Filed 9/17/20 P. v. Eisenhut CA5

Opinion Following Rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 EDWARD EISENHUT,

Defendant and Appellant.

F076732

(Super. Ct. No. CRF46451)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. 

Boscoe, Judge.

Michael L. Pinkerton, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. 

O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2

Defendant Mark Edward Eisenhut stands convicted, following a jury trial, of 

simple battery. On appeal, he contends that the trial court erred (1) by admitting videorecorded evidence of witness testimony despite the prosecutor’s inadequate showing of 

diligence in attempting to secure the witness’s attendance, and (2) by failing to apportion 

fault and restitution based on the victim’s comparative fault.

After granting rehearing and receiving supplemental briefing by the parties, we 

again dismiss defendant’s appeal as to his first claim of error because we lack jurisdiction 

to consider it, vacate the victim restitution order, and remand for the trial court to 

determine whether a compelling and extraordinary reason exists to impose less than full 

victim restitution. In all other respects, we affirm.

PROCEDURAL SUMMARY

On February 13, 2015, the Tuolumne County District Attorney charged defendant 

with battery causing serious bodily injury. (Pen. Code, § 243, subd. (d).)1 

On September 7, 2017, the jury convicted defendant of the lesser included offense 

of simple battery, a misdemeanor. (§ 242.) 

On September 18, 2017, the prosecutor filed a motion seeking restitution in the 

amount of $46,211 on behalf of the victim, Trevor Eisenhut.

2

 In support of the motion, 

the prosecutor submitted evidence of the medical expenses incurred by Trevor. 

On October 3, 2017, the trial court suspended imposition of sentence and granted 

defendant probation with various conditions, including victim restitution, the amount of 

which would be determined at a later hearing. 

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

2 As defendant and the victim share the same last name, we refer to the victim by 

his first name. No disrespect is intended.
3

On November 28, 2017, the court ordered $44,711 in victim restitution—the entire 

amount sought by the prosecutor except for $1,500 of anesthesia costs that the trial court 

found to be inadequately proved. 

On December 11, 2017, defendant filed a notice of appeal.

On July 15, 2020, we filed an unpublished opinion. We dismissed defendant’s 

appeal as to his first claim of error because we lack jurisdiction to consider it, vacated the 

victim restitution order, and remanded for the trial court to determine whether a 

compelling and extraordinary reason exists to impose less than full victim restitution. In 

all other respects, we affirmed.

On July 30, 2020, the People filed a petition for rehearing, arguing that rehearing 

was required because the parties did not brief the question of whether compelling and 

extraordinary reasons existed to impose less than full restitution.

On July 31, 2020, we ordered defendant to file an answer to the petition.

On August 10, 2020, we granted the petition for rehearing, vacated the July 2020 

opinion, and requested that the parties submit supplemental briefing to address whether 

the matter should be remanded to permit the trial court to exercise its discretion to 

consider whether any compelling and extraordinary reasons justify an award of less 

than full victim restitution, pursuant to the 2015 version of section 1202.4, 

subdivision (f).

FACTUAL SUMMARY

I. Prosecutor’s Case

On February 6, 2015, Trevor went to his grandmother’s property with his twoyear-old daughter and his girlfriend. Defendant, who is Trevor’s uncle, lived on the 

property. Trevor’s girlfriend testified that she and Trevor went to the property to pick up 

clothing for Trevor’s daughter. While at the property, Trevor decided to take his 

daughter for a ride on his dirt bike. Trevor rode the dirt bike with his daughter for 
4

approximately five to 10 minutes at no more than 10 miles per hour. After Trevor’s 

daughter decided she no longer wanted to ride on the dirt bike, he dropped her off with 

his girlfriend. Trevor continued riding his dirt bike. Trevor and his girlfriend both 

testified that when Trevor rode his dirt bike without his daughter, he rode much faster. 

Trevor testified that while he was riding his dirt bike without his daughter, 

defendant exited a trailer on the property and approached him. Defendant told Trevor to 

park the dirt bike but Trevor ignored him. Trevor revved the throttle and continued past 

defendant. Trevor went to the end of the road and turned around. As he came back to the 

property, defendant stood in the middle of the road to block him. Trevor went in a “big 

loop” around defendant, revved his throttle at him again, and continued down the road, 

back to the property. Trevor then went to his daughter and asked if she wanted to go for 

another ride. His daughter declined and he looped around the property to park the dirt 

bike. Trevor’s girlfriend testified that Trevor rode the dirt bike for only about five or 

10 minutes by himself. 

In going to park the dirt bike, Trevor passed by defendant’s trailer. Trevor 

testified that at no point did he ride the dirt bike at defendant or try to hit him. Trevor 

passed defendant’s trailer on his way to the carport, going roughly five miles per hour. 

