Filed 3/22/23 P. v. Doan CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PHIET THE DOAN,

Defendant and Appellant.

 H048975

 (Santa Clara County

 Super. Ct. No. C1775955) 

Phiet The Doan pleaded no contest to a felony charge of stalking (Pen. Code,

§ 646.9, subd. (a)).

1

 The trial court sentenced Doan to 120 days in county jail and 

ordered Doan to pay a total of $63,926.48 in victim restitution. 

On appeal, Doan challenges the restitution order on several grounds. He argues 

that there was insufficient evidence to support the victim’s request for lost wages, which 

the court included in its restitution order. He also contends that the restitution award 

violated his right to a jury trial under both the United States and California Constitutions. 

He further argues that the restitution amount constituted an excessive fine, which violated 

his due process and equal protection rights based on his inability to pay the amount 

ordered. Finally, Doan claims, to the extent that his trial counsel failed to object to the 

restitution order on the above-listed grounds, he received ineffective assistance of 

counsel. 

1 Undesignated statutory references are to the Penal Code.
2

For the reasons below, we find no merit to Doan’s claims and affirm the restitution 

order. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background2

In October 2017, the victim, D.H., filed a police report with the San Jose Police 

Department regarding allegations of stalking. D.H. stated that she and Doan were former 

high school acquaintances and teammates. She stated that Doan tried to pursue a 

relationship with her in high school, but she declined his advances. D.H. indicated that 

after Doan’s graduation, he was not in contact with her for approximately six to eight

years. 

D.H. stated that in 2017, after she returned from an extended trip abroad for 

one-and-a-half years, she received a call and threatening voicemail from Doan. After 

receiving this voicemail, D.H. discovered that Doan had left her a number of voicemails 

over the course of 2016, many of which included profanities, screaming, and cursing. 

Between September and October 2017, Doan continued to leave threatening voicemails 

on D.H.’s phone, including a potential death threat and a voicemail in October 2017, 

saying “[f]uck you and your family. You all need to die!” D.H. also reported that Doan 

had been observed vandalizing her car with a large rock around October 12, 2017. 

Shortly after making her first report, D.H. subsequently informed police that she 

had captured surveillance footage of Doan coming to her home on October 25, 2017, and 

slashing her front and back car tires several times. 

B. Procedural Background and Restitution Hearing

On October 25, 2017, the Santa Clara County District Attorney filed a felony 

complaint against Doan, charging him with stalking by repeated following or malicious 

2 The following facts are drawn from a psychiatric evaluation of Doan, which 

quotes the police report. 
3

harassing (§ 646.9, subd. (a); count 1) and vandalism in the amount of $400 or higher 

(§ 594, subds. (a), (b)(1); count 2). 

On October 29, 2018, the trial court found Doan not competent to stand trial. The 

court deemed Doan’s competency restored on January 9, 2020. On February 11, 2020, 

Doan pleaded no contest to stalking and the vandalism charge was dismissed, with 

sentencing continued to a further date. 

Prior to sentencing, the District Attorney filed a written request for a specific 

restitution order in the total amount of $163,899.31. This amount encompassed various 

expenses that D.H. indicated she had incurred as a result of Doan’s conduct as follows: 

(1) Past psychiatric appointments: $650; (2) Future psychiatric appointments: $100,000; 

(3) Medication: $15.46; (4) Acupuncture: $617.11; (5) Sleeping aid drops: $187; 

(6) Victim’s car tires: $694.19; (7) Victim’s car body/paint: $710.43; (8) Victim’s 

father’s car: $271.82; (9) Security system improvements: $884.73; (10) Temporary 

relocation: $494.57; (11) Lost wages: $11,250; (12) Reduced wages: $45,874; (13) Life 

coaching: $2,250. 

With respect to her lost wages, D.H. stated that she had to delay her employment 

start date to deal with the repercussions of Doan stalking her. D.H. provided a paycheck 

and a calculation using this paycheck to support her request. 

In a written response, Doan’s trial counsel objected to many of D.H.’s requests, 

including her request for lost wages.3 Doan’s counsel claimed that D.H. was requesting 

lost wages from September 2017 through November 2017 but had only provided a 

paycheck from March 2018 with no employer name listed. Doan’s counsel claimed that 

this paystub was insufficient to establish the requested lost wages, because it did not 

confirm that D.H. had been working for the same employer and earning the same amount 

for the time period in question. 

