Filed 5/31/23 P. v. Maldonado CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

VERONICA MALDONADO,

Defendant and Appellant.

 D080418

 (Super. Ct. No. JCF003702)

APPEAL from an order of the Superior Court of Imperial County, 

Christopher J. Plourd, Judge. Affirmed as modified.

Mi Kim, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. 

Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff 

and Respondent.
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MEMORANDUM OPINION1

Veronica Maldonado was granted probation after she pled no contest to

two counts of hit and run driving resulting in injury (Veh. Code, § 20001, 

subd. (b)(1)) and death or serious injury to another person (Veh. Code, 

§ 20001, subd. (b)(2)). As a condition of probation, she was ordered to pay a 

total of $1,190,328.77 in restitution to two of the victims she injured, Garcia 

and Sanchez, and the widow of the victim she killed, Rodriguez. She appeals 

certain aspects of the trial court’s restitution order. 

1. Restitution to Garcia

The trial court awarded Garcia a total of $415,363.36, including 

$398,798.44 for medical expenses and $9,363.63 for lost wages. 

Maldonado contends, and the People concede, the award for medical 

expenses should be reduced to $5,002.30 because the California Victim 

Compensation Board (CVCB) made payment to Garcia’s medical providers to 

satisfy the balance of her medical expense claims. (See Gov. Code, § 13957.2, 

subd. (a) [“A provider shall not charge a victim or derivative victim for any 

difference between the cost of a service provided to a victim or derivative 

victim and the [CVCB] program’s payment for that service.”].) The 

concession is proper and the restitution order shall be so modified.

Regarding her lost wages, Garcia testified at the restitution hearing 

she missed six months of work as a nurse in Mexico; that she earns 1,030 

pesos per day in Mexico and workers there get paid for seven days each week;

and that she received 60 percent of her wages for the first three months she 

could not work. The court calculated Garcia’s lost wages, based on the

1 We resolve this case by memorandum opinion pursuant to California 

Standards of Judicial Administration, section 8.1.
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stipulated conversion rate of 20 pesos to the dollar, to total $9,363.63. 

Maldonado asserts the $9,363.63 award for lost wages is not supported by 

substantial evidence because the amount should have been offset by Garcia’s 

receipt of 60 percent of her salary for the first three months she could not 

work as a result of her injuries. 

“The standard of proof at a restitution hearing is preponderance of the 

evidence” and “[a] victim’s statement of economic loss is prima facie evidence 

of loss.” (People v. Grandpierre (2021) 66 Cal.App.5th 111, 115 

(Grandpierre).) Once a prima facie case of economic loss has been made, “the 

defendant has the burden to disprove the amount of losses the victim 

claim[s].” (Ibid.) Here, the People contend Maldonado presented no evidence 

to disprove Garcia suffered an economic loss of 100 percent of her wages,

including how Garcia’s 60 percent wages were paid and whether she may 

have had to deplete sick leave or some other benefit to get paid. In response, 

Maldonado speculates Garcia did not have to deplete sick leave or other 

benefits and that even if she did use sick leave, it may not have been any 

value to her because she no longer works for that employer. Rather than 

speculate, it was Maldonado’s burden to elicit evidence to support such 

possibilities and she failed to do so. (Ibid.) Consequently, on this record, we 

conclude the court did not abuse its discretion when it awarded Garcia for

100 percent of her wages during the time that she could not work. (People v. 

Mearns (2002) 97 Cal.App.4th 493, 499 [“ ‘When there is a factual and 

rational basis for the amount of restitution ordered by the trial court, no 

abuse of discretion will be found by the reviewing court.’ ”].)
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2. Restitution to Rodriguez

The trial court awarded Rodriguez $763,415.41 in restitution, including 

$11,638 for funeral expenses, $2,259.98 for property damages, and 

$742,424.23 for loss of her deceased husband’s support.

Maldonado contends, and the People concede, the award for funeral

expenses was erroneously calculated and must be reduced to $3,045. The 

record supports this concession; the trial court mistakenly included attorney 

fees and property damages in its restitution award for funeral expenses. 

