Filed 1/15/14 P. v. Macadory CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063575
Plaintiff and Respondent,
v. (Super. Ct. No. SCD243800)
MIKHAEL ANDREW MACADORY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Honorable
Richard S. Whitney, Judge. Affirmed.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Kathryn
Kirschbaum and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and
Respondent. Mikhael Andrew Macadory pleaded guilty to one count of second degree burglary
of a middle school. (Pen. Code,1 § 459.) The trial court suspended imposition of
sentence and placed him on probation for three years, including conditions he serve 120
days in custody and pay restitution of $6,300.36, the cost of installing security bars on
five bungalows at the school. Macadory contends the court erred in setting the amount of
restitution. Specifically, he contends restitution for commercial property security
upgrades is not authorized by section 1202.4, subdivision (f)(3); his conduct was not the
proximate cause of the school's decision to upgrade security; the amount would result in a
windfall to the school; and the restitution order is excessive and unreasonable because it
serves no rehabilitative purpose.2 For the reasons discussed below, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND3
On October 8, 2012, police officers responded to an alarm at Millennial Tech
Middle School. On arrival, the officers conducted a perimeter check and apprehended
1 All statutory references are to the Penal Code.
2 In his reply brief, Macadory contends the People implicitly conceded that the award is a windfall and serves no rehabilitative purpose by not addressing those issues in their respondent's brief. Macadory relies on People v. Bouzas (1991) 53 Cal.3d 467, a case in which the court inferred the People's concession of a statutory interpretation theory because "although they respond to each of defendant's other arguments, they simply ignored this [theory] in their brief and at oral argument." (Bouzas, at p. 480.) However, Macadory's argument fails to appreciate that the burden to show prejudicial error in the face of prima facie evidence of loss, as was presented here, rests on the appellant. (People v. Gemelli (2008) 161 Cal.App.4th 1539,1543.)
3 Because there was no preliminary hearing or trial, all facts are drawn from the probation officer's report, which incorporated certain exhibits Macadory presented in opposition to the People's restitution motion.
2 three suspects, including Macadory. Officers discovered that the boys' locker room had
been broken into and several of the locks on individual lockers had been cut off. One
classroom window had been taken off its hinges and pried open, and the classroom door
was propped open with a duffel bag that contained a computer monitor. The officers
found damage to two adjacent classrooms. One had pry marks on its window frame and
the other's window was shattered.
Millennial Tech Middle School had been burglarized four times since September
2012, but the school had not planned on putting bars on the classrooms because they were
bungalows scheduled to be moved early the following year. The school decided to put
security bars on the classrooms as a result of the burglary involving Macadory and the
other break-ins.
After Macadory's guilty plea, the court held a restitution hearing. Though the
People were prepared to present testimony from the school's vice principal, the court saw
no need for it and heard only the parties' arguments. The People argued Macadory's
burglary was one of the causes for the school's loss, and the installation of security bars to
a commercial building was a type of restitution recoverable under section 1202.4, making
Macadory liable for the full amount of restitution. Macadory, on the other hand, argued
there was no connection between all of the burglaries and the school's security upgrades,
which therefore were not the direct result of his crime. He maintained that awarding the
school the full cost of the upgrades would amount to a windfall, and section 1202.4
precluded an award for the cost of installing security measures on a commercial building
3 after a burglary, despite its use of the phrase "including, but not limited to" when
enumerating allowable losses. The court took the matter under submission.
The court eventually awarded the school the full amount of its requested
restitution. It relied on People v. Carbajal (1995) 10 Cal.4th 1114, which allows
imposition of restitution as a condition of probation, even when the victim's loss was not
caused by the defendant's criminal conduct, if the court finds the restitution will serve one
of the purposes set out in section 1203.1, subdivision (j). (Carbajal, at p. 1122.) The
court ruled that "while there may be other factors that led to the eventual decision of the
school to add security bars to classroom windows, it is clear that the conduct of the
defendant was a direct cause of the final decision to install enhanced security measures in
the school to not only protect future theft of school assets, but also to provide an added
measure of security and comfort for the school due to the breach caused by the
defendant's burglary and felonious conduct." It awarded the school $6,300.36 in
restitution to be paid jointly and severally by Macadory and his codefendant.
DISCUSSION
I. Legal Principles Regarding Restitution and Standard of Review
Restitution is constitutionally and statutorily mandated in California. (Cal. Const.,
art I., § 28, subd. (b); Pen. Code, § 1202.4.) Section 1202.4, subdivision (a)(1) authorizes
restitution for the "victim of a crime who incurs an economic loss as a result of the
commission of a crime." Subdivision (f) of section 1202.4 states: "[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
4 amount established by court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court. . . . The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing so and states them on
the record." Section 1202.4, subdivision (f)(3) further provides: "To the extent possible,
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, including, but not limited to, all of the following." The
statute then proceeds to list 12 items. Subdivision (f)(3)(J) of section 1202.4 authorizes
restitution for "[e]xpenses to install or increase residential security incurred related to a
violent felony."
