Filed 8/11/16 P. v. Ramirez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
CHARLES THOMAS RAMIREZ, JR.,
Defendant and Appellant. G051046
(Super. Ct. No. 11NF0916)

O P I N I O N

Appeal from a post

judgment order of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed.

John N. Aqu i lina, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Quisteen Shum, and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

* * *2 In a prior appeal from his fi rst degree murder conviction, defendant Charles
Thomas Ramirez, Jr. contended the court improperly instructed the jury . ( People v.
R am irez ( Sept

. 2 , 201 5 , G04 9845 ) [nonpub. opn.]

. ) 1 W e affi r me d the judgment

.

Defendant now appeals from the court ’ s victim restitution order , arguing

the court abused its discretion and violated his due process right s by r el y ing on the determination of the Victim Compensation and Government Claims Board (the b oard)

t hat certain claimants were entitled to restitution. The contention has no merit. We affirm the postjudgment order.

FACTS AND PROCEDURAL HISTORY

A jury convicted defendant of the first degree murder of Larry Ruiz. The court sentenced defendant to a prison term of 50 years to life for the murder and an
attach ed firearm enhancement.

Subsequently , the court conducted a restitution hearing
, where the People

introduced into evidence some certified records from the board . The court admitted the

certified records into evidence as People ’ s exhibit 46 (exhibit 46)

.

Exhibit 46 consists of the following. 2 The first two document s (the certificates) are entitled “ C ertification of Records for Restitution Hearing
, ” and state they

concern defendant ’ s case number 11NF0916 ( the superior court case number)

. The

certificates are on the board ’ s letterhead and bear the board ’ s embossed seal . The board ’ s
authorized custodia n of records signed th e certificates under penalty of perjury

.

1 We grant defendant’s motion for judicial notice of the record in People v

. R am irez
, supra , G049845

.

2 Pursuant to Californ ia Rul es of Court, rule 8.224(d), we directed the superior court to transmit exhibit 46 to this court.3 The certificates state the attached documents are the records of seven

claimants and specify each claimant ’ s identification number (with one claimant listed

twice because he has two i d entifi cation numbers )

. The certificates then report the dollar

amo unt paid by t he board ’ s victim compensation p rogram with respect to each

identific ation number for “ Mental Health ” and, as to one claimant, for “ Funeral/Burial ”

expenses.
The board ’ s custodian o f records certified that the records attached to the

certificates were accurate copies of bills submitted to and paid by the board ’ s victim compensation p rogram , but that the records we re redacted pursuant to Penal Code section 1202.4, subdivision (f)(4)(B ) 3 and Government Code section 13954, subdivision (d)
, to protect the victims ’ privacy and safety or consistent ly with any legal privilege. The redacted records consisted of many “ Health Insurance Claim Forms ” pe r claimant
, detai l ing the dates of service (apparently for mental health counseling) an d the charges per service date. T he health insurance claim form i t s elf does not ask the applicant to specify his or her relationship to the actual victim of the crime
, nor does it contain any

sp ace to do so . T hus, even if the forms in e xhibit 46 had not been redacted, they would

have shed no light on each claimant ’ s relationship t o Larry Ruiz

.

Based on exhibit 46, the court ordered defendant to pay $23,460 to the

board as reimbursement for its payments to the claimants , a s well as 10 percent intere st from the date of sentencing.

DISCUSSION

Defendant challenges the court ’ s restitution order as to all claimants other

than Larry Ruiz ’ s father

. As to the other six claim a n t s (the disputed claimants)
,

3 All statutory references are to the Penal Code unless otherwise stated.4

defendant contends the prosecution failed to meet its burden of proof to show they were

“ v ictims ” within the meaning of section 1202.4 or “ derivative victim [ s ] ” as defined in

Government Code section 13955 . He asser ts there is no statutory presumption that an applic ant i s entitled to reimbursement for expenses
, and that no statute authorizes the

board to determine who is a victim or derivative victim

. He further argues the board had no official duty (within the meaning of Evidence Code section 664) to determine whether the disputed claimants qualified for reimbursement. He concludes the prosecution failed to meet its burden of proof merely by submittin g exhibit 46, which showed only that the

board had paid financial assistance to the disputed claimants

. He concludes that the

court , in the absence of evidence of the disputed claimants ’ relationship to Larry Ruiz,

abused its discretion and violated his d ue process rights by delegating to the board th e
de termination of the disputed claimants’ eligibility for reimbursement

.

