Demetrius Crump v. The Superior Court of Los Angeles County, The People, Real Parties in Interest

This case has its origin in a leak of natural gas from a

Southern California Gas Company (SoCalGas) storage facility in

Aliso Canyon, adjacent to the residential community of Porter

Ranch, that began on October 23, 2015. The gas leak continued for

months, causing damage to thousands of residents of the area, and

generated a great deal of litigation. In addition to civil lawsuits

brought by affected residents and businesses, the District Attorney

for Los Angeles County filed a misdemeanor criminal complaint

against SoCalGas (defendant).

The resolution of the criminal charges by a plea agreement

generated further litigation by residents of the Porter Ranch

community (petitioners here). In the plea agreement, defendant

pleaded no contest to a charge of failure to immediately report the

release of a hazardous material, and obtained dismissal of other

charges, including a count alleging the discharge of air

contaminants. Petitioners, numbering more than 7,000, sought to

set aside the plea agreement and obtain restitution under the

California Constitution, which gives victims the right “to seek and

secure restitution from the persons convicted of the crimes causing

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the losses they suffer.” (Cal. Const., art. I, § 28, subd. (b)(13)(A).)

At the sentencing hearing, the trial court considered petitioners’

written submissions, oral argument and testimony, but denied their

motion to vacate the plea and require restitution. Further litigation

in the Appellate Division of the Superior Court was likewise

unsuccessful, leading to a petition for writ of mandate in this court.

We hold that the Victims’ Bill of Rights in the California

Constitution (art. I, § 28), as amended in 2008 by Proposition 9

(Marsy’s Law or section 28) does not authorize a victim to appeal

from a judgment or order in a criminal case. Section 28 does

require the court in every case to order restitution to crime victims

“from the persons convicted of the crimes causing the losses they

suffer.” (Id., subd. (b)(13)(A).) And section 28 does authorize a

victim to enforce the right to seek and secure restitution (along with

many other enumerated rights) “in any trial or appellate court with

jurisdiction over the case as a matter of right,” and further requires

the court to “act promptly on such a request.” (Id., subd. (c)(1).)

But nowhere does section 28 state or imply, nor does its history

suggest, that a victim may enforce his or her right to restitution by

direct appeal from a criminal judgment or order.

Instead, in those rare cases where the trial court fails in its

duty to order restitution from the convicted wrongdoer to the

victims of the crime, the victims may do what petitioners have done

in this case: seek a writ of mandate. This is consonant with section

28, and at the same time does not interfere with “the public

prosecutor’s exclusive discretion in the conduct of criminal cases.”

(Dix v. Superior Court (1991) 53 Cal.3d 442, 451 (Dix).)

Here, however, the trial court did not fail in its duty when it

refused to order restitution for all losses caused by the gas leak. We

reject the contention that the release of air contaminants was

“encompassed in” the reporting failure of which defendant was

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convicted. We also decline to extend the right to restitution to

dismissed charges that are “transactionally related” to the crime of

which defendant was convicted. And although we find no error in

the trial court’s conclusion that there was no evidence or proffer of

evidence to establish that defendant’s failure to report the gas leak

for three days was a substantial factor in causing the harm victims

suffered from the gas leak, for the reasons set out below we do

remand for a hearing on whether petitioners can prove damages

from the three-day delay in reporting the leak, as charged in the

criminal complaint.

We note as well that no injustice results from any of the legal

conclusions we have reached. Petitioners continue to have recourse

against defendant in numerous pending civil suits and class actions,

in a civil court specifically designed to handle complex proceedings.

FACTS

1. The Background and the Criminal Complaint

SoCalGas owns a massive natural gas storage field in Aliso

Canyon, near the Porter Ranch community. On October 23, 2015, a

leak of natural gas began from a well at the Aliso Canyon facility.

The leak continued for months, and was finally successfully

controlled in February 2016.

On February 2, 2016, the district attorney filed a

misdemeanor criminal complaint against defendant, alleging

violations of the Health and Safety Code and other state and county

regulations. There were four counts.

Count 1 alleged that, from October 23 to October 26, 2015,

defendant failed to report the release of hazardous material, in

violation of Health and Safety Code section 25510, subdivision (a),

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“to the California Emergency Management Agency and to the

unified program agency.”1

Counts 2 and 3 alleged failures to report the release of

hazardous material, during the same period, under Los Angeles

County Code section 12.56.030 and title 19 of the California Code of

Regulations.

