People v. Earl CA2/7

Filed 3/8/22 P. v. Earl CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B313115
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA136291)
v.
KEVONE EARL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Restitution order reversed
with directions.
Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Peggy Z. Huang, Deputy Attorney
General, for Plaintiff and Respondent.
INTRODUCTION
In 2016 a jury convicted Kevone Earl of multiple crimes,
and the trial court sentenced him to life in prison. He appealed,
and we reversed with directions for a new trial. (People v.
Dixon et al. (Apr. 10, 2019, B277759) [nonpub. opn.].)
On remand, the People made Earl a plea offer that, in
exchange for Earl pleading guilty or no contest to voluntary
manslaughter and admitting he used a firearm in the commission
of the crime, the court would sentence Earl to a prison term of
25 years. In explaining the terms of the proposed agreement, the
trial court told Earl he would have to pay victim restitution in the
amount of $5,000. Earl objected and asked for a restitution
hearing. The court said it would impose the restitution amount
and have a hearing “afterwards.” Earl pleaded no contest, and
the court accepted his plea. The court sentenced Earl, ordered
him to pay a $300 restitution fine and $5,000 in victim
restitution, gave him an opportunity to be heard on his ability to
pay, and ordered him to pay both amounts.
Earl argues the trial court erred because “there was no
evidence before the court” to support an order requiring him to
pay $5,000 in restitution. Earl also argues that the trial court
denied him a fair hearing on his ability to pay the $300
restitution fine and, for the first time in his reply brief, that the
trial court should have an opportunity to exercise its discretion
whether to strike Earl’s prior serious or violent felony conviction
for purposes of sentencing under the three strikes law.
We agree with Earl’s contention the trial court erred in
ordering him to pay $5,000 in victim restitution. We conclude,
however, Earl’s other arguments are forfeited, meritless, or both.
2
Therefore, we reverse the order requiring Earl to pay $5,000 in
victim restitution and direct the court to hold a restitution
hearing under Penal Code section 1202.4, subdivision (f).1
Otherwise, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Earl, and the Trial Court Sentences
Him
In 2014 Earl and two codefendants drove to the home of a
rival gang member and fired 20 shots at the house, killing one
person and injuring another. In 2016 a jury found Earl guilty on
one count of second degree murder (§ 187, subd. (a)), three counts
of attempted murder (§§ 187, subd. (a), 664), and one count of
shooting at an inhabited dwelling (§ 246). The jury found true
allegations that Earl committed the crimes for the benefit of, at
the direction of, or in association with a criminal street gang,
with the specific intent to promote, further, or assist in criminal
conduct by gang members (§ 186.22, subd. (b)) and that he
personally and intentionally discharged a firearm causing great
bodily injury or death (§ 12022.53, subds. (b)-(d)). After Earl
admitted he had a prior serious felony conviction, the court
sentenced him to life in prison with a minimum parole eligibility
of 210 years. The court imposed a $10,000 restitution fine under
1 Undesignated statutory references are to the Penal Code.
3
section 1202.4, subdivision (b), and set the matter for a
restitution hearing.2
B. Earl Appeals, We Reverse, and the People Make
an Offer
Earl appealed. He argued, among other things, the trial
court erred in denying his motion under Batson v. Kentucky
(1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] and People v.
Wheeler (1978) 22 Cal.3d 258. We agreed with that contention,
reversed the judgment, and directed the court to set the matter
for a new trial. In 2021 the People offered Earl a proposed
disposition: The People would dismiss the original charges and
allegations, and Earl would plead guilty or no contest to an
amended charge of voluntary manslaughter (§ 192, subd. (a)) and
admit allegations that he personally used a firearm within the
meaning of section 12022.5, subdivision (a), and that he had a
prior serious or violent felony conviction within the meaning of
2 It is unclear from the record whether the court ever held
the restitution hearing. Nothing in the record indicates the trial
court ordered Earl to pay victim restitution in 2016. In a footnote
in their respondent’s brief, the People ask us to take judicial
notice under Evidence Code section 452, subdivision (d), of the
record in Earl’s prior appeal. But because the record in that
appeal does not include a restitution order or any evidence there
was a restitution hearing, we deny the request.
