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The People v. Carrie Renee Mcalister

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)


March 10, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CARRIE RENEE MCALISTER, DEFENDANT AND APPELLANT.

(Super. Ct. No. 07CR12902)

The opinion of the court was delivered by: Robie, J.

P. v. McAlister

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Carrie Renee McAlister shot her estranged husband, Jerad McAlister (Jerad). After she pled guilty to assault with a firearm and received probation, the trial court ordered her to pay victim restitution in the sum of $69,585.61, including $44,288 for lost wages.*fn1 She now contends: (1) The court erred by imposing restitution without regard to comparative fault and the victim's role in the offense. (2) No substantial evidence supports the lost wages award. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

An information filed in Amador County Superior Court on March 24, 2008, charged defendant with attempted murder, assault with a firearm, and infliction of corporal injury on her spouse, on or about August 24, 2007; Jerad was the alleged victim on all counts. As to all counts, it was alleged that defendant personally used a firearm and personally inflicted great bodily injury under circumstances involving domestic violence. As to the attempted murder count, it was also alleged that defendant used and personally and intentionally discharged a firearm, proximately causing great bodily injury.

On April 30, 2008, defendant pled guilty to assault with a firearm pursuant to People v. West (1970) 3 Cal.3d 595 (West), in exchange for the trial court's agreement to dismiss the remaining counts and allegations and not to sentence her to prison.

By stipulation of the parties and the trial court, the preliminary hearing was used as the factual basis for defendant's plea.

Jerad testified that on August 24, 2007, he and defendant were temporarily separated; he was staying with his father, while she remained in the marital house. Jerad had promised defendant's father, Bill Sullivan, that he would not come in contact with defendant for two weeks.*fn2 Around noon on August 24, however, after unsuccessfully trying to contact defendant and her parents by phone, Jerad went to the house to try to get his Social Security card. He got into an argument with Sullivan, who struck him. He eventually left.

Later that day, Jerad bought a country music CD with a song on it that expressed his feelings for defendant. He called the marital house and left her a message that he loved her and needed to talk to her. Around 7:00 p.m., he went to the house.

After parking and walking to the front door, he saw defendant through the window. He asked if he could speak with her; she said "Yes," and let him in. She added, "Oh, we just got here," meaning herself and her parents. He asked to speak to her alone; she agreed.

Jerad followed defendant into the house as she walked toward a bookcase. At some point, Jerad stopped. When defendant reached the bookcase, she pulled out a gun from a bag around her waist and shot him. He was hit in his left side around the middle of his rib cage. She tried to shoot him again, but the gun jammed. He screamed "Why?" as he ran out the door. Reaching his parked truck, he called his father on his cell phone and told his father to call 911.

As he lay on the ground, defendant ran out and said, "You're never going to tell me you're going to fucking kill me again." He had never threatened to kill her.

Transported to Sacramento, he was operated on for four hours and hospitalized for about a week. It took him a couple of months to recover physically.

On cross-examination, defendant's counsel asked Jerad whether he had repeatedly threatened to kill defendant or had threatened to have her committed; whether he had physically and emotionally abused her; whether he had raped her and forced her to orally copulate him; and whether he had told her as he entered the house on the night of the shooting: "This time we're both dead." From documents and testimony presented later in the proceedings, it became apparent that this line of questioning was based on defendant's claim that she was a battered woman who had acted in self-defense. Jerad answered all of these questions in the negative. Defendant put on no evidence.

The presentence probation report filed June 6, 2008, set forth Jerad's and defendant's versions of the key events.

The report also stated that defendant's two children from a prior marriage told the police that defendant and Jerad frequently argued, but defendant started the arguments as often as Jerad, and the children never saw any physical violence or heard Jerad threaten defendant. The answering machine from the marital house contained four messages left for defendant by Jerad on the day of the shooting; in the first two, Jerad cordially told defendant that he needed to come over to get his Social Security card; in the last two, he told defendant that he loved her and needed to talk to her.

Despite the plea agreement, the probation report recommended denying probation because defendant used "vigilante justice" instead of notifying law enforcement about her alleged problems with Jerad.