As Trevor passed, defendant came out from behind the trailer where he was hiding and 

hit Trevor either once or twice with his bare hands. At least one of the hits was to 

Trevor’s helmet. Before defendant hit Trevor on the helmet, he was in control of the dirt 

bike. But after defendant hit Trevor on the helmet, he swerved to the right, nearly hitting 

the carport, and then swerved to the left to try to correct. As Trevor swerved and then 

corrected, the front tire of the dirt bike lost traction and slid. Trevor and the dirt bike fell 

to the ground seconds after defendant hit him. Trevor’s leg was pinned under the dirt 

bike in the fall, breaking his ankle and tearing a ligament in his knee.
5

Trevor told defendant that defendant had broken Trevor’s leg. Defendant stood 

over Trevor, and said, “That’s what you get motherfucker.” Trevor’s grandmother then 

took Trevor to the hospital. 

II. Defense Evidence

Defendant testified that in February of 2015, he lived on his mother’s property in 

Tuolumne County. On February 6, 2015, he was in one of the two workshops on the 

property when he heard Trevor start his dirt bike. Defendant exited the workshop and 

saw that Trevor was riding in a safe manner with his daughter, so he went back to the 

workshop. 

Defendant next heard a loud noise from outside that “sounded like I was at the 

racetrack.” Defendant testified, “I went outside. I saw him. He’s up going over a little 

bank and looking back over his shoulder and being cool, and I stopped him. I told him to 

park it.” Defendant’s neighbor also heard the loud noises caused by the dirt bike and 

checked to see what was going on. The neighbor testified that Trevor was “popping 

wheelies,” riding “reckless[ly],” and doing “burnouts.” The neighbor decided to tell 

Trevor to stop. She went to the end of her driveway where she had seen Trevor turn 

around in a previous lap. She waved her arms and shouted at him to stop. Trevor came

within seven feet of the neighbor on his dirt bike but did not acknowledge her and did not 

stop. 

Defendant testified that soon after Trevor started riding without his daughter, 

defendant stopped him, stood in front of the dirt bike, and told him to park it. In 

response, Trevor was “aggressive and defiant.” He looked at defendant, revved up the 

dirt bike and “popped the clutch,” forcing defendant to move out of the way. Trevor then 

raced by defendant again, looking over his shoulder at defendant as he raced down the 

street, doing a “wheelie[].” 
6

Defendant attempted to stop Trevor a second time. This time, defendant stopped 

Trevor on the road, put his hand on the handlebar, and told Trevor again to park the dirt 

bike. Trevor responded in the same manner, revving his engine and being aggressive. 

He then sped off, hitting defendant in the ribs with the handlebar. 

Defendant testified that he did not think he would be able to convince Trevor to 

stop. He decided to go to the house to have his mother, Trevor’s grandmother, stop 

Trevor from riding. As defendant was walking back to the house, he saw Trevor riding 

through the yard toward him standing on the dirt bike’s pegs. When Trevor passed 

through a roughly four-foot-wide narrowing of the path, he “hit[] the throttle,” pulling the 

front wheel off of the ground about a foot. Trevor came within two or three feet of 

defendant as he passed at high speed, still standing on the dirt bike’s pegs. Defendant did 

not touch or hit Trevor as he passed. Trevor turned his head to look at defendant as he 

passed. When Trevor looked back, with his front wheel off of the ground, he was headed 

for a car trailer. Trevor locked the rear brake. When the front tire touched down, it was 

at an angle. The dirt bike “nosed in” and launched Trevor off the side of the dirt bike. 

Defendant described the event as a “highside” crash. 

Defendant testified about two photographic exhibits. One showed the skid mark 

caused when Trevor locked the brake. The other showed a hole in the ground farther

down Trevor’s path where the dirt bike’s peg sank into the ground when it fell. 

Defendant explained that when he picked up the dirt bike, the peg was still stuck in the 

ground. Trevor’s ankle and knee were not injured by being pinned under the dirt bike. 

Instead, they were injured when Trevor was launched off of the dirt bike. The dirt bike 

never hit Trevor. 

Defendant initially did not say anything to Trevor because defendant was laughing 

too hard. Trevor eventually claimed that defendant made him crash. Defendant denied 

having made Trevor crash. 
7

DISCUSSION

I. Jurisdiction

The People argue that we are without jurisdiction over the portion of defendant’s 

appeal that challenges the admission of evidence at trial because it attacks his judgment 

of conviction for which no timely notice of appeal was filed. Defendant has given no 

response. We agree that we are without jurisdiction over defendant’s first claim of error 

and thus it must be dismissed. 

“[A] notice of appeal must be filed within 60 days after the rendition of the 

judgment or the making of the order being appealed.” (Cal. Rules of Court, 

rule 8.406(a)(1).)3 “[T]he filing of a timely notice of appeal is a jurisdictional 

prerequisite. ‘Unless the notice is actually or constructively filed within the appropriate 

filing period, an appellate court is without jurisdiction to determine the merits of the 

appeal and must dismiss the appeal.’ ” (Silverbrand v. County of Los Angeles (2009) 

46 Cal.4th 106, 113.)

A challenge to the admission of evidence at trial is a challenge to the judgment of 

conviction. (See, e.g., People v. Lessie (2010) 47 Cal.4th 1152, 1157 [the defendant 

challenged his conviction when he challenged the admissibility of evidence of his 

confessions].) Thus, to appeal the admission of evidence at trial, a defendant must file a 

notice of appeal within 60 days after the judgment has been rendered. (Rule 8.406(a)(1).) 

