People v. Avalos CA4/2

Filed 7/8/21 P. v. Avalos CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075994

v. (Super.Ct.No. RIF1704003)

JORGE ARMANDO AVALOS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson,

Judge. Reversed with directions.

William Paul Melcher, under appointment by the Court of Appeal, for Defendant

and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and

Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

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 FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On March 18, 2019, a second amended information charged defendant and

appellant Jorge Armando Avalos with having unlawful sexual intercourse with an

intoxicated victim, Jane Doe, under Penal Code1 section 261, subdivision (a)(3)

(count 1); penetration by a foreign object of an intoxicated person under section 289,

subdivision (e) (count 2); oral copulation of an intoxicated person under section 287,

subdivision (i) (count 3); and committing an act of sexual penetration by means of force

or violence under section 289, subdivision (a)(1)(A) (count 4). The jury found defendant

guilty on counts 1 through 3, and not guilty on count 4.

On May 20, 2019, at the sentencing hearing, the trial court sentenced defendant to

14 years in state prison as follows: the middle term of six years on count 1; a consecutive

middle term of six years on count 2; and one-third the middle term or two years on count

3, to run consecutive to the terms in counts 1 and 2. The court then ordered victim

restitution to be paid in an amount determined by the probation department under section

1202.4, subdivision (f), and reserved jurisdiction to set the amount of the victim

restitution. The court also ordered that any dispute as to the amount owed to the victim

would be resolved in a court hearing. Defendant filed a notice of appeal.2

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

2On February 1, 2021, we granted defendant’s request for judicial notice of our
unpublished opinion in case No. E072862.

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 While the first appeal was pending before this court, the trial court held an ex parte

proceeding on August 7, 2020. At the hearing, the court ordered that defendant pay a

$8,685 restitution fine to the Victims Compensation Board (VCB), and directed victim

restitution to be determined by probation. The court then ordered any disputes to be

resolved in a court hearing. On October 13, 2020, defendant filed a timely notice of

appeal of the court’s restitution order.

Thereafter, on December 2, 2020, we affirmed defendant’s conviction in case No.

E072862.

B. FACTUAL HISTORY3

“Luz Loza was married to defendant’s father, Jorge Avalos, Sr. (Jorge Sr.). Loza

had two daughters, Tanya and Naomy Godoy. In August 2017, Tanya[4] was dating

Isaias Avalos, defendant’s brother and Jorge Sr.’s son, and they had a child together.

Jane Doe was Loza’s niece. On August 26, 2017, Loza, Jorge Sr., Isaias, Tanya, Naomy

and Doe spent the day at Lake Perris. Defendant met them at the lake. Loza did not see

any interaction between Doe and defendant at the lake.

“On August 27, 2017, Loza, Jorge Sr., defendant, defendant’s girlfriend Evelyn,

Isaias, Tanya (and her daughter), Naomy, Doe (and her son), and Doe’s sister Darlene all

went to an El Torito restaurant for brunch. Most of the adults were drinking all-you-can-

drink Mimosas. They were at the restaurant for several hours.

3 The factual history is taken from our prior opinion.

4 We refer to some of the witnesses by their first names or initials for clarity due
to shared last names. No disrespect is intended.

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 “Doe and defendant were sitting across from each other at the table. Defendant

appeared to be interested in Doe even though he was sitting next to Evelyn. Loza

observed that as the day progressed, Doe appeared drunk. Defendant got into an

argument with Evelyn and she left as they were all leaving the restaurant.

“When they decided to leave the restaurant, defendant invited them back to his

apartment because his apartment complex had a pool. As they were leaving, Tanya

observed that Doe had trouble walking and appeared to be drunk. Loza had to help Doe

to the car. Doe had not expressed to Tanya that she had an interest in defendant.

“Jorge Sr. drove Doe to defendant’s apartment along with Naomy, Darlene, and

Doe’s son. The rest of the family drove in two other vehicles. On the way to defendant’s

apartment, Jorge Sr. had to stop three times because Doe had to vomit. She vomited

again in the parking lot at defendant’s apartment complex. Naomy indicated that Doe

appeared a ‘little bit’ drunk. Loza observed that Doe was drunk. Loza and Tanya walked

Doe to the couch in defendant’s apartment.

“Doe vomited into the kitchen sink and defendant was present standing behind

her. Naomy observed while Doe and defendant were at the sink, defendant moved his

hand down Doe’s buttocks and pinched her buttocks. Loza saw defendant holding Doe at

her waist. Loza took Doe to the couch. Doe had a hard time walking and was slurring

her words. Doe was unable to sit upright on the couch.

