APPEAL from a judgment of the Superior Court of Tehama County, Dennis E. Murray, Judge. (Super. Ct. No. NCR77091)
The opinion of the court was delivered by: Mauro, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The California Constitution establishes a right of restitution for crime victims. (Cal. Const., art. I, § 28, subd. (b)(13).) "Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Id. at subd. (b)(13)(B).) Despite this "unequivocal" language (id. at subd. (b)(13)(A)), defendant contends that he cannot be expected to pay an apartment owner for fire damage caused when defendant poured gasoline on Michelle B. in the apartment bedroom and lit her on fire. Defendant argues that because he pleaded guilty to aggravated mayhem (i.e., intentionally causing disability or disfigurement to another human being) in exchange for dismissal of an arson charge, Michelle B. was the "immediate object" of his crime and the apartment owner cannot be considered a direct victim entitled to crime victim restitution.
The right to crime victim restitution is not so narrow. By pouring gasoline on Michelle B. in an apartment bedroom and igniting the fuel, defendant set Michelle B. and the apartment on fire in a single course of criminal conduct. Although structural damage is not an element of aggravated mayhem, the apartment damage was substantially certain to occur and was a direct and immediate result of defendant's aggravated mayhem. That is enough to establish the apartment owner as an immediate object of defendant's crime and a direct victim entitled to restitution. We will affirm the judgment.*fn2
Defendant Joseph Verni, Jr., argued with Michelle B. about her ex-boyfriend. Later that day defendant called Michelle B. twice and they continued to argue.
Shortly after midnight on July 6, 2009, defendant entered Michelle B.'s bedroom while she was sleeping. He woke her up yelling, "You need to tell me the truth!" He had a soda bottle containing gasoline. Defendant poured the gasoline on Michelle B.'s arms and torso and lit her on fire with a lighter.
Michelle B. attempted to extinguish the fire with blankets while defendant watched. The flames increased and began to go over Michelle B.'s face, limiting her vision. The apartment fire-suppression sprinklers eventually activated, extinguishing the fire. Officers arrived and found Michelle B. suffering from severe burns to the upper portion of her body. Fire damage to the apartment totaled $32,246.07.
Pursuant to a plea agreement, defendant pleaded guilty to aggravated mayhem (Pen. Code, § 205)*fn3 in exchange for dismissal of the remaining charges for attempted premeditated murder (§§ 664, 187, subd. (a)), torture (§ 206), and arson causing great bodily injury (§ 451, subd. (a)). Defendant did not make a Harvey waiver, which would have allowed the trial court to consider dismissed charges in issuing restitution orders. (People v. Harvey (1979) 25 Cal.3d 754, 758.)
The trial court sentenced defendant to life with the possibility of parole and ordered defendant to pay victim restitution of $32,246 to Hidden Property Management (HPM).*fn4 (§ 1202.4, subd. (f).)
As a preliminary procedural matter, the People argue that defendant forfeited his challenge to the restitution order because he did not object to the order at sentencing. Defendant responds that his challenge falls within the "unauthorized sentence" exception to the general forfeiture rule. Defendant is correct. (People v. Slattery (2008) 167 Cal.App.4th 1091, 1094-1095 (Slattery).) We will address his contention to ...