4
the three strikes law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)).3
C. The Trial Court Sentences Earl, Orders Him To Pay
Victim Restitution and a Restitution Fine, and Holds
an Ability-to-pay Hearing
While stating the terms of the plea agreement, the trial
court told Earl he would have to pay “restitution in the amount of
$5,000 that would be joint and several liability” with a
codefendant. Earl stated, “No, sir. Something about restitution,
they’re talking about $5,000 in restitution.” The court said, “It’s
a restitution amount of $5,000 to the Victim Restitution Board.”
The following exchange ensued:
“Defendant Earl: I got paperwork, my appeal, something
that restitution, we won’t have to pay restitution due to the new
law that changed.
“The Court: I think that is talking about something else.
“Defendant Earl: No. No, it’s talking about this. . . . I got
the paperwork in my cell. My appeal lawyer sent it to me. We
can come back next week for sentencing. I can bring you the
paper. Y’all supposed to take me to trial for restitution. Y’all
can’t make me pay nothing that y’all don’t know I have the funds
for.
“The Court: We can have a hearing about that right now.
3 Prior to making this offer, the People moved under section
1385 to dismiss the firearm enhancement and “any strike prior.”
The court denied the request to dismiss the firearm
enhancement, and the People withdrew their request the court
strike the allegation Earl had a prior serious or violent felony
conviction.
5
“Defendant Earl: We can.
“The Court: I can still order it and we can have a hearing
afterwards. I understand what you’re talking about. All right.
And so again, Mr. Earl, that’s what you wish to do today?
“Defendant Earl: Yeah, restitution hearing.
“The Court: Okay. No, the plea agreement that I’ve listed.
“Defendant Earl: Yes, sir.”
The trial court advised Earl of his rights and some of the
consequences of his plea, and again told him he had to “pay
restitution to the victim in this matter in the amount of $5,000.”
The court also told Earl he had to pay “a restitution fine of
anywhere from $300 to $10,000.” The court continued to advise
Earl on the remaining consequences of his plea. Earl pleaded no
contest and admitted the firearm and prior conviction allegations.
The court accepted Earl’s plea after finding Earl had voluntarily,
knowingly, and intelligently waived his rights. The court allowed
the father of one of the victims to make a statement in opposition
to the plea agreement.
The court sentenced Earl to the upper term of 11 years,
doubled under the three strikes law, plus the lower term of three
years for the firearm enhancement under section 12022.5,
subdivision (a), for a total prison term of 25 years. The court
imposed a restitution fine of $300 and ordered Earl “to pay
$5,000 to the Victim Restitution Board, which will be collected
joint and several liability and it will be plus 10 percent interest
from today’s date.” The court asked Earl if he “wish[ed] to be
heard in regards to [his] ability to pay.”
Earl said his appellate attorney told him about “a new law”
providing that, “once restitution is ordered, we have to have a
hearing in order for [him] to pay this fund.” He told the court
6
that he had “no way to pay that” and that he had been “in prison
for three years already paying restitution.”
The court ruled: “Based upon what I’ve heard, the court
will still impose the $5,000 victim restitution fund. If there were
funds that were paid previously towards this, that’s something
that needs to be discussed with the Department of Corrections
[and Rehabilitation], but it would make sense that amount would
still go towards the balance.” Before concluding the hearing, the
court asked if there was “anything further by either counsel.”
Neither Earl nor counsel for Earl responded. Earl did not
mention, and the court did not rule on, his ability to pay the $300
restitution fine. Earl timely appealed.
DISCUSSION
Earl argues the trial court erred in ordering him to pay
victim restitution without hearing or considering evidence of “the
loss suffered by any victim” or explaining how the court “obtained
the $5,000 figure.” He argues neither the People, the Victim
Compensation Board, nor the victim’s father made a claim for
restitution at the hearing. The People argue the court properly
ordered Earl to pay $5,000 in victim restitution because in 2016
Earl had “stipulated that he would pay $5,000 in direct victim
restitution” for funeral expenses the Board had paid. The People
contend the court “acted within its discretion” because “the trial
court had access to its original file” and “was aware of the
original request for reimbursement” by the Board in 2016. In his
reply brief Earl argues that, even if the court had ordered him to
pay victim restitution in 2016, this court’s reversal of the prior
judgment vacated any prior restitution order and that, as a
7
result, on remand the People had to prove the amount of any
victim restitution. We agree with Earl that the trial court did not
consider any evidence of, or otherwise explain how it calculated,
the $5,000 in victim restitution.
