Filed 3/13/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D070569
Plaintiff and Respondent,
v. (Super. Ct. No. JCF35431)
STEVEN PAUL SALAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Christopher
J. Plourd, Judge. Judgment modified with directions.
Jason L. Jones, under appointment by the Court of Appeal; Steven Paul Salas, in
pro. per., for Defendant and Appellant.
Kamala D. Harris, Attorney General and Kathryn Kirschbaum, Deputy Attorney
General, for Plaintiff and Respondent.
Steven Paul Salas pleaded no contest to domestic violence (Pen. Code, §273.5,
subd. (a))1 and the trial court sentenced him to three years in prison. The trial court also
1 All further statutory references are to the Penal Code unless otherwise stated.
ordered Salas to pay victim restitution of $17,194.45, including $14,055.48 for security
windows and an alarm system. Section 1202.4, subdivision (f)(3)(J) (hereinafter, section
1202.4(f)(3)(J)) authorizes sentencing courts to award restitution "to fully reimburse the
victim . . . for every determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to . . . , [¶] (J) Expenses to install or increase
residential security incurred related to a violent felony, as defined in subdivision (c) of
Section 667.5, including, but not limited to, a home security device or system, or
replacing or increasing the number of locks." (Italics added.)
On appeal, Salas contends that because he was not convicted of a "violent felony"
as defined in section 667.5, subdivision (c), the trial court erred in awarding victim
restitution for residential security expenses.2 Based on the statutory definition of a
"violent felony," we agree and modify the judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, Salas and his wife, Veronica, were drinking beer in the garage
of their home. Salas became angry with Veronica, grabbed her throat, and bashed her
head against the floor. Veronica lost consciousness; suffered a cracked skull; sustained
multiple contusions and lacerations throughout her body; and lost four to five pints of
blood. She was treated at a hospital, where she received seven staples in her head.
2 On August 31, 2016, Salas's attorney filed a brief in accordance with People v.
Wende (1979) 25 Cal.3d 436 raising no specific issues on appeal. We requested and
received supplemental briefing from Salas and the People on the issue of whether the trial
court erred in ordering victim restitution for certain residential security devices.
2
Salas was subsequently charged with domestic violence (§ 273.5, subd. (a); count
1) and false imprisonment by violence (§ 236; count 2). The People initially alleged a
great bodily injury enhancement (§ 12022.7, subd. (e)) to count 1, but eventually
dismissed both that enhancement and count 2. Salas pleaded no contest to count 1
(§ 273.5, subd. (a)) and was sentenced to three years in prison. Salas's plea did not
include a Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey)
[holding that a court may not consider facts underlying a dismissed count for purposes of
aggravating or enhancing a defendant's sentence].)
At Salas's sentencing hearing on April 5, 2016, the trial court heard testimony
from both Salas and Veronica. Veronica explained that Salas continued to send
threatening e-mails and make threatening phone calls from jail and that she was afraid
whenever someone knocked on her door or when she noticed cars idling across the street
from her house. Salas also stated in a Valentine's Day card to Veronica that he was going
to kill her. To address her fears arising from these threats, she spent $14,055.48 for new
security measures for her home—$221.26 for an ADT security alarm system3, and
$13,834.22 for new security windows. Salas asked the court to order Veronica to
reimburse him for money she allegedly took from his bank account during the marriage.
After hearing this testimony, the trial court ordered "full and complete restitution" paid to
Veronica in an amount to be determined at a subsequent restitution hearing.
3 Veronica actually spent $1,221.26 for the security system, but she received $1,000
from the State's victim compensation fund.
3
At the May 27 restitution hearing, Salas conceded victim restitution of $3,095.59
to compensate Veronica for repairs to the washer/dryer ($292), two medical bills
($2,537.49), and a new cell phone ($266.10). Salas, however, contested restitution for
the security windows and alarm system. He argued he should not have to pay restitution
for Veronica's residential security expenses because he was not convicted of a "violent
felony" as required by section 1202.4(f)(3)(J) and as defined in section 667.5, subdivision
(c). He further argued a nexus was lacking between his crime and the installation of the
security windows.
The prosecutor argued Veronica was entitled to additional restitution for newly
installed steel doors, a video intercom smart doorbell, a dual lens rear view mirror car
camera, and a retainer payment for a divorce attorney. The prosecutor did not address the
defense's contention that the violent felony restriction precluded an award of residential
security expenses.
The trial court ultimately ordered victim restitution in the amount of $17,194.45,
which included $14,055.48 for the security windows and alarm system.4 The trial court
recognized section 273.5, subdivision (a) does not constitute a statutory "violent felony,"
but concluded that because the probation report clearly showed Salas's conduct caused
4 The court disallowed the other items advocated for by the prosecutor.
4
Veronica to suffer great bodily injury as defined in section 12022.7,5 the court was
nonetheless authorized to order restitution for residential security expenses.