The Law Governing Victim Restitution

Every person who suffers a loss as a result of criminal activity has a

c onstitution al right to restitution from the convicted wrongdoer. (Cal. Const., art. I, § 28, subd. (b)(13).) V ictims may obtain restitution (1) d irectly from the defendant pursuant to

a court restitution order
, and/ or (2) indirectly from the board ’ s restitution f und

. 4 ( People

v. Giordano (2007) 42 Cal.4th 644, 651

- 65 3 ( Giordano ).)

Indirect victim restitution from the board

Government Code section 13950 et se q. governs the procedure by which crime victims obtain compensation from the board ’ s restitution f und. (Gov. Code,
§1 3950, subd. (b).) A c laiman t must file an application with the board, and verify i t

4 We use the adverbs, “directly” and “indirectly,” and the adjectives, “direct” and “indirect, ” to describe whether the defendant is ordered to make, or the board makes, a payment.5

under penalty of perjury. (Gov. Code, § 13952, subds. (a), (b)(1).) The board ’ s s taff

determine s whether an application contains all the information required by the board. (Gov. Code, § 13952, subd. (c) (2) .) The board must verify any pertinent information it deems necessary ( for exampl e, by contacting hospitals or physicians ) and must keep any

information it receives confidential. (Gov. Code, § 13954, subds

. (a) , ( d)(2).)

Government Code section 13951, subdivision (c) defines a “ d erivative

victim ” as “ an individual who sustains pecuniary loss as a result of injury or death to a

victim

. ” As relevant here
, the definition of “ derivative victim ” includes any person wh o at the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild

of the victim , or was living in the victim ’ s household
, or wa s another family member who

witnessed the crime

. (Gov. Code, § 1395 5 , subd. (c) (1), (2), (4) .)

A derivative victim may be reimbursed for outpatient mental health counseling in an amount up to $5,000 or $10,000, depending on his or her relationship to the victim of the crime. (Gov. Code, § 13957, subds. (a)(2)(A), (B).) If the board ’ s staff

recommend s denial of an application, the applicant is entitled to a hearing before the board, where the applicant bears the burden of establishing, by a preponderance of the evidence, the elements for eligibility under Government Code section 13955 (which

includes derivative victim requirements)

. (Gov. Code, § 13959, subds. (a), (c).)

Under the board ’ s regulations, an application i s deemed complete only if,
inter alia, the applicant des i gnates whether he or she i s a victim
, derivative victim
, or other person

. (Ca l. Code Regs., tit. 2, § 649.7 , subd. (a) (2) .) The victim c ompensation

p rogram ’ s application form requires the applicant to specify his or her relationship to the

victim in a box (in section 1 of the application) where a scroll

- down menu provides the

foll owing exclusive choices for describing the relationship: “ Self (I am the victim), ”

“ Paying the Deceased Victim ’ s Crime

- Related Expenses, ” “ Victim ’ s Child, ” “ Victim ’ s Parent, ” “ Victim ’ s Adoptive Parent, ” “ Victim ’ s Spouse, ” “ Victim ’ s Brother or Sister, ”

“ Victim ’ s Grandparent, ” “ Victim ’ s Grandchild, ” “ Victim ’ s Foster Parent, ” “ Victim ’ s6

Legal Guardian, ” “ Living in the Household of the Victim, ” “ Previously Lived in
Household of the Victim, ” “ Family Member that Witnessed the Crime, ” “ Primary

Caretaker of Victi m, ” or “ Other. ” ( h ttp:// www. vcgcb.ca.gov/victims/howtoapply.aspx

. ) 5
These choices correspond to the Government Code ’ s requirements for a person’s eligibility for victim compensation. (Gov. Code, § 13955, sub ds. ( a )
, (c) .)