Count 4 alleged that, from October 23, 2015 to the present

(February 2, 2016), defendant committed the crime of discharge of

air contaminants, in violation of Health and Safety Code section

41700, subdivision (a), by discharging natural gas or its

components.

2

A few days after the complaint was filed, attorneys

representing many of the victims of the discharge notified the

district attorney’s office that they sought restitution.



1 Health and Safety Code section 25510 provides in pertinent

part: “[T]he handler or an employee, authorized representative,

agent, or designee of a handler, shall, upon discovery, immediately

report any release or threatened release of a hazardous material, or

an actual release of a hazardous substance, . . . to the UPA [unified

program agency], and to the office, in accordance with the

regulations adopted pursuant to this section.” (Id., subd. (a).) The

term “office” means the Office of Emergency Services. (§ 25501,

subd. (o).) The UPA in this case was the Los Angeles County Fire

Department.

2 Health and Safety Code section 41700 states that “a person

shall not discharge from any source whatsoever quantities of air

contaminants or other material that cause injury, detriment,

nuisance, or annoyance to any considerable number of persons or to

the public, or that endanger the comfort, repose, health, or safety of

any of those persons or the public, or that cause, or have a natural

tendency to cause, injury or damage to business or property.” (Id.,

subd. (a).)

6

On February 17, 2016, defendant waived arraignment and

pleaded not guilty to all four counts.

On September 12, 2016, the district attorney’s office notified

attorney Paul Kiesel that a proposed plea agreement had been

reached with defendant to settle the criminal complaint.

(Mr. Kiesel had been appointed as liaison counsel for the thousands

of plaintiffs and 86 law firms involved in 157 coordinated civil suits

and class actions filed against SoCalGas over the gas leak.)

Mr. Kiesel was informed there would be a pretrial conference the

following day. He said he would discuss the matter with co-leads of

the plaintiff steering committee, and would send a representative

from leadership to the hearing. He was not consulted about the

terms of the plea or given advance notice of the terms.

2. The Plea Agreement

On September 13, 2016, the proposed settlement agreement

was submitted to the trial court and its terms were read into the

record.

Under the plea agreement, defendant pleaded no contest to

count 1, “for failing to timely report the natural gas leak to the

proper authorities, specifically the California Office of Emergency

Services . . . and . . . the Los Angeles County Fire Department.” The

parties acknowledged that any subsequent violation of Health and

Safety Code section 25510 “may be charged as a felony.” Other

terms were:

The court would impose the maximum fine of $75,000

($25,000 per day of violation) in exchange for the plea to count 1.

The court would also impose state penalty assessments “currently

estimated to be approximately $232,500”; $246,672.88 for response

costs; and “all mandatory fines and fees as required by the court,

including any restitution fine to the State Restitution Fund.”

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Defendant agreed to comply with six other terms and

conditions, all to be completed prior to sentencing. “In total,

SoCalGas will be required to pay and commit approximately

$4,004,172 to $4,304,172 to fully complete and satisfy the complete

terms of this settlement agreement.”3

“Provided the terms of this Agreement are complied with by

SoCalGas,” the district attorney agreed to dismiss the remaining

three counts of the complaint at the time of sentencing. And

“[g]iven that all of the terms and conditions of this agreement will

be required to be completed at or prior to the date of sentencing,”

the district attorney agreed not to seek or require probation as a

condition of the agreement.

After discussion and questions from the court, the court

accepted defendant’s plea of no contest to count 1, and signed the

settlement agreement. The court set the matter for sentencing on

November 29, 2016.

3. Proceedings After the Plea

On October 18, 2016, attorneys for victims filed a request for

withdrawal of the plea agreement. They pointed out victims have a

constitutional right to be heard, and a right to restitution under



3 These conditions included installing an infrared methane leak

detection system capable of detecting methane crossing from the

facility into the community; a binding agreement to hire and

maintain six full-time employees to operate and maintain the leak

detection systems for at least three years; installation of real-time

pressure monitors at each natural gas storage well as required by

various orders; testing and certification of the new monitoring

systems by an outside third party company; revision and adoption

of new reporting policies regarding releases or threatened releases

of hazardous materials; and proof that it conducted training courses

for employees responsible for leak detection or reporting at all Los

Angeles County facilities on specified topics.

8

section 28. They contended the district attorney failed to notify or

confer with them before entering the plea agreement, and the plea

should be withdrawn. They requested a hearing to consider their

claims for restitution “before the court sentences SoCalGas or

accepts the plea agreement.” They contended a sentence without an

award of victim restitution is invalid, and the court has discretion

to retain jurisdiction to provide for full restitution to the victims.

