People v. Smith CA1/4 ( 2024 )

Filed 10/23/24 P. v. Smith CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A169430
v.
(San Francisco Super. Ct.
TROY DEVIN SMITH, No. CRI-2257494)
Defendant and Appellant.
Troy Devin Smith appeals from his resentencing pursuant to Penal
Code section 1172.1.1 Smith argues the superior court erred in imposing
compensatory victim restitution in the amount of $4,475,000 and a four-year
sentence enhancement pursuant to section 12022.6, subdivision (a)(4). For
the reasons given below, we will affirm.
FACTS AND PROCEDURAL HISTORY
In 2006, Smith was convicted of four counts of second-degree robbery
(§ 212.5, subd. (c)), four counts of false imprisonment (§ 236), two counts of
second-degree burglary (§ 459), and one count of conspiracy to commit
1 All further statutory references are to the Penal Code unless
otherwise indicated.
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robbery (§ 182, subd. (a)(1)).2 The jury found true allegations that the loss
exceeded 2.5 million dollars (former § 12022.6, subd. (a)(4))3 and a principal
was armed with a firearm (§ 12022.1, subd. (a)(1)). The court found other
sentencing allegations true based on prior convictions, and sentenced Smith
to 26 years in state prison.
During the original sentencing hearing, the court declined to make an
order for compensatory victim restitution. The judge described his concerns
regarding compensatory victim restitution as follows: “Turning to victim
restitution in this case, the California Constitution statutes require the
courts impose lawful restitution to victims as set forth in the California
statutes. This court is ready, willing and able to follow the requirements of
the law regarding victim restitution, and the court will do so. [¶] On the
present record, the court is not comfortable, and I’m not satisfied with
whether lawful restitution should be paid to the alleged victim on this record.
The court retains jurisdiction to enter a lawful restitution amount upon
proper notice and hearing. [¶] The court is well aware of the multi-million
dollar theft in this case. But the court thinks [] on this record, it is the more
prudent course to retain jurisdiction now rather than impose victim
restitution on this record.”
In 2022, the People filed two petitions to resentence Smith pursuant to
section 1172.1. Later in July 2022, when a newly appointed District Attorney
took office, the People filed a motion to withdraw their requests to resentence
Smith. The court granted the motion allowing the People to withdraw their
2 By request of the parties, the court takes judicial notice of its records
in People v. Smith, Case No. A118208, which includes a transcript of the
proceedings at trial and sentencing.
3 Section 12022.6 contained a sunset clause, which repealed the statute
effective January 1, 2018.
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petitions to resentence Smith. Smith appealed. This court remanded the
case of People v. Smith, Case No. A166421, back to the superior court to
reconsider the motion to withdraw based upon a decision from Division One
of the First Appellate District in People v. Vaesau (2023) 94 Cal.App.5th 132,
139. The superior court reconsidered its ruling and found there was no legal
basis to withdraw the petitions for resentencing.
On December 11, 2023, the court resentenced Smith to a total of 21
years in prison. The sentence included the four-year enhancement for
excessive taking pursuant to section 12022.6, subdivision (a)(4). The court
ordered compensatory victim restitution in the amount of $4,475,000. In
making the restitution order, the court received documentation provided by
the People. The court concluded that the original sentencing judge reserved
jurisdiction, that section 1202.46 gives the court “ongoing power to make
orders relating to restitution,” and that, despite the People’s theories during
the trial, there was no evidence Zimmelman was a co-conspirator.4
On May 13, 2024, while Smith’s appeal of the victim restitution order
was pending, we granted his unopposed motion for stay of enforcement of the
restitution order pending resolution of the appeal.
I. Compensatory Victim Restitution
“Ordinarily, the standard of review for a restitution order is abuse of
discretion. 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. Salas (2017) 9 Cal.App.5th 736, 741.) As
explained below, two of Smith’s challenges to the order awarding
compensatory victim restitution are subject to de novo review.
4 During closing argument, at Smith’s trial, the prosecutor argued
Zimmelman was complicit in the crimes charged.