Direct victim restitution ordered by a court

Section 1202.4 implements the funding of both direct and indirect victim compensation by requir ing a convicted criminal generally to pay both a “ restitution fine ”

and restitution to his or her victims. (§ 1202.4, subds. (a)(3) (A)
, (B) .) The restitution

fine

— which is “ separate and additional ” to restitution payments to victims (§ 1202.4, subd. (b))

— is deposited into the board ’ s restitution f und which funds it s victim compensation p rogram. (1 Witkin & Epstein, Cal. Crim inal Law ( 4t h ed. 2012)
Introduction to Crimes, § 121, p. 198.) A defendant’s r estitution payments, on the other hand, are (1) paid directly to his or her victim(s), or (2) as reimbursement to the

restitution f

und (to the extent the board has already compensated such victim(s)). (§ 1202.4, subds. (f), (f)(2).)

S ection 1202.4 requires a sentencing court to order a defendant to pay restitution to any victim who has suffered “ economic ” loss as a result of the defendant ’ s conduct. ( Id

. , subds. (a)(3), (f).) A “ defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. ” ( Id

. , subd. (f) (1) .)

At the restitution hearing, the victim or the People (on the victim ’s or the

board ’s behalf

) bear the initial b urden to make a prima facie showing of a compensable

loss. ( People v. Fulton (2003) 109 Cal.App.4th 876, 886; Giordano
, supra , 42 Cal.4th at

5 The application form currently ava ilable on the board’s official W eb site

was re vised in February 2016, and collects information pursuant to Government Code sect ions “13952 et seq. and 13954.”7

p. 664; § 1202.4, subd. (f) [court ’ s restitution order is based on the victim ’ s claimed amount of loss or any other showing ] ; People v. Millard (2009) 175 Cal.App.4th 7, 26 [the People may make a prima facie showing on victim’s behalf] .) Under a statutory presumption described in section 1202.4, subdivision (f), the victim (or the P eople) may

make the prima facie showing based , at least in part, on the board’s prior payment to

such victim . Specifically, payments made from the board’s restitution f und to a victim or derivative victim are “presumed to be a direct result of the defenda nt’s criminal conduct and shall be included in the amount of the restitution ordered” by the court. ( § 1202.4, subd. (f)(4)(A).) Furthermore, the dollar amount of such payments from the restitution

f und may be proved by submitting certified, redacted cop ies of bills showing the amount paid by the board and whether the payments were made for, inter alia, funeral or burial expenses, or mental health counseling, “together with a statement made under penalty of perjury by the custodian of records that those b ills were submitte d to and were paid by

the board

. . . . ” (§ 1202.4, subd. (f)(4)(B).) 6

6 The Legislature enacted these section 1202.4, subdivision (f) presumptions in 1999. The legislative purpose was to protect the confidentiality of victims’ private information and to better assure that defendants must reimbu rse the bo ard for payments made from the restitution f und: “The [board] works actively to ensure that the courts order restitution on defendants f or at least the amount of the [victim compensation p rogram] payments to a victim. In order to contest the co urts’ determination of this amount, defendants frequently request to review a victim’s [victim compensation p rogram] files. [Senate Bill] 1802 would create a statutory presumption that would preclude this disclosure unless the defendant can demonstrate a reason to rebut this presumption. This presumption would state that all amounts paid by the [victim compensation p rogram] to the victim are the result of the defendant’s criminal activity and should, therefore, be included in a restitution order. [Senate Bill] 1802 would place the burden of proof on the defendant and only allow disclosure after a judge reviews the requested information in camera. Judges would, in turn, be required to redact the requested information in such a manner to protect private or compromising information.” ( Assem. Com. on Public Safety, Analysi s of Sen. Bill No. 1802 (1999

- 2000 Reg. Sess.) as amended Apr. 11, 2000, p. 3 .)8 If the victim (or the People) succeed in making a prima facie case , the burden shifts to the defendant to disprove the claim. ( People v

. Fulton
, supra , 109 Cal.App.4th at p. 886; People v. Prosser (2007) 157 Cal.App.4th 682, 690

- 691 ; People v.
Gemelli (2008) 161 Cal.App.4th 1539, 1543.)

