People v. Rojas

Filed 8/31/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B325493
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA412073)
v.
FREDY ROJAS,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Affirmed in part;
reversed and remanded in part with directions.
Leonard J. Klaif, 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, Assistant
Attorney General, Noah P. Hill, Kathy S. Pomerantz and Stefanie
Yee, Deputy Attorneys General, for Plaintiff and Respondent.
In 2013 appellant Fredy Rojas started a fistfight with his
cousin Antonio at a family party. Appellant’s fellow gang
members intervened, and one of them fatally shot Antonio.
Appellant was convicted of voluntary manslaughter and gang and
firearm enhancements and sentenced to a total term of 22 years.
In 2022, appellant filed a petition for resentencing under
Penal Code section 1172.6 (former section 1170.95). 1 The trial
court granted the petition, vacated appellant’s conviction, and
resentenced him to the midterm of three years on the target
offense of assault with force likely to cause great bodily injury.
The court awarded appellant the same number of custody credits
he was awarded at his initial sentencing and reimposed the same
fines, fees, and direct victim restitution. The court placed
appellant on parole for a period of two years.
Appellant contends the court erred in several respects.
He first argues that he should have received additional custody
credits for the time he served on his original sentence.
Respondent Attorney General concedes appellant is correct, and
we agree. We also agree that appellant’s excess custody credits
should be applied in satisfaction of his restitution and parole
revocation fees pursuant to the version of section 2900.5 effective
at the time of his crime. However, we reject appellant’s
contentions that his excess credits should also offset nonpunitive
assessments and parole, and that the court erred in reimposing
direct victim restitution. We accordingly remand with directions
1 Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. We hereafter
refer to the statute as section 1172.6. All further statutory
references are to the Penal Code unless otherwise indicated.
2
for the trial court to recalculate appellant’s custody credits and
apply excess credits in satisfaction of the $280 restitution fine
and $280 parole revocation fine. The order is otherwise affirmed.
FACTUAL BACKGROUND
For purposes of this appeal, appellant accepts the facts as
recited in People v. Acosta (May 5, 2017, B267775) [nonpub. opn.],
in which a different panel of this court affirmed appellant’s
conviction. The facts relevant here include the following:
Appellant’s cousin Antonio asked him to leave a family
party after appellant and several companions arrived uninvited.
Appellant punched Antonio and a fistfight ensued. Appellant
shouted something to the effect of “woo-woo” to his companions,
who came to his aid. The fight grew into a melee involving 15 to
20 people. One of appellant’s companions, Emir Acosta, drew a
gun and fatally shot Antonio. (See People v. Acosta, supra.)
PROCEDURAL HISTORY
I. Conviction and Sentence
Appellant and Acosta were jointly charged with murder.
(§ 187, subd. (a).) The information alleged that the murder was
committed in association with and to benefit a criminal street
gang (§ 186.22, subd. (b)(1)(C)) and that a principal, Acosta,
personally used a firearm to commit the offense (§ 12022.53,
subds. (b)-(d)). The information also charged Acosta with being a
felon in possession of a firearm. (§ 29800, subd. (a)(1).) (People v.
Acosta, supra.)
Appellant and Acosta were tried jointly. The prosecution
argued that appellant either directly aided and abetted the
shooting of Antonio, or that he aided and abetted an assault and
Antonio’s death was a natural and probable consequence of that
assault. The court instructed the jury on the natural and
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probable consequences doctrine. The jury convicted Acosta of
second degree murder and being a felon in possession of a
firearm. It acquitted appellant of murder, but found him guilty of
the lesser included offense of voluntary manslaughter. The jury
found the gang and firearm allegations true as to both Acosta and
appellant. (People v. Acosta, supra.)
The trial court sentenced appellant to a total of 22 years in
state prison. (People v. Acosta, supra.) It also imposed a
restitution fine of $280 (§ 1202.4, subdivision (b)), imposed and
stayed a parole revocation restitution fine of $280 (§ 1202.45),
and imposed a $40 court operations assessment (§ 1465.8, subd.
(a)(1)) and a $30 criminal conviction assessment (Gov. Code,
§ 70373). The court ordered appellant to pay $13,046.74 in direct
victim restitution to Antonio’s family for Antonio’s cemetery plot
and headstone, and $5,000 to the Victim Compensation and
Government Claims Board (§ 1202.4, subd. (f)). 2 The court
awarded appellant a total of 1,888 days of custody credit: 944
actual days and 944 days of good time credit.
