People v. Berlier CA5 ( 2023 )

Filed 10/23/23 P. v. Berlier CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085227
Plaintiff and Respondent,
(Super. Ct. No. 20CR-06299)
v.
BRYAN ROBERT BERLIER, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Mark V.
Bacciarini, Judge.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and
Cameron M. Goodman, Deputy Attorney Generals, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P. J., Snauffer, J. and DeSantos, J.
Appellant Bryan Robert Berlier was involved in a traffic collision with another
vehicle and charged with felony driving under the influence of alcohol (DUI) causing
injury and driving with a blood-alcohol level of .08 percent or higher causing injury.
Following a jury trial, the jury found appellant not guilty of the offenses as charged and
instead found him guilty of the lesser included offenses of misdemeanor driving under
the influence and driving with a blood-alcohol level of .08 percent or higher.
The trial court sentenced appellant to one year in jail. At sentencing, appellant had
521 days of custody credits, and the trial court rejected appellant’s request to apply his
excess custody credits to any fine imposed and imposed a fine of $3,324. Following a
restitution hearing where appellant argued restitution was improper given the jury’s
verdict acquitting him of the offenses causing injury, the trial court ordered appellant to
pay direct restitution to the driver of the other vehicle for his chiropractic bills he
incurred to treat the injuries he received from the collision in the amount of $3,555.
On appeal, appellant contends (1) the trial court erred by declining to apply his
excess custody credits to his fine pursuant to Penal Code1 section 2900.5 and (2) the trial
court erred by ordering direct restitution because the jury acquitted appellant of the
offenses where he was alleged to have caused injury to the other driver.
We agree with appellant that the trial court erred by declining to apply his excess
custody credits to his fine. Because the record does not indicate the portion of appellant’s
fine that would be considered the “base fine” under section 2900.5, we must remand the
matter for the very limited purpose for the trial court to comply with the statute and
reduce appellant’s fine accordingly. In all other respects, we affirm the judgment,
including the trial court’s restitution order.
1 Further undesignated statutory references are to the Penal Code unless otherwise
indicated.
2.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by first amended information with felony DUI causing
injury within 10 years of two other DUI offenses (Veh. Code, §§ 23153, subd. (a), 23566,
subd. (a); count 1) and driving with a .08 percent blood-alcohol level causing injury
within 10 years of two other DUI offenses (Veh. Code, §§ 23153, subd. (a), 23566,
subd. (a); count 2).
A jury trial was conducted. Appellant and Merced County Sheriff’s Sergeant Jess
Aguilar were involved in a traffic collision at an intersection. Aguilar testified he was
driving eastbound; he looked over at his computer screen, noticed lights to his left in his
peripheral vision, and then just “saw white” and felt the impact of the collision. From the
collision, Aguilar suffered airbag burns to one of his earlobes and his forehead. He had
bruising to both his knees and right leg, as well as lower back pain. For his back pain, he
underwent a 12-month chiropractic treatment program. As of the time of the trial, he felt
good.
The California Highway Patrol officer who investigated the collision testified he
contacted appellant at the scene and arrested him. The officer based his arrest on
appellant exhibiting signs of intoxication, including the odor of alcohol, red and watery
eyes, an “extremely” unsteady gait, as well as poor performance on field sobriety tests.
Appellant elected to take a blood test at the hospital, which showed he had a blood-
alcohol level of 0.277 percent at the time of the test. The criminalist who analyzed
appellant’s blood sample opined that appellant’s blood-alcohol level may have been
around 0.31 percent at the time of driving. The criminalist further testified that an
individual with a blood-alcohol level of .277 percent would not be able to safely operate a
motor vehicle.
The California Highway Patrol officer testified the physical evidence at the scene
of the collision led him to believe appellant was traveling westbound and Aguilar was
traveling eastbound, and appellant made a left turn directly in front of Aguilar’s vehicle
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in the intersection, causing the collision.2 The officer opined appellant had violated
Vehicle Code section 21801, subdivision (a), which provides that drivers intending to
turn left “shall yield the right-of-way to all vehicles approaching from the opposite
direction which are close enough to constitute a hazard at any time during the turning
movement and shall continue to yield the right-of-way to the approaching vehicle until
the left turn … can be made with reasonable safety.”
Appellant testified in his defense. He contended he was traveling westbound, but
that Aguilar was traveling southbound and collided into him when he was traveling
through the intersection with the right of way.
The jury returned verdicts of not guilty for DUI causing injury (Veh. Code,
§ 23153, subd. (a)) and driving with a .08 percent or higher blood-alcohol level causing
injury (Veh. Code, § 23153, subd. (b)). Instead, the jury returned verdicts of guilty for
the lesser included offenses of DUI (Veh. Code, § 23152, subd. (a)) and driving with a
.08 percent or higher blood-alcohol level (Veh. Code, § 23152, subd. (b)).
