The opinion
Filed 6/30/23 P. v. Brown CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080858
Plaintiff and Respondent,
v. (Super. Ct. No. SCD293281)
ISAIAH BROWN,
Defendant and Appellant.
APPEAL from order of the Superior Court of San Diego County, Daniel
F. Link, Judge. Reversed in part and remanded with directions.
Patrick Dudley, under appointment by the Court of Appeal, for
Defendant and Appallant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, and Donald W. Ostertag and Robin
Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
Isaiah Brown pleaded guilty to first-degree residential burglary. (Pen.
Code,1 § 459.) The trial court sentenced him to 365 days in county jail and
1 Further unspecified section references are to the Penal Code.
two years’ probation, and imposed fines, assessments, and restitutions,
including $2,866.26 in victim restitution. On appeal, Brown contends his due
process right was violated when the court imposed the victim restitution
without conducting a hearing and considering his ability to pay. The
Attorney General concedes Brown was entitled to a hearing but not
consideration of his ability to pay the victim restitution. We conclude the
Attorney General has the better argument. Accordingly, we reverse the
restitution order as to the $2,866.26 in victim restitution and remand for a
hearing on the issue.
BACKGROUND2
In July 2022, Brown pleaded guilty to residential burglary (§§ 459 &
460, subd. (a)). At sentencing the following month, Brown stipulated to $870
in victim restitution to one of the victims. The court sentenced Brown to 365
days of county jail and two years’ formal probation with certain conditions
and awarded 380 days of custody credits. It further ordered Brown to pay
two amounts of victim restitution (§ 1202.4, subd. (f)), $870 and $2,866.26, to
two victims, and imposed other assessments and fines.
After the court imposed $2,866.26 in victim restitution, Brown’s counsel
asked, “And, your honor, I apologize. Is the court—the court’s not willing to
give us a restitution review?” The court responded, “[N]o . . . [¶] . . .
Documents were submitted. I don’t -- That’s enough for the court.” Brown
appealed.
DISCUSSION
Under section 1202.4, when “a victim has suffered economic loss as a
result of the defendant’s conduct,” the court “shall” impose victim restitution
2 We briefly summarize the facts here to the extent relevant to the
limited issues at hand.
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on the defendant “based on the amount of loss claimed by the victim or
victims or any other showing to the court.” (§ 1202.4, subd. (f); see also Cal.
Const., art. I, § 28, subd. (b)(13).) Victim restitution is a civil remedy,
enforceable as if it were a civil judgment, rather than a criminal punishment.
(People v. Evans (2019) 39 Cal.App.5th 771, 776 (Evans).) We review a
restitution order for abuse of discretion. (People v. Millard (2009) 175
Cal.App.4th 7, 26.)
Brown contends the imposition of $2,866.26 in victim restitution—
without a hearing and determination of his ability to pay—violated his due
process right.3 He thus asks for a remand directing the court to hold such
hearing and make such determination. The statute squarely addresses both
issues.
As the Attorney General concedes, the plain language of section 1202.4,
subdivision (f), affords a defendant “the right to a hearing” on the amount of
victim restitution. (§ 1202.4, subd. (f)(1).) The court therefore abused its
discretion in denying Brown’s request for such a hearing.
Section 1202.4, subdivision (g), further provides, a “ ‘defendant’s
inability to pay shall not be a consideration in determining the amount of a
[victim] restitution order.’ ”4 (People v. Allen (2019) 41 Cal.App.5th 312, 322,
quoting § 1202.4, subd. (g); accord Evans, supra, 39 Cal.App.5th at p. 777 [“a
defendant’s ability to pay victim restitution is not a proper factor to consider
3 Brown does not contest the other victim restitution of $870.
4 Brown relies on People v. Hartley (1984) 163 Cal.App.3d 126 (Hartley)
for the proposition that his ability to pay must be considered before the court
could order victim restitution. However, Hartley preceded the 1995 and 1996
amendments to section 1202.4, which added subdivision (g), barring courts
from making such consideration.
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in setting a restitution award”]; People v. Abrahamian (2020) 45 Cal.App.5th
314, 338 [same].) We therefore reject Brown’s contention that his ability to
pay should be considered here.
DISPOSITION
The restitution order is reversed in part as to the $2,866.26 in victim
restitution. The matter is remanded to the trial court to hold a restitution
hearing under section 1202.4, subdivision (f). The order is otherwise
affirmed.
McCONNELL, P. J.
WE CONCUR:
O'ROURKE, J.
BUCHANAN, J.
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