3 Appellant’s motion to augment the record to include Doan’s brief concerning 

victim restitution was granted on May 26, 2022. 
4

On January 29, 2021, prior to imposing sentence, the trial court held a restitution 

hearing. At the hearing, Doan’s counsel again objected to a number of the items 

requested by D.H., including her reduction in wages, future psychiatric appointments, and 

relocation expenses, but did not mention the request for lost wages. The district attorney 

briefly addressed the issue of lost wages, stating that D.H.’s written statement to the court 

should be enough to explain the lost wages and delay in starting the job. D.H. also spoke 

briefly at the hearing, where she discussed the psychological and mental health 

challenges she had faced as a result of Doan’s actions, and the effect these challenges had 

on her behavior, including her ability to perform her job and her interactions with new 

people. 

The trial court ultimately ordered Doan to pay D.H. a total amount of $63,926.48 

in restitution. In reaching this amount, the court did not award a number of items 

requested by D.H. The court only included half the cost of repairing D.H.’s father’s

vehicle since the requested amount was for two tires, and only the damage to one tire was 

attributable to Doan’s actions. The court also did not include the request for temporary 

relocation costs, finding there was no nexus between the relocation, which took place 

prior to September 2017, and Doan’s actions. The court also declined to include future 

counseling costs, finding that there was insufficient information demonstrating that the 

costs had been incurred or were likely to be incurred in the future. The court granted the 

remaining amounts requested, including lost wages of $11,250, noting that the amount 

reflected “a period from the time that [D.H.] started to report these crimes all the way 

through November and perhaps a little bit thereafter. And I believe case law is clear that 

if there’s an interference with employment to deal with court issues, testifying as a . . .

witness, reporting it to the police, et cetera, there can be a claim for lost wages as part of 

those economic losses.” 

Doan timely appealed. 
5

II. DISCUSSION

Doan contends the restitution order should be reversed for a number of reasons. 

First, he claims that there was insufficient evidence presented to support D.H.’s claim for 

lost wages. Second, he argues he was entitled to a jury trial on restitution under both the 

United States and California Constitutions. Third, he claims that the trial court erred in 

ordering significant restitution without first assessing his ability to pay, and the award 

therefore constitutes excessive punishment and violates his due process and equal 

protection rights. For the reasons below, we reject these claims as meritless. 

A. Sufficiency of Evidence Regarding Lost Wages

1. Applicable law and standard of review 

The California Constitution provides that crime victims have a right to receive 

“restitution from the persons convicted of the crimes causing the losses they suffer.” 

(Cal. Const., art. I, § 28, subd. (b)(13)(A).) Section 1202.4 implements this constitutional 

mandate and requires full victim restitution in criminal cases. (§ 1202.4, subd. (f).) 

Section 1202.4, subdivision (f), provides in relevant part that “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” (id., subd. (f)), and that the restitution order 

“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.” (Id., subd. (f)(3).)

Wages lost by a victim due to a crime are compensable under section 1202.4, 

subdivision (f), in a variety of circumstances. (See § 1202.4, subd. (f)(3)(E) [“[w]ages or 

profits lost by the victim . . . due to time spent as a witness or in assisting the police or 

prosecution”]; People v. Moore (2009) 177 Cal.App.4th 1229, 1233 [court did not abuse 
6

its discretion in ordering defendant to pay burglary victim $6,250 for the wages lost while 

attending court proceedings]; In re K.F. (2009) 173 Cal.App.4th 655, 665-666 [sick leave 

used by victim was compensable loss].)

We review a restitution order for abuse of discretion. (See People v. Millard 

(2009) 175 Cal.App.4th 7, 26 (Millard).) “ ‘ “ ‘Where 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.’ ” ’ ” (Ibid.) “ ‘In reviewing the sufficiency of the 

evidence [to support a factual finding], the “ ‘power of the appellate court begins and 

ends with a determination as to whether there is any substantial evidence, contradicted or 

uncontradicted,’ to support the trial court’s findings.” ’ ” (Ibid.)

“ ‘Further, the standard of proof at a restitution hearing is by a preponderance of 

the evidence, not proof beyond a reasonable doubt. [Citation.] “If the circumstances 

reasonably justify the [trial court’s] findings,” the judgment may not be overturned when 

the circumstances might also reasonably support a contrary finding. [Citation.] We do 

not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient 

evidence to support the inference drawn by the trier of fact.’ ” (Millard, supra, 175 

Cal.App.4th at p. 26.) “ ‘[T]he court’s discretion in setting the amount of restitution is 

broad, and it may use any rational method of fixing the amount of restitution as long as it 

is reasonably calculated to make the victim whole.’ ” (Ibid.)

