Filed 12/31/19 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

SYLVIA MERCEDES SMITH,

Defendant and Appellant.

E071671

(Super.Ct.No. FSB18000216)

OPINION

APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed in part; reversed in part.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant, Sylvia Mercedes Smith, was tried by a jury and convicted of being an accessory after the fact to murder. (Pen. Code, § 32.) Defendant was sentenced to 16 months in state prison and ordered to pay, jointly and severally with her codefendant, $2,974.58 in victim restitution for burial costs. Defendant appealed.

On appeal, defendant argues that the court erred by ordering defendant to pay victim restitution for burial costs because she was an accessory after the fact and so the costs do not arise from the crime for which she was convicted. The People agree that this was in error. We agree with the parties and vacate the order ordering defendant to pay burial costs.

II. FACTUAL AND PROCEDURAL BACKGROUND

At the time of his murder, Anthony Hernandez was dating James Baltierra’s mother, Jackie R. On the evening of January 5, 2018, an employee of a liquor store that was on break observed Jackie R. and Hernandez walking across the parking lot of the liquor store and arguing. Eventually, Jackie R. began hitting Hernandez with what appeared to be a rolled up newspaper.

Defendant then pulled into the parking lot driving a white Dodge Charger with Baltierra in the passenger seat. Baltierra got out of the car and approached Hernandez, at the same time asking him, “‘[w]hat the fuck are you doing?’” Baltierra then hit Hernandez several times, and Hernandez fought back. Hernandez began to get the upper hand in their fight, at which point Baltierra pulled a gun from his waistband and shot Hernandez once. Baltierra then got back in the Dodge Charger, and he and defendant drove away. Hernandez died from a .45-caliber gunshot wound to his chest.

Defendant owned the Dodge Charger. The Dodge Charger contained a Global Positioning System that could also indicate when the car’s ignition was turned on and off. These records showed that the car was turned on near defendant’s residence shortly before the shooting and turned off near her residence shortly after the shooting. The next day, the records showed the car was in Arizona, where it remained for five days.

The District Attorney of San Bernardino County charged defendant and codefendant by information. Baltierra was charged with murder. (§ 187, subd. (a).) Defendant was charged with being an accessory after the fact to murder. (§ 32.) On September 27, 2018, a jury found defendant and Baltierra guilty.

Prior to sentencing, the probation report recommended that defendant be ordered to pay victim restitution for the costs of Hernandez’s burial. Defense counsel objected to this recommendation, arguing there was no nexus between being an accessory after the fact and Hernandez’s burial costs. The court imposed the requested restitution order over this objection, ordering that defendant and Baltierra be jointly and severally liable for $2,974.58 in victim restitution.

The court sentenced defendant to the low term of 16 months in state prison. Defendant received 588 days in presentence custody credits, which satisfied her sentence. She had already been released from custody prior to sentencing and remained out of custody after sentencing.

Defendant timely appealed.

III. DISCUSSION

Defendant argues that the trial court erred by ordering defendant to pay $2,974.58 in victim restitution for the costs of Hernandez’s burial. The People agree with defendant. We agree with the parties and reverse the restitution order as to defendant.

“We review the trial court’s restitution order for abuse of discretion. [Citation.] A restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court’s discretion.” (People v. Woods (2008) 161 Cal.App.4th 1045, 1048-1049.)

Section 1202.4 states “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.” Specifically, “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).)

Section 1202.4 has been interpreted as limiting restitution awards for economic loss to losses “resulting from the criminal conduct supporting the crimes of which the defendant was convicted.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1247.) Therefore, the question before this court is whether a murder victim’s burial costs are an economic loss resulting from defendant’s criminal conduct as an accessory after the fact to that murder.

Woods directly answers that question. There, as here, “[d]efendant claim[ed] that he may not lawfully be ordered to pay victim restitution for economic losses stemming from the murder because he was not convicted of murder, but only of being an accessory after the fact.” (People v. Woods, supra, 161 Cal.App.4th at p. 1049.) The court observed that “a charge of being an accessory after the fact is ‘based on conduct taking place only after the loss was sustained.’” (Id. at p. 1052.) The court concluded that economic loss in the form of burial costs “occurred because of the murder,” and that “[d]efendant was not convicted as a coconspirator or as an aider or abettor to the murder itself. Thus his criminal conduct did not cause the loss for which compensation was sought.” (Ibid.) Accordingly, the court reversed the order requiring the defendant in Woods to pay the claimed burial costs as victim restitution. (Id. at p. 1054.)

The same rule applies here. Defendant’s criminal actions did not result in Hernandez’s death, and therefore defendant is not responsible to pay victim restitution for the economic losses resulting from that death (namely, the burial costs). Moreover, because her codefendant, Baltierra, has already been convicted of the murder which did result in this loss, and because he is already jointly and severally liable for the resulting burial costs, Hernandez’s family will be able to obtain the restitution to which they are entitled from Baltierra.

IV. DISPOSITION

The order requiring defendant to pay $2,974.58 in victim restitution is reversed. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

SLOUGH

Acting P. J.

MENETREZ

J.