As relevant to the case at hand, section 1202.4 ’ s definition of “ victim ” includes any person who sustained economic loss and was, at the time of the crime, the parent, grandparent, sibling, spouse, child, or grandchild of the victim
, or living in the

victim ’ s household , or another family member who witnessed the crime . ( Id
., subd. (k) (3) (A), (B) , (D) .) Th i s definition corr espond s identically to Government Code

section 1395 5 ’ s definition of “ derivative victim. ” Reinforcing this integration between the two statutory schemes, s ection 1202.4 ’ s definition of “ victim ” also includes a “ person who is eligible to receive assistance from the Restitution Fund pursuant to ” Government

Code s ection 13950 et seq

. ( § 1202.4, subd. (k) (4) .)

The Restitution Hearing and the Court ’ s Ruling in This Case

At the restitution hearing, the prosecutor argued the People had met their burden of pr oof by submitting exhibit 46 pursuant to the statutory presumption under section 1202.4, subdivisions (f)(4)(A) and (B). 7

D efense counsel di sagre ed

. She observ ed that five of the claimants were

“ not listed anywhere on the police report, ” that their relat ionship to Larry Ruiz was not stated anywhere in exhibit 46, and that they were not percipient witnesses.

7 The prosecutor erroneously referred to section 1202.4, subdivisions (j)(4)(A) and (B), which do not exis t.9 The prosecutor countered that the board had determined these claimants

were victims

. 8

Defense counsel rejoined that the court w a s required under section 1202.4

to determine whether the claimants we re victims. She argued that a victim ’ s niece or nephew would not qualify for restitution under section 1202.4.

The court noted that, because the documents in exhibit 46 were redacted, i t
could not determine whether any claimant ’ s relationship f e ll within section 1202.4, subdivision (k)(3)(A). The court observed that exhibit 46 did not specify the relationship between the claimants and Larry Ruiz, and did not certify the claimants ’ eligibility f or restitution, but did state that
, under Government Code section 13954, subdivision (d), the

communications between the board and claimants were confidential and therefore the

attached bills had been redacted . The court suggested perhaps it could infer t hat the

board had ascertained the claimants ’ status as victims. T he court concluded the board had perfo rmed an official duty. B ased on exhibit 46 and Government Code

section 13954
, t he court ordered defendant to pay $23,460 (plus interest) to the board a s reimbursement for amounts paid to the victims from the r estitution f und

. The court
ordered the Department of Corrections to deduct such restitution from defendant ’ s earnings.

8 The prosecutor stated the claimants all lived at the house behind “Fullerton where Larry R uiz was murdered by” defendant, and specified their purported relationship to Larry Ruiz

. But when the court asked whether the prosecutor was making an offer of proof, the prosecutor stated he was not doing so , because e xhibit 46 “speaks for itself.”10

The Court Did Not Abuse Its Discretion or Violate Defendant ’ s Due Process Rig hts

Defendant contends the court abused its discretion by delegating to the

board t he determination of whether the disputed claimants were victims

.

Both parties argue this court should review the trial court ’ s restitution ord er
for an abuse of discretion. 9 T he abuse of discretion standard of review “‘ asks in substance whether the ruling in question “ falls outside the bounds of reason ” under the applicable law and the relevant facts [citation]

. ’” ( Giordano
, supra , 42 Cal.4th at p. 66 3

. )

As we shall explain , we conclude the trial court acted well within its discretion by ordering defendant to pay restitution based on exhibit 46.

In 1982, California voters passed Proposition 8 ( the Victims ’ Bill of Rights ), express ing their clear intent that victims should receive restitution from the

criminal s who caused their losses. ( Giordano
, supra , 42 Cal.4th at p. 652 ; Cal. Const.,
art. I, § 28, subd. (b)(13) .) To w a rd this e nd , t he Legislature e stablished a dua l system that provides victims with direc t and indirect restitution

. Direct restitution ensures that

criminals will pay for the costs of victim compensation to the greatest extent possible.

Indirect restitution enable s victims to obtain compensation from a government agency. Section 1202.4 (go verning direct restitution) and Government Code section 13950 et seq. (governing in direct restitution) work in tandem to enabl e and assist “‘ victims t o receive restitution, both directly and from the restitution fund. ’” ( Giordano
, at p. 653.)

T hese parallel statutory schemes aim collectively to create a flexible, accessible, and relatively speedy system for compensating victims of crime and for funding such compensation with fines and restitution paid by the criminals who caused

the harm. The e fficiency and financial sustainability of the system would be undercut if sentencing court s were required to independently confirm the board’s determination s that

claimants qualifie d as derivative victim s

.