DISCUSSION
Salas contends restitution for residential security expenses is recoverable under
section 1202.4(f)(3)(J) only when "incurred related to" (ibid.) one of the violent felonies
defined in section 667.5, subdivision (c). The People acknowledge this violent felony
restriction, but argue the list articulated in section 1202.4, subdivision (f)(3) is merely a
nonexclusive list of examples, thus granting sentencing courts the power to compensate
victims for residential security expenses incurred as a result of any felony "justified under
the circumstances." As we shall explain, we conclude section 1202.4(f)(3)(J)'s explicit
limitation to violent felonies authorizes restitution for residential security expenses only
when those expenses are incurred related to a violent felony as defined by section 667.5,
subdivision (c).
I. Applicable Law
Ordinarily, the standard of review for a restitution order is abuse of discretion.
(People v. Moore (2009) 177 Cal.App.4th 1229, 1231.) However, when "the propriety of
a restitution order turns on the interpretation of a statute, a question of law is raised,
which is subject to de novo review on appeal." (People v. Williams (2010) 184
Cal.App.4th 142, 146.)
5 Section 667.5, subdivision (c)(8) includes within the definition of a violent felony
"[a]ny felony in which the defendant inflicts great bodily injury on any person other than
an accomplice which has been charged and proved as provided for in Section
12022.7 . . . ."
5
Section 1202.4, subdivision (f) provides, with exceptions not applicable here, 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."
Subdivision (f)(3) of section 1202.4 further provides, in pertinent part: "To the
extent possible, 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 a
result of the defendant's criminal conduct, including, but not limited to," specified
categories of losses. These losses include, for example, compensation for stolen or
damaged property, medical expenses, mental health counseling expenses, lost wages or
profits, noneconomic losses, attorney fees, and moving expenses. (§ 1202.4, subd.
(f)(3)(A)-(L).)
We are concerned here with the category of loss embodied in section
1202.4(f)(3)(J), which authorizes an award of "[e]xpenses to install or increase residential
security incurred related to a violent felony, as defined in subdivision (c) of Section
667.5, including, but not limited to, a home security device or system, or replacing or
increasing the number of locks." (§ 1202.4(f)(3)(J).)
Section 667.5, subdivision (c) defines a "violent felony" as any offense or category
of offenses specified in that subdivision. Section 273.5, subdivision (a) is not among
them. As noted, however, one category of offenses includes those in which the defendant
6
has inflicted great bodily injury and a corresponding enhancement has been charged and
proved. (§ 667.5, subd. (c)(8).)
II. Analysis
We conclude the trial court erred by treating Salas's offense as a violent felony for
purposes of awarding restitution. "Under settled canons of statutory construction, in
construing a statute we ascertain the Legislature's intent in order to effectuate the law's
purpose." (Green v. State of California (2007) 42 Cal.4th 254, 260.) To determine
legislative intent, the court's first step in statutory construction is to "look to the words
themselves, giving them their ordinary meanings and construing them in context."
(People v. McCarthy (2016) 244 Cal.App.4th 1096, 1104.)
The language of section 1202.4(f)(3)(J) is clear: it authorizes residential security
expenses "incurred related to a violent felony, as defined in subdivision (c) of Section
667.5." (§ 1202.4(f)(3)(J).) Although the People correctly point out that a victim's right
to restitution must be "broadly and liberally construed" (People v. Mearns (2002) 97
Cal.App.4th 493, 500), "the specific language of a statute must prevail over a general,
overarching policy . . . perceive[d] in the legislation" (City of San Jose v. Sharma (2016)
5 Cal.App.5th 123, 145).
Further, even if the statutory language were ambiguous, legislative history
supports a narrow interpretation of section 1202.4(f)(3)(J). (See People v. Robles (2000)
23 Cal.4th 1106, 1111 ["If . . . the statutory language is susceptible of more than one
reasonable construction, we can look to legislative history in aid of ascertaining
legislative intent."].) When subdivision (f)(3)(J) of section 1202.4 was initially enacted,
7
it stated restitution was available for "[e]xpenses to install or increase residential security
incurred related to a crime, as defined in subdivision (c) of Section 667.5 . . . ." (Stats.
1999, ch. 584, § 4, italics added.) In 2012, the Legislature revised this subdivision by
changing its language to "[e]xpenses to install or increase residential security incurred
related to a violent felony, as defined in subdivision (c) of Section 667.5 . . . ." (See Stats.
2012, ch. 868, § 3, italics added.) The fact that the Legislature revised—rather than
removed—this language indicates the Legislature intended that residential security
expenses remain recoverable via restitution only when they are incurred related to a
"violent felony." (See Estate of Simpson (1954) 43 Cal.2d 594, 600 ["[c]hanges in
wording and phraseology are presumed to have been deliberately made"].)
