Filed 8/16/22 P. v. Alarid CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076166
v. (Super.Ct.No. RIF1703061)
FRANK SERGIO ALARID, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Adrian R.
Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Frank Sergio Alarid and his wife (Wife) were at the
Sevilla Night Club in Riverside when Wife was escorted out of the club by two security
officers for appearing to be too intoxicated. Wife was upset and said she had been
arguing with defendant, who was still in the club. Defendant came outside and
approached Wife. She told the security officers she did not want to leave with him.
Defendant eventually got his car and Wife agreed to go home with him. Once they were
in the car, defendant punched Wife three times in the face with a closed fist until she
appeared to be unconscious. The security officers yelled at defendant to stop. Defendant
drove his car directly at one of the security officers, hitting him in the knee with the car
and causing him to fall to the ground. Defendant drove away.
Defendant was convicted on September 30, 2020, of one count of assault with a
deadly weapon other than a firearm, a car (Pen. Code, § 245, (a)(1); count 1)1 ; and one
misdemeanor count of battery on a cohabitant (§ 243, subd. (e)(1); count 2).2 Defendant
was sentenced to three years probation, which included a 364-day jail term.
Defendant claims on appeal that (1) the trial court erred by admitting evidence of
other uncharged domestic violence evidence pursuant to Evidence Code section 1109; (2)
the evidence was insufficient to support his conviction of assault with a deadly weapon;
(3) the trial court erred in imposing victim restitution in the amount of $2,400 without
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The jury was unable to reach a verdict on a great bodily injury allegation on count 1 alleged pursuant to section 12022.7, subdivision (a), and that allegation was dismissed by the People.
2 sufficient proof of the amount and without affording him a hearing; and (4) remand is
necessary in order to reduce his probation term from three years to two years under
recently-enacted Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2) (AB 1950), which
amended Penal Code section 1203.1 effective January 1, 2021 to limit the probation term
for most felonies to two years.
FACTUAL HISTORY
A. PEOPLE’S CASE-IN-CHIEF
1. CURRENT INCIDENT
On the night of January 14, 2017, Christopher H. was working as a private
security guard at Sevilla Night Club in Riverside (the club). Cameron M. also worked as
a security guard as an employee of the club. At the location, there was an inside dance
area and an outdoor glassed-in patio.
Around 1:00 a.m., on January 15, 2017, Wife was escorted out of the club by
Cameron and another security guard for being overly intoxicated. Wife had slurred
speech and was “out of it.” She was having trouble standing. Christopher was outside
the club and directed Wife to sit in the patio area. Wife stated she had been at the club
with the father of her children and they had been arguing.
Defendant emerged from the club and approached them. Defendant was
aggravated or mad; he told Wife to get up and they were leaving. Christopher told
defendant they were still evaluating Wife to see if she needed any medical attention.
Defendant walked away and punched the glass patio wall with his fist. Wife told
Christopher she would go with defendant; she insisted he would not hurt her.
3 Wife walked out to the street but fell. Christopher went to check on her but
defendant grabbed her by the arm and her breast. She started screaming. Christopher
brought her back to the patio. Wife sat for a few minutes and then said that she was fine.
She told defendant to go get their car.3
Defendant drove up in his car. Christopher stood at the front of the car while
Cameron and defendant helped Wife get into the car. Defendant got back into the
driver’s seat. Defendant punched Wife in the face with a closed fist. Wife slumped over
and appeared to pass out. Christopher and Cameron yelled to defendant to turn off his
car and get out so they could make sure Wife was okay. Cameron tried to open one of
the doors to help Wife, but it was locked.
Defendant accelerated backward almost hitting a passing truck. Defendant then
accelerated his car forward, veering toward Christopher and Cameron who were standing
on the opposite side of the road. The car came directly at Christopher. Christopher tried
to get out of the way but was struck in the right leg area by the left front corner of the car.
Christopher was knocked down to the ground and fell into a planter. He did not
immediately feel any pain. Cameron stated that defendant had to turn the car toward him
and Christopher to hit Christopher.
Defendant drove off. Christopher stood up but fell down again. They called the
police. Christopher gave a description of defendant and Wife to the police. Christopher
did not seek medical treatment that night. He only had red marks on his leg. The next
3 Cameron testified that the car had been in the valet and was pulled up to the restaurant.
4 morning he started to have pain. He went to a chiropractor for treatment. He had
suffered injuries that were not present prior to being hit by the car. He was treated for
five to six months until he could no longer afford treatment. He still had pain in his
lower back. The pain had affected his everyday life.
