The opinion
Filed 2/2/16 P. v. Moore CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C078007
Plaintiff and Respondent, (Super. Ct. Nos. 6127264, 62127260)
v.
KATHRYN ELIZABETH MOORE,
Defendant and Appellant.
Defendant Kathryn Elizabeth Moore pled no contest to first degree (residential)
burglary and two counts of identity theft. The trial court sentenced her to four years in
state prison. After a contested victim restitution hearing, the trial court ordered defendant
to pay $18,623.11 for the value of stolen items and $1,098.68 to reimburse the victim the
cost of a home security system that was installed after the burglary. Defendant appeals.
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The sole issue on appeal is whether defendant can be ordered to pay, as victim
restitution under Penal Code1 section 1202.4, the cost of a home security system
subsequently installed by the victim of the burglary, in the absence of an allegation and
proof that there was someone in the home other than the burglar or an accomplice at the
time of the crime. We conclude that such victim restitution is unauthorized and modify
the judgment accordingly.
DISCUSSION
Although defendant did not object to the disputed portion of victim restitution
award in the trial court, she contends reimbursing the victim for the cost of her
subsequently installed home security system was unauthorized by statute. An objection
may be raised for the first time on appeal where it concerns an unauthorized sentence.
(People v. Scott (1994) 9 Cal.4th 331, 354.) When the propriety of a restitution order
turns on the interpretation of a statute, a question of law is raised and we review the
matter de novo. (In re Tommy A. (2005) 131 Cal.App.4th 1580, 1586.)
Subdivision (f) of section 1202.4 provides, with certain exceptions not applicable
here, that “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.”
Subdivision (f)(3) of section 1202.4 further provides, in pertinent part, as
follows: “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:
1 Undesignated statutory references are to the Penal Code.
2
“[¶] . . . [¶]
“(J) Expenses to install or increase residential security incurred related to a violent
felony, as defined in subdivision (c) of Section 667.5, including, but not limited to, a
home security device or system, or replacing or increasing the number of locks.”
Subdivision (c)(21) of section 667.5 defines “violent felony” to include “[a]ny
burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is
charged and proved that another person, other than an accomplice, was present in the
residence during the commission of the burglary.”
Here, defendant pled no contest to a charge of residential burglary, but there was
no allegation and no admission that anyone other than defendant was in the house at the
time of the burglary. The victim subsequently paid to have a home security system
installed, and the trial court ordered defendant to pay the cost of that system as part of the
victim restitution in the case.
On appeal, defendant contends that under section 1202.4, subdivision (f)(3)(J), the
cost of a home security system can be awarded as victim restitution only when the system
installation relates to a violent felony, which her crime was not (because no one was
home at the time of the burglary). The People acknowledge the provision in
section 1202.4, subdivision (f)(3)(J) but nonetheless argue that the list of items in
subdivision (f)(3) is expressly “a nonexclusive list of examples” and thus the trial court
has the power to compensate a victim for a loss that is not specifically enumerated in the
statute.
The People are correct that section 1202.4, subdivision (f)(3) sets forth a
nonexclusive list of losses that may be the subject of a restitution order. The People,
however, fail to address to dispositive question here -- that is, where the Legislature has
included a particular item in a nonexclusive list and has imposed an explicit limitation on
that item, is it consistent with legislative intent to treat the item without that limitation as
implicitly included in the list? As we shall explain, we conclude it is not.
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As with all questions of statutory interpretation, our task is to determine the intent
of the Legislature. There are at least two principles of statutory construction available to
assist us in that inquiry here. First is the maxim expressio unius est exclusio alterius,
“under which ‘the enumeration of things to which a statute applies is presumed to
exclude things not mentioned.’ ” (Gonzalez v. Santa Clara County Dept. of Social
Services (2014) 223 Cal.App.4th 72, 89-90.)
In subdivision (f)(3)(J) of section 1202.4, the Legislature specifically provided that
“[e]xpenses to install or increase residential security” qualify as a compensable economic
loss for purposes of victim restitution when those expenses are “incurred related to a
violent felony, as defined in subdivision (c) of Section 667.5.” Implicit in this provision
is the expression of legislative intent that such expenses are not compensable as victim
restitution when they are incurred related to a crime that is not a violent felony as defined
in subdivision (c) of section 667.5. While “expressio unius est exclusio alterius is no
magical incantation, nor does it refer to an immutable rule,” it “should be applied ‘where
appropriate and necessary to the just enforcement of the provisions of a statute.’ ”
(Estate of Banerjee (1978) 21 Cal.3d 527, 539.)