On November 7, 2016, the trial court issued a minute order

stating the victims “have standing to be heard and express their

views concerning the negotiated disposition at the sentencing

hearing.” The minute order stated that on November 29, 2016, “the

court will hear input, comments and objections by victims, and

further argument by the parties before proceeding with the

sentencing.”

On November 22, 2016, defendant opposed the request for

withdrawal of the plea agreement. Defendant contended, among

other things, that a third party has no right to compel or control the

prosecution of an offense, and that restitution was not available on

the only count of which defendant was convicted. The district

attorney also opposed the request for withdrawal of the plea

agreement. The district attorney argued the victims had a right to

be heard at sentencing, and a right to lawful restitution, but that

count 1 was the only crime from which a victim could receive

restitution and there were “no natural direct victims of Count One.”

The victims filed a reply, arguing they were entitled to

restitution for the failure to report conviction because failure to

report an emission cannot occur without an emission, so count 4

was “transactionally related” to count 1.

4. The Sentencing Hearing

Four attorneys, plus Mr. Kiesel as liaison counsel for

plaintiffs in the civil actions, appeared at the sentencing hearing,

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representing more than 7,000 victims.4 The court stated that “the

whole point of the hearing today was to allow people who wish to be

heard to be heard about their concerns with regard to victim

restitution as an issue in the case.” The court recognized it had “an

independent duty to make an order which satisfies the interests of

the victim and protects the victim.”

The four attorneys presented arguments to the court on

behalf of victims, and six victims also addressed the court.

After the victim statements and argument, the court imposed

the agreed sentence and dismissed the remaining counts. The court

explained governing principles of prosecutorial discretion and

control of the case by the parties to the litigation. While the victims

had the right to be heard at the sentencing hearing to express their

views on the propriety of the negotiated disposition, they had no

right to intervene in the negotiated disposition itself. “So really this

boils down to whether the prosecutor has properly exercised their

discretion, whether the court should approve the disposition

finally.”

The court concluded that “in the final analysis . . . the People

have not abused their discretion. They actually did something quite

constructive to move forward immediately with protective

measures, which have been accomplished . . . .”

5 The court issued a

detailed written order, including a finding that the prosecutors

complied with their duty under Marsy’s Law to give notice to the

victims prior to the taking of the plea; that it could not impose a



4 Counsel for victims stated that the 7,225 victims were “just

the ones that our office and Mr. Panish’s office represents. There’s

twice that out there.”

5 The prosecutor stated for the record that defendant “did

comply with all of the terms and have shown us proof of all of that.”

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Harvey waiver6 (under which a dismissed charge may be considered

at sentencing on charges to which the defendant has pleaded guilty)

because a defendant’s Harvey waiver must be voluntary; and there

was no basis for restitution under count 1 because the delay in

notification “did not cause the damage occasioned by the leak.”

The court concluded: “The District Attorney’s Office has

chosen terms that include proactive, extensive and costly repairs,

hiring of additional personnel, testing, monitoring, and inspection

and safety protocols, all funded by the defendant moving forward

into the future for the general protection of a vast number of

citizens in the Northern San Fernando Valley . . . . [T]he Court is

persuaded that the District Attorney has acted to protect the

greater public interest to achieve a result that protects not only the

potential direct victims in this case, but the larger general citizenry,

and does so by agreement thereby avoiding costly and protracted

efforts at achieving the same remedies through the courts with civil,

eminent domain, condemnation, or injunctive relief litigation. . . .

Count 4’s dismissal is warranted without a Harvey waiver in such

circumstances, in the exercise of the People’s discretion, and the

Court is well within its reasoned discretion to approve this

settlement in light of the immense overall public benefit to be

derived thereby.”

5. Postsentencing Proceedings

On December 28, 2016, the victims filed a notice of appeal to

the appellate division from the judgment of conviction and from the

denial of their request for restitution. The next day, the victims

filed a petition for writ of mandate, asking the appellate division to

set aside the trial court’s order denying direct victim restitution. A

few days later, the appellate division denied the writ petition “on



6 People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

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the ground the victims have an adequate remedy at law via their

direct appeal from the order denying restitution.”