"A restitution order is intended to compensate the victim for its actual loss and is
not intended to provide the victim with a windfall." (People v. Chappelone (2010) 183
Cal.App.4th 1159, 1172.) But, "[t]here is no requirement the restitution order be limited
to the exact amount of the loss in which the defendant is actually found culpable."
(People v. Carbajal, supra, 10 Cal.4th at p. 1121; Chappelone, at p. 1172.) The court
need only use a rational method that is reasonably calculated to make the victim whole.
(Chappelone, at p. 1172.)
Further, in determining whether there is a causal connection between the
defendant's act and the victim's loss, the trial court may apply tort principles of causation.
(People v. Jones (2010) 187 Cal.App.4th 418, 425 [there is "no reason why the various
principles involved in determining proximate causation under California tort law should
not also apply in awarding victim restitution under California criminal law"].) In
5 California, courts apply the substantial factor test in determining proximate cause.
(People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321.) This test requires " ' "that the
contribution of the individual cause be more than negligible or theoretical." ' " (Ibid.) A
force that has " ' "only an 'infinitesimal' or 'theoretical' part in bringing about injury,
damage or loss is not a substantial factor" [citation], but a very minor force that does
cause harm is a substantial factor.' " (Id. at p. 1322.)
We evaluate the court's restitution order for abuse of discretion.4 (People v.
Giordano (2007) 42 Cal.4th 644, 663; People v. Millard (2009) 175 Cal.App.4th 7, 26.)
" ' "A victim's restitution right is to be broadly and liberally construed." [Citation.]
" '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.' " [Citations.]'
[Citation.] However, a restitution order 'resting upon a " 'demonstrable error of law' "
constitutes an abuse of the court's discretion. [Citation.]' [Citation.] '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."
[Citations.] . . . "If the circumstances reasonably justify the [trial court's] findings," the
judgment may not be overturned when the circumstances might also reasonably support a
contrary finding.' " (Millard, supra, 175 Cal.App.4th at p. 26.) "However, when the
4 Macadory argues a de novo standard of review applies to this case because the court's findings "were based on the record, and not on any testimony presented at the hearing." However, he cites no authority supporting this contention in the restitution context. 6 propriety of a restitution order turns on the interpretation of a statute, a question of law is
raised, which is subject to de novo review on appeal." (People v. Garcia (2011) 194
Cal.App.4th 612, 617.)
II. The Court Did Not Commit Legal Error by Awarding Restitution for Commercial
Security Upgrades Under Section 1202.4, Subdivision (f)(3)
Macadory contends the trial court committed "legal error" when it ordered
restitution to reimburse expenses for installing a security system to the school. He
reasons that despite the Legislature's use of the phrase "including, but not limited to" in
section 1202.4, restitution for security upgrades is limited to residential security after a
violent felony because by being specific in its categories, the Legislature necessarily
limited the types of restitution allowed to those listed. Macadory's argument turns on an
interpretation of section 1202.4, subdivision (f)(3).
The California Supreme Court in People v. Giordano, supra, 42 Cal.4th 644
rejected an argument similar to that made by Macadory. In Giordano, the court
explained that the statutory scheme set forth in section 1202.4 implements the broad
constitutional mandate that restitution be imposed in every case where a crime victim
suffers " 'any economic loss.' " (Id. at pp. 655-656.) Reviewing the history of
California's direct restitution scheme, it observed that in 1996, the Legislature amended
the list of categories of compensable loss to specify that it is nonexclusive: "The relevant
clause now states: 'including, but not limited to, all of the following.' " (Id. at pp. 654,
655.) Giordano read the phrase "including, but not limited to," to be one of enlargement.
(Id. at pp. 660-661; see also People v. Western Air Lines (1954) 42 Cal.2d 621, 638 ["The
7 statutory definition of a thing as 'including' certain things does not necessarily place
thereon a meaning limited to the inclusions."].)
In Giordano, the defendant was driving under the influence of alcohol when he hit
and killed a man on a motorcycle. (People v. Giordano, supra, 42 Cal.4th at p. 650.)
The decedent's spouse requested victim restitution under section 1202.4 for future
economic losses—the amount of a life insurance policy based on the decedent's earnings
per year—attributable to her husband's death. (Ibid.) The defendant argued that section
1202.4 did not authorize restitution for prospective economic losses. (Id. at p. 657.) The
court found such an interpretation in conflict with the statute's plain meaning and
purpose, emphasizing that "[m]any, if not all, of the categories of loss compensable as
direct restitution include losses that are incurred after the occurrence of the crime . . . ."