On August 29, 2008, the trial court held the sentencing hearing. The People put Jerad's victim statement into the record, stating in part:

"I have been collecting disability for the last year due to the physical [and] emotional trauma that I've had to deal with as a result of the shooting. . . . I am part of the [T]eamsters [U]nion and was receiving steady work before the incident. Now I am at the bottom of the list to receive work and may have to look for non-union work elsewhere for less pay when my doctor[] clears me to do so. . . . [¶] Relating to the monetary restitution claim that I be reimbursed for all medical [and] therapy bills . . . that are directly related to the incident[:] Total is $66,290.40. My loss of wages total [sic] $30,000.00." (Italics added.)

Defendant called Dr. Linda Barnard, a licensed marriage and family therapist who had prepared a "domestic violence assessment" at defendant's counsel's request. It was Dr. Barnard's opinion that defendant was a longtime battered woman who shot Jerad in self-defense. On cross-examination, however, Dr. Barnard admitted: (1) defendant had reported alleged domestic violence by a prior ex-husband to the police, but had never done so as to Jerad; (2) defendant told Dr. Barnard that Jerad inflicted the bruises found on her body after her arrest, but had told the police he had not inflicted them; (3) defendant told Dr. Barnard of a great many incidents of physical and sexual abuse by Jerad, but failed to tell the police about the overwhelming majority of these alleged incidents; and (4) defendant's account of the shooting differed substantially from that found in the police reports.

The trial court imposed five years' probation, including a year in county jail. (In doing so, the court remarked: "There is simply no way that the facts of this case can excuse what the defendant did.") The court also ordered restitution in an amount to be determined by agreement or further order of the court.

The parties subsequently briefed the issue of restitution. The People's brief proposed two methods of calculating the lost wage award, based on the premise that Jerad was unable to work from August 24, 2007, the date of the crime, until July 2008. One method averaged Jerad's income for the period 2003-2006, as shown on his attached W-2's and tax returns (excluding 2005, a low-earning year, as an "anomaly"); this method yielded an average annual income of $46,288. The other method took Jerad's 2007 earnings of $29,666 (as shown on his W-2), and averaged that sum out to $3,708.25 per month for a hypothetical eight full months of work, yielding an estimated annual income of $44,499. The People requested the higher amount ($46,288) as the lost wages award.*fn3

Defendant's original brief asserted: (1) "The circumstances of prolonged spousal abuse to which [d]efendant . . . was subjected until she was so afraid for her life that she shot her husband" constituted "compelling and extraordinary reasons" (Cal. Const., former art. I, § 28(b); Pen. Code, § 1202.4, subd. (f)) not to order victim restitution. (2) Even if Jerad was entitled to a lost wages award, the requested amount was far too high. He had never earned that much because he was often on unemployment and turned down union jobs until his unemployment compensation ran out.*fn4 Furthermore, he had proffered no evidence that he was out of work for the entire period claimed, or that he was not "medically cleared" to return to work for that entire period: "Given his sporadic work history and pattern of milking unemployment ben[e]fits, it is highly likely that [Jerad] simply chose not to return to work or seek gainful employment even though he had been medically released and was physically capable to do so [sic]." (Defendant did not propose an alternative lost wages award.)

In a supplemental brief, defendant argued that Proposition 9, enacted by the voters in November 2008, which deleted from article I, section 28(b) of the California Constitution the provision that victim restitution could be denied for "compelling and extraordinary reasons," should not apply retroactively to this case, where the offense and sentencing occurred prior to November 2008. (Cf. People v. Millard (2009) 175 Cal.App.4th 7, 19, 24 (Millard) [applying language of art. I, former § 28(b), to review victim restitution order made before passage of Proposition 9].) Defendant argued alternatively, in reliance on Penal Code section 1202.4, subdivision (f) ("compelling and extraordinary reasons" allow award of less than "full" victim restitution) and Millard, supra, 175 Cal.App.4th 7, that under the principle of "comparative fault," Jerad's misdeeds justified reducing any victim restitution award. (As in her first brief, defendant did not propose any specific lower amount.)

At the restitution hearing, defendant reasserted her claim that the provision of article I, former section 28(b), of the California Constitution, which allowed courts to deny victim restitution altogether, applied to this case, and should be used here because Jerad "was the initial aggressor, had a history of violence, or was engaged in the commission of a criminal act which led to his injury."*fn5 On the same basis, she opposed any lost wages award. She contended that if any restitution was due, the highest permissible amount was $33,161.01, consisting of $24,733.98 for Jerad's unpaid medical expenses and $8,426.03 for reimbursement to the California Crime Victims Restitution Fund.