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A. Reservation of Jurisdiction
Smith contends section 1202.4 only allows a judge “to retain
jurisdiction where the amount of loss cannot be ascertained at the time of
sentencing.” (Italics added.) Because resolving this contention involves
statutory interpretation, we review this claim de novo. “ ‘Under the settled
cannons of statutory construction, in construing a statute we ascertain the
Legislature’s intent in order to effectuate the law’s purpose . . . . “The
statute’s plain meaning controls the court’s interpretation unless its words
are ambiguous.” [Citations.] “If the statutory language permits more than
one reasonable interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.” [Citation.]’ ” (Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 527.) Moreover, “ ‘ “ ‘[w]e do not
construe statutes in isolation, but rather read every statute “with reference to
the entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness.” [Citation.]’ [Citation.]” [Citation.]’ ”
(People v. Arias (2015) 240 Cal.App.4th 161, 168 (Arias).)
Section 1202.4, subdivision (f) states, “If the amount of loss cannot be
ascertained at the time of sentencing, the restitution order shall include a
provision that the amount shall be determined at the direction of the court.”
But section 1202.4 cannot be read in isolation. Section 1202.46 states,
“[W]hen the economic losses of a victim cannot be ascertained at the time of
the sentencing pursuant to subdivision (f) of [s]ection 1202.4, the court shall
retain jurisdiction over a person subject to a restitution order for purposes of
imposing or modifying restitution until such time as the losses may be
determined.” Smith urges this court to narrowly interpret sections 1202.4
and 1202.46. Under Smith’s interpretation, the only permissible reason a
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court could reserve jurisdiction to later order compensatory victim restitution
is when the amount of the loss cannot be determined.
However, section 1202.46 allows the court to retain jurisdiction
“when the economic losses of a victim cannot be ascertained at the time of
[the] sentencing.” The plain language of the statute does not limit the court’s
ability to retain jurisdiction only when the amount of restitution cannot be
determined, but rather the statute gives the court broad discretion to retain
jurisdiction when the economic losses of a victim cannot be determined. In
short, where the court cannot determine if there is a victim who has suffered
an economic loss, the court is empowered to retain jurisdiction so that
compensatory victim restitution may be ordered at a later hearing. This
interpretation is consistent with section 1202.4 and with the plain language
of section 1202.46. Even if there were ambiguity, this interpretation is
consistent with both public policy and legislative intent of ensuring victims of
crime are fully compensated. As recognized by our high court, compensatory
victim restitution “ ‘ “[i]s not to be interpreted according to narrow or
supertechnical principles, but liberally and on broad general lines, so that it
may accomplish in full measure the objects of its establishment . . . .” ’ ”
(People v. Giordano (2007) 42 Cal.4th 644, 655.) Hence, “there is no
limitation upon when the court must next set a restitution hearing, nor is
there a limitation on the permissible reasons that may prevent fixing the
amount of restitution.” (People v Bufford (2007) 146 Cal.App.4th 966, 971.)
Here, the original sentencing court did not set the amount of
compensatory victim restitution because the court could not determine if
Zimmelman was a victim who suffered economic loss. Nothing prevented the
sentencing court from reserving jurisdiction until that issue could be
resolved. As such, Smith’s contention that the court could have only reserved
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jurisdiction if the amount of compensatory victim restitution could not be
determined fails.
B. Compensatory Victim Restitution is Not Punishment
Next, Smith contends the imposition of a $4,475,000 restitution award
resulted in a greater sentence, violating section 1172.1, subdivision (a)(1), the
right not to be placed in double jeopardy, the right not to be subjected to
excessive fines, and the right against cruel and unusual punishment.
“ ‘Whether a particular punishment is criminal or civil . . . is, at least
initially, a matter of statutory construction. [Citation.]’ ” (People v. Hanson
(2000) 23 Cal.4th 355, 361 (Hanson).) As such, we review this claim de novo.
Smith did not raise these issues in the court below, and the Attorney
General argues Smith has forfeited these claims on appeal. (People v.
McCullough (2013) 56 Cal.4th 589, 593.) Nonetheless, “[t]he Courts of
Appeal have excused forfeiture ‘when a forfeited claim involves an important
issue of constitutional law or a substantial right.’ ” (People v. Frederickson
(2020) 8 Cal.5th 963,1031.) Here, Smith has raised both a constitutional
challenge and a challenge involving a substantial right. We exercise our
discretion to examine the merits of these challenges.
