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The People v. Michael Elbert Lockwood

March 5, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL ELBERT LOCKWOOD, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of El Dorado County, Kenneth J. Milikian, Judge. (Super. Ct. No. P09CRF0268)

The opinion of the court was delivered by: Nicholson , Acting P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

Defendant Michael Elbert Lockwood appeals from a restitution order entered after he was convicted of corporal injury to a cohabitant and possession of a firearm by a convicted felon. The trial court ordered defendant to pay $20,900.37 in restitution to reimburse the Restitution Fund for funds paid on behalf of the victim. Defendant contends that the trial court erred by not releasing to him records the California Victim Compensation and Government Claims Board (Board) used to establish the amount of assistance to be paid on behalf of the victim. (Pen. Code, § 1202.4, subd. (f)(4)(C).)*fn1

We agree that the trial court erred by not releasing the Board's records to defendant. However, the error was harmless because the Board's records established that the treatment the victim received, and for which the Board provided reimbursement, resulted from defendant's criminal conduct.

FACTUAL AND PROCEDURAL BACKGROUND*fn2

In June 2009, C.D. was living with defendant, her boyfriend. The month before C.D. moved in with defendant, she had an argument and physical altercation with her husband during which her husband pushed her. Her husband had also previously forced her to have sexual relations with him against her will and made threats against her, her family, and her animals.*fn3

On June 14, 2009, defendant wanted C.D. to go to an event with him but she decided to go elsewhere. As she got dressed, he grabbed her by the throat and slammed her head against the wall. The force of the impact put a hole in the wall. Defendant held C.D. by the throat, impeding her breathing. After she was released, her neck hurt badly and she still had difficulty breathing.

When C.D. started to pack her bag and leave, defendant tried to prevent her from leaving, repeatedly removing clothes from her bag, and also putting his arms around her. She bit him on the shoulder as he hugged her.

Eventually, C.D. drove to a friend's home. The friend took C.D. to a doctor who found slight muscle spasms in C.D.'s neck, a contusion to the back of her head, and swollen wrists. C.D.'s injuries were photographed the following day.

A jury convicted defendant of corporal injury to a cohabitant (§ 273.5, subd. (a)) and possession of a firearm by a convicted felon (former § 12021, subd. (a)(1)). In addition, he admitted seven prior serious or violent felony convictions. (§§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to state prison for two concurrent terms of 25 years to life. We affirmed the conviction on appeal. (People v. Lockwood, supra, C066096.)

After a contested restitution hearing, defendant was ordered to pay $20,900.37 to the Board to reimburse payments the Board had made to the victim's medical providers from the state's Restitution Fund.

STATUTORY BACKGROUND

Under the California Constitution, a victim is entitled to restitution. (Cal. Const., art. I, § 28(b)(13).) Section 1202.4 requires the court to order restitution. (§ 1202.4, subd. (f).) The order must be sufficient to reimburse the victim "for every determined economic loss incurred as a result of the defendant's criminal conduct . . . ." (§ 1202.4, subd. (f)(3).) And the defendant is entitled to a hearing to dispute the amount of restitution. (§ 1202.4, subd. (f)(1).)

" 'Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner's statement made in the probation report about the value of stolen or damaged property.' [Citations.] ' "This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount." ' [Citations.]" (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320.)

Pertinent to this case, section 1202.4, subdivision (f)(4) includes special provisions that apply when state funds are used to provide assistance to or on behalf of a victim:

"(A) If, as a result of the defendant's conduct, the Restitution Fund has provided assistance . . . on behalf of a victim . . . , the amount of assistance provided shall be presumed to be a direct result of the defendant's criminal conduct and shall be included in the amount of the restitution ordered.

"(B) The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for medical . . . expenses [or] mental health counseling . . . . Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement.

"(C) If the defendant offers evidence to rebut the presumption established by this paragraph, the court may release additional information contained in the records of the board to the defendant only after reviewing that information in camera and finding that the information is necessary for the defendant to dispute ...


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