On April 15 2017, Christopher identified defendant from a six-pack photographic
lineup. Christopher identified the woman at the club that night from a photograph he was
shown prior to trial.
Wife was nervous to testify in the case. Defendant and Wife had been married for
13 years. They had six children and she was pregnant at the time of trial. She and
defendant went to the club on January 14, 2017 together. She only had two drinks; she
was not drunk. Wife denied she was escorted out of the club and never spoke with any of
the security guards. She and defendant walked out of the club around 1:00 a.m. Her feet
hurt so he went to the get the car while she waited out in front of the club. Defendant
never grabbed her arm and she was never screaming.
While Wife was waiting, a group of men came toward her. They were wearing
suits but did not have anything identifying them as security guards. She was afraid
because she was alone. They tried to talk to her but she did not respond. Defendant
arrived with their car and helped Wife into the passenger’s seat. When defendant got
back in the car he did not hit or slap her. Defendant drove out of the parking lot. He did
not hit anyone.
Riverside Police Detective Zuetel responded to the club that night. He arrived
around 1:00 a.m. and first spoke with Christopher. Christopher told him that defendant
5 had slapped Wife three times, and punched her twice with a closed fist. Defendant then
drove his vehicle toward Christopher, striking him. Cameron told him a similar story
about what had happened. Christopher was wearing a security guard uniform; Cameron
was wearing a suit. Christopher did not want medical attention.
Dr. Scott Won was a chiropractor who treated Christopher. On February 15, 2017,
Christopher came to his office complaining of pain and limited range of motion
throughout his body. Christopher had already sought treatment at an urgent care facility.
Christopher was suffering from lower back pain, which was shooting down his legs. He
had pain in his knees and neck. Dr. Won took x-rays and determined that Christopher
had bulging discs in his lower back. This would have contributed to the shooting pain
down his legs. Dr. Won observed that Christopher had several sprains including on his
right knee. He suffered pain and swelling in the knee. He had loss of motion in the knee.
Christopher’s range of motion in his spine was significantly impacted. His right hip was
injured and he had a moderate loss of range of motion.
Dr. Won treated Christopher from February 15, 2017, to April 14, 2017. His
range of motion in the spine improved. He had minimal improvement on his right hip
and knee. Christopher came to his office two or three times each week. Christopher still
had pain when he stopped treatment.
2. PRIOR INCIDENTS
a. 2012 Incident
Rialto Police Officer Ballew was on duty as a patrol officer on March 3, 2012. He
responded to an emergency room at a hospital in Fontana on that day. He spoke with
6 Wife. Wife told Officer Ballew that she had been attacked by defendant at their home in
Rialto. Wife had discovered that defendant was seeing another woman and they argued
about it. Wife had a cellular telephone in her hand and defendant tried to take it from her.
He pushed her to the ground and sat on top of her trying to get the phone away from her.
He got up and allowed her to go inside their residence.
The altercation continued inside the residence. Defendant pushed Wife on the
bed, got on top of her and took her phone. He threw it and broke it. Wife had several
scratches on her upper body as well as redness on her upper chest area.
Wife admitted in her testimony that she spoke with an officer at the hospital on
March 3, 2012. She insisted that she and defendant fell to the ground outside while he
was trying to get her phone. He did not push her to the ground. She denied that
defendant followed her to the bedroom and pushed her on the bed. She had no injuries
that day caused by defendant. She went to the hospital because she had abdominal pain.
b. 2017 Incident
San Bernardino Police Detective Olvera responded to a residence on February 19,
2017, located on Lincoln Avenue in San Bernardino at approximately 2:00 a.m. When he
arrived, all of the lights in the home were on. He could hear from outside a loud
television and a male and female arguing. He could also hear children screaming and
crying. Detective Olvera knocked on the front door identifying himself as a police
officer. No one answered the door. Detective Olvera spoke with a neighbor who
confirmed hearing the children screaming and crying inside, and a male and a female
7 arguing. Detective Olvera was concerned about the children so he and other officers
forced entry by kicking in the front door.