On August 7, 2018, the appellate division issued an opinion

concluding the victims lacked standing to appeal the order, but had

a right to seek a writ of mandate. Treating the appeal as a writ

petition, the court denied it. The court held (1) there was no right

to restitution under count 4, because defendant was not convicted of

that crime; (2) there was no right to restitution under count 1 based

on its “transactional relationship” to count 4; and (3) as for count 1,

the victims did not establish “that any economic losses they

sustained resulted from the criminal conduct for which defendant

was convicted.”

On September 21, 2018, the victims petitioned this court for a

writ of mandate directing the appellate division to vacate its

opinion and to remand the matter to the trial court “for a proper

hearing on restitution.” We issued an order to show cause why

petitioners are not entitled to the relief requested in the petition.

We now deny the petition in part and remand to permit

petitioners to prove damages stemming only from the three-day

delay in reporting the leak.

DISCUSSION

1. The Direct Appeal Issue

As stated at the outset, we conclude the California

Constitution does not authorize a direct appeal by a victim from a

judgment or order in a criminal case. Section 28 authorizes a

victim to enforce his or her right to restitution in trial and appellate

courts, but does not specify enforcement by way of direct appeal.

The right to appeal is ordinarily conferred by statute, and to date

has been conferred only upon the parties to an action.

While the voters could authorize a right of direct appeal by

constitutional amendment, they did not do so here. We cannot

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infer, based on the language of section 28, that the voters intended

a fundamental change in longstanding criminal and appellate

procedure without expressly so stating. This is particularly so in

light of Supreme Court precedent, well-established at the time

Marsy’s Law was approved by the voters, that “recognition of citizen

standing to intervene in criminal prosecutions” would “undermine

the People’s status as exclusive party plaintiff in criminal actions,

interfere with the prosecutor’s broad discretion in criminal matters,

and disrupt the orderly administration of justice.” (Dix, supra,

53 Cal.3d at pp. 453-454.)

We describe the governing constitutional and statutory

provisions and case precedents that inform our decision, and then

turn to the petitioners’ contentions.

a. Section 28, implementing statutes,

and principles of construction

The Supreme Court described the background of direct victim

restitution under the California Constitution in People v. Martinez

(2017) 2 Cal.5th 1093, 1100 (Martinez). The court explained that in

1982, by Proposition 8, “commonly known as The Victims’ Bill of

Rights,” the electorate declared “an ‘unequivocal intention . . . 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,’ and instruct[ed] the Legislature to

adopt legislation to implement this directive.” (Ibid.)

“The Legislature’s response, currently codified in [Penal Code]

section 1202.4, similarly declares that it is the Legislature’s intent

‘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.’ ” (Martinez, supra, 2 Cal.5th at

p. 1100, quoting § 1202.4, subd. (a)(1).) “To that end, section

1202.4 provides that, with certain exceptions not relevant here, ‘in

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every case in which a victim has suffered economic loss as a result

of the defendant’s conduct, the court shall require that the

defendant make restitution to the victim or victims.’ ” (Ibid.,

quoting § 1202.4, subd. (f).) “The statute further provides that the

court’s restitution order shall, ‘[t]o the extent possible . . . fully

reimburse the victim or victims for every determined economic loss

incurred as the result of the defendant’s criminal conduct.’ ” (Id. at

p. 1101, quoting § 1202.4, subd. (f)(3).) “This provision, as the

Courts of Appeal have uniformly held, . . . authorizes trial courts to

order direct victim restitution for those losses incurred as a result of

the crime of which the defendant was convicted.” (Ibid.)

In addition to the right to restitution, section 28 as originally

approved in 1982 gave victims the right to attend, to adequate

notice of, and to express views on restitution at “all sentencing

proceedings.” (Pen. Code, § 1191.1.) As amended by Marsy’s Law

in 2008, section 28 refers to the right “to seek and secure

restitution” (§ 28, subd. (b)(13)(A)), and enumerates 16 other rights

as well. Victims are entitled to these 17 rights “[i]n order to

preserve and protect a victim’s rights to justice and due process.”

(§ 28, subd. (b).) The rights include, as relevant here, the right to

“reasonable notice of and to reasonably confer with the prosecuting

agency, upon request, regarding . . . the charges filed,” and “to be

notified of and informed before any pretrial disposition of the case”

(id., subd. (b)(6)); to reasonable notice of and to be present at “all

public proceedings . . . at which the defendant and the prosecutor

are entitled to be present” (id., subd. (b)(7)); and “[t]o be heard . . .

at any proceeding . . . involving a . . . plea, sentencing, . . . or any

proceeding in which a right of the victim is at issue” (id.,

subd. (b)(8)).