“In a criminal case, judgment is rendered when the trial court orally pronounces 

sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9; People v. Wilcox (2013) 

217 Cal.App.4th 618, 625 [“ ‘A “sentence” is the judgment in a criminal action 

[citations]; it is the declaration to the defendant of his disposition or punishment once his 

criminal guilt has been ascertained. [Citation.]’ ”].) However, if no sentence has been 

imposed because imposition of sentence was suspended before probation was granted, the 

3 All references to rules are to the California Rules of Court.
8

“order granting probation ... shall be deemed to be a final judgment” from which the 

defendant may appeal.4 (§ 1237, subd. (a); see People v. Chavez (2018) 4 Cal.5th 771, 

786 [under § 1237, an order granting probation is deemed a final judgment for the 

purpose of taking an appeal, but not for other purposes].)

Here, the trial court suspended imposition of sentence and granted probation on 

October 3, 2017. Defendant was required to file a notice of appeal by December 4, 2017, 

in order to appeal the admission of evidence at trial.5 But he did not file a notice of 

appeal until December 11, 2017, purporting to appeal from an order or judgment 

rendered on November 28, 2017. Nothing in the record suggests there was any cause to 

extend time for filing a notice of appeal (see, e.g., rule 8.108(b)–(f)). Thus, the portion of 

defendant’s appeal challenging admission of evidence must be dismissed.

However, defendant’s challenge to the postjudgment restitution order is 

cognizable on appeal. The restitution order was separately appealable from the order 

granting probation. (§ 1237, subds. (a) & (b) [an appeal can be taken from “an order 

granting probation” and “any order made after judgment”]; see People v. Ford (2015) 

61 Cal.4th 282, 286 [“order of restitution was appealable, as it was made after judgment 

and affected defendant’s substantial rights,” citing §§ 1202.4, subd. (f), 1237, subd. (b)]; 

People v. Denham (2014) 222 Cal.App.4th 1210, 1213–1214 [postjudgment victim 

4 A trial court may grant probation by either suspending imposition of the sentence, 

or by imposing the sentence and suspending its execution. (People v. Segura (2008) 

44 Cal.4th 921, 932.) In the first situation, when the trial court initially suspends 

imposition of sentence and grants probation, “no judgment is then pending against the 

probationer, who is subject only to the terms and conditions of the probation.” (People v. 

Howard (1997) 16 Cal.4th 1081, 1087.) Section 1237 provides a way for defendants in 

this position to appeal.

5 Sixty days after October 3, 2017, was Saturday, December 2, 2017. When the last 

day to file a notice of appeal under the 60-day rule falls on a weekend or holiday, the 

period to file a notice is extended to and includes the next day that is not a holiday. 

(Code Civ. Proc., § 12a, subd. (a).)
9

restitution order became “an order after judgment that was appealable separately from the 

judgment itself”].) The December 11, 2017 notice of appeal was timely as to the 

November 28, 2017 restitution order. 

II. Restitution

Defendant contends the trial court erred when it ordered victim restitution without 

applying comparative fault principles to apportion fault and restitution between defendant 

and Trevor. Defendant argues that his acquittal of the greater offense of battery causing 

serious bodily injury and his conviction of the lesser included offense of simple battery

were the jury’s repudiation of a causal link between the battery and Trevor’s injury—and 

without that causal link, the jury must have concluded defendant’s conduct was merely 

negligent. He explains that the lack of causation “leave[s] [defendant’s] negligence in 

interfering with Trevor’s operation of the dirt bike as a substantial factor in causing the 

injuries.” He asserts that if his conduct is “viewed in its proper context,” it is clear that 

“[Trevor’s] injuries were not directly caused by any intentional act performed by 

[defendant]” and defendant’s conduct was fundamentally negligent, as was Trevor’s. 

Thus, the court had the authority to apply comparative fault principles under People v. 

Millard (2009) 175 Cal.App.4th 7 (Millard).

The People respond that because defendant was convicted of an intentional crime,

rather than merely negligence, comparative fault principles are inapplicable, and the trial 

court therefore did not err in refusing to apply them. We agree with the People.

A. Background

After the jury found defendant guilty of simple battery and not guilty of battery 

causing serious bodily injury, the prosecutor filed a motion for victim restitution pursuant 

to section 1202.4. In the motion, the prosecutor argued that the acquittal of battery 

causing serious bodily injury did not preclude the trial court from ordering victim 

restitution to Trevor because the acquittal did not require the jury to conclusively 
10

determine that defendant did not cause Trevor’s injuries; instead, the jury merely 

determined that the prosecutor had not proved beyond a reasonable doubt that defendant 

caused Trevor serious bodily injury. The prosecutor urged the court to find by a 

preponderance of the evidence, from the evidence presented at trial, that defendant’s 

battery of Trevor was a substantial factor in causing Trevor’s injuries. 