Detective Olvera observed defendant standing inside the apartment. Defendant
had his arms to his sides with his fists clenched. He had watery eyes and an unsteady
gait. Detective Olvera was able to detain defendant. Three children ran down the stairs
crying. Detective Olvera went upstairs because he heard children crying. He found a
locked bathroom and ordered the occupants out. Detective Olvera had to kick in the
bathroom door. Inside was Wife with two small children. Wife was crying and looked
scared.
Wife had redness and swelling on her forehead and right shoulder. She also had
scratches on her arm and shoulder. She was bleeding. Wife blamed the injuries on a skin
condition. Detective Olvera concluded that some type of domestic violence had
occurred.
Wife was asked about the incident that occurred on February 19, 2017, during her
testimony. She acknowledged that officers responded to their house on Lincoln Avenue
at approximately 2:00 a.m. on February 19. She and her children were watching a movie.
Defendant was sleeping in their upstairs bedroom. She was afraid that a neighbor had
made a noise complaint. When the police arrived, she and defendant were not arguing
and the children were not crying. Wife was scared—she did not like the police—so she
sent all the children to their bedrooms and woke up defendant. Her baby started crying
so she took him into the bathroom. She locked the door. The police eventually broke
8 open the door. They put her in handcuffs. She denied she had any injuries. She and
defendant were not arguing that night.
Defendant presented no evidence on his own behalf.
DISCUSSION
A. EVIDENCE CODE SECTION 1109
Defendant contends the trial court erred by admitting his prior domestic violence
incidents occurring between him and Wife in 2012, and after the instant crime in 2017, as
propensity evidence under Evidence Code section 1109. Defendant insists the prior act
of domestic violence that occurred on March 3, 2012, was too remote. The remoteness of
the incident rendered it more prejudicial than probative. As for the incident occurring on
February 19, 2017, the admission of the incident was more prejudicial than probative
because of the closeness between the two incidents.
1. ADDITIONAL FACTUAL HISTORY
Prior to trial, defendant brought a motion to exclude any prior acts of domestic
violence. The People filed a trial brief outlining the prior acts of domestic violence
committed by defendant against Wife, which mirrored the facts presented at trial and
need not be repeated here. The People insisted these incidents were admissible pursuant
to Evidence Code section 1109.
The motion was heard prior to trial. Defendant argued the trial court should
exclude the evidence under Evidence Code section 352. Defendant argued it would take
an undue consumption of time as two different officers would have to testify. As for the
incident in 2012, defendant argued the incident was prejudicial as Wife was four months
9 pregnant. The trial court agreed that it was highly prejudicial that Wife was pregnant.
The trial court found that it would not be an undue consumption of time to present the
2012 incident. It was not going to mislead or confuse the jury. The People were
admonished not to have the testifying officer or Wife mention that she was pregnant. The
probative value substantially outweighed any prejudice.
Defendant argued that a subsequent incident was not relevant. It would also result
in an undue consumption of time and was cumulative to the 2012 incident. The trial
court found that the probative value outweighed any prejudice. It would not confuse the
jury and would not take any undue amount of time. The evidence was not more
inflammatory than the incident in the current case.
After Wife testified, the trial court admonished the jury, “the People have
presented evidence that he defendant committed domestic violence that was not charged
in this case as you just heard. . . . [¶] You may consider this evidence only if the People
have proved by a preponderance of the evidence that the defendant, in fact, committed
the uncharged domestic violence. Proof by a preponderance of the evidence is a different
burden of proof from proof beyond a reasonable doubt. A fact is proved by
preponderance of the evidence if you conclude that it is more likely than not that the fact
is true. If the People have not met this burden of proof, you must disregard this evidence
entirely. If you decide that the defendant committed the uncharged domestic violence,
you may, but are not required to, conclude from that evidence that the defendant was
disposed or inclined to commit domestic violence, and based upon that decision also
conclude that the defendant was likely to commit the offenses charged in this case. [¶] If
10 you conclude that the defendant committed the uncharged domestic violence, that
conclusion is only one factor to consider along with all the other evidence. It’s not
sufficient by itself to prove that the defendant is guilty of the charges in this crime. The
People still must prove each element of each charge beyond a reasonable doubt. Do not
consider this evidence for any other purpose.”
