Filed 1/15/14 P. v. Scott CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. MARK ANTHONY SCOTT, Defendant and Appellant. F065665 (Super. Ct. No. 11CM1270)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Kings County. Donna L. Tarter, Judge. Robert L.S. Angres, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Catherin e Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Peña, J.2. Defendant Mark Anthony Scott pled no contest to attempted second degree murder and was sentenced to nine years in pris on. He now claims the trial court erred in awarding victim rest itution. We affirm. FACTS AND PROCED URAL HISTORY 1 Shortly after 7:00 p.m. on April 18, 20 11, defendant was driv ing a Mustang near Home and Third in Ha nford. Dante Patterson was sitting in the front passenger seat, and Robert Ellis was in the rear passenger seat . Alonzo Curry was driving a Malibu in the opposite direction. Tony Townsend was in the front passenger seat , and Bryan Walker was seated behind Curry. Ellis “waved down” the Malibu, wher eupon both vehicles made U-turns and headed toward each other. They stopped driv er’s side to driver’s side, about 15 feet apart. Townse nd and Ellis, who had nearly ha d a fist fight earlier in the day, started arguing from inside their respecti ve vehicles. After about five minutes of verbal exchanges, Ellis yelled, “Shut up,” br ought up a chrome pistol, and began firing at Walker, Curry, Townsend, and the Malibu. Wa lker, who ducked when he saw the gun, heard about seven shots. They sounded di fferent, like they were from three different guns. Walker was shot in the back, and Curry was shot in the ankle. Curry was able to put the Malibu in gear and drive away. Law enforcement investigation revealed more than 10 bullet holes in the windshield and driver’s side of the Mali bu. A 7.62 millimeter by 39 millimeter shell casing was found in the street where the shooting occurred. Th e Mustang was found abandoned in Visalia the day after the shootin g. A spent nine-millimeter shell casing was found under the driver’s seat. On April 22, 2011, th e three suspects were arrested in New Mexico as they were on a bus together. A .45-caliber revolver was found concealed on defendant.

1 The facts are taken from the preliminary hearing transcript.3. As a result of the incident, defendant, Ellis, and Patterson were jointly charged with discharging a firearm at an occupied motor vehicle (Pen. Code, 2 § 246; count 1), attempting to murder Walker, Townsend, and Curry (§§ 187, subd. (a), 664; counts 2-4, respectively), and assaulting Walker, Townse nd, and Curry with a firearm (§ 245, subd. (a)(2); counts 5-7, respectively). Va rious firearm enhancement allegations were appended to some of the charges. (§§ 12022. 5, subd. (a), 12022.53, subds. (b), (c), (d), (e)(1).) On July 3, 2012, defendant pled no contest to one count of attempted second degree murder in which Curry, Walker, and Townsend were a ll named as victims. In return for his plea, the re maining counts and allegati ons were dismissed. According to the probation officer’s re port, investigation at the scene of the shooting revealed that a black Dodge Durango parked in the driveway just north of the crime scene had a small dent in the right rear quarter panel that appeared to be a fresh impact point from a bullet. The vehicle also had a mark on, and paint chipped off, the quarter panel. Pauline McDowell, who lived at the address at which the vehicle was parked, reported she had heard the shooting, a nd her vehicle did not have the mark before the incident. She requested restitution in the amount of $350 for the damage to her vehicle, and submitted a receipt for that amount. The probation officer’s report recommended defendant pay restitution in th at amount to McDowell, and that said restitution be made jo int and several. Sentencing took place on August 6, 2012. Defense counsel objected to Townsend’s request for relocation expenses, and asked for a hearing thereon. No mention was made of McDowell’s request by e ither party. The trial court sentenced defendant to nine years in prison and, insofar as is pertinent to th is appeal, originally reserved restitution to all vi ctims pending a restitution hear ing. When the probation

