36 Cal.App.5th Supp. 1
Cal. Super. Ct.2019Background
- Defendant Sherri Smalling was cited under Penal Code §600.2(a) for permitting her dog to injure or kill a service dog; the charge was filed as an infraction.
- At arraignment defendant, unrepresented, pleaded no contest and was fined $157.
- The service-dog owner requested victim restitution; the trial court denied the request, reasoning infractions do not permit restitution and suggested civil suit instead.
- The People appealed the denial of restitution, arguing the victim is entitled to a restitution hearing even in infraction cases.
- The Court of Appeal found the trial court misstated the law and remanded for a restitution hearing, reversing the denial.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Smalling) | Held |
|---|---|---|---|
| 1. Are the People entitled to appeal the postjudgment order denying restitution? | People: Yes; appeal allowed under §1466(a)(6) as an order affecting substantial rights and as an unlawful sentence. | Smalling: People lack appeal rights / procedural defects. | Yes. Appeal permitted; restitution orders are appealable as unlawful sentences and postjudgment orders affecting substantial rights. |
| 2. Is a victim of an infraction entitled to restitution? | People: Yes; California Constitution and statutes mandate restitution in every case where a crime victim suffers loss, and infractions are crimes. | Smalling: Trial court (and defendant) argued infractions categorically bar restitution; also suggested civil suit is adequate. | Yes. Victims of infractions are entitled to restitution; trial court erred in holding otherwise. |
| 3. Does Penal Code §600.2 permit restitution for service-dog owners regardless of infraction/misdemeanor classification? | People: Yes; §600.2(d) expressly requires restitution for veterinary and replacement costs when convicted under the statute. | Smalling: Argues practical/plea-based defenses (e.g., lack of advisement, plea agreement), and that civil remedy suffices. | Yes. §600.2(d) mandates restitution to the service-dog owner upon conviction, irrespective of infractions vs misdemeanors. |
| 4. Does lack of plea advisement about restitution preclude imposing restitution or render remand unnecessary? | People: No; the trial court’s legal error requires remand for a restitution hearing; any advisement/prejudice issues are for the remand court. | Smalling: Due process/advisement claim — she was not advised restitution could follow her plea. | No. The absence of specific advisement does not negate the obligation to remand; potential prejudice can be addressed at the restitution hearing. |
Key Cases Cited
- People v. Colbert, 6 Cal.5th 596 (Cal. 2019) (statutory language controls where unambiguous; interpret plain meaning).
- People v. Rowland, 51 Cal.App.4th 1745 (Cal. Ct. App. 1997) (victim restitution is mandatory; sentence without restitution is invalid).
- People v. Rivera, 212 Cal.App.3d 1153 (Cal. Ct. App. 1989) (unauthorized sentence due to restitution error must be vacated).
- People v. Petronella, 218 Cal.App.4th 945 (Cal. Ct. App. 2013) (People may seek review of restitution orders as postjudgment orders affecting substantial rights).
- People v. Millard, 175 Cal.App.4th 7 (Cal. Ct. App. 2009) (standard of review for restitution; legal errors in applying law constitute abuse of discretion).