2. ANALYSIS
Subdivision (a)(1) of Evidence Code section 1109 provides in part, “in a criminal
action in which the defendant is accused of an offense involving domestic violence,
evidence of the defendant’s commission of other domestic violence is not made
inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section
352.” Subdivision (e) provides, “Evidence of acts occurring more than 10 years before
the charged offense is inadmissible under this section, unless the court determines that the
admission of this evidence is in the interest of justice.” “[I]n enacting Evidence Code
section 1109, the Legislature found that in domestic violence cases evidence of prior acts
is particularly probative in demonstrating the propensity of the defendant. ‘ “The
propensity inference is particularly appropriate in the area of domestic violence because
on-going violence and abuse is the norm in domestic violence cases. Not only is there a
great likelihood that any one battering episode is part of a larger scheme of dominance
and control, that scheme usually escalates in frequency and severity. Without the
propensity inference, the escalating nature of domestic violence is likewise masked.” ’ ”
(People v. Cabrera (2007) 152 Cal.App.4th 695, 705-706.)
11 “Under Evidence Code section 352, a trial court may exclude otherwise relevant
evidence when its probative value is substantially outweighed by concerns of undue
prejudice, confusion, or consumption of time. ‘Evidence is substantially more prejudicial
than probative [citation] if, broadly stated, it poses an intolerable “risk to the fairness of
the proceedings or the reliability of the outcome.” ’ ” (People v. Riggs (2008) 44 Cal.4th
248, 289-290.) “We review a challenge to a trial court’s decision to admit [this] evidence
for abuse of discretion.” (People v. Johnson (2010) 185 Cal.App.4th 520, 531.)
Here, the act occurring in 2012 was only five years prior to the charged offense. 4
It was not too remote under the statute. Moreover, the two prior incidents involved
defendant and Wife. “ ‘The principal factor affecting the probative value of an
uncharged act is its similarity to the charged offense.’ ” (People v. Hollie (2010) 180
Cal.App.4th 1262, 1274.) The prior incidents occurred between defendant and Wife and
showed a pattern of defendant getting angry with Wife, resulting in application of
physical violence against her. The prior incidents also did not involve an undue
consumption of time or confuse the jury. Wife presented her testimony on the prior
incidents during her testimony on the charged offense, and only one officer was called as
to each incident. The two prior incidents were highly relevant to the charges, which
involved Wife denying any abuse by defendant.
4Defendant relies on People v. Harris (1998) 60 Cal.App.4th 727, 738-740. However, the prior crimes in Harris occurred 23 years prior to the charged offense. (Ibid.)
12 Additionally, the prior incidents were not more inflammatory than the charged
offense. In the instant case, defendant punched Wife three times in the face and she
appeared to be rendered unconscious. In the prior incidents, she only suffered scratches
and redness. The prior incidents did not involve blows to the head as in this case, and
did not involve more serious injuries.
Defendant insists that the admission of the prior incidents resulted in the jury
determining his guilt on count 2 based on the cumulative effect of all three incidents, and
not based on the evidence of the charged offense. However, the jury was specifically
instructed it could not consider the evidence as defendant was guilty of the charged
offense. There simply is no evidence that the jury found defendant guilty of the charged
offense based solely on the prior offenses.
The trial court properly admitted the two prior incidents of domestic violence
between Wife and defendant because their probative value outweighed any potential
prejudice.
B. INSUFFICIENT EVIDENCE OF ASSAULT WITH A DEADLY
WEAPON
Defendant contends the evidence was insufficient to support his conviction of
assault with a deadly weapon. Defendant insists he did not drive his vehicle in an attempt
to commit an injury to another person.
1. STANDARD OF REVIEW
In assessing the sufficiency of the evidence to support a conviction, “we review
the whole record to determine whether any rational trier of fact could have found the
13 essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review
the evidence in the light most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] . . . ‘We resolve neither credibility issues nor evidentiary conflicts;
we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient
evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
2. ASSAULT WITH A DEADLY WEAPON
“The crime of assault with a deadly weapon has two components: ‘(1) the assault,
and (2) the means by which the assault is committed.’ ” (In re Raymundo M. (2020) 52
Cal.App.5th 78, 85.) “ ‘As used in section 245, subdivision (a)(1), a “deadly weapon” is
“any object, instrument, or weapon which is used in such a manner as to be capable of
producing and likely to produce, death or great bodily injury.” ’ ” (In re B.M. (2018) 6
Cal.5th 528, 532-533 (B.M.).) Accordingly, “the object alleged to be a deadly weapon
must be used in a manner that is not only ‘capable of producing’ but also ‘ “likely to
produce death or great bodily injury.” ’ ” (Id. at p. 533.)
