Full Case Name:  The PEOPLE, Plaintiff and Appellant, v. Sherri SMALLING, Defendant and Respondent.

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Country of Origin:  United States Court Name:  Appellate Division, Superior Court, California. Primary Citation:  --- Cal.Rptr.3d ----, 2019 WL 2400413 (Cal. App. Dep't Super. Ct. May 30, 2019) Date of Decision:  Thursday, May 30, 2019 Judge Name:  Kumar, J. Jurisdiction Level:  California Attorneys:  Jackie Lacey, District Attorney of Los Angeles County, and Phyllis Asayama and Cassandra Thorp, Deputy District Attorneys, for Plaintiff and Appellant. Maven Law Firm and Yan Goldshteyn, Los Angeles, for Defendant and Respondent. Docket Num:  No. BR 054104
Summary: Defendant was cited for allowing a dog controlled or owned by her to cause injury or death to a service dog in violation of California’s Penal Code. The offense was an infraction. The defendant pled no contest and was fined $157. The service dog’s owner requested a restitution hearing, but the trial court denied the request stating that since the offense was an infraction, a restitution hearing was not permissible. The service dog owner appealed the decision of the trial court. The Court ultimately found that the trial court incorrectly stated that a victim of an infraction is not entitled to restitution. Both the California Constitution and the California Penal Code (the very statute that the Defendant was convicted of violating) entitle the victim to restitution. The California Constitution specifically states that restitution shall be ordered in every case regardless of the sentence or disposition of a crime in which a victim suffers a loss. The Court stated that an infraction is a crime, therefore, a restitution hearing is mandatory. The statute that the Defendant violated (section 600.2 of California’s Penal Code) also stated that a defendant shall be ordered to make restitution. The trial court abused its discretion in erroneously concluding that a crime victim is not entitled to restitution if the offense committed is an infraction and ultimately denying the victim restitution. The Defendant argued that an order for payment of restitution would be improper because she was never advised that victim restitution would be a consequence of her plea and that such an order would violate her plea agreement. She also argued that the trial court found, in good faith, that restitution was unnecessary. The Court, however, found the Defendant’s arguments unpersuasive. The Court reversed the order denying victim restitution and remanded the matter to the trial court with directions to conduct a restitution hearing.

*1 Defendant and respondent Sherri Smalling was cited for permitting a dog controlled or owned by her to cause injury or death to a service dog in violation of Penal Code, section 600.2, subdivision (a). The offense is an infraction.

On the day of her arraignment, defendant appeared without counsel and entered a plea of no contest. She was fined $ 157. The trial court denied the service dog owner's request for victim restitution, stating: "[T]his is an infraction, you're not going to have a restitution hearing, you can sue civilly ... if this was filed as [a] misdemeanor or felony, there is going to be [a] restitution hearing, but since this is [an] infraction, you're not going to be able to obtain a restitution hearing." (Sic.)

The People contend the trial court erred in so ruling and that the victim is entitled to a restitution hearing. There is merit to the People's position. The victim of an infraction, like the victim of a felony or misdemeanor, is entitled to restitution for the loss suffered as a consequence of the criminal act. The order denying restitution is reversed, and the matter is remanded for the trial court to conduct a hearing to determine the amount of compensation, if any, due to the victim.



Defendant claims the People have no right to appeal the trial court's order denying victim restitution. We disagree. The People's right to appeal is defined by statute. (People v. Chacon (2007) 40 Cal.4th 558, 564, 53 Cal.Rptr.3d 876, 150 P.3d 755.) In felony cases, "[t]he circumstances allowing a People's appeal are enumerated in section 1238." (Ibid.) Infraction and misdemeanor cases are governed by similar provisions set forth in section 1466. Both statutes allow the People to appeal (1) the imposition of an unlawful sentence (§§ 1238, subd. (a)(10), 1466, subd. (a)(7)); and (2) a postjudgment order affecting their substantial rights (§§ 1238, subd. (a)(5), 1466, subd. (a)(6)). As explained below, restitution orders are appealable by the People as both unlawful sentences and as orders affecting their substantial rights.

Unlawful Sentence

The People may appeal from "[t]he imposition of an unlawful sentence" or, in other words, "a sentence not authorized by law ...." (§ 1466, subd. (a)(7).) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

"[V]ictim restitution is mandatory and a sentence without such an award is invalid." (People v. Rowland (1997) 51 Cal.App.4th 1745, 1751, 60 Cal.Rptr.2d 351; see also People v. Bernal (2002) 101 Cal.App.4th 155, 165, 123 Cal.Rptr.2d 622.) " '[W]hen the trial court pronounces a sentence which is unauthorized ... that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court.' This rule also applies to sentences which are unauthorized because of an error in the matter of restitution. [Citation.]" (People v. Rivera (1989) 212 Cal.App.3d 1153, 1163-1164, 261 Cal.Rptr. 93, italics added; accord, People v. Turrin (2009) 176 Cal.App.4th 1200, 1205, 98 Cal.Rptr.3d 471; see generally People v. Serrato (1973) 9 Cal.3d 753, 764, 109 Cal.Rptr. 65, 512 P.2d 289, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144.) To the extent defendant's sentence did not include mandatory victim restitution, it is unauthorized/unlawful and therefore appealable.