2 All statutory references are to the Penal Code.4. officer pointed out that McDowell submitted a receipt for the $350 she requested, the court asked defense counsel if there was a ny objection to that restitution. Counsel replied, “That is submitted.” The court then ordered defendant to pa y $350 in restitution to McDowell. DISCUSSION The sole issue on appeal concerns the validity of the restitution award to McDowell. Subdivision (a)(1) of section 1202.4 provides: “It is the intent of the Legislature that a victim of crime who in curs an economic loss as a result of the commission of a crime shall receive restituti on directly from a defe ndant convicted of that crime.” To this end, subdivision (f) of the statute provides, with exceptions not pertinent here, that “in every case in which a victim has suffered eco nomic loss as a result of the defendant’s conduct, the court shall re quire 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 .... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so and states them on the record.” Defendant contends the re stitution award to McDowell cannot stand because her loss did not stem from conduct for which defendant was convicted. He reasons that McDowell’s loss stemmed from vandalism to he r vehicle; defendant was never charged with or convicted of any sort of vandalism; when he entered his pl ea, he admitted only that he tried to kill Walker, Curry, and Town send, not that he damaged the car of a third party in the process of committing his crime; and the preliminary hearing transcript, which constituted the factual basis for th e plea, made no mention of damage to McDowell’s vehicle. Defendant further says he was never on notice, when he entered his no contest plea, that his liability would extend to McDowell’s vehicle. 3

3 Defendant also says that if, by submitti ng the matter instead of objecting, defense counsel forfeited the right to contest the restitution award on appeal, then defendant received ineffective assistance of counsel. The Attorney General does not assert5. “We review the trial court’s allocation of responsibility for re stitution for an abuse of discretion, mindful that an order resting on a demonstrable legal error constitutes such an abuse. [Citation.]” ( People v. Hume (2011) 196 Cal.App. 4th 990, 995; see People v. Giordano (2007) 42 Cal.4th 644, 663, fn. 7 [“we re view all restitution orders for abuse of discretion”].) A victim’s restitution right and, hence, section 1202.4, are to be broadly and liberally construed. ( People v. Moore (2009) 177 Cal.App.4th 1229, 1231; People v. Baker (2005) 126 Cal.Ap p.4th 463, 467.) The intent of the enactors of section 1202.4 is plain: Every victim who suffers a loss has the right to restitution “‘“‘from those convicted of the crime giving rise to that loss.’ [Citation.] ... [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 ....” [Citation.]’ [Citation.] ‘The only limitation the Legislature placed on victim restitution is that the loss must be an “economic lo ss incurred as the resu lt of the defendant’s criminal conduct.” [Cita tions.]’ [Citation.]” ( People v. Moore , supra , 177 Cal.App.4th at pp. 1231-1232, fn. omitted.) In interpreting the requirem ent that the victim’s economi c loss be the result of the defendant’s criminal conduct, People v. Holmberg (2011) 195 Cal.App.4th 1310 ( Holmberg ) is instructive. In that case, th e defendant was convicted by plea of concealing stolen property and using an altered, stolen, or counterfeit access card. He was ordered to pay more than $18,000 in victim restituti on, an award he claimed was