“Whether an object is a deadly weapon is a question of fact. [Citation.] ‘In
determining whether an object not inherently deadly or dangerous is used as such, the
14 trier of fact may consider the nature of the object, the manner in which it is used, and all
other facts relevant to the issue.’ ” (People v. Marsh (2019) 37 Cal.App.5th 474, 485.)
“Analysis of whether the defendant’s manner of using the object was likely to produce
death or great bodily injury necessarily calls for an assessment of potential harm in light
of the evidence. As noted, a mere possibility of serious injury is not enough. But the
evidence may show that serious injury was likely, even if it did not come to pass.” (B.M.,
supra, 6 Cal.5th at p. 535.)
In People v. Russell (2005) 129 Cal.App.4th 776, a case in which the victim was
pushed in front of a car by the defendant and the defendant was found to have used the
car as a deadly weapon, the court noted that “[t]he law makes clear a person who operates
or drives a vehicle in an attempt to injure another person has committed assault with a
deadly weapon, to wit, the car.” (Id. at p. 782.) It noted, “An automobile weighing
several thousand pounds and underway on a street is capable of seriously injuring and
often killing any person it strikes.” (Id. at p. 785.)
Substantial evidence supported the determination by the jury that defendant
created a likelihood of great bodily injury when he drove his car and hit Christopher.
Christopher testified that, “the vehicle could have stayed straight on his normal pace out
of the driveway, but it veered on the opposite side of the road where I was standing.”
Christopher yelled for defendant to stop the car. Cameron also testified that defendant
drove his car directly at Christopher. Christopher tried to get out of the way but was
struck in the right leg area by the left front corner of the car. Such actions were likely to
cause great bodily injury to Christopher.
15 Defendant claims he did not drive the vehicle in an attempt to commit an injury to
another, but rather was only trying to leave the club. However, as stated, the evidence
established that defendant could have driven away from the club and not harmed anyone.
Instead, he steered his vehicle toward Christopher and Cameron, striking Christopher,
who was unable to get out of the way. Christopher was knocked to the ground based on
the force of the vehicle striking him. Although the jury found that Christopher had not
suffered a substantial injury, he suffered pain and swelling in his knee. The evidence
established that defendant used his vehicle in a manner that was capable and likely to
produce great bodily injury.
Defendant additionally contends that if he drove as indicated by Christopher and
Cameron, the jury would not have been deadlocked on the great bodily injury allegation.
Christopher testified he was struck in the knee but other evidence presented by Dr. Won
showed that his serious injuries were to his back. The jury reasonably could have
concluded that he did not suffer such injury as a result of defendant hitting Christopher
with his car. However, as stated, no injury is required in order to find defendant guilty of
assault with a deadly weapon. (B.M., supra, 6 Cal.5th at p. 535.) It was enough that
defendant driving and hitting Christopher was likely to cause great bodily injury.
Substantial evidence supports defendant’s conviction for assault with a deadly weapon.
C. VICTIM RESTITUTION
Defendant contends the trial court erred when it imposed victim restitution
payable to Christopher in the amount of $2,400 without sufficient proof that this would
compensate Christopher for the injuries caused by defendant and without a hearing.
16 Remand is necessary for the trial court to hold a hearing and defendant must be afforded
an opportunity to contest any amount ordered.
The probation report provided that Christopher was sent a Victim
Impact/Statement of Loss letter by the probation department. He was advised that he had
a right to be present at the sentencing hearing and had the “right to submit receipts for
reimbursement if the offense(s) resulted in financial loss.” Nothing was sent back in
writing but the probation officer spoke with Christopher on the phone on October 26,
2020. Christopher stated he received medical treatment for his injuries until he could not
afford it. He had $2,400 in medical bills. Christopher wanted restitution for his medical
expenses. The probation report recommended that a term of defendant’s probation be the
payment of the $2,400 restitution fine to Christopher.
At sentencing, the trial court stated, “I’m awarding restitution to [Christopher],
according to the recommendation of the probation officer, which is 2,400. If he has
further medical expenses down the road, he can also request further reimbursement so
long as they’re associated with his injury that he sustained that night.” Victim restitution
for Wife was to be determined later. Defendant did not object to any of the probation
terms and had no questions about the terms.