A different panel of this court affirmed appellant’s
convictions and sentence on direct appeal. (See People v. Acosta,
supra.)
II. Section 1172.6 Proceedings
On January 6, 2022, appellant filed a petition for
resentencing under section 1172.6. At some point, the court
appointed counsel for him. On May 19, 2022, the People filed a
response conceding that appellant had made a prima facie
showing of eligibility for relief and requested that the court issue
2 The court ordered appellant and Acosta to pay the direct
victim restitution jointly and severally.
4
an order to show cause and set the matter for an evidentiary
hearing pursuant to section 1172.6, subdivision (d)(3).
On September 21, 2022, the People and appellant’s counsel
stipulated that appellant was entitled to be resentenced under
section 1172.6. They further stipulated that appellant would be
resentenced for assault by means likely to produce great bodily
injury (§ 245, subd. (a)(4)).
The same day, the court vacated appellant’s voluntary
manslaughter conviction and resentenced him to the midterm of
three years for the assault. The court stated that “the original
terms and conditions, in terms of fines and fees . . . will stand.”
The court further ruled that the direct victim restitution of
$18,671.47 for “funeral and burial costs” would stand. The court
explained, “[i]t does result from his actions even though it’s a
245(a)(4), so that order will stand in terms of the restitution.”
Appellant’s counsel did not object. He also did not object when
the court ordered two years of parole.
Appellant’s counsel reminded the court to award appellant
custody credit. The court clerk reported that appellant had 944
days of actual time when he was sentenced in 2016. The court
stated that the precise number of credits “doesn’t matter, because
the CDCR will recalculate all that,” and “[f]or all intents and
purposes, it’s time served.” Appellant’s counsel then asserted the
actual time was 4,684 days, or nearly 13 years; the People did not
provide an alternative number. The court said, “Okay, and
CDCR will take it from there.” The minute order documenting
the hearing does not say anything about custody credits; the
abstract of judgment states that appellant received credit for 944
days of actual time and 944 days of conduct credit, for a total of
1,888 days.
5
Appellant timely appealed.
DISCUSSION
I. Custody Credits
Appellant contends, and respondent agrees, that the trial
court did not award him the full amount of custody credit to
which he was entitled. We agree.
“Where a defendant has served any portion of his sentence
under a commitment based upon a judgment which judgment is
subsequently declared invalid or which is modified during the
term of imprisonment, such time shall be credited upon any
subsequent sentence he may receive upon a new commitment for
the same criminal act or acts.” (§ 2900.1.) In the specific context
of a resentencing under section 1172.6, a person resentenced
“shall be given credit for time served.” (§ 1172.6, subd. (h).)
Under these provisions, “the trial court having modified
defendant’s sentence, should have determined all actual days
defendant had spent in custody, whether in jail or prison, and
awarded such credits in the new abstract of judgment.” (People v.
Buckhalter (2001) 26 Cal.4th 20, 41.) The trial court did not
fulfill this obligation, rendering appellant’s sentence
unauthorized. (People v. Taylor (2004) 119 Cal.App.4th 628,
647.)
Although his counsel below suggested that appellant was
entitled to 4,684 days of actual credit, appellant now asserts “that
the five years, nine months and 21 days appellant spent in
custody from January 5, 2016 through September 21, 2022 totals
2085 days.” He contends that the 1,888 days he was previously
awarded should be added to this amount, “for a total of 3943 days
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of credit.” 3 Citing the May 25, 2013 arrest date that appears in
People v. Acosta, supra, respondent contends appellant should
have been awarded 956 days of actual time credit and 956 days of
good time credit when he was initially sentenced on January 5,
2016, instead of 944 days of each. Respondent further asserts
that appellant served an additional 2,451 days of time between
January 5, 2016 and September 21, 2022, such that he should
receive credit for 3,407 actual days (956 + 2,451) and 956 days of
presentence good conduct credit, for a total custody credit of 4,363
days. Appellant does not address the discrepancy between his
calculations and respondent’s in his reply brief.
Although we may correct the unauthorized sentence on
appeal, the appellate record is limited and the parties’ proposed
calculations differ significantly. We accordingly remand so the
trial court may calculate the correct credits in the first instance
and prepare a new abstract of judgment.