That leads us to the second applicable principle of statutory construction -- that
“[s]ignificance should be given, if possible, to every word, phrase, sentence and part of
an act.” (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 638.) If we were to
read the phrase at the beginning of subdivision (f)(3) of section 1202.4 -- “including, but
not limited to, all of the following” -- as allowing victim restitution for “[e]xpenses to
install or increase residential security” that are incurred related to any crime,
notwithstanding the specific reference in section 1202.4, subdivision (f)(3)(J) to violent
felonies as defined in subdivision (c) of section 667.5, then we would essentially render
that specific reference superfluous. Of course, “interpretations which render any part of a
statute superfluous are to be avoided.” (Wells v. One2One Learning Foundation (2006)
39 Cal.4th 1164, 1207.) The only way to give meaning to all parts of section 1202.4,
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subdivision (f)(3)(J), and to avoid a construction that renders part of that provision
superfluous, is to construe the reference to violent felonies as defined in subdivision (c)
of section 667.5 as limiting the circumstances in which victim restitution is available for
expenses to install or increase residential security.
We recognize that “an exception [to a general power] should not be construed to
limit the general power except to the extent that it clearly does so.” (Hurst v. City &
County of San Francisco (1949) 33 Cal.2d 298, 301.) Here, however, by specifically
referencing the definition of “violent felony” in subdivision (c) of section 667.5, the
provision in section 1202.4, subdivision (f)(3)(J) does clearly limit victim restitution for
expenses to install or increase residential security in residential burglary cases to those
cases in which it is charged and proved that another person, other than an accomplice,
was present in the residence during the commission of the burglary.
Finally, the primary purpose of restitution is to restore the economic status quo by
reimbursing the victim for any losses suffered as a result of the defendant’s conduct.
(People v. Giordano (2007) 42 Cal.4th 644, 658.) Thus, restitution is limited to the
amount necessary to make the victim whole. (People v. Fortune (2005) 129 Cal.App.4th
790, 794-795.) The Legislature could have reasonably determined that the victim of a
violent felony is left feeling so vulnerable that a security system is a reasonably necessary
part of making them whole. In the case of a burglary of an unoccupied dwelling,
however, providing the victim with a security system may go beyond making the victim
whole and become more of a windfall -- providing them with an asset they did not
previously have. (People v. Thygesen (1999) 69 Cal.App.4th 988, 995 [“the purpose of
the restitution statute is to make the victim whole, not to give a windfall”].) Therefore,
victim restitution for a subsequently installed home security system is reasonably limited,
by statute, to those instances where the expenses were incurred as a result of a violent
felony.
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DISPOSITION
The December 10, 2014, victim restitution order is modified to strike the
$1,098.68 which reimbursed the victim for the cost of a home security system. The trial
court is directed to prepare an amended abstract of judgment to include reflecting victim
restitution in the amount of $18,623.11 and forward a certified copy thereof to the
Department of Corrections and Rehabilitation.
/s/
Robie, J.
I concur:
/s/
Raye, P. J.
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Hull, J.
I respectfully dissent.
My colleagues decide that, because section 1202.4, subdivision (f)(3)(J) of the
Penal Code (unless otherwise set forth, statutory section references that follow are to the
Penal Code) provides that a restitution order shall include as an item of economic loss
“Expenses to install or increase residential security incurred related to a violent felony, as
defined in subdivision (c) of Section 667.5, including, but not limited to, a home security
device or system, or replacing or increasing the number of locks” the trial court is not
authorized to order such restitution where, as here, the defendant has not been convicted
of a violent felony.
Section 1202.4, subdivision (f)(3) reads, in pertinent part, “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” after
which the statute provides in subdivision (f)(3)(J) as set forth in the previous paragraph.
As has been held, repeatedly, a victim’s right to restitution is to be broadly and
liberally construed. (People v. Sy (2014) 223 Cal.App.4th 44, 63, quoting People v.
Millard (2009) 175 Cal.App.4th 7, 26-27; People v. Phu (2009) 179 Cal.App.4th 280;
People v. Keichler (2005) 129 Cal.App.4th 1039; People v. Baker (2005)
126 Cal.App.4th 463; In re Johnny M. (2002) 100 Cal.App.4th 1128.)
“The term ‘economic losses’ is also accorded an expansive interpretation.
[Citation.] The term is not limited to out-of-pocket losses. [Citation.]” (People v.
Williams (2010) 184 Cal.App.4th 142, 147.)
At the restitution hearing, the victim of the burglary confirmed that she was asking
the court to order, in part, the amount of $1,098.68 to reimburse her for a home alarm
system she installed following the burglary. Asked if she could describe how she felt
after the burglary, she explained: “Well, it kind of was a wave of emotion because when
1
I first got home and I was shocked by what I found when I walked into the house because
the house was pretty much ransacked, and then I realized my dog was missing and so my
focus became primarily my dog at that point. And I did get her back the next day, but
just walking into the house and I felt completely violated, and, you know, it definitely
took an emotional toll on me.” This was one way of addressing her feelings of concern
following the burglary.
The victim told the court she “first got the camera system” and “was checking on
[her] dogs periodically throughout the day when [she] was at work, and [she] felt like
[she] needed to secure the house a little bit better, and that’s when [she] made the
decision to get the alarm system.” She detailed the cost of the camera system on her
“Restitution Declaration Form” as $353.68 and the cost of the home alarm system as
$745 and provided the court with a paid receipt from Foothill Alarm Systems, Inc. for the
full amount of the home alarm system.
