Filed 2/13/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C083153
Plaintiff and Respondent, (Super. Ct. No. 62144154)
v.
MARLOWE WILLIAM HENDERSON, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Placer County, Michael W.
Jones, Judge. Affirmed.
Tonja R. Torres, 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, Eric L. Christoffersen,
Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.
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Defendant Marlowe William Henderson, Jr., pleaded no contest to charges of
stalking, vandalism, and disobeying a court order. At issue here is the validity of the trial
court’s resulting restitution order, which encompassed the victims’ expenses for purchase
and installation of a home security system.
BACKGROUND
In July 2016, defendant pleaded no contest to charges of stalking Christina T.
between January 14, 2016, and February 23, 2016 (Pen. Code, § 646.9, subd. (a)),1 felony
vandalism of Elizabeth T.’s home (§ 594, subd. (a)), and disobeying a domestic relations
order (§ 273.6, subd. (a)). The victims were mother and daughter. The issue of
restitution was considered at the sentencing hearing, held in September 2016. The
victims’ losses totaled $17,639.68, including $5,796.79 to install a residential security
system. The system included a monitored alarm system in the house with four cameras,
installed on or about January 27, 2016. Two more cameras were installed in March 2016,
along with motion detectors and security lights. Insurance paid $9,642.66 toward repair
of the house and car but paid nothing toward the security system.
At the restitution hearing, defendant argued he could not be ordered to pay
restitution for the victims’ security system expenses because he was not convicted of a
violent felony as required by section 1202.4, subdivision (f)(3)(J). Defendant
alternatively argued the security system was “redundant” and “excessive.” The trial court
opined that the order sought was “well within its discretion” but failed to articulate any
analysis of the relevant statutory scheme. The court ordered defendant to pay $7,997.02
in restitution including $5,796.79 for installation of the system.2
1 Further undesignated statutory references are to the Penal Code.
2 The trial court sentenced defendant to two years eight months in state prison. He
timely appealed the judgment.
2
DISCUSSION
Defendant contends that section 1202.4, subdivision (f)(3)(J) limits restitution for
residential security systems to defendants convicted of violent felonies. As it is
undisputed that he was not convicted of a violent felony, he argues the trial court erred
when it included the security system costs within the restitution order. Defendant’s
argument is purely statutory; under these circumstances, where “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.)
We conclude section 1202.4, subdivision (f)(3)(J) does not limit discretionary
restitution for residential security systems to defendants convicted of a violent felony,
thus the restitution order in this case was generally authorized under section 1202.4,
subdivision (f).
Subdivision (f) of section 1202.4 provides, with certain 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 explains:
“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 the result of the defendant’s criminal conduct, including, but not limited to,
all of the following:
“[¶] . . . [¶]
“(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.”
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Defendant confines himself to a narrow argument on appeal; he does not contend
that the court’s restitution order was not supported by sufficient evidence. Nor does he
argue that the security system does not qualify as an “economic loss” within the meaning
of the statute, nor that the order constituted a general abuse of discretion.
Instead, defendant argues only that--presumably because section 1202.4,
subdivision (f)(3)(J) requires the trial court to order restitution for residential security
where the crime of conviction is a violent felony as defined by statute--the court is
precluded from ordering restitution for residential security in the absence of a violent
felony. We disagree that the requirement of restitution in one situation operates to
preclude restitution in the other.
Section 1202.4, subdivision (f)(3) expressly states that the enumerated list,
including subparagraph (J), is a nonexclusive list of examples. As we have set forth, the
statute requires that the restitution order “shall be of a dollar amount that is sufficient to
fully reimburse the victim or victims for every determined economic loss incurred as the
result of the defendant’s criminal conduct, including, but not limited to, all of the
following [including subparagraph (J)] . . . .” (§ 1202.4, subd. (f)(3), italics added.)
“ ‘ “A fundamental rule of statutory construction is that a court should ascertain
the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] In
construing a statute, our first task is to look to the language of the statute itself.
[Citation.] When the language is clear and there is no uncertainty as to the legislative
intent, we look no further and simply enforce the statute according to its terms.” ’ ”
(People v. Keichler (2005) 129 Cal.App.4th 1039, 1046.)