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 “Defendant allowed Doe to lay down in his bedroom. Loza and Tanya laid Doe

down on the bed. Doe went to sleep. Naomy noted that Doe appeared to be drunk.

Defendant encouraged everyone to go to the pool.

“Everyone went to the pool except for Isaias and Tanya, who stayed in defendant’s

apartment to watch over Doe. Defendant also stayed in the apartment. Defendant told

Tanya and Isaias that he wanted to ‘get at’ Doe. Tanya told him Doe had a boyfriend.

“Defendant left the apartment telling Isaias, Naomy and Tanya he was going to get

pizza for the children. They observed him walk down the stairs to the parking lot. Tanya

wanted to check on her daughter at the pool so she and Isaias left the apartment and went

to the pool. It was a two-minute walk to the pool.

“Naomy decided to return to defendant’s apartment to stay with Doe. Darlene

came with Naomy and sat on the couch. Naomy thought Doe was alone in the apartment

and defendant was out getting food. The door to the bedroom was open when Naomy

returned from the pool. Naomy looked into the bedroom to check on Doe, and defendant

was in the room with his shorts down. He pulled up his shorts when he saw Naomy. Doe

was on the bed and her legs were hanging over the edge. Doe appeared to be

unconscious. Defendant said, ‘Oops.’ Doe did not see defendant having sexual

intercourse with Doe.

“Naomy went back to the pool. She whispered in Tanya’s ear that she had found

defendant in the apartment with his pants down. Tanya told Loza. Tanya, Loza, Naomy

and Jorge Sr. ran back to the apartment. Doe was on the bed with her feet hanging off the

bed. She did not want them to touch her. Doe appeared to be still drunk and was upset.

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Doe got into a fetal position on the bed and was agitated. Doe said that she was sorry that

Naomy ‘had to see that.’ She also said that she told him ‘no,’ and that she could not get

him off of her. She told them she did not want it to happen. Naomy and Tanya had seen

defendant on the stairs leading to the apartment and he said, ‘I didn’t do anything.’

“Doe did not want anyone to touch her and kept pushing them away. Tanya, Loza

and Naomy were finally able to get her up but she stumbled and still appeared to be

intoxicated. Doe was crying and shaking. Doe stumbled when they finally got her off

the bed and still appeared to be intoxicated. Loza had to help Doe walk. Doe got into

Jorge Sr.’s car with Loza and Doe’s son. Loza saw defendant at the apartment and he

appeared nervous. Doe did not initially want them to call the police.

“Loza and Jorge Sr. took Doe to her apartment in Anaheim. Doe’s mother called

the police and they went to the hospital for a sexual assault exam. Tanya and Loza went

with Doe to the hospital. She was scared and shaking. Naomy also went to the hospital.

Doe seemed very sad.” (People v. Avalos, 2020 Cal.App.Unpub. LEXIS 7961, *2-6,

2020 WL 7054233.)

DISCUSSION

Defendant’s sole contention on appeal is that he “is entitled to a hearing under

Penal Code section 1202.4 before contested restitution amounts may be ordered.”

Defendant goes on to state that “the court’s restitution order of August 7, 2020 consisted

of amounts appellant objected to at sentencing, requiring that a hearing be held before

these same amounts may lawfully be made part of a restitution order.” The People

contend that defendant forfeited his opportunity to contest the restitution order.

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However, if we disagree that defendant forfeited his challenge, the People contend “the

matter should be remanded for the limited purpose of a restitution hearing.” For the

reasons set forth post, we will remand the matter for the trial court to hold a restitution

hearing.

A. ADDITIONAL FACTS

On May 2, 2019, at defendant’s sentencing hearing, the trial court (specifically,

Judge Hollenhorst) imposed, but stayed, a minimum restitution fine under section 1202.4,

subdivision (b).

When the trial court asked defense counsel if he wanted to be heard on any

application fines and fees, defense counsel stated:

“I request that the Court assess no fine in this case. I request that the Court find no

ability to pay any fees in this case, including the probation department, the booking fee,

the preincarceration costs. I’d request that the Court set the restitution fine and the parole

revocation fine at the minimum of $300 each, and that the Court find no ability to pay

those as well. [¶] . . . [¶] I understand that there’s also actual restitution that is going to

be requested. So I’m, at this time, requesting that the Court find no ability to pay.” In

response, the court sated, “The Court will find no ability to pay based on [defendant’s]

prison sentence and the fact that he is an indigent defendant represented by a government

attorney. [¶] The Court will impose minimum fines and fees applicable, but will stay the

imposition of those fines. [¶] As to actual restitution, the Court will reserve jurisdiction

on that matter for any restitution to be determined at a future date.”