Turning to the merits, Smith’s challenges fail. The purpose of
compensatory victim restitution is to compensate the victim for economic
losses incurred, not to punish an offender. (See People v. Chappelone (2010)
183 Cal.App.4th 1159, 1183–1184; see also People v. Millard (2009)
175 Cal.App.4th 7, 35 [“ ‘the primary purpose of victim restitution is to
provide monetary compensation to an individual injured by a crime’ ”].)
Likewise, victim restitution is not a form of punishment for the purposes of
double jeopardy. (Hanson, supra, 23 Cal.4th at pp. 360–363.) Because
compensatory victim restitution is not punishment, Smith’s challenges fail.
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II. Remaining Challenges to Restitution Order
The remainder of Smith’s challenges to the compensatory victim
restitution order include claims that: (1) the court lacked jurisdiction to
order restitution where the original sentencing judge found compelling and
extraordinary circumstances not to order victim restitution; (2) Zimmelman
was not an actual victim entitled to restitution; and (3) the restitution order
was not supported by the evidence.5 These claims are subject to abuse of
discretion standard. (People v. Moore (2009) 177 Cal.App.4th 1229, 1231.)
A. Jurisdiction to Order Compensatory Victim Restitution
Smith contends the court did not have jurisdiction to order victim
restitution when the original sentencing judge declined to make such an
order. However, Smith’s original sentence was recalled, and he was
resentenced under section 1172.1. Section 1172.1, subdivision (a)(1) permits
the district attorney, among others, to petition the trial court to recall a
sentence and resentence a defendant. In doing so, the trial court
“resentence[s] the defendant in the same manner as if they had not
previously been sentenced . . . .” (§ 1172.1, subd. (a)(1).) This principle has
been called the “ ‘full resentencing rule.’ ” (People v. Buycks (2018) 5 Cal.5th
857, 893.) Importantly, a lawful sentence must include any victim
restitution. (People v. Bernal (2002) 101 Cal.App.4th 155, 164–165.) Smith
was subject to full resentencing, including an order for compensatory victim
restitution. Accordingly, the court was entitled to order compensatory victim
restitution as if no other sentencing hearing had taken place.
5 In 2007, when Smith was originally sentenced, section 1202.46
permitted a judge to find compelling and extraordinary circumstances for not
ordering compensatory victim restitution. That exception was deleted from
the statute in 2016. For purposes of this opinion, it is immaterial whether
the exception applied when Smith was resentenced.
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Even assuming Smith’s argument is correct, and the court was bound
by findings made at the original sentencing hearing, the original sentencing
judge reserved jurisdiction over the issue of ordering compensatory victim
restitution. This allowed the court to order such restitution at a later
hearing. Smith’s argument that the original sentencing court found
compelling and extraordinary reasons for not ordering compensatory victim
restitution is not supported by the record. While the original sentencing
court expressed some uncertainty as to whether the victim was involved in
the crime, the court did not make a finding that it was not awarding victim
restitution based upon compelling and extraordinary circumstances. Rather,
the record clearly reveals, the court retained jurisdiction to impose
compensatory victim restitution at a future hearing.
B. No Evidence Victim Was a Co-Conspirator
Smith argues that even if the court had jurisdiction to order
compensatory victim restitution, Zimmelman was not entitled to restitution
as he was a co-conspirator — not a victim. There is support in the law for
this argument: As our high court has acknowledged, awarding compensatory
victim restitution for “injuries the victim has in effect inflicted on him- or
herself . . . could raise significant constitutional questions.” (People v.
Martinez (2017) 2 Cal.5th 1093, 1104.) But here, there is no evidence
establishing Zimmelman was a co-conspirator. The fact that the prosecutor
argued the victim was a co-conspirator is not evidence.6 Smith points to no
testimony or exhibits admitted at trial establishing Zimmelman was a co-
conspirator. And the jury made no finding that Zimmelman was a co-
6 CALCRIM No. 222 instructs “nothing that the attorneys say is
evidence. In their opening statements and closing arguments, the attorneys
discuss the case, but their remarks are not evidence.” (See Evid. Code, § 140;
see also People v. Barajas (1983) 145 Cal.App.3d 804, 809.)
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conspirator. Speculation and innuendo are not sufficient to deprive victims of
their constitutional right to restitution. Therefore, the court did not err in
finding Zimmelman was a victim who suffered economic loss.