The trial court ruled:

1. Defendant's request for an order that the prosecutor investigate Jerad's conduct was denied as outside the court's authority.

2. Under Penal Code section 1202.4 (which controlled here), there were no grounds to reduce the victim restitution award. Defendant had offered no competent evidence to support any of her allegations against Jerad, but only questions asked by defendant's former counsel at the preliminary hearing and "hearsay allegations" recited by her current counsel. None of this was evidence because defendant did not present it at trial.

3. Jerad was entitled to $44,288 for lost wages. He was unable to work from August 24, 2007, to July 2008, and the People's method of computing his wage loss was reasonable.*fn6

DISCUSSION

I

Comparative Fault

Defendant contends, as she did below, that the trial court should have applied the "comparative fault" principle either to deny victim restitution to Jerad or to reduce it by some unspecified amount. Acknowledging that no authority supports this premise, she asserts that it raises an "issue of first impression." We are not persuaded. There is no legal basis to apply "comparative fault" to victim restitution where the defendant has committed an intentional crime, and even if there might be a legal basis to do so, there is no factual basis to do so here.

Under Penal Code*fn7 section 1202.4, subdivision (f), with exceptions not applicable here, "[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 . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . 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."

"A defendant is entitled to a restitution hearing to 'dispute the determination of the amount of restitution.' (§ 1202.4, subd. (f)(1).) As recently explained, 'At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] "Once the . . . [. . . People have] made a prima facie showing of [the victim's] loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim."' ([] Millard[, supra,] 175 Cal.App.4th [at p.] 26 . . . ; see also [People v.] Giordano[ 2007] 42 Cal.4th [644,] 664 ['The burden is on the party seeking restitution to provide an adequate factual basis for the claim.']." (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 (Chappelone).)

"A restitution order is intended to compensate the victim for [his] actual loss and is not intended to provide the victim with a windfall. [Citations.] While the court need not order restitution in the precise amount of loss, it 'must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' [Citations.]" (Chappelone, supra, 183 Cal.App.4th at p. 1172.)

"We review the trial court's restitution order for abuse of discretion. [Citations.]" (Chappelone, supra, 183 Cal.App.4th at p. 1173.) Where there is a factual and rational basis for the order, an abuse of discretion will not be found. (Millard, supra, 175 Cal.App.4th at p. 26.) In determining whether there is a factual basis for the order, we apply the substantial evidence standard. (Ibid.)

Defendant's legal argument for applying "comparative fault" to the restitution order here derives from Millard, supra, 175 Cal.App.4th 7. However, as defendant admits, Millard does not directly support her contention, and there is no logical basis for extending its rationale as defendant would have us do.

Millard held that a trial court "may apply the doctrine of comparative negligence in awarding victim restitution against a criminally negligent defendant when the court finds the victim's contributory negligence was a substantial factor in causing his or her injuries." (175 Cal.App.4th at p. 13, italics added.) The defendant there was convicted of driving under the influence while committing an act forbidden by law and causing bodily injury to another person. (Ibid.) The trial court, "[n]oting that this was a 'negligence[-]type crime'" (id. at p. 24), reduced the victim's restitution by 25 percent on grounds of "justice and fairness" (ibid.) because the court concluded the victim was 25 percent comparatively at fault for the accident in which he was injured (see also id. at p. 37). The appellate court upheld this ruling, reasoning that the grounds for applying comparative negligence to civil tort actions applied equally to criminal negligence cases, and nothing in the California Constitution or section 1202.4 expressly prohibited this use of comparative negligence. (Id. at pp. 36-41.) The court expressly distinguished such cases from "the intentional crimes and torts (e.g., murder, robbery, and battery) to which the doctrine of comparative negligence would not apply." (Id. at p. 41.)