The Marsy’s Law amendment to section 28 also changed the

Constitution in two other ways relevant here. It specified that

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restitution must be ordered in every case (deleting the 1982

language that required restitution “unless compelling and

extraordinary reasons exist to the contrary” (id., former subd. (b)).

And it added the provision allowing a victim to enforce the 17 rights

enumerated in section 28: “A victim, the retained attorney of a

victim, a lawful representative of the victim, or the prosecuting

attorney upon request of the victim, may enforce the rights

enumerated in subdivision (b) in any trial or appellate court with

jurisdiction over the case as a matter of right. The court shall act

promptly on such a request.” (Id., subd. (c)(1); see id., subd. (f)

[referring to the subdivision (b) enumerated rights “that are

personally enforceable by victims as provided in subdivision (c)”],

and subd. (a)(3) [referring to victims’ rights as including “personally

held and enforceable rights described in paragraphs (1) through

(17) of subdivision (b)”].)

When we construe an initiative such as Marsy’s Law, “we

apply the same principles governing statutory construction. We

first consider the initiative’s language, giving the words their

ordinary meaning and construing this language in the context of

the statute and initiative as a whole. If the language is not

ambiguous, we presume the voters intended the meaning apparent

from that language, and we may not add to the statute or rewrite it

to conform to some assumed intent not apparent from that

language. If the language is ambiguous, courts may consider ballot

summaries and arguments in determining the voters’ intent and

understanding of a ballot measure.” (People v. Superior Court

(Pearson) (2010) 48 Cal.4th 564, 571.) “[W]hen construing

initiatives, we generally presume electors are aware of existing

law.” (California Cannabis Coalition v. City of Upland (2017)

3 Cal.5th 924, 934.)

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b. Dix v. Superior Court

We are also and necessarily guided by the Supreme Court’s

discussion in Dix of the “general rule that neither a crime victim

nor any other citizen has a legally enforceable interest, public or

private, in the commencement, conduct, or outcome of criminal

proceedings against another.” (Dix, supra, 53 Cal.3d at p. 450.)

Dix involved the trial court’s recall of the defendant’s

sentence under Penal Code provisions that allowed the court to

resentence “for any reason that could influence the exercise of

sentencing discretion generally, including events which have

occurred since the original sentence was imposed.” (Dix, supra,

53 Cal.3d at p. 448 [describing Pen. Code, § 1170, subd. (d)].) The

victim of the defendant’s crime sought a writ of mandate to

overturn the recall order and prevent substitution of a new

sentence. (Dix, at p. 447.) The Court of Appeal issued the writ, but

the Supreme Court found the Court of Appeal erred when it held

the victim had standing to litigate the sentencing issue. (Id. at

pp. 447-448.) The Supreme Court concluded that “[n]either a crime

victim nor any other member of the public has general standing to

intervene in an ongoing criminal proceeding against another

person.” (Id. at p. 448.) Dix stands for several pertinent points.

The court found the victim could not “intervene by writ in [the

defendant’s] sentencing. Except as specifically provided by law, a

private citizen has no personal legal interest in the outcome of an

individual criminal prosecution against another person. Nor may

the doctrine of ‘public interest’ standing prevail over the public

prosecutor’s exclusive discretion in the conduct of criminal cases.”

(Dix, supra, 53 Cal.3d at p. 451.)

The court explained that “[t]he parties to a criminal action

are the People, in whose sovereign name it is prosecuted, and the

person accused [citations]; the victim of the crime is not a party

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[citation].” (Dix, supra, 53 Cal.3d at p. 451.) “The prosecutor

ordinarily has sole discretion to determine whom to charge, what

charges to file and pursue, and what punishment to seek.” (Ibid.)

A private person cannot institute criminal proceedings

independently, “and the prosecutor’s own discretion is not subject to

judicial control at the behest of persons other than the accused.”

(Ibid.) “An individual exercise of prosecutorial discretion is

presumed to be ‘ “legitimately founded on the complex

considerations necessary for the effective and efficient

administration of law enforcement.” ’ ” (Ibid.)

Further, “[e]xclusive prosecutorial discretion must also extend

to the conduct of a criminal action once commenced.” (Dix, supra,

53 Cal.3d at p. 452.) It is the prosecutor’s responsibility “to decide

in the public interest whether to seek, oppose, accept, or challenge

judicial actions and rulings,” and “[t]hese decisions, too, go beyond

safety and redress for an individual victim; they involve ‘the

complex considerations necessary for the effective and efficient

administration of law enforcement.’ ” (Ibid.) “There is no place in

this scheme for intervention by a victim pursuing personal concerns

about the case.” (Ibid.)

c. Contentions and conclusions

It is against the backdrop just described that we assess

petitioners’ contention that they have “an independent right to

appeal” a trial court’s denial of their request for restitution.