II. Application of Excess Credits to Fines and
Assessments
Appellant contends that regardless of the precise amount of
custody credits he accrued, he served enough excess time to offset
the $280 restitution fine, $280 parole revocation fine, $40 court
operations assessment, and $30 conviction assessment. 4
3 Even if appellant’s calculation of 2,085 days is correct,
which it does not appear to be, 2,085 + 1,888 = 3,973. We also
note that appellant states elsewhere in his brief that he served
3,029 actual days in custody.
4 Appellant recognizes that this argument could be subject to
forfeiture and argues in the alternative that his counsel was
ineffective for failing to object to the imposition of fees, fines, and
assessments below. Respondent addresses appellant’s argument
on the merits and does not argue forfeiture. To the extent this
7
Respondent concedes appellant’s custody credits should offset the
$280 parole revocation fine, but asserts he is otherwise incorrect.
We conclude appellant is entitled to have both the $280
restitution fine and the $280 parole revocation fine offset by his
excess custody credits.
“[T]he only type of excess custody credit available to
resentenced persons is a credit against punitive assessments.”
(People v. Pinon (2016) 6 Cal.App.5th 956, 967.) Section 2900.5
dictates how that credit must be applied. We agree with the
parties that the relevant version of section 2900.5 is the one that
was in effect at the time appellant committed his crime. (See
People v. Morris (2015) 242 Cal.App.4th 94, 102.) The crime in
this case occurred on or about May 25, 2013. Respondent
contends that a then-pending amendment to section 2900.5 that
eliminated restitution fines from its ambit should apply here. We
disagree. The amendment did not take effect until January 1,
2014, and appellant’s crime was committed on or about May 25,
2013. The version of section 2900.5 in effect throughout 2013
provided that excess custody credits should be applied to
restitution fines:
“In all felony and misdemeanor convictions, either by plea
or by verdict, 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 fine on a
proportional basis, including, but not limited to, base fines and
issue is forfeited, we exercise our discretion to reach the merits.
(See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [“An
appellate court is generally not prohibited from reaching a
question that has not been preserved for review by a party.
[Citations.] Indeed, it has the authority to do so.”].)
8
restitution fines, which may be imposed, at the rate of not less
than thirty dollars ($30) 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 applied to the fine on a proportional basis,
including, but not limited to, base fines and restitution fines.”
(Former § 2900.5, subd. (a), italics added.)
Under the plain terms of former section 2900.5, as the
statute existed at the time of the offense, the trial court was
required to apply appellant’s excess custody credits to reduce his
$280 restitution fine at a rate of no less than $30 per day of
excess custody credit. Notwithstanding the ambiguity
surrounding the precise amount of custody credit to which
appellant is entitled, he plainly has enough to offset the $280
restitution fine; only 10 days would be required at the minimum
statutory rate of $30 per day. Therefore, we deem the restitution
fine satisfied in full. (See People v. Lamoureux (2020) 57
Cal.App.5th 136, 152 (Lamoureux).) We reach the same
conclusion as to the $280 parole revocation fine, which the parties
agree falls within the ambit of section 2900.5 because it is
punitive.
Appellant contends his excess credits should also apply to
offset the $40 court operations assessment and $30 conviction
assessment. We reject this contention. These assessments are
not punitive and therefore lie outside the scope of section 2900.5.
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(See People v. Alford (2007) 42 Cal.4th 749, 756-757 [assessment
imposed under § 1465.8 is not punitive]; People v. Knightbent
(2010) 186 Cal.App.4th 1105, 1111-1112 [assessment imposed
under Gov. Code, § 70373 is not punitive].)
On remand, we direct the trial court to deem the $280
restitution fine imposed under section 1202.4 and the $280 parole
revocation fine imposed under section 1202.45 satisfied in full by
appellant’s excess days spent in custody pursuant to former
section 2900.5, subdivision (a). Appellant remains subject to the
$40 court operations assessment and $30 conviction assessment.