The plain language of section 1202.4, subdivision (f)(3)(J) requires that where a
defendant is convicted of a violent felony, the trial court shall include in the restitution
award expenses reasonably incurred by a victim in installing a residential security
system. (§ 1202.4, subd. (f)(3)(J).) The statute does not purport to preclude restitution
for such installation under other circumstances; in fact, it says nothing about any
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restriction on restitution whatsoever. Where the mandatory language does not apply--as
in this case, because defendant’s crimes of conviction were not classified by the relevant
statute as violent felonies--the direction to the trial court remains as set forth in the
introductory language of section 1202.4, subdivision (f)(3), ante, that is, to include in its
restitution order “every determined economic loss incurred as the result of the
defendant’s criminal conduct, including, but not limited to, all of the following . . . .”
(Italics added.)
As we have previously held, “[b]ecause the statute uses the language ‘including,
but not limited to’ these enumerated losses, a trial court may compensate a victim for any
economic loss which is proved to be the direct result of the defendant’s criminal
behavior, even if not specifically enumerated in the statute.” (People v. Keichler, supra,
129 Cal.App.4th at p. 1046.) Thus, where a victim incurs the economic loss of installing
a security system as a direct result of a defendant’s conduct, the trial court may include
that amount in a victim restitution award regardless of the crime of conviction.
Defendant’s argument to the contrary relies primarily on People v. Salas (2017)
9 Cal.App.5th 736 (Salas). Although that case is distinguishable, as we explain post, to
the extent that the broad language employed in Salas suggests that restitution is precluded
in a case such as this, we must disagree with the Salas court.
In Salas, the defendant was convicted of a domestic violence offense--not a
violent felony as described by the relevant statute--but the trial court found that because
the defendant’s conduct caused great bodily injury to the victim, the court was
“nonetheless authorized to order restitution for residential security expenses” pursuant to
section 1202.4, subdivision (f)(3)(J). (Salas, supra, 9 Cal.App.5th at p. 740.) The actual
holding in Salas was expressed by the Fourth Appellate District, Division One as a
conclusion that “the trial court erred by treating Salas’s offense as a violent felony for
purposes of awarding restitution.” (Id. at p. 741.) That error did not occur here; the trial
court here did not erroneously classify defendant’s crimes of conviction as violent
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felonies under section 1202.4, subdivision (f)(3)(J). Instead, the trial court concluded,
albeit implicitly, that section 1202.4, subdivision (f)(3)(J) did not preclude it from
ordering restitution in cases not involving violent felonies by opining that it maintained
the discretion to order restitution for the alarm system (and subsequently ordering the
disputed restitution).
The Salas court explained that “[t]he statute’s plain language and legislative
history,” along with select canons of statutory construction, support the 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).’ ” (Salas, supra, 9 Cal.App.5th at p. 744.) We do not disagree that under section
1202.4, subdivision (f)(3)(J) restitution is only mandated where the expenses are related
to violent felonies. Here, there is no dispute that defendant’s offenses do not qualify as
violent felonies, thus the restitution order here would not properly fall under subdivision
(f)(3)(J). In that regard, this case is distinguishable from Salas. Salas does not decide
whether the restitution order was permissible as an exercise of the trial court’s discretion
under the broader language of that portion of subdivision (f)(3) quoted ante.3
Moreover, to interpret the disputed provision as limiting restitution for home
security systems to victims of violent felonies would require us to read the words
“including, but not limited to” out of section 1202.4, subdivision (f)(3). In the context of
statutory interpretation, our Supreme Court has recently reemphasized that
“ ‘construction making some words surplusage is to be avoided.’ ” (People v. Valencia
(2017) 3 Cal.5th 347, 357.) Our interpretation of section 1202.4, subdivision (f)(3)(J)
3 To the extent that Salas contains broad language such as “the Legislature intended that
residential security expenses remain recoverable via restitution only when they are
incurred related to a ‘violent felony’ ” (Salas, supra, 9 Cal.App.5th at p. 742), we cannot
agree for the reasons stated.
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does not read any language out of the statute. On the contrary, subdivision (f)(3)(J)
remains intact and means what it says--that restitution for home security systems is
mandatory in certain cases. That specific subdivision simply does not operate to bar
discretionary restitution orders for home security systems where such orders may be
otherwise appropriate.
Thus, the trial court’s order here was not precluded or otherwise made erroneous
by section 1202.4, subdivision (f)(3)(J).
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Hull, J.
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