A. Applicable Law and Standard of Review
“California law provides for two types of restitution: direct
restitution to the victim (Pen. Code, § 1202.4, subd. (f)), which is
based on a direct victim’s loss, and a restitution fine (Pen. Code,
§ 1202.4, subd. (b)), which is not.” (People v. Dueñas (2019)
30 Cal.App.5th 1157, 1169.)4 “‘The purposes of the two kinds of
restitution are different. The imposition of a restitution fine is
punishment. [Citation.] The purpose of direct victim restitution,
however, is to reimburse the victim for economic losses caused by
the defendant’s criminal conduct . . . .’” (People v. Allen (2019)
41 Cal.App.5th 312, 320-321.) The trial court ordered Earl to pay
both.
Section 1202.4, subdivision (f), provides in relevant 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.”
Where “the Restitution Fund has provided assistance to or on
behalf of a victim or derivative victim . . . the amount of
assistance provided shall be presumed to be a direct result of the
4 California law also recognizes restitution as a condition of
probation. (See § 1203.1, subd. (b); People v. Giordano (2007)
42 Cal.4th 644, 651-652.)
8
defendant’s criminal conduct and shall be included in the amount
of the restitution ordered.” (§ 1202.4, subd. (f)(4)(A).) The
“amount of assistance provided by the Restitution Fund shall be
established by copies of bills submitted to the California Victim
Compensation Board reflecting the amount paid by the board and
whether the services for which payment was made were for
medical or dental expenses, funeral or burial expenses, mental
health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of
perjury by the custodian of records that those bills were
submitted to and were paid by the board, shall be sufficient to
meet this requirement.” (Id., subd. (f)(4)(B).) 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.” (Id., subd. (f).)
Although a “defendant has the right to a hearing before a judge
to dispute the determination of the amount of restitution” (id.,
subd. (f)(1)), a “defendant’s inability to pay shall not be a
consideration in determining the amount of a restitution order”
(id., subd. (g); see People v. Navarro (2021) 12 Cal.5th 285,
343-344; People v. Nieves (2021) 11 Cal.5th 404, 509).
“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.” (People v. Millard (2009) 175 Cal.App.4th 7,
26.) Once the victim makes a prima facie showing, the burden
shifts to the defendant to demonstrate, by a preponderance of the
evidence, “‘the amount of the loss is other than that claimed by
9
the victim.’” (Ibid.; see People v. Grandpierre (2021)
66 Cal.App.5th 111, 115; People v. Trout-Lacy (2019)
43 Cal.App.5th 369, 373.) A party satisfies its burden by
“provid[ing] an adequate factual basis for the claim.” (People v.
Giordano (2007) 42 Cal.4th 644, 664.)
We review a victim restitution award for abuse of
discretion. (Luis M. v. Superior Court (2014) 59 Cal.4th 300, 305;
People v. Trout-Lacy, supra, 43 Cal.App.5th at p. 373; People v.
Grundfor (2019) 39 Cal.App.5th 22, 27.) “No abuse of discretion
occurs if the restitution order is supported by a rational and
factual basis.” (People v. Aguilar (2016) 4 Cal.App.5th 857, 862;
see People v. Millard, supra, 175 Cal.App.4th at p. 26 [“‘“‘When
there is a factual and rational basis for the amount of restitution
ordered by the trial court, no abuse of discretion will be found by
the reviewing court.’”’”].) “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.” (People
v. Giordano, supra, 42 Cal.4th at p. 664.) “‘In reviewing the
sufficiency of the evidence [to support a factual finding], the
“‘power of the appellate court begins and ends with a
determination as to whether there is any substantial evidence,
contradicted or uncontradicted,’ to support the trial court’s
findings.”’” (Millard, at p. 26; see Trout-Lacy, at p. 373 [where
“‘the specific issue is whether the court’s factual findings support
restitution, we review those findings for substantial evidence’”];
People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 [testimony,
written statements, and receipts may be substantial evidence of
the amount of victim restitution].)
10
B. The Trial Court Erred in Ordering Earl To Pay
$5,000 in Victim Restitution Without Any Factual
Basis
A victim of a crime has a constitutional right to restitution
that “cannot be bargained away or limited.” (People v. Gross
(2015) 238 Cal.App.4th 1313, 1318; see People v. Giordano, supra,42 Cal.4th at p. 652 [“‘It is the unequivocal intention of the
People of the State of California that all persons who suffer losses
as a result of criminal activity shall have the right to restitution
from the persons convicted of the crimes for losses they suffer.’”];
see also Cal. Const., art. I, § 28, subd. (b)(13).) But an order
requiring a defendant to pay restitution to a victim must be
factually supported, rationally calculated, and based on an
“amount of loss claimed by the victim” or established by “any
other showing to the court.” (§ 1202.4, subd. (f).)