III. Application of Excess Credits to Parole
Appellant contends that his excess custody credits also
should have precluded the court from imposing a two-year parole
term. He acknowledges that Lamoureux, supra, 57 Cal.App.5th
136 and People v. Wilson (2020) 53 Cal.App.5th 42 (Wilson) both
hold that the trial court may impose a period of parole when
resentencing a petitioner under section 1172.6 “notwithstanding
excess custody credits.” (Wilson, supra, 53 Cal.App.5th at p. 46;
see also Lamoureux, supra, 57 Cal.App.5th at pp. 138-139.)
Appellant contends these cases are distinguishable because they
predate and thus did not consider the requirement in section
1172.6, subdivision (d)(1) that resentencing under the statute
must occur “in the same manner as if the petitioner had not
previously been sentenced.” Respondent asserts that appellant
forfeited this argument by failing to raise it below, and it lacks
merit in any event. We agree that the issue has been forfeited by
10
appellant’s failure to object below. Even if it had not been, we
would conclude that parole was properly imposed. 5
As a general rule, when a person is originally sentenced,
“excess presentence credits can reduce a period of parole.”
(Wilson, supra, 53 Cal.App.5th at p. 48, citing In re Sosa (1980)
102 Cal.App.3d 1002, 1005, and § 2900.5, subd. (a).) In the
context of resentencing under section 1172.6, the first sentence of
subdivision (h) provides that “A person who is resentenced
pursuant to this section shall be given credit for time served.”
The second sentence of subdivision (h) gives the trial court
discretion to impose parole: “The judge may order the petitioner
to be subject to parole supervision for up to two years following
the completion of the sentence.”
Appellant points to the first half of subdivision (h), along
with subdivision (d)(1), which states that a person resentenced
under section 1172.6 must be sentenced “as if the petitioner had
not previously been sentenced.” (§ 1172.6, subd. (d)(1).) He
contends that “the mandatory language of subdivision (d)(1)
precludes imposition of an additional parole period in excess of
whatever credits the successful petitioner accrued during their
incarceration, while the permissive language of subdivision (h)
enables courts to set a limited parole period for those petitioners
who have not accrued significant excess credits.” This is a
question of statutory interpretation that is reviewed de novo.
(Lamoureux, supra, 57 Cal.App.5th at p. 142.)
Wilson and Lamoureux both concluded that section 1172.6,
subdivision (h) (then numbered 1170.95, subdivision (g)), did not
5 Because we have concluded that appellant’s forfeited
argument also lacks merit, we do not address his alternative
contention that his counsel rendered ineffective assistance.
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prohibit a resentencing court from imposing parole where a
petitioner had excess credits. They relied heavily on People v.
Morales (2016) 63 Cal.4th 399 (Morales), in which the Supreme
Court considered whether excess custody credits reduce or
eliminate the parole period when a person is resentenced under
section 1170.18, the Proposition 47 resentencing statute. The
statute at issue in Morales provided that a “A person who is
resentenced [under section 1170.18] . . . shall be given credit for
time served and shall be subject to parole for one year following
completion of his or her sentence, unless the court, in its
discretion, as part of its resentencing order, releases the person
from parole.” (§ 1170.18, subd. (d).) The Supreme Court found
significant that the section 1170.18 did “not state . . . that credit
for time served could reduce the period of parole” (italics
omitted), unlike “the statute concerning presentence credit in
ordinary cases” (Morales, supra, 63 Cal.4th at p. 406), section
2900.5, which provides both that “all days of custody of the
defendant . . . shall be credited upon his or her term of
imprisonment” (§ 2900.5, subd. (a)), and that “‘term of
imprisonment’ includes . . . any period of imprisonment and
parole.” (§ 2900.5, subd. (c).) Morales noted that section 1170.18
states “the first part but not the second.” (Morales, supra, at p.
406.) For this and other reasons, including other language in the
statute, a survey of the ballot materials regarding the statute,
and policy concerns, the Supreme Court concluded that section
1170.18 does not require excess custody credits to be applied to a
period of parole when a person is resentenced under that statute.
(See id. at pp. 406-409.)
Wilson applied the reasoning of Morales to conclude that
the words “credit for time served” contained in section 1172.6,
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subdivision (h) do not, standing alone, mandate an excess credit
offset against a person’s parole supervision period. (Wilson,
supra, 53 Cal.App.5th at p. 50.) It explained, a “court is not
required to mechanically apply excess custody credits to reduce or
eliminate the parole period imposed at a resentencing pursuant
to section [1172.6]. Instead, and notwithstanding excess custody
credits, the court may exercise its discretion when deciding
whether to order a period of parole.” (Id. at p. 46.)