2. There was sufficient evidence to support D.H.’s claims for lost 

wages

Doan contends that the court’s award of lost wages was speculative and based on 

insufficient information provided by D.H. He claims that D.H. provided inconsistent 

accounts about how long she had to delay her start date, initially claiming that it was a 

six-week delay and later stating it was approximately nine weeks. He also argues that she 

provided no information on when exactly she had planned to start working after being 

abroad for “a year and half.” 
7

The Attorney General asserts that the information provided was sufficient to 

establish a prima facie case for D.H.’s lost wages between September 2017 and 

November 2017. The Attorney General points to D.H.’s written statement, where she 

indicated that she had planned to begin working on September 11, 2017, but was forced 

to delay her start date until mid-November 2017, after Doan was in custody, in order to 

work with detectives, police officers, and courthouse officials to ensure her safety. The 

Attorney General also notes that Doan did not object to the amount of lost wages 

requested or make any attempts to rebut the evidence at the restitution hearing, including 

asking D.H. any questions to clarify relevant dates or how she arrived at her estimate for 

lost wages. 

In reply, Doan claims that he did object to the lost wages request in his written 

brief opposing restitution. He further contends that there was no prima facie showing to 

support D.H.’s request from either her statements or the paystub provided, as she did not 

provide any evidence of when she was supposed to start working or for whom; 

additionally, the paystub was only from 2018 and did not have the name of the employer 

listed. Doan argues, therefore, that he had no way of confirming the delay in her start 

date or that this paystub was for the same employer she began working for in 2017. 

In reviewing D.H.’s written statement and the paystub provided, we find that this 

information reasonably supported the trial court’s decision to award D.H. six weeks of 

lost wages. While there certainly could have been other information provided in support 

of D.H.’s claim, such as a letter confirming her original start date or a paystub from her 

actual start date, there is no requirement that a restitution award be based on the best

evidence available, so long as there is a rational basis for the inference drawn by the trial 

court in making the award. (See Millard, supra, 175 Cal.App.4th at p. 26; People v.

Baker (2005) 126 Cal.App.4th 463, 469-470.) Here, while the paystub was dated for 

February 2018, D.H.’s written statement indicated that this paystub also reflected her 

biweekly pay in November 2017. Accordingly, we conclude that there was sufficient 
8

evidence to establish a prima facie case for D.H.’s lost wages, and the trial court did not 

abuse its discretion in awarding the amount requested. 

B. Right to Jury Trial for Restitution 

Doan contends that he is entitled to a jury trial on the issue of restitution. While 

he acknowledges he did not raise this issue in the trial court, he claims that he should not 

be barred from raising it because it involves a pure issue of law. Alternatively, he claims 

that it would have been futile to raise the issue at the trial court level in light of binding 

case law to the contrary. 

The Attorney General maintains that Doan forfeited his claim by failing to raise 

this objection at the trial court. The Attorney General further argues that even if Doan 

did not forfeit his claim, case law clearly establishes that he has no right to a jury trial on 

the issue of restitution under either state or federal law. 

“ ‘[R]eviewing courts have traditionally excused parties for failing to raise an 

issue at trial where an objection would have been futile or wholly unsupported by 

substantive law then in existence.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 92 (Brooks).) 

Doan correctly notes that the Courts of Appeal have held that there is no right to a jury 

trial regarding restitution. As the trial court in this case would have therefore been bound 

to reject his argument, Doan may properly raise the claim in this court. (See ibid.) 

Turning to the substance of Doan’s claim, he primarily relies on Apprendi v. New 

Jersey (2000) 530 U.S. 466, and Southern Union Co. v. United States (2012) 567 U.S. 

343. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a 

prior conviction, any fact that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 

(Apprendi, supra, at p. 490.) In Southern Union, the United States Supreme Court held 

that a jury must determine “any fact, other than the fact of a prior conviction, that 

increases a criminal defendant’s maximum potential sentence,” and applied this rule to 

criminal fines. (Southern Union, supra, at p. 346; see id. at p. 349 [explaining that 
9

“[c]riminal fines, like . . . other forms of punishment, are penalties inflicted by the 

sovereign for the commission of offenses”].)

However, as explained by the court in People v. Pangan (2013) 213 Cal.App.4th 

574, neither Southern Union nor Apprendi “have any application to direct victim 

restitution, because direct victim restitution is not a criminal penalty. . . . [D]irect victim 

restitution is a substitute for a civil remedy so that victims of crime do not need to file 

separate civil suits. It is not increased ‘punishment.’ ” (Id. at p. 585.) The appellate 

court in Pangan ultimately ruled that the defendant was not entitled to a jury trial 

regarding victim restitution. (Id. at pp. 576, 586.) Other decisions have reached the same 

conclusion that there is no right to a jury trial regarding victim restitution. (See, e.g., 

Millard, supra, 175 Cal.App.4th at pp. 35-36; People v. Chappelone (2010) 183 

Cal.App.4th 1159, 1183-1184; People v. Wasbotten (2014) 225 Cal.App.4th 306, 

308-309; People v. Foalima (2015) 239 Cal.App.4th 1376, 1397-1399.)

