Metropolitan News-Enterprise


Tuesday, April 8, 2008


Page 1


Restitution Not Required From Accessory After Fact—C.A.


By STEVEN M. ELLIS, Staff Writer


A defendant convicted only as an accessory after the fact to a crime and sentenced to imprisonment cannot be ordered to pay restitution, the First District Court of Appeal ruled yesterday.

Reversing the decision of Contra Costa Superior Court Judge Cheryl R. Mills, Div. One held that Kendricks R. Woods cannot be ordered to pay victim restitution to the family of Burt Masceranas under Penal Code Sec. 1202.4 for his role in hiding a firearm that was used to kill Masceranas because Woods was sentenced to imprisonment, rather than probation, and because there was no nexus between his criminal act and the losses incurred by Mascarenas’ family.

Mascarenas was visiting with friends on the porch of a house in Richmond in 2006 when Woods joined them and warned them that it was not safe for them to remain because he was having some problems with some other people.

The group left, but returned approximately an hour later after Mascarenas decided that they should go back and continue socializing.

A witness who was present testified that he saw Mascarenas walk away from the group with Woods, and then heard loud voices followed by gunshots before seeing Mascarenas fall to the ground. The witness identified the shooter as a man known by the street name of “Mossey,” who was later identified as Antoine Saucer.

Saucer allegedly began to flee the scene after the shooting, but then turned around and met Woods, who was opening the gate at a nearby apartment complex. As Woods did so, Saucer allegedly handed him the gun and ran into the complex.

Woods was charged under Penal Code Sec. 32 with one count of acting as an accessory after the fact in Mascarenas’ murder.

He was convicted following a jury trial, and ultimately sentenced to two years imprisonment after he was found ineligible for probation.

Despite Woods’ objection that he could not lawfully be ordered to pay restitution under Sec. 1202.4 because he was convicted as an accessory after the fact, and not as the murderer, the trial court ordered him to repay $12,082.23 that had been paid to Mascarenas’ surviving relatives from the state’s victim compensation fund, opining that “the constitution is unequivocal regarding victim restitution.”

The California Constitution provides that “all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer,” a provision the Legislature has implemented through Sec. 1202.4’s requirement that “a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.”

On appeal, Woods reiterated his argument that restitution was improper because there was no nexus between his criminal act and the losses incurred by Mascarenas’ family, and the Court of Appeal, in an opinion by Justice Douglas E. Swager, agreed, reversing Mills’ decision.

Noting that courts have interpreted Sec. 1202.4 as limiting restitution awards to losses arising out of the criminal activity that formed the basis of the conviction, and that this limitation does not apply in the context of grants of probation, Swager opined that “when a court imposes a prison sentence following trial, section 1202.4 limits the scope of victim restitution to losses caused by the criminal conduct for which the defendant sustained the conviction.”

Turning to the question whether Woods’ conduct had actually caused Macarenas’ family’s loss, Swager concluded that it did not.

Citing a previous decision by the Court of Appeal, Swager wrote that “a charge of being an accessory after the fact is ‘based on conduct taking place only after the loss was sustained.’”

He continued:

“Here, the loss to the Mascarenas’ family occurred because of the murder committed by Saucer. Defendant was not convicted as a coconspirator or as an aider or abettor to the murder itself. Thus his criminal conduct did not cause the loss for which compensation was sought.

Presiding Justice James J. Marchiano and Justice Sandra L. Margulies joined Swager in his opinion.

The case is People v. Woods, 08 S.O.S. 2055.


Copyright 2008, Metropolitan News Company