After the jury returned its verdict, the trial court found true appellant had suffered
two prior DUI convictions based on appellant’s testimony that he was convicted of a DUI
on August 31, 2015, and January 30, 2017.
Appellant filed a sentencing brief which asserted that a restitution order would be
“an illegal sentence” (unnecessary capitalization omitted) as appellant was acquitted of
the charges that alleged he caused injury to Aguilar. At the sentencing hearing, the trial
court indicated it disagreed with appellant’s position. It stated that based on the
testimony at trial, the court believed appellant’s conduct was a substantial factor in
causing Aguilar’s injuries. The court ordered restitution, reserving on the amount, and
stated its intention to conduct a restitution hearing when the People had an amount.
2 The record indicates the officer testified that both vehicles were travelling
eastbound, but based upon context, it appears either the officer misspoke or there was a
clerical error.
4.
Appellant’s presentence custody credits were 521 days. The court sentenced
appellant to one year in jail with credit for one year. The court imposed a “fine in the
amount of $3,324.” Appellant requested the trial court credit 156 days, the amount of
excess custody credits, against the fines imposed in the case, and the court denied the
request.
Following the sentencing hearing, the prosecutor filed a motion to order restitution
in the amount of $3,555 for Aguilar’s chiropractic bills.
A restitution haring was conducted, and appellant again set forth his position that
restitution was improper given the jury’s verdict. Appellant’s counsel asserted that in
probation cases, the court has wider discretion regarding the types of restitution orders it
could make, but because the case was not a probation case, the court was precluded from
ordering restitution for costs arising out of Aguilar’s injuries because the jury found him
not guilty of the charges alleging he caused Aguilar’s injuries. After appellant’s counsel
submitted the matter on the argument, the court ordered restitution in the amount of
$3,555 in favor of Aguilar.
DISCUSSION
I. Section 2900.5
Appellant contends the court’s denial of his request to apply his excess custody
credits to his fine was improper under section 2900.5, which provides in pertinent part:
“In all felony and misdemeanor convictions … when the defendant has
been in custody …, all days of custody of the defendant … shall be credited
upon his or her term of imprisonment, or credited to any base fine that may
be imposed, at the rate of not less than one hundred twenty-five dollars
($125) per day, or more, in the discretion of the court imposing the
sentence. If the total number of days in custody exceeds the number of
days of the term of imprisonment to be imposed, the entire term of
imprisonment shall be deemed to have been served. In any case where the
court has imposed both a prison or jail term of imprisonment and a fine,
any days to be credited to the defendant shall first be applied to the term of
imprisonment imposed, and thereafter the remaining days, if any, shall be
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applied to the base fine. If an amount of the base fine is not satisfied by jail
credits …, the penalties and assessments imposed on the base fine shall be
reduced by the percentage of the base fine that was satisfied.” (§ 2900.5,
subd. (a).)
Respondent concedes error. The parties agree that appellant’s excess custody
credits total an amount of $19,500 (156 days multiplied by $125 per day) that may be
applied to appellant’s fine. The parties further agree that Penal Code section 2900.5 does
not apply to any assessments imposed pursuant to section 1465.8, subdivision (a)(1) or
Government Code section 70373, subdivision (a)(1), or a restitution fine imposed
pursuant to section 1202.4. (See People v. Petri (2020) 45 Cal.App.5th 82, 92
[“Although a defendant’s excess custody credits may be applied to reduce a fine imposed
by the trial court, such excess credits may not be applied to reduce victim restitution, a
restitution fine, the court operations assessment, or the court facilities assessment.”].)
We agree with the parties. Section 2900.5 mandates that appellant’s excess
custody credits be applied to his base fine. Since appellant’s base fine would be satisfied
by appellant’s excess custody credits, all penalty assessments associated with the base
fine would be satisfied as well. (See § 2900.5, subd. (a); see also People v. Carranza
(2016) 6 Cal.App.5th Supp. 17, 31 [2017 amendment to § 2900.5 unequivocally states
custody credits shall be applied to the base fine rather than proportionately to base fine
and penalty assessments so as to reduce the amount of days in custody a defendant must
spend to satisfy a fine].) In appellant’s case, as agreed upon by the parties, it appears the
only portion of the total fine that would remain are any restitution fine, court operations
assessment, or court facilities assessment. Unfortunately, however, because the record
does not contain a breakdown of which portion of the total fine comprises the base fine
and associated penalty assessments, and which portion comprises the restitution fine and
any nonpunitive assessments, it would be inappropriate for this court to strike any part of
the fine as a remedy because that would involve speculation on our part.
