses. From this rule, it
rationally follows that the Legislature did not perceive a need for a victim to recover
attorney fees incurred to collect noneconomic damages in order for the victim to fully
recover restitution under the statute.” (Id. at p. 884, fn. omitted.) Fulton did not consider
the issue of whether attorney’s fees incurred to obtain a restraining order constituted an
economic loss under section 1202.4. Moreover, unlike in Fulton, here, there is nothing in
section 1202.4 indicating that attorney’s fees for obtaining a restraining order are not
recoverable as restitution.


                                        IV. Disposition
       The order is affirmed.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Grover, J.




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