2. RELEVANT LAW
“[I]n 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
17 claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).)
The restitution order “shall be of a dollar amount that 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).) This includes medical expenses.
(§ 1202.4, subd. (f)(3)(B).) “[D]irect victims of crime have a statutory right to restitution
on the full amount of their losses.” (People v. Baker (2005) 126 Cal.App.4th 463, 468.)
A defendant has the right to a restitution hearing “to dispute the determination of
the amount of restitution.” (§ 1202.4, subd. (f)(1).) At a victim restitution hearing, the
People may make a prima facie case for restitution based on the victim’s testimony or on
some other claim or statement as to the amount of his or her economic loss. (People v.
Millard (2009) 175 Cal.App.4th 7, 26.) Once the People have made a prima facie case
for restitution, “ ‘the burden shifts to the defendant to demonstrate that the amount of the
loss is other than that claimed by the victim.’ ” (Ibid.)
“ ‘ “ ‘[S]entencing judges are given virtually unlimited discretion as to the kind of
information they can consider’ ” ’ in determining victim restitution.” (People v. Phu
(2009) 179 Cal.App.4th 280, 283.) “ ‘ [T]he trial court is entitled to consider the
probation report when determining the amount of restitution. [Citation.] For example,
statements by the victims of the crimes about the value of the property stolen constitute
‘prima facie evidence of value for purposes of restitution.’ ” (People v. Keichler (2005)
129 Cal.App.4th 1039, 1048.) “Absent a challenge by the defendant, an award of the
amount specified in the probation report is not an abuse of discretion.” (Ibid.)
18 A restitution order is reviewed under the abuse of discretion standard. (People v.
Giordano (2007) 42 Cal.4th 644, 663.) As long as the record contains “ ‘ “ ‘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.’ ” ’ ” (People v. Taylor (2011) 197
Cal.App.4th 757, 761.)
3. WAIVER
The People contend defendant waived this claim as he never objected to the
amount recommended in the probation report and did not request a hearing. Defendant
was aware of the probation report and the recommendation that his probation term
include victim restitution in the amount $2,400 to compensate Christopher for his
medical expenses. Defendant did not object to the amount and did not request a hearing.
The trial court could rely on the statements in the probation report to support the amount
of restitution. (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.) As such,
defendant has waived the claim on appeal.
Defendant claims that if this court determines that he has waived the claim, he
received ineffective assistance of counsel for his counsel’s failure to object to the lack of
documentation and the right of defendant to have a hearing. “The standard for showing
ineffective assistance of counsel is well settled. ‘In assessing claims of ineffective
assistance of trial counsel, we consider whether counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms and whether the
defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a
19 presumption that counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy. Defendant thus bears the burden of establishing constitutionally
inadequate assistance of counsel.’ ” (People v. Gray (2005) 37 Cal.4th 168, 206-207; see
also Strickland v. Washington (1984) 466 U.S. 668, 687.)
“When a defendant alleges that his counsel failed to take a particular action, he
must show a reasonable probability that the attorney’s omission affected the outcome of
the case. [Citation.] [I]t is not enough [that a defendant] merely . . . assert that his
counsel should have requested a hearing on the amount of restitution. Rather, he had the
burden of demonstrating that the value recommended in the probation report was
excessive. In other words, he had to make a sufficient showing that but for his counsel’s
conduct, the court was reasonably likely to have ordered a lesser amount or no
restitution.” (People v. Foster, supra, 14 Cal.App.4th at p. 947.)
Defendant insists that counsel should have objected to the amount in the probation
report as not being supported by sufficient documentation. However, as stated, the law
supports that the trial court could rely on statements in the probation report in
determining the amount of restitution and the burden was on defendant to rebut the
amount. (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.
Defendant further claims that if he had been afforded a hearing, his counsel could
have questioned whether the medical expenses incurred by Christopher were due to his
injuries from being hit by defendant’s car. However, defendant does not provide what his
counsel could have presented at the hearing other than speculation that all of
20 Christopher’s expenses were not related to him being hit by defendant’s car. Such
speculation does not support that he received ineffective assistance of counsel.
Defendant fails to meet his burden of demonstrating that a more favorable outcome was
probable, had his counsel objected to the restitution amount and requested a hearing on
the amount.
D. PROBATION TERM
Defendant contends pursuant to AB 1950 that remand is necessary for the trial
court to reduce his probation term from three years to two years.