forfeiture and, because defendant’s challenge is not to the amount of restitution ordered but rather involves the interpretation of section 1202.4 and whether McDowell constituted a victim of defend ant’s crime under that statute, we would not find forfeiture in any event. (Compare People v. Anderson (2010) 50 Cal.4th 19, 26 with People v. Garcia (2010) 185 Cal.App.4th 1203 , 1218.) Since we address defendant’s challenge to the restitution award on the mer its, we do not reach his claim of ineffective assistance of counsel. Were we to reach th e claim, we would reject it.6. improper because the victims’ damages were due to the burglary of th e victims’ premises and not his conduct. ( Id . at p. 1313.) In disagreeing, the appellate court stated: “Interpreting the requirement that th e damages result from the defendant’s criminal conduct, the court in People v. Jones (2010) 187 Cal.App.4th 418, 424-427 ( Jones ) held that tort principles of causation apply to victim restitution claims in criminal cases. The court observed that there ‘are two aspects of causation ...: cause in fact (also called direct or actual causation), and proximate cause.’ [Cita tion.] The court explained that ‘“[a]n act is a cause in f act if it is a necessary ante cedent of an event”’ and that ‘“proximate cause ‘is ordinarily concerned, not with the fact of causation, but with the various considera tions of policy that limit an actor’s responsibility for the consequences of hi s conduct.’”’ [Citation.] [¶] ... [¶] “‘“The first element of legal cause is cause in fact .... The ‘but for’ rule has traditionally been applied to determine cause in fact.... [¶] The Restatement formula uses the term substantial factor ‘to denote the fact that the defendant’s conduct has such an effe ct in producing the harm as to lead reasonable men to regard it as a cause.’”’ [Citation.] “Defendant correctly notes that California courts have adopted the ‘substantial factor’ test in analyzing proximate cause. [Citation.] ‘“The substantial factor standard is a relativ ely broad one, requiring only that the contribution of the individual cause be mo re than negligible or theoretical.” [Citation.] Thus, “a force which pl ays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a substantial factor” [citation], but a very minor force that does cause harm is a substantial factor [citation]. This ru le honors the principle of comparative fault.’ [Citation.] “Defendant argues that the res titution award here was improper because his conduct was not a substan tial factor in causing the victims’ damages. He argues that the victim s’ losses would have occurred even without his act and that the damages were due to the burglaries rather than his concealing the property. Defenda nt’s argument, however, ignores the fact that there can be more than one cause of injury and that multiple causes can combine to cause harm. [Citations.] “Although defendant denies burglar izing the victims’ premises, the evidence here supports the conclusi on that defendant’s conduct was a concurrent cause of the victims’ losses and a substantial factor in depriving them of the use of their property.... Defendant’s conduct played far more than a negligible or theore tical part in bringing about the victims’ injuries7. and was a substantial factor in causing the harm they suffered.” ( Holmberg , supra , 195 Cal.App.4th at pp. 1321-1322.) Defendant says Jones is distinguishable because the defendant in that case received a grant of probation and the hit-an d-run charge that resulted in the actual property damage was dismisse d with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 ( Harvey ). 4 Here, by contrast, defendant was sentenced to prison. It is true that a trial court’s discre tion to award restitution is broader when restitution is imposed as a cond ition of probation than when th e defendant is sentenced to prison. ( People v. Giordano, supra, 42 Cal.4th at p. 663, fn. 7.) “Probationary restitution may be imposed even if a defendant has not be en convicted for a particular offense ....” ( Ibid .) This does not mean, however, that the principles of causation explained in Jones have no application when a prison sentence is involved, or that de fendant could not be ordered to pay restitution to McDowell unless he was convicted of vandalism or some other crime committed directly against her prope rty interests. Ind eed, the defendant in Holmberg was sentenced to prison. ( Holmberg , supra , 195 Cal.App.4th at p. 1313.) By his no contest plea, defe ndant admitted attempting to mu rder all three people in the Malibu. McDowell’s vehicle was dama ged by one of the shots fired in the commission of that crime. Under the fa cts established by the preliminary hearing transcript, defendant either fi red the shot directly or aide d and abetted its firing. (Cf. People v. Woods (2008) 161 Cal.App.4th 1045, 1049-1050, 1052 [def endant sentenced to prison as accessory to murder could not be or dered to pay victim restitution for economic loss stemming from said murder; loss did not arise out of crim inal activity forming basis of conviction because charge of accessory wa s based on conduct o ccurring only after loss was sustained, and defendant was not convicte d as coconspirator or aider and abettor of

4 Harvey holds that for purposes of sentence e nhancement, a court may not consider facts that pertain solely to a charge di smissed as part of a plea bargain. ( Harvey , supra , 25 Cal.3d at pp. 758-759.)8. the murder itself]; People v. Leon (2004) 124 Cal.App.4th 620 , 621, 622 [defendant sentenced to prison could not be ordered to pay restituti on for loss resulting from second defendant’s crime where record did not su ggest defendant aided and abetted commission of second defendant’s crime].) Under the circumstances, defenda nt’s conduct was at least a concurrent cause of McDowell’s loss a nd substantial factor in the economic injury she incurred. Restitution was not imposed based on a crime for which defendant was not convicted; rather, restitution was imposed because the loss wa s “a result of the defendant’s conduct” (§ 1202.4, subd. (f)), sp ecifically, the crime to which he pled no contest. Because his conduct “played far more than a negligible or theoretical part in bringing about [McDowell’s] injuries and wa s a substantial factor in causing the harm [she] suffered” ( Holmberg , supra , 195 Cal.App.4th at p. 1322), the trial court did not abuse its discretion by ordering defendant to pay McDowell restitution for the damage to her vehicle (see id . at p. 1324). People v. Lai (2006) 138 Cal.App.4th 1227 ( Lai ), on which defendant relies, does not assist him. In that case, the defendant was convicted of fraudulently obtaining aid in the amount of $232,313.57 between January 1, 1985, and February 29, 2000. At sentencing, the prosecution so ught $261,543.57 in restitution, comprising (1) the jury’s finding of $232,313.57; (2) an additional $18,000 in fra udulently obtained aid that was shown by evidence at trial to be attributable to the charge d crimes; and (3) $11,230 in fraudulently obtained aid show n by evidence at trial, but occurring from September 1980 to March 1983, before the crim es of which the defendant was convicted. The trial court ordered the defendant to pay the amount of restitution requested by the prosecution. ( Id