6.
Ostensibly to solve this problem, appellant has requested we take judicial notice of
a worksheet he has proffered entitled, “Revenue Calculation and Distribution
Worksheet,” which appellant asserts is “used by the trial court’s Collections Department
to calculate the numerous fines, penalties and assessments collectively comprising the
$3,324 fine imposed by the trial court upon appellant at sentencing.” In a declaration
filed with the request, appellate counsel explained she “was informed by the trial court’s
Collections Department that it used the $3,324 total that was ordered by the judge to
extrapolate the base fine and the accompanying assessments.” Appellate counsel asserts
the worksheet is subject to judicial notice under Evidence Code section 452, as “the
‘records of any court of this state’ ” and Evidence Code section 452.5, “as it is a
computer-generated official court record.” Appellate counsel acknowledges the
document is not certified but asserts it is authenticated by the declaration.
On July 19, 2023, this court deferred ruling on appellant’s request pending
consideration of this appeal on its merits and granted respondent leave to file an informal
response. Respondent did not file an informal response and noted in its respondent’s
brief it did not oppose the request.
Though respondent does not oppose appellant’s request for judicial notice, we
decline to grant it. “There is … a precondition to the taking of judicial notice in either its
mandatory or permissive form—any matter to be judicially noticed must be relevant to a
material issue.” (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415,
422, fn. 2.) We conclude the document proffered by appellant is not relevant to the issue
of what portion of appellant’s fine must be stricken, as it does not represent the court’s
order of the components of the total fine; rather, it is an “extrapolation” prepared by the
“Collections Department.” It is not clear from the request for judicial notice or the
document itself how the “extrapolation” was calculated, for what purpose the worksheet
was generated or how or if it is routinely used, or whether the worksheet accurately
represents the order of the trial court. Most relevant for our purposes, it is unclear what
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amount of restitution fine was imposed, which would make an impact on the amount of
appellant’s fine that must be stricken. For a misdemeanor, a court may impose a
restitution fine between $150 and $1,000. (§ 1202.4, subd. (b)(1).) In one column in the
worksheet provided by appellant, under “PC 1202.4(b),” a restitution fine in the amount
of $150 is listed; in another column on the same line $234.86 is listed, and in another
column $230.16 is listed. Though both parties agree the court imposed a restitution fine
of $150, they do not cite any portion of the record before us to support this claim, and the
worksheet does not appear to elucidate things.3 For these reasons, we deny appellant’s
request to take judicial notice of the worksheet.
In sum, we do agree with the parties that the court erred by declining to apply
appellant’s excess custody credits to the base fine (and corresponding penalty
assessments), excluding the court operations assessment, court facilities assessment, and
restitution fine. As we have explained, however, we cannot ascertain what portion of the
total fine comprises of nonpunitive assessments and the restitution fine, and therefore not
reduceable by section 2900.5. Thus, the matter must be remanded with directions to the
trial court to comply with section 2900.5, subdivision (a) and apply appellant’s excess
custody credits to his base fine in a manner consistent with the views expressed in this
opinion.
II. Restitution Order
Appellant contends the imposition of direct restitution was improper because the
jury found appellant not guilty of the offenses where he was alleged to have caused injury
to Aguilar. We disagree.
3 Rather, the column on the worksheet, which contains the amount of $150, is
entitled, “STANDARD BASE-UP,” with a total fine of $2,123. There are two columns
with $3,324 listed as the total fine (the total actually imposed) entitled, “IAS TOP-
DOWN”; these columns contain the restitution fines of $234.86 and $230.16.
8.
The California Constitution provides, “Restitution shall be ordered from the
convicted wrongdoer in every case, regardless of the sentence of disposition imposed, in
which a crime victim suffers a loss.” (Cal. Const., art. I, § 28, subd. (b)(13)(B).) Penal
Code section 1202.4, subdivision (a)(1) provides: “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.” In most
cases, when “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).)
A restitution order is enforceable as if the order were a civil judgment. (§ 1202.4,
subd. (a)(3)(B).) “ ‘[D]irect victim restitution is a substitute for a civil remedy so that
victims of crime do not need to file separate civil suits. It is not increased
“punishment.” ’ ” (People v. Foalima (2015) 239 Cal.App.4th 1376, 1398 (Foalima);
see People v. Harvest (2000) 84 Cal.App.4th 641, 649 [Legislature intended victim
restitution as a civil remedy rather than criminal punishment]; see also People v. Smalling
(2019) 36 Cal.App.5th Supp. 1, 11, fn. 10 [denial of victim restitution not harmless
because “ ‘[T]he primary purpose of a victim restitution hearing is to allow the People to
prosecute an expedited hearing before a trial court to provide a victim with a civil remedy
for economic losses suffered….’ [Citation.] This objective is not satisfied by
substituting a victim’s statutory and constitutional right to a restitution hearing with a
civil lawsuit and its attendant costs, discovery, and delays.”].)