Postjudgment Order
*2 Section 1466, subdivision (a)(6), permits an appeal by the People from "[a]n order made after judgment, affecting [their] substantial rights ...." "An 'order after judgment' ... is an order which is rendered after the imposition of sentence. [Citations.]" (People v. Ibanez (1999) 76 Cal.App.4th 537, 543, 90 Cal.Rptr.2d 536.)

"[I]n order to affect the People's substantial rights an order 'must in some way affect the judgment or its enforcement or hamper the further prosecution of the particular proceeding in which it is made. [Citations.]' [Citation.]" (People v. McGuire (1993) 14 Cal.App.4th 687, 701, 18 Cal.Rptr.2d 12, fn. omitted.) It is not enough for the order merely to relate to a collateral matter. (People v. Leonard (2002) 97 Cal.App.4th 1297, 1300, 119 Cal.Rptr.2d 57.)

"Restitution orders have as their goal economic compensation for the victim or victims of a defendant's crime, rehabilitation of the defendant, and the deterrence of the defendant and others from committing future offenses. [Citation.]" (People v. Dehle (2008) 166 Cal.App.4th 1380, 1386, 83 Cal.Rptr.3d 461.) In other words, there are two primary objectives of restitution—victim reparation and rehabilitation/deterrence. The People have a significant interest in both "ensuring the constitutional right to victim restitution is properly enforced [citation]" (People v. Petronella (2013) 218 Cal.App.4th 945, 968, 160 Cal.Rptr.3d 144; see also People v. Hamilton (2003) 114 Cal.App.4th 932, 938, 8 Cal.Rptr.3d 190) and protecting public safety (cf. People v. VonWahlde (2016) 3 Cal.App.5th 1187, 1195, 220 Cal.Rptr.3d 337). Accordingly, "[t]he People may seek review of a restitution order as a postjudgment order affecting substantial rights of the People. [Citation.]" (People v. Akins (2005) 128 Cal.App.4th 1376, 1381, fn. 3, 27 Cal.Rptr.3d 815.)


" 'The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed." [Citation.] ....' [Citation.] However, a restitution order 'resting upon a " 'demonstrable error of law' " constitutes an abuse of the court's discretion. [Citation.]' [Citation.]" (People v. Millard (2009) 175 Cal.App.4th 7, 26, 95 Cal.Rptr.3d 751.) "If the trial court misunderstands or misapplies the applicable legal standard, it has not properly exercised its discretion. [Citations.]" (Id. at p. 31, 95 Cal.Rptr.3d 751.) Indeed, "[a]s a practical matter, an appellate court's consideration of a claim that a trial court abused its discretion in awarding [or denying] restitution because the lower court applied an incorrect legal standard is tantamount to independent or de novo review." (People v. Brunette (2011) 194 Cal.App.4th 268, 276, 124 Cal.Rptr.3d 521.)

*3 We acknowledge defendant's concession that the trial court incorrectly stated the victim of an infraction is not entitled to restitution, and hold that the owner of the service dog is entitled to restitution based on two independent sources—the California Constitution and section 600.2. This determination requires no more than a review of the unambiguous plain meaning of the language contained in the Constitution and associated statutory provisions. (See People v. Colbert (2019) 6 Cal.5th 596, 603, 242 Cal.Rptr.3d 665, 433 P.3d 536 [" ' "if statutory language is not ambiguous, then ... the plain meaning of the language governs" ' "].)

The California Constitution

The California Constitution unambiguously states "[r]estitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Cal. Const., art. I, § 28, subd. (b)(13)(B); see also People v. Carbajal (1995) 10 Cal.4th 1114, 1122, 43 Cal.Rptr.2d 681, 899 P.2d 67.) The constitutional mandate is implemented by section 1202.4, which provides in relevant part: "It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (§ 1202.4, subd. (a)(1), italics added; see People v. Mearns (2002) 97 Cal.App.4th 493, 498, 118 Cal.Rptr.2d 511.) The Legislature has expressly categorized infractions as crimes (§ 17, subd. (a) [recognizing crimes are felonies, misdemeanors, or infractions]; § 16, subd. (3) ["Crimes and public offenses include: [¶] [¶] [¶] 3. Infractions"] ), and the "infraction case" as a "criminal action" (§ 691, subd. (g)). In lockstep with the Legislature, California courts have routinely classified an infraction as a crime. (See, e.g., Tracy v. Municipal Court for Glendale Judicial District (1978) 22 Cal.3d 760, 765, 150 Cal.Rptr. 785, 587 P.2d 227 [in 1968, infractions were added to the statutory definition of crimes]; People v. Cortez (2010) 189 Cal.App.4th 1436, 1442, 117 Cal.Rptr.3d 769 ["all three categories of offenses[, i.e., felonies, misdemeanors, and infractions,] are considered ' "crime[s] or public offenses[s]" ' "]; People v. Simpson (2014) 223 Cal.App.4th Supp. 6, 9, 167 Cal.Rptr.3d 396 ["An infraction is a criminal matter subject generally to the provisions applicable to misdemeanors, except for the right to a jury trial, the possibility of confinement as a punishment, and the right to court-appointed counsel if indigent"].)