. at p. 1246.) On appeal, the court held the defendant could not be required to pay the $11,230 attributable to aid fraudulently obtained before the charged period: Because the defendant was sentenced to prison, as opposed to being placed on probation, section 1202.4 limited restitution “to losses caus ed by the criminal conduct for which the9. defendant was convicted.” ( Lai , supra , 138 Cal.App.4th at p. 12 46.) Construing article I, section 28, former subdivision (b) (now su bd. (b)(13)(A)) of the California Constitution together with section 1202.4 , the court determined the language of the Constitution “grants the right to receive restitution for losses resulting from the crime of which the defendant was convicted. Implementing that right, section 1202.4 requires a defendant to pay restitution for losses resulting from the criminal conduct supporting the crimes of which the defendant was convicted.” ( Lai , supra , at p. 1247, italics added.) It concluded: “[W]hen a defendant is senten ced to state prison, section 1202.4 limits restitution to losse s caused by the criminal conduct for which the defendant was convicted. Therefore, secti on 1202.4 does not support that portion of the restitution order ... attributable to fraudulently obtained aid before the charged period.” ( Id . at p. 1249, italics added.)
In Lai , the defendant’s conduct in fraudulen tly obtaining aid during the charged period had no causal relationshi p to his fraudulently obtaining ai d before that period. The losses accruing before the char ged period were not caused by the defendant’s criminal conduct supporting his conviction. Here, by contrast, the damage to McDowell’s car directly resulted from the crim inal conduct supporting the crime to which defendant pled, and of which the preliminary hearing tr anscript established the factual basis. 5 Defendant argues, however, that upho lding the restitution award to McDowell would undermine his cons titutional right to notice. “[T]he central meaning of procedural

5 Defendant’s citation to People v. French (2008) 43 Cal.4t h 36, 50-51 is unavailing. The issue in that case was whet her, and if so, under what circumstances, a factual basis for a plea could be used to establish an aggravating sentencing factor without violating a defendant’s Sixth Amen dment jury trial right as set out in Cunningham v. California (2007) 549 U.S. 270. ( French , supra , at p. 40.) A criminal defendant’s constitutional right to a jury trial is not implic ated by victim restitution. ( People v. Chappelone (2010) 183 Cal.App.4th 1159, 11 84 & cases cited; see also People v. Holman (2013) 214 Cal.App.4t h 1438, 1451-1452.)10. due process [is] clear: ‘Parties whose rights ar e to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ [Citations.]” ( Fuentes v. Shevin (1972) 407 U.S. 67, 80.) At the chan ge of plea hearing, defendant was notified that if “the victim suffered any financ ial loss as a result of [defendant’s] actions,” defendant would have to pay the victim actual restitution. The circumstances surrounding the damage to McDowell’s vehicl e were clearly set out in the probation officer’s report, and payment of restituti on to her expressly re commended. This constituted sufficient notice. ( People v. Harvest (2000) 84 Cal.App.4th 641, 653;
compare People v. Collins (2003) 111 Cal.App. 4th 726, 734 with People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550.) If defenda nt believed he did not fully understand the scope of his liability when he entered into the plea bargain, as he now suggests, his remedy was to move to withdraw the plea on that ground. He did not do so. DISPOSITION The judgment is affirmed.