The trial court told Earl he would have to pay restitution to
the Board in the amount of $5,000. Although the record is not
entirely clear, Earl objected and asked for a restitution hearing
because he believed the People were “supposed to take [him] to
trial for restitution.” The court stated it would nonetheless order
victim restitution and have a restitution hearing after accepting
Earl’s plea. But at that hearing the People did not present, and
the court did not consider, any evidence of expenses paid by the
Board. Rather than asking the parties to submit evidence on the
amount of victim restitution, the court asked Earl a question
about an issue that was both different and irrelevant: whether he
wanted to be heard on his ability to pay the amount of victim
restitution. (See People v. Navarro, supra, 12 Cal.5th at
pp. 343-344 [§ 1202.4, subd. (g), “preclude[s] the court from
11
considering the defendant’s ability to pay in setting the amount
of victim restitution”].)
The People did not offer, and the court did not cite, any
evidentiary support for the $5,000 restitution award, leaving Earl
unable to meaningfully exercise his right to “dispute the
determination of the amount of restitution.” (§ 1202.4,
subd. (f)(1).) While the court told Earl he had to pay $5,000 in
victim restitution, no one suggested how that amount was
calculated or what evidence supported it. Thus, the trial court
abused its discretion in ordering Earl to pay $5,000 in victim
restitution. (See People v. Selivanov (2016) 5 Cal.App.5th 726,
780 [“‘“‘While it is not required to make an order in keeping with
the exact amount of loss, the trial court 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. Jones (2010) 187 Cal.App.4th 418, 427 [“the trial court
abused its discretion by failing to make a clear statement of the
calculation method it used in ordering restitution”]; People v.
Petronella (2013) 218 Cal.App.4th 945, 973 [because “the court
clearly abused its discretion by not ‘employ[ing] a method that is
rationally designed to determine the . . . victim’s economic loss,’”
the “victim restitution order must be reversed and the matter
remanded for a new hearing”].)
The People suggest the trial court was aware of a prior
$5,000 victim restitution order, the Board’s claim for
reimbursement, or Earl’s 2016 stipulation to pay that amount.
The court, however, made no mention of any of these things. (See
People v. Giordano, supra, 42 Cal.4th at p. 664 [“a trial court
must demonstrate a rational basis for its award, and ensure that
the record is sufficient to permit meaningful review”].) Earl
12
speculates the court may have “looked at” its 2016 orders “and
adopted the $10,000 restitution fine as the amount to be paid
[and] divided it between the defendants.” But speculation is not
substantial evidence (In re Ramirez (2019) 32 Cal.App.5th 384,
405), particularly where the speculation is not rationally related
to the court’s conclusion. One-half the amount of a previously
imposed (and reversed) restitution fine—which, as discussed,
serves an entirely different purpose from an award of victim
restitution—is not evidence of an economic loss or expense
incurred. (See People v. Jones, supra, 187 Cal.App.4th at p. 424
[although “we do not know the calculation method the trial court
actually used,” it is “problematic to assume the court used
[a particular] calculation” where “there appears to be no logical
reason for” it].)
Moreover, section 1202.4, subdivision (f), allows the trial
court, when the amount of restitution cannot be ascertained at
the time of sentencing, to determine the amount at a future
hearing. (See People v. Petronella, supra, 218 Cal.App.4th at
p. 970 [the “court could have imposed sentence on defendant and
continued the restitution hearing if it felt additional evidence was
needed to determine the amount”].) Allowing the court to set the
restitution hearing at a later date helps ensure the restitution
award 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).) Here,
despite the lack of evidence to support any amount of restitution,
the trial court did not find the amount of restitution could not be
ascertained or set the restitution hearing for a future date.
13
C. Earl Was Not Entitled to a Hearing on His Ability To
Pay the $300 Restitution Fine, Which in Any Event He
Forfeited
Earl also argues the “sentencing court did not provide a fair
hearing . . . regarding his ability to pay a Restitution Fine. The
court had already decided on the sentence which included the
$5,000 figure for restitution. The court was not going to then
give [him] any opportunity to lessen his financial burdens.” Earl,
however, was not entitled to a hearing on his ability to pay the
$300 restitution fine.