We review the trial court’s restitution order for abuse of discretion. (Luis M. v.
Superior Court (2014) 59 Cal.4th 300, 305.) “No abuse of discretion will be found where
there is a rational and factual basis for the amount of restitution ordered. ‘ “[T]he
standard of proof at a restitution hearing is by a preponderance of the evidence, not proof
beyond a reasonable doubt.” ’ ” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542;
9.
see Foalima, supra, 239 Cal.App.4th at pp. 1398‒1399 [“[T]he court’s determination [of
restitution] may be established by a preponderance of the evidence. The higher standard
of proof applies to facts that increase a crime’s penalty beyond what a judge could
impose based on the applicable statute and the facts in the record…. Since direct
restitution is not a criminal penalty and is not subject to a statutory minimum amount, it
is not subject to a jury trial and may be imposed based on the preponderance of the
evidence.”].)
The thrust of appellant’s argument is that the prosecutor below relied primarily on
probation cases, which were inapposite because a trial court has broader discretion to
order direct restitution as a condition of probation than in nonprobation cases. Appellant
cites Foalima, supra, 239 Cal.App.4th 1376 and People v. Percelle (2005) 126
Cal.App.4th 164, 180 to support the statement: “ ‘[I]n the nonprobation context, a
restitution order is not authorized where the defendant’s only relationship to the victim’s
loss is by way of a crime of which the defendant was acquitted.’ ” Applying this logic,
appellant contends that because the jury “acquitted appellant of the counts that involved
causing any injury to Aguilar … the award of victim restitution for Aguilar’s chiropractic
treatment was improper.” While appellant’s transcription of the rule of law statement
regarding restitution in nonprobation cases is accurate, the statement must be read in
context. The relevant passage in Foalima, reads:
“ ‘When judgment is imposed and the defendant sentenced to a
period of incarceration (in prison or jail), the court may order restitution
only for losses arising out of the “criminal conduct for which the defendant
has been convicted.” [Citation.]’ [Citation.]
“This, however, does not mean the court could not require defendant
to make restitution simply because he was acquitted of one of the many
counts charged against him. ‘The introductory paragraph of [Penal Code]
section 1202.4 states the legislative intent, i.e., that the victim of a crime
should receive restitution directly from any defendant convicted of that
crime. This language is clear and unambiguous. Indeed, our Supreme
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Court has recognized that ordinarily an acquittal would preclude the court
from including the loss related to that crime in a restitution order.
[Citation.] That is not to say that an acquittal on one count will preclude
the imposition of a restitution order under all circumstances. We merely
hold that in the nonprobation context, a restitution order is not authorized
where the defendant’s only relationship to the victim’s loss is by way of a
crime of which the defendant was acquitted.’ ” (Foalima, at pp. 1395‒
1396, italics in original.)
Foalima illustrates this concept and is instructive in the present case. In Foalima, the
defendant killed a man in the man’s daughter’s apartment. Fires had been started in
several rooms in the apartment, which investigators opined to have been deliberately set.
The forensic pathologist testified the victim had been set on fire after he died. (Foalima,
supra, 239 Cal.App.4th at pp. 1380‒1382.) The jury convicted the defendant of first
degree murder but acquitted him of arson, and the trial court ordered the defendant to pay
direct restitution including the cost to cover the victim’s daughter’s clothing and
household goods damaged in the fire. (Id. at p. 1387.) The defendant argued he was not
properly ordered to pay victim restitution to cover items lost in the fire since he was
acquitted of arson. (Id. at pp. 1394‒1395.) The Foalima court disagreed.
The Foalima court explained that one of the trial court’s tasks at a restitution
hearing is to “determine whether the criminal conduct for which [the] defendant was
convicted was the proximate cause of the damage [in that case].” (Foalima, supra,
239 Cal.App.4th at p. 1396.) Specifically, the trial court must decide whether the
criminal conduct was a “substantial factor in bringing about the injury”; a “defendant’s
conduct is a cause of the injury if the injury would not have occurred ‘but for’ that
conduct.” (Id. at p. 1396.) As we have stated, this determination may be made by a
preponderance of the evidence. (Id. at pp. 1398‒1399.) In the case before it, the Foalima
court determined the trial court did not abuse its discretion in determining the defendant’s
actions were the proximate cause of the victim’s daughter’s economic losses based on the
facts and circumstances of the case, as the trial court could have concluded that even
though the defendant was acquitted of arson, the victim’s daughter would not have
11.
incurred damages from the fire if there had been no murder. (Id. at pp. 1397‒1398.) The
appellate court determined the trial court’s conclusion was reasonable based in part on
the fact that “it was reasonably foreseeable that [the] defendant or his accomplices would
act to destroy evidence.” (Id. at p. 1397.)