Because Millard's holding expressly excludes intentional crimes, it is inapposite here. Recognizing that Millard alone does not support her argument, defendant invites us to extend Millard's holding to "the situation presented here, that is, where both parties have committed intentional acts of misconduct against the other." As authority for doing so, defendant cites Government Code section 13956, subdivision (c), which provides in part: "An application for compensation [i.e., victim restitution] may be denied, in whole or in part, if the board finds that denial is appropriate because of the nature of the victim's . . . involvement in the events leading to the crime[.]" Defendant also cites Civil Code section 3517, which states: "No one can take advantage of his own wrong." We are not persuaded.

Defendant's characterization of this case as one in which "both parties . . . committed intentional acts of misconduct against the other" is factually unsupported. As the trial court found, though defendant made a great many allegations against Jerad, she did not offer a scrap of evidence for them. Instead of going to trial and presenting evidence that might have supported her story, defendant pled guilty to assault with a firearm. This plea conclusively admitted not only that she did the act charged, but that she had no legal defense or justification for it. (People v. Valladoli (1996) 13 Cal.4th 590, 601 [guilty plea for most purposes the legal equivalent of jury verdict of guilty]; People v. Chadd (1981) 28 Cal.3d 739, 748 [guilty plea a judicial admission of every element of offense charged].)*fn8 Thus, whatever she might have had to offer in evidence as to self-defense or "battered woman syndrome" was conclusively removed from the trial court's consideration, and from ours, by her guilty plea.

Furthermore, in entering her plea, defendant stipulated to the preliminary hearing transcript as its factual basis. (§ 1192.5.) As we have shown, the factual basis set out there was Jerad's account of the crime and the events that led up to it, unopposed by any defense evidence. Though defense counsel zealously sought to elicit admissions from him that would have supported defendant's story, he made no such admissions.

Therefore, defendant's attempt at the restitution hearing to paint Jerad as the guilty party, based entirely on allegations with no evidentiary value, was non-cognizable. It remains so on appeal.

Defendant has failed to show that the trial court erred by refusing to reduce the victim restitution award on the principle of comparative fault.

II

Substantial Evidence

Defendant contends that the trial court's award for lost wages is unsupported by substantial evidence and must be reduced. We disagree.

The trial court found that by offering Jerad's W-2 form for that portion of 2007 in which he was able to work and by showing that he had not been able to resume work until July 2008, the People had met their prima facie burden of establishing a reasonable basis for the lost wages award they sought. Impliedly, the court also found that defendant had not met her burden of rebutting the People's showing. (Millard, supra, 175 Cal.App.4th at p. 26.)

Defendant asserts: "Jerad's failure to substantiate his medical inability to return to work with documentation is fatal to his request for restitution for lost wages." However, defendant fails to substantiate this assertion.

Defendant offers two record citations to support her claim. The first consists of unsupported assertions in her trial counsel's restitution brief about Jerad's purported habits of avoiding work, which are not evidence. The second is Jerad's testimony at the preliminary hearing that he recovered physically from the shooting in "a couple of months." However, Jerad was not asked at that time whether this meant he was immediately able to resume work; thus, the statement has little probative value on this topic.

Nor does defendant cite authority holding that only "medical" (i.e., physical) inability to resume work matters for purposes of a lost wages restitution award, and we know of no such authority. As respondent points out, the People presented a letter from a licensed therapist dated June 11, 2009, stating that Jerad suffered from "symptoms of Post-Traumatic Stress Disorder and Depression" as a result of defendant's crime and remained in treatment for these conditions for an entire year. Defendant offered nothing to rebut this letter, which the trial court could properly have considered as evidence that Jerad was unable to resume work so long as those symptoms lasted.

Defendant also cites Jerad's statement at the sentencing hearing that his lost wages equaled $30,000. However, the trial court was not bound by this initial estimate (unsupported by documentation) once the People had presented W-2 forms and tax returns showing Jerad's actual earnings over a period of four years eight months.

The only evidence as to Jerad's work history which defendant offered in the trial court was the forms showing his unemployment compensation payments. But, as we have noted, these forms did not disprove the documentation of his earned income furnished by the People. Therefore, they did not meet defendant's burden "'to demonstrate that the amount of the loss [was] other than that claimed by the victim.'" (Millard, supra, 175 Cal.App.4th at p. 26.)

Substantial evidence supported the trial court's lost wages award.

DISPOSITION

The judgment (victim restitution order) is affirmed.

We concur: RAYE, P. J. BUTZ, J.


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