Lamoureux “agree[d] with, and adopt[ed], the Wilson
court’s reasoning.” (Lamoureux, supra, 57 Cal.App.5th at p. 145.)
It further invoked the “usual presumption” that the Legislature
intended sections 1170.18 and 1172.6 to be construed the same,
because it used substantially similar language. (Ibid.) It
explained, “[g]iven the[ ] parallels between section 1170.95,
subdivision (g) and the Proposition 47 statute, we presume the
Legislature was aware of the Morales decision and its analysis of
the Proposition 47 statute. We also assume the Legislature
intended section 1170.95, subdivision (g) to receive the same
construction the Morales court previously gave to the Proposition
47 statute.” (Ibid.)
Appellant correctly notes that neither Wilson nor
Lamoureux considered the impact of section 1172.6, subdivision
(d)(1). We nevertheless find Lamoureux’s analysis persuasive,
particularly its emphasis on the Legislature’s use of substantially
similar language in sections 1170.18 and 1172.6 despite its
presumed awareness of Morales’s interpretation of section
1170.18. Appellant asserts that the Legislature included the
additional language of section 1172.6, subdivision (d)(1), thereby
rendering the comparison to section 1170.18 and Morales inapt.
We disagree. In Morales, the Supreme Court also noted that the
13
voters who enacted section 1170.18 were aware of section 2900.5,
which expressly states that any “credit for time served” applies to
the parole portion of any sentence. (See Morales, supra, 63
Cal.4th at p. 406; see also § 2900.5, subd. (c).) The Legislature’s
decision not to incorporate or duplicate language from section
2900.5 in section 1172.6 despite its presumptive awareness of
this aspect of Morales indicates its intent to adopt the approach
to excess custody credits and parole described in Morales.
Interpreting section 1172.6 as appellant suggests would
result in parole being eliminated or reduced in a substantial
majority of cases; petitioners seeking relief under that section
typically have been serving lengthy felony sentences for murder,
attempted murder, and voluntary manslaughter. (See Wilson,
supra, 53 Cal.App.5th at p. 51; see also Morales, supra, 63
Cal.4th at p. 405.) Such a result does not square with the express
language of the statute authorizing parole for up to two years and
would “undermine the trial court’s discretion in many cases.”
(Morales, supra, 63 Cal.4th at p. 405.)
IV. Direct Victim Restitution
Appellant finally contends that the trial court erred by
ordering him to pay restitution to the victims for expenses related
to Antonio’s burial. He argues that his assault conviction arose
from his fistfight with Antonio, “and not the victim’s death
resulting from his being shot by Mr. Acosta. As such, the victim’s
family did not suffer an economic loss ‘as a result of the
commission of a crime’” by appellant, and restitution accordingly
cannot be ordered under section 1202.4. Respondent contends
that appellant forfeited this argument. It further contends that
the restitution order is proper because appellant’s assault of
Antonio was a substantial factor in Antonio’s death. We reject
14
the claim of forfeiture (see People v. Slattery (2008) 167
Cal.App.4th 1091, 1094-1095), but agree with respondent that
the argument is unmeritorious.
Appellant focuses primarily on the first subdivision of
section 1202.4, the statute governing restitution. He emphasizes
that subdivision (a)(1) states, “[i]t 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 this case, the identified
economic losses were all related to Antonio’s non-accidental
death; appellant contends he is no longer convicted of “that
crime” and therefore should not be required to pay restitution.
He asserts that People v. Martinez (2017) 2 Cal.5th 1093(Martinez) is “dispositive of this issue.” We disagree.
Section 1202.4 reaches more broadly than appellant
suggests. Although section 1202.4 limits restitution to losses
caused by the criminal conduct for which the defendant was
convicted (People v. Lai (2006) 138 Cal.App.4th 1227, 1249),
“[t]hat is not to say that an acquittal on one count will preclude
the imposition of a restitution order under all circumstances.”