Doan argues that victim restitution is “part of a defendant’s punishment,” noting 

that restitution hearings are a part of the sentencing hearing, and failure to pay a 

restitution award can result in probation being revoked. However, as explained in 

Millard, supra, 175 Cal.App.4th 7, “the primary purpose of a victim restitution hearing is 

to allow the People to prosecute an expedited hearing before a trial court to provide a 

victim with a civil remedy for economic losses suffered, and not to punish the defendant 

for his or her crime. To the extent a victim restitution order has the secondary purposes 

of rehabilitation of a defendant and/or deterrence of the defendant and others from 

committing future crimes, those purposes do not constitute increased punishment of the 

defendant . . . .” (Id. at pp. 35-36.) 

Lastly, Doan claims that “[e]ven if restitution were civil, [he] has a constitutional 

right to a jury trial to determine the amount of the loss” under article I of the California 

Constitution. He argues that the amount of damages is an issue of fact that must be tried 

by a jury. 
10

We are not persuaded by this contention. Although “the restitution order and the 

civil jury award produce the same result (an enforceable judgment against the defendant 

[citation]), they are a different means to that end, one based in the civil law, with its 

protections and requirements, and the other in criminal law, with its own protections and 

requirements. The restitution hearing . . . is a criminal sentencing hearing, not a civil 

trial.” (People v. Smith (2011) 198 Cal.App.4th 415, 434.) 

Further, the California Constitution generally provides that “[t]rial by jury is an 

inviolate right and shall be secured to all . . . .” (Cal. Const., art. I, § 16.) With respect to 

civil trials, “[g]enerally, ‘if the action is essentially one in equity and the relief sought 

“depends upon the application of equitable doctrines,” the parties are not entitled to a jury 

trial.’ ” (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 121, italics 

added.) As a general matter, restitution is a remedy available in an equitable action (see 

People v. Superior Court (1973) 9 Cal.3d 283, 286) to which there is no right to a jury 

trial. While Doan attempts to argue that an award of criminal restitution does not rest on 

equitable factors, he provides no persuasive legal authority that supports this contention. 

Doan also provides no legal authority that clearly establishes the right to a jury trial for 

victim restitution in this case. (See People v. Rivera (1989) 212 Cal.App.3d 1153, 

1159-1161 [rejecting the contention that a defendant has the right to a jury trial on the 

issue of restitution under Cal. Const., art. I, § 16].) 

In conclusion, we find that Doan had no right to a jury trial under the United 

States or California Constitution. 

C. Excessive Fine, Equal Protection, and Due Process Claims 

Doan argues that the total amount of restitution ordered of $63,500 should be 

considered an excessive fine under the Eighth Amendment of the United States

Constitution. He further claims that the award violated his equal protection and due 

process rights due to his indigent status. He again argues that his failure to raise these 

objections at the trial court did not forfeit his right to raise them on appeal as they involve 
11

pure issues of law, and it would have been futile to raise the issues at the trial court level 

in light of binding case law to the contrary. 

The Attorney General again argues that these claims should be forfeited because 

Doan did not raise these objections at the trial court. The Attorney General further argues 

that, to the extent that these claims are not forfeited, the order remains valid as direct 

victim restitution is non-punitive and does not implicate the Eighth Amendment’s 

restriction against cruel and unusual punishment. The Attorney General additionally 

argues that victim restitution is fundamentally different from the fines and assessments 

associated with criminal sentences such that it should not be subject to an ability to pay 

analysis. 

As discussed above, reviewing courts will excuse failure to raise an objection at 

the trial level if doing so would have been futile in light of case law to the contrary. 

(Brooks, supra, 3 Cal.5th at p. 92.) As Courts of Appeal have previously held that victim 

restitution is not considered a fine, and therefore, do not require an ability-to-pay 

determination, the trial court would have been bound to reject Doan’s argument. 

Therefore, Doan may properly raise his claims in this court. (See ibid.) 

As correctly noted by the Attorney General, Doan’s claims primarily rest on his 

contention that victim restitution is punitive in nature and should be treated in the same 

manner as the fines, fees, and assessments that are included in a criminal sentence. In 

essence, Doan asks us to extend the ruling in People v. Dueñas (2019) 30 Cal.App.5th 

1157 (Dueñas), which only addressed the aforementioned fines and fees, to direct victim 

restitution. For the reasons explained below, we decline to do so. 