C. Order Was Supported by Evidence
Finally, Smith contends that the evidence did not support the
restitution award. Smith argues the only evidence presented on the issue of
compensatory victim restitution was the following: (1) an unsigned letter
describing the categories of the items stolen and an opinion as to the value of
each category, i.e., diamond rings valued at $1,656,630; and (2) a letter from
the insurance company offering $4,475,000 to settle the insurance claim.
Smith did not object to the restitution order on this ground at the
resentencing hearing. Generally, “[a] defendant wishing to argue on appeal
that there is no factual basis for a restitution order must object on that
ground in the trial court to preserve the issue for appeal.” (People v. Mays
(2017) 15 Cal.App.5th 1232, 1237.) Because Smith did not object to the
factual basis for the restitution order, he did not preserve the issue for
appeal.
Of course, had Smith objected, his contention would fail. The standard
of proof at a restitution hearing is preponderance of the evidence, not proof
beyond a reasonable doubt. (People v Lehman (2016) 247 Cal.App.4th 795,
801.) And it is well-settled that “ ‘an owner’s opinion of the value of his or her
property is sufficient evidence to establish value.’ ” (People v. Gemelli (2008)
161 Cal.App.4th 1539, 1543 (Gemelli).) In Gemelli, the appellate court held
that the trial court appropriately set restitution based on the probation
officer’s report and attached statement from the victim. (Id. at p. 1544.)
Here, it was sufficient for the court to rely on the victim’s opinion of the
stolen jewelry’s value. Additionally, the court relied on the insurance payout
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as corroboration of the victim’s estimation of the jewelry’s value. Smith put
on no evidence rebutting the amount of compensatory victim restitution
ordered by the court. Accordingly, no abuse of discretion occurred where, as
here, “there is a rational and factual basis for the amount of the restitution
ordered.” (Gemelli, at p. 1542.)
The trial court did not err in awarding compensatory victim restitution
in the amount of $4,475,000.
III. Section 12022.6 Sentence Enhancement
Section 1172.1, subdivision (a)(2) requires the court to “[a]pply any
changes in the law that reduce sentences.” Section 12022.6, an enhancement
for excessive taking, had a sunset clause, in which the statute was repealed
effective January 1, 2018. Smith contends the sentencing court erred by not
striking the four-year enhancement pursuant to section 12022.6,
subdivision (a)(4). We disagree.
Division Two of the First Appellate District held that it was clear from
the language of section 12022.6 the “Legislature planned the conditional
repeal as a mechanism to review the effects of inflation, not because it
determined enhancements should no longer apply for excessive taking . . . .”
(People v. Medeiros (2020) 46 Cal.App.5th 1142, 1151.) Moreover, “to the
extent the language of the statute itself is ambiguous, . . . the Legislative
Counsel’s Digest provides further evidence of legislative intent. It states:
‘This bill would state the Legislature’s intent that the provisions of the bill be
reviewed within 10 years to consider the effects of inflation on its provisions
and that it be applied prospectively only.’ ” (Ibid.; cf. Legis. Counsel’s Dig.,
Assem. Bill No. 1705 (2007–2008 Reg. Sess.).)
The plain language of section 1172.1 requires the court at resentencing
to apply any changes in the law that reduce sentences. (§ 1172.1,
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subd. (a)(2).) As stated above, we construe statutes “ ‘ “ ‘ “with reference to
the entire scheme of law of which it is part so that the whole may be
harmonized and retain effectiveness.” [Citation.]’ [Citation.]” [Citation.]’ ”
(Arias, supra, 240 Cal.App.4th at p.168.) Here, the two statutes are not so
irreconcilable and inconsistent that they cannot coexist or operate
concurrently. (People v. Chenze (2002) 97 Cal.App.4th 521, 526.) The repeal
of 12022.6 operates prospectively to crimes committed after January 1, 2018.
That is not the present case, where Smith committed his crimes before 2018.
Because the legislature intended the repeal of section 12022.6 to operate
prospectively, its repeal is not a change in the law that would reduce
sentences for crimes that occurred before 2018. Therefore, the court did not
err in imposing the four-year excessive taking enhancement.
DISPOSITION
The court’s sentence and judgment is affirmed. In light of our decision,
the stay of enforcement of the victim restitution order which we issued on
May 13, 2024, is lifted.
DOUGLAS, J.*
We concur:
BROWN, P. J.
STREETER, J.
People v. Smith (A169430)
* Judge of the Superior Court of California, County of Contra Costa,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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