Maldonado also contends, and the People concede, the property damage

award must be reduced to $2,000. This concession is also supported by the 

record; the trial court mistakenly relied on the amount another victim (A. 

Garcia) had claimed for her property damages. Rodriguez testified the value 

of her property damages was “probably” $2,000. Accordingly, we shall order 

Rodriguez’s funeral expenses award be reduced to $3,045 and property 

damage award be reduced to $2,000.

Maldonado asserts we should vacate the $742,424.23 award for loss of 

support because it is not supported by substantial evidence. Specifically, she 

contends Rodriguez’s uncorroborated recollection of her late husband’s 

estimated wages was vague or inaccurate, and the trial court’s method of 

calculation was not rational because it failed to establish Rodriguez’s loss of 

support based on her own economic loss. We reject these contentions.

Where a “ ‘decedent was a husband and father, a significant element of 

damages is the loss of financial benefits he was contributing to his family by 

way of support at the time of his death and that support reasonably expected 

in the future.’ ” (People v. Giordano (2007) 42 Cal.4th 644, 665, italics 

omitted.) “[A] surviving spouse’s economic loss is not simply the wages or 

income that the deceased spouse would have earned but for his or her death.”
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(Id. at p. 664.) “Generally, the calculation of the loss of support may be 

informed by such factors as the earning history of the deceased spouse, the 

age of the survivor and decedent, and the degree to which the decedent’s 

income provided support to the survivor’s household.” (Id. at p. 665.) 

Rodriguez testified at the hearing that her late husband earned

“around 700,000” pesos each year as a gym manager, which based on the 

stipulated conversion rate is an annual salary of $35,000. He was 44 years 

old when he was killed, had been working for the company for six or seven 

years, and had planned to work until he reached retirement age. Although 

the court did not explain its method of calculation, both parties agree that it 

appears the court multiplied the deceased husband’s estimated annual salary 

of $35,000 by 21.2 years, the approximate number of years until a retirement 

age of 65, which resulted in the award of approximately $742,000.

We disagree with Maldonado that Rodriguez’s testimony regarding her 

late husband’s estimated wages was vague or deficient because she did not 

submit documentary evidence to support her recollection. Although 

Rodriguez did not have any documentary proof of his income because it had 

been two years since the fatal accident, her estimate is prima facie evidence 

of her late husband’s wages prior to his death and documentation is not 

required. (Grandpierre, supra, 66 Cal.App.5th at p. 115 [prima facie case for 

restitution may be based on a victim’s testimony]; People v. Goulart (1990)

224 Cal.App.3d 71, 82–83 [the loss may be based on the victim’s estimate].) 

The burden shifted to Maldonado to disprove Rodriguez’s estimate and she 

failed to do so. (Grandpierre, at p. 115.) We reject Maldonado’s further 

contention that Rodriguez’s testimony was inaccurate because she has failed 

to direct us to any record evidence to support that contention.
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Regarding the court’s calculation method, it appears the trial court 

assumed that Rodriguez was entitled to receive the full amount of her late 

husband’s lost future wages. The court could have reasonably determined 

that this was appropriate based on information in the probation report that 

he was the family’s “main provider,” he left behind two sons ages 14 and 17, 

and his sons now attend public school due to the family’s “financial 

struggles.” Maldonado could have, but did not, question Rodriguez about the 

extent to which her late husband’s income provided support to her and the 

household, whether any of his income did not go toward supporting her and 

the household, or whether there was any basis for reducing an award for loss 

of support. Because the trial court was provided no factual basis for 

awarding Rodriguez less than the full amount of her late husband’s lost 

future wages, we conclude it did not abuse its discretion in awarding her the 

full amount.