The trial court held two hearings regarding victim restitution. At the first hearing, 

on October 3, 2017, the trial court granted defendant “three years[’] summary probation 

under the usual terms and conditions.” As terms of probation, defendant was ordered to 

“perform 20 days[’] work release, pay a $1,500 fine,” and pay restitution that the court 

would order “as appropriate following this hearing.” The court then admitted the 

documents attached to the prosecutor’s motion for victim restitution and heard testimony 

from Trevor on the requested restitution amount of $46,211. In opposition, defendant 

argued that one portion of the restitution amount sought—an estimated $1,500 in costs 

for anesthesia—was unreliable. Defendant further argued that the jury’s verdicts did not 

establish that he caused the injuries to Trevor for which restitution was sought. At the 

close of the hearing, the parties offered to brief the issue of whether comparative fault 

principles were applicable. The trial court declined, stating it would conduct its own 

research.

At the second hearing on restitution, held on November 28, 2017, the trial court 

stated: “I heard the facts in this case. I felt that [Trevor] was partly responsible for [his 

own] resulting injuries.” But the court explained it had found no authority permitting it 

to apportion restitution in this case because defendant’s conduct was intentional, not 

negligent. The court said, “[S]o I can’t apportion. As much as I would like to do that, I 

can’t do it.” The court then told defendant, “I heard the facts. I don’t think you’re totally 

responsible in this case. Your conduct was—was intentional based on what the jury 

found, and I have no authority to change or award part of the responsibility to [Trevor] in 
11

this case.” The court later added, “I have some sympathy for you, [defendant]. I would 

have apportioned these damages—[a] substantial portion of it to [Trevor] in this case, but 

I can’t do it.” 

Ultimately, the court ordered that defendant pay victim restitution to Trevor in the 

amount of $44,711. That amount included all of the expenses sought by the prosecutor 

except the disputed $1,500 for anesthesia, for which no evidence of actual cost was 

submitted. The court ended the hearing by telling defendant, “Well, look, [defendant], I 

regret having to do this, but I’ve done it. That’s the order, [$]44,711, unfortunately. All 

right. That’s all.” 

B. Legal Framework and Standard of Review

“In 1982, California voters passed Proposition 8, also known as The Victims’ Bill 

of Rights.... Proposition 8 established the right of crime victims to receive restitution 

directly ‘from the persons convicted of the crimes for losses they suffer.’ (Cal. Const., 

art. I, § 28, subd. (b).)” (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) 

Proposition 8 was not self-executing, however, and required legislative implementation 

of its mandates. The Legislature “enacted, and frequently amended, a bewildering array 

of responsive statutes.” (Giordano, at p. 652; see generally id. at pp. 652–654.) One of 

those statutes is section 1202.4.6

The requirements of mandatory victim restitution are set out in section 1202.4, 

which declares “the intent of the Legislature that a victim of crime who incurs an 

economic loss as a result of the commission of a crime shall receive restitution directly 

from a defendant convicted of that crime.” (§ 1202.4, subd. (a)(1), italics added.) Thus, 

6 The version of section 1202.4 applicable here is not the version in effect today. 

We apply the version of the restitution law that was in effect on the date of defendant’s 

crime, February 6, 2015. (People v. Birkett (1999) 21 Cal.4th 226, 228, fn. 1, 232, 247 & 

fn. 21; People v. Martinez (2014) 226 Cal.App.4th 1169, 1190.) Accordingly, when we 

refer to sections 1202.4 and 1203.1, we refer to the 2015 versions.
12

“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.... The court shall order full

restitution unless it finds compelling and extraordinary reasons for not doing so and states 

them on the record.” (§ 1202.4, subd. (f), italics added.)7 When a trial court grants a 

defendant probation, any restitution imposed pursuant to section 1202.4 must be imposed 

as a condition of probation. (§ 1202.4, subd. (m).) “If the court finds and states on the 

record compelling and extraordinary reasons why a ... full restitution order should not be 

required, the court shall order, as a condition of probation, that the defendant perform 

specified community service, unless it finds and states on the record compelling and 

extraordinary reasons not to require community service in addition to the finding that 

restitution should not be required. Upon revocation of probation, the court shall impose 

restitution pursuant to this section.” (§ 1202.4, subd. (n).)

As noted, section 1202.4 requires victim restitution where a victim’s economic 

loss occurs “as a result of” the defendant’s criminal conduct. (§ 1202.4, subds. (a) & (f).) 

“This is language of causation.” (In re A.M. (2009) 173 Cal.App.4th 668, 673 [analogous 

context of Welf. & Inst. Code, § 730.6 (“economic loss as a result of the minor’s 

conduct”)].) The “substantial factor” test for proximate causation governs whether a 

victim’s economic loss results from the defendant’s criminal conduct for purposes of 

mandatory victim restitution. (People v. Lockwood (2013) 214 Cal.App.4th 91, 102; 

People v. Holmberg (2011) 195 Cal.App.4th 1310.) That test requires only that 

defendant’s criminal conduct be more than a negligible or theoretical cause of the injury 

to the victim. (People v. Holmberg, at p. 1321.) “ ‘Thus, “a force which plays only an 

7 This exception has been eliminated from the current scheme. The current 

section 1202.4, subdivision (f) requires simply that the trial court order “full restitution.”
13

‘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].’ ” (Id. at p. 1322.)