(Id. at pp. 657-658.) Thus, "restitution orders must not be limited to the amount of
money that has been paid or lost prior to the restitution hearing." (Id. at p. 658.) The
defendant also argued that because the Legislature had expressly permitted awards for
loss of support to derivative victims from the restitution fund, but did not specifically
provide for such an award from the direct restitution statute, the Legislature did not
intend direct restitution to include such losses. (Id. at pp. 657, 659-660.) The Giordano
court rejected that argument: "Given the constitutional and legislative intent to provide
restitution for all crime victim losses, and the expressly nonexclusive list of categories of
loss included in the direct restitution statute, we decline to read into that statute an
implied limitation on restitution to surviving spouses based on a failure to enumerate that
type of loss explicitly." (Id. at p. 660; see also People v. Keichler (2005) 129
8 Cal.App.4th 1039, 1046 ["Because [section 1204.4] uses the language 'including, but not
limited to' these enumerated losses, a trial court may compensate a victim for any
economic loss which is proved to be the direct result of the defendant's criminal behavior,
even if not specifically enumerated in the statute."].) The Giordano court acknowledged
that use of the phrase "including but not limited to" was not without limits in that a court
could not award restitution that is "different in kind" from the categories of loss, but it
concluded "the loss of support incurred by a spouse is, like the enumerated categories of
loss, an economic loss incurred as the result of a criminal act." (People v. Giordano, at
pp. 660-661.)
Section 1202.4 identifies security upgrades in a residence as a category of
restitution in subdivision (f)(3)(J), but makes no mention of security upgrades for
commercial property. People v. Giordano, supra, 42 Cal.4th 644, however, compels us
to conclude that where a victim incurs the economic loss of installing security measures
in a commercial establishment as a result of defendant's criminal conduct, the trial court
may include that amount in a victim restitution award regardless of whether the defendant
was convicted of a violent felony, and regardless of the fact that the upgrades were not
for residential security. The list in the statute is not intended to tie the hands of the trial
courts, and instead courts must determine whether the victim of a crime incurred an
economic loss. (See People v. Thygesen (1999) 69 Cal.App.4th 988, 994.) Thus, if a
trial court properly determines that installation of a business security upgrade was an
"economic loss incurred as the result of the defendant's criminal conduct" (Thygesen, at
p. 992, italics omitted), then a restitution award for that loss cannot be challenged on the
9 basis that the restitution statute does not specifically list this type of loss. We therefore
reject Macadory's claim that a restitution award for the cost of security upgrades to the
school was legal error under the statute.
III. The Court Did Not Abuse its Discretion in Finding Macadory's Conduct Was a
Direct Cause of the School's Loss
Macadory contends his actions were not the proximate cause of the school's
decision to install security bars; that because his contribution was negligible or "purely
theoretical," the circumstances do not support the restitution award. He suggests that the
award is a windfall, as the upgrades were not a result of the crime underlying his
conviction but stemmed from the actions of others who were not apprehended. We
disagree.
Here, the People presented uncontradicted evidence that while the school had not
originally planned on installing security bars on the classrooms, it was required to do so
due to Macadory's October 8, 2012 burglary, as well as the other break-ins. Thus,
Macadory's contribution was not at all theoretical or negligible. And, based on this
evidence, the court made an express finding that Macadory's conduct was a "direct cause"
of the school's expenses to install enhanced security measures, and awarded the full
amount of installation costs. In People v. Holmberg, a business's computer equipment
and credit cards were damaged and stolen. (People v. Holmberg, supra, 195 Cal.App.4th
at pp. 1313-1314.) The defendant appeared in a store's video surveillance using one of
the stolen credit cards, and multiple hard drives from the business were recovered in his
home. (Id. at pp. 1314, 1322.) After defendant pleaded no contest to concealing stolen
10 property, the court ordered him to pay $18,072 in victim restitution, including $10,000
for lost business. (Id. at pp. 1315, 1316, 1318.) On appeal, the defendant argued he was
not liable for restitution because his conduct was not a substantial factor in causing the
victim's losses. (Id. at p. 1318.) Specifically, he claimed the losses were due to a
burglary of which he was not convicted, and therefore the losses would have occurred
even without his conduct. (Ibid.) In rejecting this argument, the court noted that there
"can be more than one cause of injury and that multiple causes can combine to cause
harm." (Id. at p. 1322.) Because he received the stolen property, thereby depriving the
business of its use, the defendant's conduct "was a concurrent cause of the victims'
losses." (Ibid.)