Section 1202.4, subdivision (b), provides, “In every case
where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record.” “The restitution fine shall be set at
the discretion of the court and commensurate with the
seriousness of the offense. If the person is convicted of a felony,
the fine shall not be less than three hundred dollars ($300) and
not more than ten thousand dollars ($10,000).” (§ 1202.4,
subd. (b)(1).)
Where the trial court imposes a restitution fine above the
statutory minimum, the court must consider the defendant’s
ability to pay. (§ 1202.4, subd. (d); see People v. Ramirez (2021)
10 Cal.5th 983, 1041 [“in setting the amount of a restitution fine,
the trial court . . . must consider a host of factors—including a
defendant’s ability to pay—if it sets the fine above the
minimum”]; People v. Miracle (2018) 6 Cal.5th 318, 356 [same].)
Here, because the court ordered Earl to pay the statutory
minimum fine of $300, he was not entitled to a hearing on his
ability to pay. And, in any event, neither Earl nor his attorney
objected to the restitution fine in the trial court. After the court
14
held the hearing (to which Earl was not entitled) on Earl’s ability
to pay victim restitution, the court asked if counsel had any other
issues to raise. Neither Earl nor his attorney asked for a hearing
on his ability to pay the restitution fine. (See Miracle, at p. 356
[because the “defendant did not object to the fine at his
sentencing hearing, he has forfeited his challenge”]; People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant “forfeited
any ability-to-pay argument regarding the restitution fine by
failing to object”].)
D. Earl Forfeited His Meritless Argument We Should
Direct the Trial Court To Exercise Its Discretion
Whether To Strike His Prior Serious or Violent Felony
Conviction
For the first time in his reply brief, Earl asks us to remand
“to permit [him] the benefit of a change in the three strikes law,”
which “was intended to be applied retroactively,” and to give the
trial court the opportunity to exercise its discretion whether to
strike his prior serious or violent felony conviction. Earl argues
that, before his “sentencing pursuant to a plea bargain reached
following the reversal of the first trial verdict, the Legislature
amended the Three Strikes Law, permitting an opportunity to
move to strike the prior strike convictions. (Senate Bill No. 1393,
allowing a trial court to dismiss a serious felony enhancement in
furtherance of justice (See Stats. 2018, ch. 1013, sec. 1 and 2.)
(effective Jan. 1, 2019.).” Earl explains that his trial counsel
“made no effort to request the [court] to exercise its discretion”
and that therefore he “agreed to a doubled sentence as a second
15
striker.” This argument is doubly forfeited and fundamentally
wrong.
First, Earl did not make this argument in his opening brief,
thus forfeiting it on appeal. (See People v. Rangel (2016)
62 Cal.4th 1192, 1218-1219 [“‘[i]t is axiomatic that arguments
made for the first time in a reply brief will not be entertained
because of the unfairness to the other party’”]; People v. Gonzalez
(2020) 57 Cal.App.5th 960, 978 [it is “well established that
arguments may not ordinarily be raised on appeal for the first
time in a reply brief”].) Second, Earl forfeited the argument in
the trial court. As he concedes, neither he nor his attorney “made
[any] effort to request” the trial court “to exercise its discretion
and strike the strike convictions.”5
In any event, the law Earl cites, Senate Bill No. 1393
(Stats. 2018, ch. 1013, §§ 1 & 2), effective January 1, 2019,
amended sections 667 and 1385 to “delete language prohibiting a
judge from striking a prior serious felony conviction for purposes
of eliminating a five-year sentence enhancement” and to give the
court the “discretion to strike a prior serious felony in the interest
of justice.” (People v. Pride (2019) 31 Cal.App.5th 133, 142.)
That law applies to striking serious felony convictions for
purposes of the five-year enhancement under section 667,
subdivision (a) (which the court did not impose here), not to prior
serious or violent felony convictions for purposes of the three
strikes law.
5 Earl does not argue his trial counsel provided ineffective
assistance.
16
DISPOSITION
The victim restitution order is reversed. The trial court is
directed to hold a restitution hearing under section 1202.4,
subdivision (f). The judgment is otherwise affirmed.
SEGAL, Acting P. J.
We concur:
FEUER, J.
WISE, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17