Restitution cannot be imposed pursuant to section 1202.4 for a defendant’s 

conduct that was not part of a crime for which he was convicted. (§ 1202.4, subd. (a)(1) 

[requiring restitution where a victim has suffered “economic loss as a result of the 

commission of a crime ... from a defendant convicted of that crime”]; People v. Martinez 

(2017) 2 Cal.5th 1093, 1101, 1104–1106 [§ 1202.4, “as the Courts of Appeal have 

uniformly held, ... authorizes trial courts to order direct victim restitution for those losses 

incurred as a result of the crime of which the defendant was convicted”], citing People v. 

Lai (2006) 138 Cal.App.4th 1227, 1247–1248; People v. Woods (2008) 161 Cal.App.4th 

1045, 1051–1052; People v. Williams (2010) 184 Cal.App.4th 142, 147.)

In summary, for crimes committed in 2015, full mandatory victim restitution is 

required pursuant to section 1202.4, subdivision (f) where a victim’s economic loss 

(1) was caused by (2) a crime for which defendant was convicted, unless (3) the trial 

court finds a compelling and extraordinary reason not to order full restitution. 

In addition to the duty to impose mandatory restitution where appropriate, a trial

court granting probation has discretion to impose restitution beyond that which is 

required under the mandatory victim restitution scheme. (§ 1203.1, subds. (b) & (j); see 

People v. Anderson (2010) 50 Cal.4th 19, 28–29 [where restitution is not mandatory 

under § 1202.4, and the defendant is granted probation, the trial court has broader 

discretion to impose restitution]; People v. Carbajal (1995) 10 Cal.4th 1114, 1122 [the 

mandatory victim restitution scheme does not override a trial court’s discretion to impose 

restitution as a condition of probation “where the victim’s loss was not the result of the 

crime underlying the defendant’s conviction”].) Restitution as a condition of probation 

under section 1203.1, may be imposed when a trial court determines it is “fitting and 
14

proper to the end that justice may be done, that amends may be made to society for the 

breach of the law, for any injury done to any person resulting from that breach, and 

generally and specifically for the reformation and rehabilitation of the probationer.” 

(§ 1203.1, subd. (j).) Restitution as a condition of probation, like other conditions of 

probation, “ ‘will not be held invalid unless it “(1) has no relationship to the crime of 

which the offender was convicted, (2) relates to conduct which is not in itself criminal, 

and (3) requires or forbids conduct which is not reasonably related to future 

criminality ....” ’ ” (People v. Anderson, at p. 32; People v. Lent (1975) 15 Cal.3d 481, 

486, superseded by Proposition 8 as noted in People v. Moran (2016) 1 Cal.5th 398, 403, 

fn. 6; see People v. Honig (1996) 48 Cal.App.4th 289, 358–359.) Indeed, when a trial 

court grants probation, its discretion is so broad that it may impose restitution based on a 

loss that resulted from “conduct underlying dismissed and uncharged counts,” “conduct 

resulting in an acquittal,” and even “conduct that is not in itself necessarily criminal.” 

(People v. Anderson, at p. 27.) That is so because “[p]robation is ‘an act of clemency and 

grace’ [citation], not a matter of right [citation].... If the defendant finds the conditions 

of probation more onerous than the sentence he would otherwise face, he may refuse 

probation.” (Id. at p. 32.)

On appeal, we review a trial court’s restitution order for abuse of discretion. 

(People v. Sy (2014) 223 Cal.App.4th 44, 63.) “ ‘ “ ‘ “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.” ’ [Citations.]” ... “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.’ 

[Citations.] 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 
15

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

the circumstances might also reasonably support a contrary finding.” ’ ” (Ibid.; accord, 

People v. Trout-Lacy (2019) 43 Cal.App.5th 369, 372–373.)

C. Causation

i. Jury’s Finding

We begin with defendant’s premise that, in reaching its verdicts, the jury 

necessarily found defendant did not cause Trevor’s injuries. This premise is incorrect.

Battery causing serious bodily injury is “any willful and unlawful use of force or 

violence upon the person of another” that results in “serious bodily injury ....” (§§ 242, 

243, subd. (d), respectively.) The trial court instructed the jury with CALCRIM No. 925, 

which read in part: “[T]he People must prove that, one, the defendant willfully touched 

Trevor Eisenhut in a harmful or offensive manner; and two, Trevor Eisenhut suffered 

serious bodily injury as a result of the force used.” 

Simple battery, by contrast, consists of only the first element—“any willful and 

unlawful use of force or violence upon the person of another.” (§ 242.) The trial court 

instructed the jury with CALCRIM No. 960, which read in part: “[T]he People must 

prove that, one, the defendant willfully touched Trevor Eisenhut in a harmful or offensive 

manner.” 