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 Thereafter, as to the actual amount of restitution, the People requested that the

court order defendant to reimburse the VCB in addition to actual restitution of Doe. The

prosecutor stated he was in possession of a “Cal VCB” restitution request for

reimbursement of $8,199 for amounts paid by the VCB fund as a result of the incident

involved in the case. The restitution amounts were for Doe, her sister and her mother.

When asked why they were seeking restitution for the sister and mother, the prosecutor

informed the court “that both her sister and her mother received counseling after this

incident because of trauma that they experienced as a result of it.”

At this hearing, defense counsel stated: “I have seen it [the restitution request],

and I’m objecting to it, your Honor for two things. Number one, there’s two parties listed

on there that are not involved in this case whatsoever. They’re not victims. They’re not

witnesses. [¶] There was a payment made on behalf of (Jane Doe M.R.) that I’m not

objecting to except for there’s been no documentation provided of what that was for. So

I would like further documentation about it. I did look. I have my phone out for this

reason. It says that the amount of assistance provided by the restitution fund shall be

established by copies of bills submitted to the [VCB] reflecting the amount paid by the

board and whether the services for which payment was made were for medical or dental,

funeral or burial, mental health counseling, or wage, or support losses, or

rehabilitation. . . . But we don’t have any of that here.”

After further discussion, the court stated: “Court will order actual restitution to be

paid to the named victim, (Jane Doe M.R.), both through the government agency that

you’re referring to as well as actual restitution in this matter. [¶] The Court will—

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[prosecutor], I think the Court is sort of in line with you in the sense that I don’t know of

any authority where an adult victim, her family, or relatives can receive restitution

through the government compensation fund. I am aware of the provision of minors and

family. So the Court will exercise its discretion and not order at this time restitution of

family members for the government compensation fund. However, the restitution

amount under the government compensation fund for the victim will be ordered. I hope

that’s clear.” The court then went on to state that if defendant “has an objection to any of

the actual restitution, he may have a hearing on that matter at a later date.”

Nine months later, on February 14, 2020, the trial court received a restitution

discrepancy letter from the Department of Corrections and Rehabilitation (DCR). The

letter advised that a fine under section 1204.45 had been imposed without a restitution

fine being ordered under section 1202.4, subdivision (b).

In an ex parte proceeding on February 14, 2020, the same trial court that

conducted the sentencing hearing on May 2, 2019, ordered defendant to pay a restitution

fine in the amount of $300 under section 1202.4, subdivision (b). In an amended abstract

of judgment filed February 21, 2020, defendant was ordered to pay a restitution fine in

the amount of $300 under section 1202.4, subdivision (b), and a restitution fine in the

same amount under section 1202.45, suspended unless defendant’s parole is revoked.

The amended abstract of judgment also reflected that the court reserved jurisdiction to set

victim restitution, and that any dispute as to the amount be resolved by a court hearing.

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 On May 27, 2020, it appears that the probation department prepared a

memorandum from the Victim Restitution Division of the Probation Department was

filed with the court. In the memorandum, the probation department stated that the

amount of restitution had been determined based upon a review of the police report, as

well as loss documentation and the VCB. The probation department recommended that

the court order defendant to pay a total of $8,685 in restitution. On July 24, 2020, the

court (specifically Judge Anderson) signed an order at the end of the memorandum,

stating “It is ordered.” The memorandum also indicated that if defendant disagreed with

the amount stated in the order, he had 30 days from the notice to set the cause for

calendar. Defendant never set a hearing. Although the order was signed on July 24,

2020, the court held an ex parte hearing on August 7, 2020. At the hearing, Judge

Anderson ordered defendant to pay restitution in the amount of $8,685 payable to the

VCB, plus an additional amount incurred to the extent the victim received further

assistance from VCB. The probation department memorandum was also filed in the trial

court on August 7, 2020. However, a stamp says the memorandum with the order was

received in the “legal processing unit” at the “Dept. of Corrections and Rehabilitation” on

August 14, 2020. There is nothing in the record to indicate that the probation department

memorandum was sent to or received by defendant prior to August 14, 2020.