Here, at the time of sentencing on November 16, 2020, the trial court indicated it
intended to grant probation for a term of three years, with one year in county jail custody.
The trial court stated as to the sentence, “It’s three, mid -term is three on Count 1, and
then the one year, concurrent, on Count 2, that is four years.” The trial court clarified
that it was three years.
At the time of sentencing, section 1203.1, subdivision (a), provided for a three-
year probation term for most felony offenses. However, AB 1950 amended section
1203.1, subdivision (a), effective January 1, 2021. It now provides that the court “in the
order granting probation, may suspend the imposing or the execution of the sentence and
may direct that the suspension may continue for a period of time not exceeding two years,
and upon those terms and conditions as it shall determine.” (§ 1203.1, subd. (a).) Other
courts have found that AB 1950 is retroactive and we agree. (People v. Quinn (2021) 59
Cal.App.5th 874, 884.)
21 The People contend that since defendant was convicted of domestic battery, he
was not entitled to the reduction of his probation term pursuant to Penal Code section
1203.1. Penal Code section 1203.1, subdivision (l), provides, in part, “The two-year
probation limit in subdivision (a) shall not apply to: [¶] (1) An offense listed in
subdivision (c) of [Penal Code s]ection 667.5 and an offense that includes specific
probation lengths within its provisions.” Penal Code section 1203.097 provides the
guidelines for probation in domestic violence cases. Penal Code section 1203.097
provides, “(a) If a person is granted probation for a crime in which the victim is a person
defined in Section 6211 of the Family Code, the terms of probation shall include all of
the following: [¶] (1) A minimum period of probation of 36 months, which may include
a period of summary probation as appropriate.” Family Code section 6211 defines
“domestic violence” as abuse perpetrated against a spouse or former spouse, cohabitant,
or a person with whom the perpetrator has had a child.
Here, defendant was found guilty of misdemeanor domestic battery in count 2.
The jury was instructed that in order to find defendant guilty of battery against a
cohabitant in count 2, it must find that Wife was defendant’s former spouse, cohabitant, a
person with whom defendant had a relationship, or the mother of defendant’s child. The
jury was instructed that defendant was presumed to be the father of Wife’s children.
Hence, in finding defendant guilty of count 2, the jury determined that the crime involved
domestic violence within the meaning of section 1203.097.
The trial court was required to impose probation pursuant to section 1203.097.
“[A] defendant who is placed on probation for committing a crime against a victim of
22 domestic violence, as defined by section 1203.097, has committed ‘an offense that
includes specific probation lengths within its provisions.’ [Citation.] In such
circumstances, and in the absence of a contrary legislative indication, the two-year felony
probation limitation codified in section 1203.1, subdivision (a) does not apply.” (People
v. Forester (2022) 78 Cal.App.5th 447, 457-458.)
For purposes of applying the maximum periods of probation in section 1203.1,
courts have treated probation for multiple counts as a single period, thus precluding the
imposition of a series of separate and consecutive probation terms. (See Fayad v.
Superior Court (1957) 153 Cal.App.2d 79, 83-84 [“multiple sentences directed to run
consecutively are to be regarded as a single ‘sentence of imprisonment’ for the purpose of
applying the provisions of Penal Code, § 1203a and the court is without authority to
impose a series of separate and consecutive periods of probation”]; People v. Blume
(1960) 183 Cal.App.2d 474, 481-482; People v. Cole (2020) 50 Cal.App.5th 715, 719.)
“[D]efendants convicted of multiple counts, any one of which excludes them from AB
1950 and who are subject to the ‘maximum sentence’ period of probation, will have the
status of an excluded defendant for the entire case, regardless of the number of counts
and regardless of whether some of the counts are crimes which otherwise would be
subject to limited terms of probation under AB 1950.” (Couzens, et al., Sentencing Cal.
Crimes (The Rutter Group 2021) §§ 8:15.20.)
Here, the trial court stated that it was imposing and suspending a three-year
sentence on count 1, and imposed a sentence of one year on count 2, which was to run
concurrent to count 1. However, it granted defendant a single probationary term of three
23 years. The charges included a conviction for domestic violence, which was subject to a
three-year probation term, an exception to section 1203.1’s two-year probation limit. The
trial court properly imposed a three-year probation term.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
FIELDS J.