We conclude the evidence amply supports the conclusion that there was a causal
connection between Macadory's actions and the school's economic losses. Because there
can be more than one cause of injury, Macadory's actions were at least a concurrent cause
of the losses and therefore a substantial factor in the school's decision to install security
bars to the classrooms. Accordingly, the restitution award did not amount to a windfall.5
The school was awarded restitution for the exact amount they paid for the installation of
security bars on the classrooms, a decision finally triggered by Macadory's burglary
5 Rather than awarding the full amount of the business's loss ($27,269.12), the Holmberg court awarded $18,072 in restitution. (People v. Holmberg, supra, 195 Cal.App.4th at p. 1324.) The court determined which of the business's losses resulted from the burglary and which resulted from the defendant's concealing of stolen property. (Ibid.) Macadory does not contend that the court here should have reduced the amount of restitution; he only argues the entire restitution award was improper. 11 following the other burglaries. The trial court did not abuse its discretion in ordering him
to pay the entire cost of the school's security upgrades.
IV. The Restitution Award is Not Excessive
Macadory contends the restitution award is excessive and unreasonable because it
serves no rehabilitative purpose. He asserts that a restitution probation condition that
is ordered " 'without regard to the defendant's possible ability to comply is a futile
exercise,' " and thus, because he has no financial resources to pay the award, it will not
"teach him a lesson."
"[I]n addition to providing compensation to specific victims of crime under . . .
section 1202.4, restitution of victims as a condition of probation is also separately
authorized under . . . section 1203.1, subdivision (a)." (People v. Watson (2013) 220
Cal.App.4th 313, 322.) The restitution provided by that statute may be imposed when a
trial court determines it is " 'fitting and proper to the end that justice may be done, that
amends may be made to society for the breach of the law, for any injury done to any
person resulting from that breach, and generally and specifically for the reformation and
rehabilitation of the probationer.' " (Ibid., quoting § 1203.1, subd. (j).) Courts have
broad discretion to prescribe the specific conditions, but the condition "must be
reasonably related either to the crime of which the defendant is convicted or to the goal of
deterring future criminality." (People v. Carbajal, supra, 10 Cal.4th at pp. 1120, 1123;
see People v. Giordano, supra, 42 Cal.4th at p. 664, fn. 7 ["scope of a trial court's
12 discretion is broader when restitution is imposed as a condition of probation"].)6 The
amount of restitution to be paid by the defendant may exceed the losses for which they
are held culpable, as long as the restitution is " 'narrowly tailored to serve a purpose
described in section 1203.1.' " (People v. Carbajal, at p. 1126.)
We reject Macadory's argument that the restitution award in this case lacks any
rehabilitative purpose. The court here could properly determine such an award would
serve a salutary rehabilitative purpose by directing Macadory to accept the responsibility
for his actions and make amends to the school, which sought to protect its students'
learning tools and supplies from theft. Further, the rehabilitative purpose of a restitution
award does not rest on the court's finding of the defendant's ability to pay, but on the
direct relation between the harm and the punishment. (See People v. Carbajal, supra, 10
Cal.4th at p. 1124.) " 'Restitution is an effective rehabilitative penalty because it forces
the defendant to confront, in concrete terms, the harm his actions have caused. Such a
penalty will affect the defendant differently than a traditional fine, paid to the State as an
abstract and impersonal entity, and often calculated without regard to the harm the
defendant has caused.' " (Ibid.) It was well within the trial court's broad discretion to
condition Macadory's probation on his payment of restitution for the school's security
upgrades; the restitution condition in this case is reasonably related to the underlying
6 Macadory makes no argument that his restitution probation condition was not reasonably related to his criminal conduct or the goal of deterrence. Nor can he. The trial court reasonably concluded that the security upgrades were necessary because Millenial Tech Middle School's existing windows were insufficient to protect it from defendant's criminal conduct, and the upgrades were reasonably related to defendant's criminal conduct. 13 offense, and serves the purpose of "rehabilitating the offender and deterring future
criminality." (Id. at p. 1119.)
In any event, the premise of Macadory's challenge is his inability to pay the large
award. To the extent Macadory's arguments are directed at restitution authorized by
section 1202.4, his ability to pay the award is irrelevant. (§ 1202.4, subd. (g) ["A
defendant's inability to pay shall not be considered a compelling and extraordinary reason
not to impose a restitution order, nor shall inability to pay be a consideration in
determining the amount of a restitution order."].) To the extent his arguments are
directed at the award as a condition of probation, we conclude he has forfeited the
challenge because he did not raise any issue as to his financial condition during the
restitution hearing or in his motion opposing restitution. (See People v. Welch (1993) 5
Cal.4th 228, 237 [defendant forfeited challenge to reasonableness of probation condition
because he failed to raise it when sentenced]; People v. Quiroz (2011) 199 Cal.App.4th
1123, 1127 ["As a general rule, a defendant must first raise the issue in the trial court to
challenge a probation condition on appeal."].)
14 DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.