On October 13, 2020, defendant filed an appeal from the restitution order filed on

August 7, 2020.

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 B. LEGAL BACKGROUND

The California Constitution provides that crime victims have a right to restitution

when they suffer losses as a result of criminal activity. (Cal. Const., art I, § 28, subd.

(b)(13)(A) & (B); see People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano)

[discussing former Cal. Const., art I, § 28, subd. (b)].) This constitutional mandate is

implemented by section 1202.4, which provides in pertinent part: “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.” (§ 1202.4, subd. (f); see id., subd. (a)(1); Giordano,

at p. 656.) A “victim” for purposes of restitution includes not only the actual victim of

the offense, but also “shall include all of the following: [¶] (1) The immediate surviving

family of the actual victim”; and “[a] person who has sustained economic loss as the

result of a crime and who satisfies any of the following conditions: [¶] (A) At the time

of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the

victim.” (§ 1202.4, subd. (k)(1), (3)(A).)

“The defendant has the right to a hearing before a judge to dispute the

determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).) “At a victim

restitution hearing, a prima facie case for restitution is made by the People based in part

on a victim’s testimony on, or other claim or statement of, the amount of his or her

economic loss. [Citations.] ‘Once the victim has [i.e., the People have] made a prima

facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the

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amount of the loss is other than that claimed by the victim.’ ” (People v. Millard (2009)

175 Cal.App.4th 7, 26; see Giordano, supra, 42 Cal.4th at p. 664.)

“To the extent possible, the restitution order . . . shall identify each victim and

each loss to which it pertains, and 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.” (§ 1202.4, subd. (f)(3).) Economic losses may

include the value of damaged property and lost wages (id., subd. (f)(3)(A), (D) & (E)), as

well as “[i]nterest, at the rate of 10 percent per annum, that accrues as of the date of

sentencing or loss, as determined by the court” (id., subd. (f)(3)(G)).

“A restitution order is intended to compensate the victim for its actual loss and is

not intended to provide the victim with a windfall. [Citations.] While the court need not

order restitution in the precise amount of loss, it ‘must use a rational method that could

reasonably be said to make the victim whole, and may not make an order which is

arbitrary or capricious.’ ” (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172-

1173.)

A trial court’s restitution order is ordinarily reviewed for abuse of discretion.

(Giordano, supra, 42 Cal.4th at p. 663.) The abuse of discretion standard “ ‘asks in

substance whether the ruling in question “falls outside the bounds of reason” under the

applicable law and the relevant facts [citations].’ [Citation.] Under this standard, while a

trial court has broad discretion to choose a method for calculating the amount of

restitution, it must employ a method that is rationally designed to determine the surviving

victim’s economic loss.” (Id. at pp. 663-664.) However, “ ‘[t]here is no requirement the

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restitution order be limited to the exact amount of the loss in which the defendant is

actually found culpable, nor is there any requirement the order reflect the amount of

damages that might be recoverable in a civil action.’ ” (People v. Millard, supra, 175

Cal.App.4th at pp. 26-27.) “To facilitate appellate review of the trial court’s restitution

order, the trial court must take care to make a record of the restitution hearing, analyze

the evidence presented, and make a clear statement of the calculation method used and

how that method justifies the amount ordered.” (Giordano, at p. 664.)

C. ANALYSIS

We first address section 1237.2, which provides: “An appeal may not be taken by

the defendant from a judgment of conviction on the ground of an error in the imposition

or calculation of fines, penalty assessments, surcharges, fees, or costs unless the

defendant first presents the claim in the trial court at the time of sentencing, or if the

error is not discovered until after sentencing, the defendant first makes a motion for

correction in the trial court, which may be made informally in writing. The trial court

retains jurisdiction after a notice of appeal has been filed to correct any error in the

imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the

defendant’s request for correction. This section only applies in cases where the

erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or

costs are the sole issue on appeal.” (Italics added.) As our colleagues in the Second

District have noted, “section 1237.2 broadly applies to an error in the imposition or

calculation of fees. The plain language of the statute ‘does not limit [its] reach only to

situations where the fee simply did not apply at all or was a result of mathematical error.’

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[Citation.] Section 1237.2 applies any time a defendant claims the trial court wrongly

imposed fines, penalty assessments, surcharges, fees, or costs without having first

presented the claim in the trial court.” (People v. Hall (2019) 39 Cal.App.5th 502, 504.)