In Dueñas,

4

the appellate court held that the imposition of a court operations 

assessment and a court facilities assessment without a determination of the defendant’s 

4 We acknowledge that the Courts of Appeal have conflicting opinions on whether 

Dueñas was decided correctly and that the issue is currently before the California 

(continued)
12

ability to pay was “fundamentally unfair” and violated due process under the federal and 

state Constitutions. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also 

concluded that the execution of a restitution fine under section 1202.4 “must be stayed 

unless and until the trial court holds an ability to pay hearing and concludes that the 

defendant has the present ability to pay the restitution fine.” (Dueñas, supra, at p. 1164.) 

However, the court in Dueñas distinguished restitution fines from direct restitution 

to the victim, explaining that a restitution fine is “set at the discretion of the court in an 

amount commensurate with the seriousness of the offense and within a range set by 

statute,” and therefore “is intended to be, and is recognized as, additional punishment for 

a crime.” (Dueñas, supra, 30 Cal.App.5th at p. 1169.) In contrast, the Dueñas court 

noted that direct restitution is to compensate the victim for any losses suffered because of 

the defendant’s crime. (Ibid.) Further, as discussed above, it is well-established that 

victim restitution is not considered part of a criminal punishment and is non-punitive in 

nature. (Millard, supra, 175 Cal.App.4th at pp. 35-36; People v. Harvest (2000) 84 

Cal.App.4th 641, 649-650.) 

Other appellate courts have relied on this distinction in declining to extend the 

Dueñas ability-to-pay analysis to direct victim restitution. (See People v. Evans (2019) 

39 Cal.App.5th 771, 776-777; People v. Allen (2019) 41 Cal.App.5th 312, 326.) In 

addition, one appellate court relied on the difference in purpose between direct victim 

restitution and fines and assessments in concluding that direct victim restitution was not 

punishment, and therefore would not be considered a fine under the Eighth Amendment. 

(People v. Aviles (2019) 39 Cal.App.5th 1055, 1071, fn. 27.) 

Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, 95 [agreeing with 

Dueñas that due process requires an ability-to-pay determination before imposition of 

court operations or court facilities assessments], review granted Nov. 13, 2019, 

S257844.) However, this conflict does not affect our analysis and decision herein. 
13

More importantly, section 1202.4, subdivision (g) explicitly states that a 

defendant’s inability to pay “shall not be a consideration in determining the amount of a 

restitution order.” Notably, Doan does not cite this subdivision in his argument, and he 

fails to cite any legal authority that provides an exception to this subdivision. 

Given the difference in the fundamental purposes behind restitution fines and 

direct restitution, we agree that direct victim restitution should not be viewed in the same 

light as fines and fees, and therefore, is not subject to the restriction against excessive 

fines under the Eighth Amendment. For the same reasons, as well as the express 

direction provided in section 1202.4, subdivision (g), we agree with the holdings in Evans

and Allen, and decline to extend the holding in Dueñas to direct victim restitution. 

D. Ineffective Assistance of Counsel 

Doan alternatively contends that, to the extent that his trial counsel forfeited any of 

his claims above by not raising them at the trial level, he received ineffective assistance 

of counsel. 

To prevail on a claim of ineffective assistance of counsel, a criminal defendant 

must establish both that his or her counsel’s performance was deficient and that he or she 

suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The deficient 

performance component of an ineffective assistance of counsel claim requires a showing 

that “counsel’s representation fell below an objective standard of reasonableness” under 

prevailing professional norms. (Id. at p. 688.) Regarding prejudice, a “defendant must 

show that there is a reasonable probability”—meaning “a probability sufficient to 

undermine confidence in the outcome”—“that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” (Id. at p. 694.)

As explained above, many of Doan’s claims above would have been futile in the 

trial court due to binding case law. Accordingly, Doan cannot demonstrate a reasonable 

probability that the results of the restitution hearing would have been different if his trial 

counsel had raised the same objections addressed herein. We therefore find no merit in 
14

defendant’s claim of ineffective assistance of counsel based on the failure to object (see 

People v. Lopez (2008) 42 Cal.4th 960, 966 [ineffective assistance of counsel claim 

requires a showing of prejudice]). 

III. DISPOSITION

The restitution order is affirmed. 
___________________________________

Wilson, J.

WE CONCUR:

__________________________________________

 Bamattre-Manoukian, Acting P.J.

______________________________________

Danner, J.

People v. Doan

H048975