We acknowledge that a court has broader discretion in ordering victim restitution
as a condition of probation than when probation is not ordered (People v. Giordano
(2007) 42 Cal.4th 644, 663, fn. 7), and probation was not ordered in the present case. We
further acknowledge, as appellant urges us to, that the People below, and respondent on
appeal, rely mostly on probation cases to support their position that direct restitution is
appropriate in the present case. Bearing in mind these circumstances, we nonetheless
conclude the trial court did not abuse its discretion in ordering restitution in the present
case. As Foalima demonstrates, when restitution is requested in nonprobation cases, the
trial court nonetheless has a task separate from the jury’s in determining whether the
criminal conduct is a proximate cause of the victim’s economic losses by a
preponderance of the evidence.
As such, like Foalima, when the People moved for an order for direct restitution,
the court was tasked with determining whether the criminal conduct for which appellant
was convicted was the proximate cause of Aguilar’s economic losses even though he was
acquitted of a charge arising from the same incident. While we recognize this case
differs from Foalima in that the jury acquitted appellant of a crime with causation of
injury as an element of the offense, we do not find this precluded the trial court from
making its own factual determinations based on appellant’s criminal conduct for which
he was convicted because the jury and the trial court were applying different standards of
proof. Other courts have noted that where, like here, a defendant is acquitted of a greater
offense and convicted of a lesser included offense, a trial court is permitted to find that
any element of the acquitted offense is true by a preponderance of the evidence for
purposes of necessary postconviction determinations absent express factual findings by
12.
the jury. (See People v. Levitt (1984) 156 Cal.App.3d 500, 515 [jury’s acquittal of
murder but conviction of manslaughter indicates the jury did not make a finding of
malice beyond a reasonable doubt, but the trial court was permitted to make such a
finding by a preponderance of the evidence for purposes of determining a sentence within
the range of permissible sentences under former sentencing law], disapproved on other
grounds by People v. Johnson (2016) 62 Cal.4th 600, 649, fn. 6.)
The jury in the present case did not make an express factual finding that appellant
did not cause Aguilar’s injuries, only that the People had not proven the case beyond a
reasonable doubt.4 (See CALCRIM No. 200 [“Unless the evidence proves the defendant
guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty.”].) They did, however, make an express factual finding that appellant was guilty
of criminal conduct of driving under the influence of alcohol. Because the jury did not
acquit appellant of criminal conduct related to the incident altogether, the jury’s not
guilty verdicts did not preclude the trial court from determining by a preponderance of
the evidence that appellant’s criminal conduct for which he was convicted, i.e., driving
under the influence of alcohol, caused Aguilar’s injuries. Our conclusion is not
contradicted by the cases cited by appellant and is supported by one of the purposes of
direct victim restitution we have outline above—to avoid a crime victim having to file a
civil action to recover damages resulting from the crime.
We conclude the trial court’s finding that appellant’s criminal conduct was a
substantial factor in causing Aguilar’s injuries was not an abuse of discretion; it was
4 The record indicates that one possible reason for the jury’s verdict is that they did
not find the People had proven Aguilar suffered an injury. After deliberating for
approximately five and a half hours, they submitted a question which read, “What is the
definition of an injury as it pertains to this case?” They were directed to “Jury Instruction
#200,” paragraph 6, which includes the statement: “Words and phrases not specifically
defined in these instructions are to be applied using their ordinary, everyday meanings.”
The jury reached its verdict about 50 minutes after receiving the answer.
13.
reasonably supported by a preponderance of the evidence by the criminologist’s opinion
appellant was intoxicated to the point of unsafe driving, the California Highway Patrol
officer’s opinion that appellant was at fault for the collision by making an unsafe left
turn, and Aguilar’s testimony he suffered a lower back injury resulting from the collision,
which required a year of chiropractic treatment. The trial court did not err by ordering
direct restitution under the circumstances of the present case.
DISPOSITION
The matter is remanded with directions for the trial court to apply appellant’s
excess custody credits to his fine pursuant to section 2900.5. In all other respects, the
judgment, including the restitution order, is affirmed.
14.