Here, section 1237.2 does not apply because this is not an appeal from a judgment

of conviction. As provided, ante, defendant filed an appeal from his conviction and on

December 2, 2020, we affirmed defendant’s conviction in an unpublished opinion. (See

People v. Avalos (Dec. 2, 2020, E072862) [nonpub. opn.].)

Next, we turn to the People’s argument that defendant “forfeited his opportunity to

contest the restitution order.” For the reasons set forth below, we disagree with the

People and find that defendant objected to the restitution order.

A defendant who fails to object to a restitution order “forfeit[s] any claim that the

order was merely unwarranted by the evidence, as distinct from being unauthorized by

statute.” (People v. Brasure (2008) 42 Cal.4th 1037, 1074; see also People v. Anderson

(2010) 50 Cal.4th 19, 26, fn. 6 [“Defendant . . . waived a claim of error as to the amount

of restitution by failing to object on that ground in the trial court”]; and People v.

McCullough (2013) 56 Cal.4th 589, 597 [defendant’s failure to object below forfeited his

claim that the evidence was insufficient to support imposition of jail booking fee].)

In this case, as noted in detail ante, at the sentencing hearing defense counsel

clearly objected to an award of restitution as to Doe’s mother and sister. Counsel was not

objecting to awarding restitution to Doe, but objected on the basis that Doe’s restitution

request was not based upon sufficient documentary support. Although the trial court,

Judge Hollenhorst, declined to order restitution for Doe’s mother and sister, he ordered

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restitution on behalf of Doe. The trial court never held a hearing on restitution to address

defense counsel’s objections. However, at an ex parte hearing months later, a different

judge, Judge Anderson, ordered defendant to pay restitution to both Doe’s mother and

sister—based on the same amounts that defense counsel had objected to at the original

sentencing hearing. Since the hearing was held ex parte, defense counsel did not have an

opportunity to renew his objections made at the sentencing hearing.

Notwithstanding, the People argue that defendant has forfeited this claim on

appeal because “if appellant disagreed with the court’s order for restitution, he should

have brought the matter to the court’s (or his attorney’s) attention within the required

thirty-day period.” However, as discussed ante, the evidence is unclear when and if

defendant or his counsel received the probation department memorandum and order. The

“order” in the memorandum stated defendant should set a hearing within 30 days after the

order was signed on July 24, 2020, if defendant objected to the order. There is nothing to

indicate that the order was sent to defendant or his counsel on July 24, 2020. As noted

ante, there is a stamp on the memorandum that it was received by the Department of

Corrections and Rehabilitation on August 14, 2020. However, there is nothing in the

record to indicate that defendant or his counsel actually received the order. Moreover,

even if defendant received the order, by the time defendant received it, he may have

believed his 30-day period from July 24, 2020, the date the “order” was executed, had

already expired. Furthermore, although the trial court held an ex parte hearing on August

7, 2020, the minute order failed to indicate that there was a 30-day period wherein

defendant could object to the restitution order. Therefore, we agree with defendant that

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he has not forfeited his challenge to the restitution order since his counsel clearly

expressed his objections at the sentencing hearing.

The People argue that if we find defendant did not forfeit his argument, “the

matter should be remanded for a limited restitution hearing.” According to the People,

the restitution hearing should be limited to the restitution order “assigned to Doe,” and

not the restitution ordered on behalf of Doe’s sister and mother. In support of this

argument, the People contend that at the sentencing hearing, defense counsel only

objected that restitution should not be ordered for Doe’s relatives because they “were ‘not

involved in this case,’ that is, they were not ‘victims’ for purposes of restitution.”

However, Doe’s mother and sister qualify for restitution under section 1202.4,

subdivision (k)(3)(A). The People argue that because defense counsel did not explicitly

object to the restitution amounts proposed for Doe’s mother and sister, any remand

should be limited to the restitution amounts due to Doe only.” We disagree.

Although defense counsel’s objection regarding Doe’s mother and sister was

based on the fact neither of them were qualified to receive compensation, there was no

opportunity for further argument for defense counsel to challenge the orders on other

grounds. After the court and attorneys discussed this matter, the trial court declined to

order restitution for Doe’s relatives so no further objections at this time were necessary.

The record does show that defense counsel objected to the restitution recommended for

Doe based on the fact that it was not supported by sufficient documentation. Therefore,

under these circumstances, we remand the matter for a restitution hearing on all three

claims—by Doe, her mother and her sister.

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 DISPOSITION

The order is reversed and the matter is remanded to the trial court for a restitution

hearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

RAMIREZ
P. J.

FIELDS
J.

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