These instructions made clear to the jury that the principal difference between a 

battery causing serious bodily injury and a simple battery is that the former results in 

serious bodily injury to the victim. While the jury’s verdicts might suggest that the jury 

found defendant did not cause Trevor’s injuries, in reality, the verdicts do not establish 

that the jury necessarily made such a finding. “ ‘[T]he fact of an acquittal establishes 

only that the trier of fact entertained a reasonable doubt of defendant’s guilt.’ ” (People 

v. Towne (2008) 44 Cal.4th 63, 84; accord, People v. Levitt (1984) 156 Cal.App.3d 500, 

515 (Levitt), disapproved on another ground in People v. Johnson (2016) 62 Cal.4th 600, 
16

649, fn. 6.) Unless a special verdict is reached with “specific [factual] findings ... ‘the 

jury cannot be said to have “necessarily rejected” any facts when it returns a general 

verdict ....’ ” (People v. Towne, at p. 86, quoting United States v. Watts (1997) 519 U.S. 

148, 155.) Here, we cannot say the jury necessarily rejected the fact of defendant’s 

causation.

We also note that the jury’s guilty verdict on simple battery does not establish that 

the jury found defendant caused Trevor any injury at all. (§ 242; see CALCRIM No. 960 

[a simple battery conviction does not require the touching to “have ... cause[d] pain or 

injury of any kind”].) The jury’s verdicts simply did not establish, one way or the other, 

whether defendant caused harm to Trevor.

Because we reject defendant’s premise that the jury found he did not cause 

Trevor’s injuries, we also reject his conclusion, based on that premise, that the jury must 

have found his conduct was negligent.

ii. Trial Court’s Finding

Although the jury did not find beyond a reasonable doubt that defendant’s battery 

caused serious bodily injury to Trevor, the trial court was not precluded from determining 

by a preponderance of the evidence that defendant’s battery caused Trevor’s injuries.

Where, as here, a defendant is acquitted of a greater offense and convicted of a 

lesser included offense, a trial court is permitted to find that any element of the acquitted 

offense is true by a preponderance of the evidence for purposes of necessary 

postconviction determinations. (Levitt, supra, 156 Cal.App.3d at p. 515.) In other words, 

absent express factual findings by the jury, the fact of acquittal on the greater count does 

not constrain the trial court from making necessary factual determinations related to a 

lesser included count of conviction.

In Levitt, the defendant was acquitted of murder but convicted of manslaughter. 

(Levitt, supra, 156 Cal.App.3d at p. 505.) Although the acquittal of murder meant that 
17

the jury did not make a finding of malice beyond a reasonable doubt, the trial court was 

permitted to make such a finding by a preponderance of the evidence for purposes of 

determining a sentence within the range of permissible sentences.8 (Levitt, at p. 515.) 

That factual conclusion by the trial court was not inconsistent with the jury’s acquittal on 

the murder count or otherwise prohibited. (Ibid.)

Similarly, a trial court considering victim restitution under section 1202.4 is

permitted to determine by a preponderance of the evidence whether a defendant’s crime 

of conviction caused the victim’s injuries. (People v. Foalima (2015) 239 Cal.App.4th 

1376, 1396 [“the trial court’s task [is] to determine whether the criminal conduct for 

which defendant was convicted was the proximate cause” of economic loss to the 

victim]; People v. Sy, supra, 223 Cal.App.4th at p. 63.) In doing so, the court is

permitted to consider the evidence presented to the jury at trial. (See People v. Lent, 

supra, 15 Cal.3d at p. 488 (conc. opn. of Clark, J.) [noting that trial evidence supported 

restitution order by preponderance of the evidence]; People v. Gemelli (2008) 161 

Cal.App.4th 1539, 1543 [trial court has broad discretion in determining what evidence to 

consider in ordering restitution].)

Here, the jury acquitted defendant of the greater offense but convicted him of the 

lesser included offense. The lesser battery conviction did not include a finding of 

causation beyond a reasonable doubt. But the trial court made a causation finding by a 

preponderance of the evidence at the second restitution hearing when it found, from the 

evidence presented at trial, that defendant was not “totally responsible in this case” and 

8 To be clear, any sentencing enhancement—that is, any determination that 

mandates a higher sentence—must be proved beyond a reasonable doubt. (In re Coley 

(2012) 55 Cal.4th 524, 557–558; People v. Lewis (1991) 229 Cal.App.3d 259, 264.) In 