9 Neither party requests this court to interpret section 1202.4 or to determine its constit utionality.11 N or is such duplicative decision making necessary . The Legislature has charged the board with the duty of determining an applicant ’ s eligibi lity for compensation from the restitution f und. Pursuant to Government Code section 1395 2
, the board ’ s regulations , and the victim compensation p rogram ’ s claim ap plication form
, an applicant must specify , under penalty of perjury, the basis for his or her claimed

victim status

. Government Code section s 13952, 13954, and 13959 require the board and

its staff to obtain all necessary information either to verify the applicant ’ s eligibility for compensation or to deny the applicat ion. Given t heir focused mission, the board and its staff are arguably better suited than a sentencing court for the task of efficiently verifying an applicant ’ s victim status.

Furthermore, t he b oard is a state agenc y ( People v. Cain (2000) 82 Cal.App.4th 81, 8 8 ) and its actions taken pursuant to statutory mandates constitute official duties (see County of Los Angeles v. Young (1961) 196 Cal.App.2d 405, 411 [administ rative officers charged by the L egislature with administrative duties].) “ [T]hese
statutory

. . . duties are significant because, under Evidence Code section 664, ‘ [i]t is presumed that official duty has been regularly performed. ’ This presumption ‘ affect[s] the burden of proof ’ [citation] , meaning that the party against whom it operates

— here,

the defendant

— has ‘ the burden of proof as to the nonexistence of the presumed fact. ’” ( People v. Martinez (2000) 22 Cal.4th 106, 125.) “ [W]hat is actually presumed under

Evidence Code 664 is compliance with statutory and regulatory standards , which in turn gives rise to an inference of reliability. ” ( Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 144.)

O ne factor “ to consider in evaluating whether the burden of p roof should be shifted from one party to the other is ‘ the most desirable result in terms of public policy in the absence of proof of the particular fact

. . . . ’” ( People v. Fulton (2003) 109 Cal.App.4th 876, 887.) Here, t he policy of fully reimbursing the victim would be12

defeated if the cohesive system designed by the Legislature were dissected into two independent and duplicative spheres.

T he Legislature has clearly sought to minimize duplicative fact finding that jeopardizes the confidentiality of victims ’ information. Thus, s ection 1202.4 expressly provides that payments made from the restitution f und to “ a victim or derivative victim ”

are “ presumed to be a direct result of the defendant ’ s criminal conduct and shall be

included in the amount of th e restitution ordered ” ( id ., subd. (f)(4)(A)) and that copies of

redacted bills c ertified by the board ’ s custodian of records constitute sufficient evidence

of the “ a mount of assistance provided by the Restitution Fund ” ( id
., subd. (f)(4)(B) )

. S ection 120 2.4 further specifies that a “ person who is eligible to receive assistance from

the Restitution Fund ” is a “ victim ” for purposes of the statute

. ( Id

. , subd. (k) (4) .)

At the restitution hearing to which a defendant is entitled (§ 1202.4, subd. (f)(1)), he or she may rebut section 1202.4 ’ s presumption that the board has properly paid

a claimant. Here, defendant acknowledges he received notice and an opportunity to disprove the eligibility of the disputed claimants. This is all the due process to which he

was entitled. ( People v. Cain (2000) 82 Cal.App.4th 81, 86 [concerning restitution as a condition of probation] .) “ [N] umerous courts have held that restitution hearings require fewer due process protections than civil hearings or criminal hearings of guilt. ” ( Giordano
, supra , 42 Cal.4th at p. 662, fn. 6.) “ The scope of a criminal defendant ’ s due process rights at a hearing to determine the amount of restitution is very limited. ” ( Cain
, at p. 86.) Restitution hearings are intended to be “‘ a summary proceeding ancillary to sentencing for a criminal offense. ’” ( Giordano , at p. 670 (dis. opn. of Kennard, J.) .)

T he court did not abuse its discretion or violate defendant ’ s due process rights by ruling the People had met their burden of proof by introducing exhibit 46 into

evidence.13 DISPOSITION

The postjudgment order is affirmed.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

FYBEL, J.