(People v. Percelle (2005) 126 Cal.App.4th 164, 180.) Section
1202.4, subdivision (f) requires the court to order restitution “in
every case in which a victim has suffered economic loss as a
result of the defendant’s conduct.” (§ 1202.4, subd. (f), italics
added.) “To the extent possible, the restitution order . . . shall
identify each victim and each loss to which it pertains, and shall
be of a dollar amount that is sufficient to fully reimburse the
victim or victims for every determined economic loss incurred as a
result of the defendant’s criminal conduct.” (Id., subd. (f)(3),
italics added.) Thus, “in the nonprobation context, a restitution
15
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.” (People v. Percelle, supra, 126 Cal.App.4th at p. 180.)
Tort principles of causation are used to determine whether
a loss was a result of a defendant’s conduct. (People v. Trout-
Lacy (2019) 43 Cal.App.5th 369, 372 (Trout-Lacy).) 6 Those
principles require first that the act be a “cause in fact,” or
necessary antecedent of the loss. (Ibid.) “‘[T]he “but for” test
governs questions of factual causation’ except in cases involving
concurrent independent causes, in which case the ‘substantial
factor’ test applies.” (Ibid.) Under the “but for” test, a
defendant’s conduct is a cause of the injury if the injury would
not have occurred but for the defendant’s conduct. (People v.
Foalima (2015) 239 Cal.App.4th 1376, 1396 (Foalima).) The
substantial factor test generally “subsumes the ‘but for’ test” and
holds that conduct is a cause in fact when it is a substantial
factor in bringing about the injury. (Ibid.) “The second aspect of
legal causation focuses on public policy considerations that limit
an actor’s responsibility for the consequences of his conduct.”
(Trout-Lacy, supra, 43 Cal.App.5th at p. 372.)
Appellant concedes that his conduct included starting a
fistfight with Antonio and summoning his friends when the fight
began to go badly for him. One of those friends, Acosta, fatally
shot Antonio. Appellant’s criminal conduct—the assault of
Antonio—clearly set in motion the unfortunate chain of events
6 Notably, the defendant in Trout-Lacy was also convicted of
assault by force likely to cause great bodily injury and ordered to
pay restitution for the victim’s funeral expenses despite not being
convicted of the victim’s murder. (See Trout-Lacy, supra, 43
Cal.App.5th at pp. 371-372.)
16
that culminated in Antonio’s death and thus bore a substantial
relationship to the victims’ losses. Even if Acosta’s gunshot is
viewed as an intervening cause, it does not relieve appellant of
liability because it was not an unforeseeable or extraordinary
occurrence. (Foalima, supra, 239 Cal.App.4th at p. 1397.) It was
reasonably foreseeable that summoning numerous people to
assist in a fight could result in serious or fatal injury to any of the
participants. We are not persuaded otherwise by appellant’s
assertion in reply that assault by means likely to cause great
bodily injury is not a lesser included offense of manslaughter.
We are also unpersuaded by appellant’s reliance on
Martinez. There, the court held that a defendant convicted of
leaving the scene of a traffic accident could not be subject to
restitution for injuries sustained in the accident itself. The court
explained, “defendant’s crime was not being involved in a traffic
accident, nor does his conviction imply that he was at fault in the
accident. Defendant’s crime, rather, was leaving the scene of the
accident without presenting identification or rendering aid.
Thus, under section 1202.4, the trial court was authorized to
order restitution for those injuries that were caused or
exacerbated by defendant’s criminal flight from the scene of the
accident, but it was not authorized to award restitution for
injuries resulting from the accident itself.” (Martinez, supra, 2
Cal.5th at p. 1098.) Here, appellant’s crime was assaulting
Antonio. Antonio’s death was clearly and foreseeably traceable to
that conduct even if not directly attributable to appellant’s fists.
As the trial court observed, and appellant does not seriously
dispute, “[i]t does result from his actions.” The restitution award
was supported by substantial evidence and was not an abuse of
17
the court’s discretion. (Trout-Lacy, supra, 43 Cal.App.5th at p.
373.)
DISPOSITION
The order is reversed in part, specifically as to the
calculation of appellant’s custody credits and their application to
his restitution and parole revocation fines. The order is
otherwise affirmed. On remand, we direct the trial court to
calculate appellant’s custody credits and apply those credits in
satisfaction of the $280 restitution fine imposed under section
1202.4 and the $280 parole revocation fine imposed under section
1202.45. The court shall also prepare a new abstract of
judgment.
CERTIFIED FOR PUBLICATION
COLLINS, ACTING P. J.
We concur:
MORI, J.
ZUKIN, J.
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