Because an infraction is a crime, and a crime victim is constitutionally entitled to restitution in "every case," a restitution hearing was mandatory. An order of anything less than "full" restitution to the victim required the trial court to identify "compelling and extraordinary" reasons and to state those reasons on the record. (§ 1202.4, subds. (b) & (f).)

The trial court's abuse of discretion manifests itself in two distinct ways. First, and most fundamentally, the trial court erroneously concluded a crime victim is not entitled to restitution if the offense committed is an infraction. This misunderstanding led to the second mistake, i.e., the denial of victim restitution without providing compelling and extraordinary reasons for doing so. In order to meet the constitutional directive for victim restitution, the trial court is required to follow the guidelines provided by section 1202.4 in determining whether the victim is entitled to restitution even if the offense committed is an infraction.

Section 600.2

Section 600.2, subdivision (b), provides that "[a] violation of this section is an infraction punishable by a fine not to exceed two hundred fifty dollars ($ 250) if the injury or death to any ... service dog is caused by the person's failure to exercise ordinary care in the control of his or her dog." The offense is a misdemeanor "if the injury or death to any ... service dog is caused by the person's reckless disregard in the exercise of control over his or her dog, under circumstances that constitute such a departure from the conduct of a reasonable person as to be incompatible with a proper regard for the safety and life of any ... service dog." (§ 600.2, subd. (c).) But, regardless of the category of offense under which the criminal act falls, the Legislature has specified that "[i]n any case in which a defendant is convicted of a violation of this section, the defendant shall be ordered to make restitution to the person with a disability who has custody or ownership of the guide, signal, or service dog for any veterinary bills and replacement costs of the dog if it is disabled or killed, or other reasonable costs deemed appropriate by the court...." (§ 600.2, subd. (d), italics added.) Thus, irrespective of whether the defendant is convicted of an infraction or a misdemeanor, subdivision (d) mandates the defendant be ordered to reimburse the service dog's owner for economic loss.

Defendant's Arguments

*4 Defendant proposes a series of reasons why remand is unnecessary. None of them are persuasive. Because the trial court erred as a matter of law in its determination that victim restitution is categorically prohibited in infraction cases, we address defendant's contentions with brevity.

Citing her constitutional right to due process, defendant maintains an order for the payment of restitution would have been improper because she was never advised victim restitution would be a consequence of her plea. The sole reference to advisements in the record is in the arraignment/plea minute order—it indicates, in pertinent part, defendant was advised of the maximum and minimum sentence as well as "other consequences" of pleading guilty or no contest. Because the trial court was under the mistaken impression that restitution is not available to victims of infractions, it stands to reason that the "other consequences" did not include the payment of victim restitution. From a constitutional perspective, the lack of such an advisement is of no moment. "[T]he rule requiring that a trial court advise a pleading defendant of the consequence of his plea is a judicially declared rule of criminal procedure and not a constitutional rule .... [Citation.]" (People v. Gurule (2002) 28 Cal.4th 557, 634, fn. 23, 123 Cal.Rptr.2d 345, 51 P.3d 224, italics added.) Defendant's constitutional claim lacks merit.

Focusing on the amount of restitution ordered, i.e., zero, defendant claims the trial court "in good faith was unable to find that the restitution award was necessary in this particular case." It appears defendant's argument is that the trial court reasonably exercised its discretion in determining no restitution was warranted. This misstates what the trial court did. When it denied the victim's request for restitution, the trial court incorrectly assumed victim restitution is not available if a defendant is convicted of an infraction. The trial court did not base its decision on an analysis of the evidence or, put another way, a valid exercise of discretion. Rather, the trial court simply misstated the law and, as a consequence, summarily denied the request for restitution.

Defendant devotes some time to the prospect that an order for the payment of victim restitution would violate the terms of her plea agreement. Her claim is based on a premise that is not supported by the record. The record of the proceedings consists of a minute order and a proposed statement on appeal (certified by the trial court pursuant to California Rules of Court, rule 8.916(f)). Neither the certified statement nor the minute order pertaining to the date of the plea makes reference to a plea agreement. Defendant had an opportunity to file amendments to the proposed statement and to request a hearing to correct the proposed statement. (Cal. Rules of Court, rule 8.916(d)(1) & (2).) Defendant did not do so. There is no indication in the record that she entered her no contest plea pursuant to a plea agreement.


*5 The order denying victim restitution is reversed. The matter is remanded to the trial court with directions to conduct a restitution hearing or other proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

We concur:

P. McKay, P. J.

Ricciardulli, J.

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