Three other principles of statutory construction further support Salas's
interpretation. The first is the principle "expressio unius est exclusio alterius, under
which 'the enumeration of things to which a statute applies is presumed to exclude things
not mentioned.' " (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223
Cal.App.4th 72, 89-90.) By expressly permitting recovery for "[e]xpenses to install or
increase residential security incurred related to a violent felony," the Legislature by
implication did not permit recovery of residential security expenses incurred related to an
offense that is not a violent felony. While "expressio unius est exclusio alterius is no
magical incantation, nor does it refer to an immutable rule," it "should be applied 'where
appropriate and necessary to the just enforcement of the provisions of a statute.' " (Estate
of Banerjee (1978) 21 Cal.3d 527, 539.)
8
The second principle is that "[s]ignificance should be given, if possible, to every
word, phrase, sentence and part of an act." (People v. Western Air Lines, Inc. (1954) 42
Cal.2d 621, 638.) The People ask us to interpret the phrase "including, but not limited to"
in subdivision (f)(3) of section 1202.4 to allow for recovery of residential security
expenses incurred related to any felony committed by a defendant. However, this
interpretation would render superfluous the phrase "incurred related to a violent felony,
as defined in subdivision (c) of Section 667.5." "[I]nterpretations which render any part
of a statute superfluous are to be avoided." (Wells v. One2One Learning Foundation
(2006) 39 Cal.4th 1164, 1207.) Therefore, to give meaning to all parts of section 1202.4,
subdivision (f)(3)(J) and to avoid a superfluous construction, the reference to "violent
felon[ies]" must limit the circumstances in which residential security expenses are
recoverable.
The final principle is that courts look to "the entire substance of the statute . . . to
determine the scope and purpose of the provision . . . . [Citation.]" (West Pico Furniture
Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 608.) The language at issue "must
harmonize 'the various parts of a statutory enactment . . . by considering the particular
clause or section in the context of the statutory framework as a whole.' [Citation.]"
(People v. Mendoza (2000) 23 Cal.4th 896, 908.) Section 1202.4's other provisions
support a narrow interpretation of subdivision (f)(3)(J). For example, although section
1202.4, subdivision (f)(3)(A) permits recovery for stolen goods, the recoverable value of
any good is limited to either the replacement cost of the item or the cost to repair.
(§ 1202.4, subd. (f)(3)(A).) Likewise, although section 1202.4, subdivision (f)(3)(I)
9
permits restitution for relocation expenses incurred as a result of moving away from the
defendant, a victim's expenses must be verified by either law enforcement or a mental
health professional as being necessary for the victim's safety. (§ 1202.4, subd. (f)(3)(I).)
Both provisions limit the extent to which restitution is available to victims. We thus
decline the People's invitation to broadly interpret subdivision (f)(3)(J) of section 1202.4
because doing so would undermine the explicit limitations contained in other provisions
of the statute. (See In re Greg F. (2012) 55 Cal.4th 393, 406 [courts seek to " 'avoid a
construction that would produce absurd consequences' "].)
The statute's plain language and legislative history, and the cited principles of
statutory construction, support our conclusion that residential security expenses are
recoverable under section 1202.4(f)(3)(J) only when they are "incurred related to a
violent felony, as defined in section 667.5, subdivision (c)." Thus, because Salas was not
convicted of such an offense, the trial court erred in ordering restitution to Veronica for
the residential security expenses she incurred related to Salas's crime.6
In reaching this conclusion, we recognize there are strong policy considerations
supporting an award of restitution for residential security expenses to compensate victims
6 We decline to address the Attorney General's argument that the trial court could
have considered Salas's post-plea "uncharged conduct" of threatening Veronica to justify
an award of residential security expenses. The trial court based its restitution order solely
on Salas's conduct related to his domestic violence conviction. Further, the People never
asserted this theory at either the sentencing or restitution hearings, thereby forfeiting the
theory on appeal. (People v. Smith (1977) 67 Cal.App.3d 638, 655 ["It is elementary that
a new a theory cannot be raised on appeal where, as here, the theory contemplates factual
situations the consequences of which are open to controversy and were not put in issue in
the lower court."].)
10
of certain nonviolent felonies, such as stalking, domestic violence, and others where
ongoing security concerns are at issue. However, this is a matter for the Legislature, not
the judiciary (see People v. Rubalcava (2000) 23 Cal.4th 322, 333 [" '[t]he role of the
judiciary is not to rewrite legislation to satisfy the court's, rather than the Legislature's,
sense of balance and order' "]), and we would welcome such a review.
DISPOSITION
The May 27, 2016 victim restitution order of $17,194.45 is modified to strike the
$13,834.22 reimbursement for the security windows and $221.26 for the ADT security
alarm system. The trial court is directed to prepare an amended abstract of judgment to
reflect victim restitution in the amount of $3,138.97 and to forward a certified copy to the
Department of Corrections and Rehabilitation.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
11