Levitt, the court made factual findings on aggravating factors that guided its exercise of 

discretion in selecting between a mitigated, midterm, or aggravated sentence. That 

determination requires the trial court only to make a finding by a preponderance of the 

evidence. (Levitt, supra, 156 Cal.App.3d at p. 515; People v. Lewis, at p. 264.) 
18

that Trevor was “partly responsible for [his own] resulting injuries.” In other words, the 

court found that defendant was also partly responsible for Trevor’s injuries. This factual 

finding was supported by substantial evidence. At trial, both Trevor and his girlfriend 

testified that Trevor was in control of the dirt bike until defendant hit his helmet. Trevor 

then lost control of the dirt bike, fell, and was injured when he was pinned under the dirt 

bike. This testimony, although contradicted by defendant’s testimony, constituted 

substantial evidence that defendant’s conduct in hitting Trevor’s helmet—criminal 

conduct for which defendant was convicted of battery—was more than a negligible, 

theoretical, or infinitesimal cause of Trevor’s injuries; it was a substantial factor in 

bringing about his injuries.9

D. Apportionment

We have rejected defendant’s claims that the jury necessarily found a lack of 

causation and therefore negligence, and we have concluded the trial court properly found 

that defendant caused Trevor’s injuries when he committed the intentional crime of 

battery. Consequently, we also conclude that Millard does not apply.

As the parties agree, Millard instructs that fault can be apportioned when a 

defendant’s conduct is criminally negligent and the victim’s negligence contributes to his 

or her own injury. (Millard, supra, 175 Cal.App.4th at pp. 36–42.) The Millard court 

explained its view that it would be inequitable to require a defendant convicted of a crime 

amounting to criminal negligence to “reimburse a victim for economic losses that were 

comparatively the result or the fault of the victim’s own negligence.” (Id. at p. 39.) 

9 We note that the prosecutor and defense counsel identified only a single act—

defendant’s hitting Trevor immediately before the crash—as the basis for the charges. 

Because the jurors convicted on the battery count, they must have concluded that 

defendant hit Trevor immediately before the crash. (See People v. Sanchez (2001) 94 

Cal.App.4th 622, 631 [where the prosecution relies upon a single act, no unanimity 

instruction is required because the jury could only convict based upon the single 

identified act].)
19

Since 1975, when the California Supreme Court adopted a “system of pure comparative 

negligence,” California tort law has required an offset from a party’s recovery for his or 

her own negligence in causing injury. (Id. at p. 38.) The Millard court reasoned that 

applying that approach to criminal restitution “results in a ... logical and consistent 

approach ... that, in effect, parallels a victim’s usual tort civil remedy ....” (Id. at p. 39.) 

Restricting a trial court’s discretion to apply comparative negligence principles could 

result in a windfall to the victim through a greater award in restitution than the victim 

could obtain in a civil suit. (See ibid.; see also People v. Brunette (2011) 194 

Cal.App.4th 268, 282 [application of comparative negligence principles by a trial court in 

a criminal negligence action is permissive, not mandatory].)

Millard decided that, in addition to bringing restitution awards in line with tort 

law, apportionment of restitution where the defendant was negligent was not inconsistent 

with the requirements of The Victims’ Bill of Rights and section 1202.4, to compensate 

victims for all losses they suffer as a result of criminal activity. (Millard, supra, 

175 Cal.App.4th at pp. 38–39, 41.) As the reasoning goes, economic losses caused by the 

victim’s own negligence should not fall within the scope of section 1202.4 because they 

do not result from the defendant’s criminal activity. (Millard, at pp. 38–39.) Where a 

victim’s economic loss is caused by a defendant’s negligent conduct and the victim’s 

own negligence, the victim should recover only the portion of the loss for which the 

defendant is responsible. (See id. at pp. 39–41.)

The Millard court was explicit, however, that “ ‘a party who commits intentional

misconduct should not be entitled to escape responsibility for damages based upon the 

negligence of the victim .... [Citations.]’ [Citation.] [T]here is ‘an unbroken line of 

authority barring apportionment [based on comparative fault] where ... the defendant has 

committed an intentional tort [e.g., battery] and the injured plaintiff was merely 

negligent.’ ” (Millard, supra, 175 Cal.App.4th at p. 38, italics added.) Other courts have 
20

come to the same conclusion. People v. Petronella (2013) 218 Cal.App.4th 945, which 

the trial court in this case relied upon in determining restitution, agreed that 

apportionment is not appropriate when the defendant’s intentional crime causes the 

victim harm. (Id. at p. 971; accord, People v. Brunette, supra, 194 Cal.App.4th at 

p. 283.) Conversely, we can find no authority for the proposition that comparative 

negligence should be applied to reduce a defendant’s financial responsibility for causing 

harm to a victim by committing an intentional crime. Nor do we find that any California 

court has concluded that comparative negligence principles permit reduction of the 

damages owed by an intentional tortfeasor based on the plaintiff’s negligence. We 

decline to extend Millard to include situations where the defendant committed an 

intentional crime. 

In this case, defendant was convicted of an intentional crime. The trial court 

found that defendant’s criminal conduct was partly responsible for causing Trevor’s 

injuries. The court’s finding was supported by substantial evidence. Because the trial 

court was not permitted to apportion restitution using comparative negligence principles, 

the trial court did not err in refusing to do so.