3. Offsets from Insurance Payments

Maldonado’s insurer settled with the victims. The trial court’s 

restitution awards to Garcia, Sanchez, and Rodriguez included their attorney 

fees incurred in obtaining the settlements. Maldonado asserts the trial court 

abused its discretion by failing to offset their restitution awards by the money 

they each received from her insurance policy “for the same losses,” for two 

reasons. (Boldface and capitalization omitted.) First, she claims each 

restitution award as a whole should have been reduced by the total amount of 

insurance payment to each victim. Second, she claims that because each of 

the insurance payments included attorney fees, the trial court erred in also 

awarding restitution specifically for attorney fees. We reject both 

contentions.
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If a defendant’s insurance compensates a victim, the defendant is 

entitled to an offset for the sums paid, but only “to the extent that those 

payments are for items of loss included in the restitution order.” (People v.

Bernal (2002) 101 Cal.App.4th 155, 165–168 (Bernal).) Restitution does not 

cover noneconomic losses such as pain and suffering, which are recoverable in 

a civil action. (Pen. Code, § 1202.4, subd. (f)(3); People v. Vasquez (2010) 190 

Cal.App.4th 1126, 1132 (Vasquez).) Thus, if a settlement payment is 

attributable to noneconomic losses, there would be no grounds to offset a 

restitution award by that payment. (Vasquez, at p. 1138.) As the party 

seeking an offset, Maldonado has the burden of proving she is entitled to the 

offset. (Id. at p. 1137.)

Maldonado did not meet her burden of establishing that any offset was 

appropriate. (Vasquez, supra, 190 Cal.App.4th at p. 1137.) There is no 

evidence of how much of the settlements, if any, covered any specific items of 

loss included in the restitution order. (Bernal, supra, 101 Cal.App.4th at 

pp. 165–168.) Absent any factual bases for offsetting the restitution awards 

by the settlement payments, we cannot conclude the trial court abused its 

discretion in failing to do so. We reject Maldonado’s argument that remand is 

necessary to allow the trial court to determine whether any portion of the 

settlements were allocated to economic losses covered in the restitution order. 

The court had indicated that offset was appropriate as a matter of law and 

Maldonado had her chance but failed to meet her burden of establishing it 

was factually appropriate.

We next turn to Maldonado’s claim that because each of the insurance 

payments included attorney fees, the trial court erred in also awarding 

restitution for attorney fees. “Actual and reasonable” attorney fees constitute 

an economic loss recoverable in a restitution order. (Pen. Code, § 1202.4, 
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subd. (f)(3)(H).) Attorney fees are recoverable unless a civil settlement 

includes payment for attorney fees. (People v. Grundfor (2019) 39 

Cal.App.5th 22, 28 (Grundfor) [“Such fees are recoverable unless they are 

offset in a civil settlement.”].) Additionally, attorney fees are not recoverable 

as restitution if they are incurred solely to recover noneconomic losses. 

(People v. Marrero (2021) 60 Cal.App.5th 896, 906 (Marrero).) When fees 

cannot be reasonably divided between the pursuit of economic losses and

noneconomic losses, the victim is entitled to full reimbursement for all 

attorney fees. (Id. at p. 907.) Again, Maldonado bears the burden of 

establishing that any portion of a victim’s attorney fees were incurred solely 

to collect noneconomic losses. (People v. Millard (2009) 175 Cal.App.4th 7,

33–34.) 

Here, there is no evidence that any portion of the settlements were

payment for attorney fees, as opposed to compensation for economic and/or 

noneconomic damages. (Grundfor, supra, 39 Cal.App.5th at p. 28.) There is 

also no evidence that any portion of the fees were incurred solely to recover 

noneconomic damages. (Marrero, supra, 60 Cal.App.5th at p. 906.) As such, 

the trial court did not abuse its discretion in awarding Garcia, Sanchez, and 

Rodriguez restitution for their attorney fees.

DISPOSITION

The restitution order is modified, reducing Garcia’s award of 

$398,798.44 for medical expenses to $5,002.30; reducing Rodriguez’s award of 

$11,638 for funeral expenses to $3,045; and reducing Rodriguez’s award of 
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$2,259.98 for personal property to $2,000. As modified, the restitution order 

is affirmed.

DO, J.

WE CONCUR:

IRION, Acting P. J.

BUCHANAN, J.