At the close of the hearing, the trial judge included in his restitution order an
amount of $1,098.68 for the security system, commenting: “I think the home alarm was
reasonably related to the victim’s trauma and emotion she suffered.”
Defendant does not contend on appeal that the court’s order regarding the security
system was not supported by sufficient evidence or that the home security system did not
qualify as an “economic loss” within the meaning of the statute or that the order rose to a
general abuse of discretion. Instead defendant argues that, since section 1202.4
subdivision (f)(3)(J) requires a court to include as an item of economic loss the expense
to install or increase residential security where the crime that has been committed is a
felony within the meaning of section 667.5, subdivision (c), the trial court is precluded
from ordering such restitution where the crime that has been committed is not a felony.
The majority agrees; I do not.
In the main, the majority seems to rely for its conclusion on the canon of statutory
interpretation expressed as expressio unius est exclusio alternius or, translated from
2
Latin, the expression of one thing is the exclusion of another. But I do not find
application of that principle to be the answer to our question here.
“We do not read the enumeration of one case to exclude another unless it is fair to
suppose that Congress considered the unnamed possibility and meant to say no to it.
United Dominion Industries, Inc. v. United States, 532 U.S. 822, 836, 150 L. Ed. 2d 45,
121 S. Ct. 1934 (2001). As we have held repeatedly, the canon expressio unius est
exclusio alterius does not apply to every statutory listing or grouping; it has force only
when the items expressed are members of an ‘associated group or series,’ justifying the
inference that items not mentioned were excluded by deliberate choice, not inadvertence.
United States v. Vonn, 535 U.S. 55, 65, 152 L. Ed. 2d 90, 122 S. Ct. 1043 (2002). We
explained this point as recently as last Term’s unanimous opinion in Chevron U.S.A. Inc.
v. Echazabal, 536 U.S. 73, 81, 153 L. Ed. 2d 82, 122 S. Ct. 2045 (2002):
“ ‘Just as statutory language suggesting exclusiveness is missing, so is that
essential extrastatutory ingredient of an expression-exclusion demonstration, the series of
terms from which an omission bespeaks a negative implication. The canon depends on
identifying a series of two or more terms or things that should be understood to go hand
in hand, which [is] abridged in circumstances supporting a sensible inference that the
term left out must have been meant to be excluded. E. Crawford, Construction of
Statutes 337 (1940) (expressio unius “ ‘properly applies only when in the natural
association of ideas in the mind of the reader that which is expressed is so set over by
way of strong contrast to that which is omitted that the contrast enforces the affirmative
inference” ’ (quoting State ex rel. Curtis v. De Corps, 134 Ohio St. 295, 299, 16 N.E.2d
459, 462 (1938))); United States v. Vonn, supra.’ ” (Barnhart v. Peabody Coal Co.
(2003) 537 U.S. 149, 168-169.)
The error in the majority’s analysis here is that, while the items set forth in
subdivision (f)(3)(A) to (f)(3)(L) can be considered an associated group or series in the
sense that each subdivision sets forth an item of economic loss that must be included in a
3
restitution order (if relevant to the case), it is faulty to conclude the Legislature intended
at the same time inferentially to be speaking to what could be included. To borrow
Mr. Crawford’s language quoted above, I cannot say that the natural association of ideas
in my mind by that which is expressed in subdivision (f)(3) is so set over by way of
strong contrast to that which is omitted that the contrast enforces an inference that the
Legislature meant to exclude as an item of economic loss a home security system where
the crime committed by the victim was not a felony.
There is nothing here to justify an inference that items not mentioned in those
subdivisions were excluded by the Legislature by deliberate choice. That is underscored
by the statute’s earlier language in subdivision (f)(3) specifying that restitution amounts
had to include, but were not limited to, the items set forth in subdivision (f)(3)(A) to
(f)(3)(L).
In all, I think the proper interpretation of the statute, and the Legislature’s intent in
passing it, is rather simply determined. The Legislature merely meant to insure that,
where a victim has suffered a felony offense, the victim has a right to claim as an
economic loss, and the court was required to award as restitution, the reasonable cost of a
home security system. That was the sole legislative intent. And subdivision (f)(3) as a
whole specifies economic losses that must be reimbursed, but says nothing about
economic losses that, in the court’s discretion, may be reimbursed.
The majority opinion also suggests that such a reading of the statute somehow
reads words out of it, specifically, subdivision (f)(3)(J). Under my interpretation of the
statute, (f)(3)(J) remains and means what it says. It simply does not mean more than
what it says. To be candid, it seems to me that the majority opinion reads the words
“including, but not limited to” out of subdivision (f)(3).
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I would affirm the trial court’s restitution order.
/s/
Hull, J.
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