Metropolitan News-Enterprise


Monday, June 10, 2019


Page 1


Appellate Division:

Victim of Infraction Has Entitlement to Restitution Hearing


By a MetNews Staff Writer


The victim of an infraction is entitled to a restitution hearing, the Appellate Division of the Los Angeles Superior Court has held.

The decision, publicly released on Friday after the Court of Appeal for this district determined that transfer to itself was unnecessary, was filed May 30. Los Angeles Superior Court Judge Sanjay Kumer was the author.

His opinion reverses a decision by mid-Wilshire attorney Andrew K. Kim, sitting as a judge pro tem. He presided at the arraignment of Sherri Smalling, who was cited for permitting her dog to cause injury or death to a service dog, an infraction.

Smalling entered a plea of no contest and Kim fined her $157.

Request Made

When the owner of the service dog that was injured or killed (the opinion does not indicate which) asked for an order for restitution, Kim responded (as punctuated in the opinion):

“[T]his is an infraction, you’re not going to have a restitution hearing, you can sue civilly...if this was filed as [a] misdemeanor or felony, there is going to be [a] restitution hearing, but since this is [an] infraction, you’re not going to be able to obtain a restitution hearing.”

Kumar pointed out that the state Constitution, in Art. I, §28 (b)(13)(B),  provides:

“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.”

That provision, he noted, is implemented by Penal Code §1202.4, which declares:

It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.

Under Penal Code §16 and §17, infractions are classed as “crimes,” Kumar recited.

Kumar’s Reasoning

The judge reasoned:

“Because an infraction is a crime, and a crime victim is constitutionally entitled to restitution in ‘every case,’ a restitution hearing was mandatory. An order of anything less than ‘full’ restitution to the victim required the trial court to identify “compelling and extraordinary” reasons and to state those reasons on the record….

“The trial court’s abuse of discretion manifests itself in two distinct ways. First, and most fundamentally, the trial court erroneously concluded a crime victim is not entitled to restitution if the offense committed is an infraction. This misunderstanding led to the second mistake, i.e., the denial of victim restitution without providing compelling and extraordinary reasons for doing so. In order to meet the constitutional directive for victim restitution, the trial court is required to follow the guidelines provided by section 1202.4 in determining whether the victim is entitled to restitution even if the offense committed is an infraction.”

The case is People v. Smalling, BR 054104.

Deputy District Attorneys Phyllis Asayama and Cassandra Thorp acted for the People in appealing Kim’s order. Yan Goldshteyn of the Maven Law Firm acted for Smalling.


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