E. Compelling and Extraordinary Reason

This is not to say, however, that defendant is without any possible remedy. As we 

have explained, the version of section 1202.4 in effect in 2015 provides the trial court 

some discretion even when ordering mandatory victim restitution. For crimes committed 

in 2015, restitution to the victim is mandatory under section 1202.4, but the trial court 

retains discretion to order less than full restitution if it finds a compelling and 

extraordinary reason to do so. (§ 1202.4, subd. (f); People v. Rowland (1997) 51 

Cal.App.4th 1745, 1751.) There is sparse authority, however, on what might constitute a 

compelling and extraordinary reason. Section 1202.4, subdivision (g) instructs that “[a] 

defendant’s inability to pay” is not a “compelling and extraordinary reason not to impose 
21

a restitution order, nor shall inability to pay be a consideration in determining the amount 

of a restitution order.” (§ 1202.4, subd. (g);10 see People v. Draut (1999) 73 Cal.App.4th 

577, 582 [allowing an exception for financial hardship would “swallow the rule”].) The 

Supreme Court has explained, “[w]ithout speculating as to reasons that might qualify as 

‘compelling and extraordinary,’ ” that the exception “allows a trial court some discretion 

to decline to impose restitution in unusual situations specific to a particular crime, 

defendant, or other circumstance.” (Giordano, supra, 42 Cal.4th at p. 662.)

Accordingly, the trial court was required to order full victim restitution unless it 

found a compelling and extraordinary reason not to impose full restitution and stated it on 

the record. (§ 1202.4, subd. (f).) The court concluded it “ha[d] no authority to change 

[the restitution amount] or award part of the responsibility to [Trevor] in this case.” “As 

much as [it] would [have] like[d] to” order less than full restitution, it could not do so. At 

the close of the hearing, the court again indicated that it regretted having to order full 

restitution. Yet, at no point did the court discuss whether there was a compelling or 

extraordinary reason that would justify imposition of a lesser restitution order. (§ 1202.4, 

subd. (f); see Millard, supra, 175 Cal.App.4th at pp. 42–43 & fn. 16 [whether the trial 

court may apportion fault using comparative fault principles is a distinct issue from 

whether there are compelling and extraordinary reasons to impose less than full 

restitution].)

From this record, we believe the trial court did not understand it had the discretion 

to impose an amount of restitution short of the full amount if it found a compelling and 

extraordinary reason to do so.11 For that reason, we must remand the matter to allow the 

10 The current section 1202.4, subdivision (g) provides: “A defendant’s inability to 

pay shall not be a consideration in determining the amount of a restitution order.”

11 It appears that the parties failed to recognize the trial court’s discretion as well. 

This may be because in 2017, when the prosecutor filed the restitution motion and the 

trial court held the restitution hearings, section 1202.4, subdivision (f) had been amended 
22

court to determine whether a compelling and extraordinary reason exists to order less 

than full restitution. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228–1229 

[remand was required where “the record show[ed] that the trial court proceeded with 

sentencing on the erroneous assumption” that it did not possess the “limited discretion to 

award less than full victim restitution” if it stated “compelling and extraordinary reasons 

on the record for a reduced award”]; see People v. Carmony (2004) 33 Cal.4th 367, 378 

[“abuse of discretion occurs where the trial court was not ‘aware of its discretion’ ”]; 

People v. Orabuena (2004) 116 Cal.App.4th 84, 99 [failure to exercise discretion is abuse 

of discretion].) 

We do not imply, one way or the other, whether the trial court should find that a 

compelling and extraordinary reason exists to permit imposition of less than full 

restitution. On remand, the court should not consider defendant’s ability to pay in 

determining whether a compelling and extraordinary reason warrants imposition of less 

than full restitution. The court may consider the Supreme Court’s guidance in Giordano: 

The compelling and extraordinary exception “allows a trial court some discretion to 

decline to impose restitution in unusual situations specific to a particular crime, 

defendant, or other circumstance.” (Giordano, supra, 42 Cal.4th at p. 662.)

to remove the compelling and extraordinary reason exception to mandatory victim 

restitution. (See § 1202.4, subd. (f), as amended by Stats. 2016, ch. 37, § 3, eff. Jan. 1, 

2017.) From the complete absence of any discussion of the compelling and extraordinary 

language in the record, we believe it is possible the court and the parties believed the 

2017 version of the statute applied.

In supplemental briefing, the People suggest “the trial court’s statements about 

having to impose full restitution were based on the jury’s finding of an intentional crime 

and the law of causation. [Citation.] In other words, the trial court’s comments were an 

acknowledgement, based on the jury’s verdict, that a different restitution amount was not 

justified.” We disagree with this interpretation of the record.
23

DISPOSITION

The portion of the appeal that challenges evidence admitted at trial (the first claim

of error) is dismissed for lack of jurisdiction. The $44,711 victim restitution order is 

vacated and the matter remanded for the trial court (if possible, to be heard before the 

same trial judge, Judge James A. Boscoe) to consider whether a compelling and 

extraordinary reason exists to impose less than full victim restitution. If the court 

determines no such reason exists, it shall reinstate the original victim restitution order. In 

all other respects, the judgment is affirmed.

LEVY, Acting P.J.

WE CONCUR:

FRANSON, J.

PEÑA, J.