As we have stated, the right of victims to “enforce the rights

enumerated . . . in any trial or appellate court with jurisdiction over

the case” (§ 28, subd. (c)(1)) – and the court’s corresponding duty to

“act promptly on such a request” (ibid.) – do not suggest to us an

“independent right to appeal” a restitution order. The recognition

of such a right in the absence of language expressly conferring it is

inconsistent both with the prosecutor’s exclusive discretion to

17

conduct a criminal case, including whether to challenge judicial

actions, and with the fundamental principle that the only parties to

a criminal action are the prosecutor and the defendant. (Dix, supra,

53 Cal.3d at pp. 451-452.)

Petitioners resist this conclusion with several arguments.

i. The constitutional language

Petitioners tell us they have a constitutional right to enforce

their restitution rights in “any trial or appellate court with

jurisdiction over the case . . . .” (§ 28, subd. (c)(1).) Indeed they do.

But petitioners simply assume this means they have an

independent right to a direct appeal. They do not. Neither the

language of section 28 nor the ballot materials accompanying

Marsy’s Law give any indication the voters intended to change

current statutory provisions on the right to appeal in a criminal

case. Several points are pertinent.

First, an appellate court has “jurisdiction over the case” when

one of the parties – the prosecutor or the defendant – takes an

appeal. For misdemeanor cases, Penal Code section 1466 delineates

all the cases in which an appeal may be taken “[b]y the people” (id.,

subd. (a)) and “[b]y the defendant” (id., subd. (b)). Nothing in

Marsy’s Law makes the victim a party to the case, or purports to

change Penal Code section 1466. Without party status, there is no

basis for a direct appeal. Of course, once the appellate court has

jurisdiction over the case, Marsy’s Law gives victims the right to

participate in those proceedings to enforce the rights conferred on

victims in section 28.

Second, nothing in the ballot materials accompanying Marsy’s

Law suggested any change in the right to appeal from a criminal

judgment. The ballot materials described the changes that would

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be made by the amendment.7 The legislative analyst described the

changes the initiative would make in “notification and participation

of victims in criminal justice proceedings” this way: “As noted

above, Proposition 8 [the 1982 initiative] established a legal right

for crime victims to be notified of, to attend, and to state their views

at, sentencing and parole hearings. This measure expands these

legal rights to include all public criminal proceedings, including the

release from custody of offenders after their arrest, but before trial.

In addition, victims would be given the constitutional right to

participate in other aspects of the criminal justice process, such as

conferring with prosecutors on the charges filed. Also, law

enforcement and criminal prosecution agencies would be required to

provide victims with specified information, including details on

victim’s rights.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2008)

analysis of Prop. 9 by Legislative Analyst, pp. 58-59.) In short,

there is no intimation that the changes included a right of direct

appeal for victims from a restitution order or any other order in a

criminal case.

Third, and perhaps most importantly, the Constitution’s

appellate jurisdiction clause establishes and allocates judicial

authority; it does not define or guarantee a litigant’s right to

appeal. (See Leone v. Medical Board (2000) 22 Cal.4th 660, 665-666

(Leone) [“the appellate jurisdiction vested in the Courts of Appeal

by article VI, section 11, of the California Constitution encompasses

review by extraordinary writ as well as review by direct appeal”].)



7 In addition to amending the Constitution and various state

laws to “expand the legal rights of crime victims and the payment of

restitution by criminal offenders,” Marsy’s Law “restrict[ed] the

early release of inmates” and “change[d] the procedures for granting

and revoking parole.” (Voter Information Guide, Gen. Elec. (Nov. 4,

2008) analysis of Prop. 9 by Legislative Analyst, p. 58.)

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Leone construes the clause of the Constitution that gives Courts of

Appeal “ ‘appellate jurisdiction when superior courts have original

jurisdiction,’ ” and tells us that “[n]othing in this language conveys

an intention to grant litigants a right of direct appeal from

judgments in proceedings within the superior courts’ original

jurisdiction.” (Leone, at p. 666; see ibid. [“In particular, the

reference to ‘appellate jurisdiction’ does not imply a right of

litigants to bring direct appeals.”]; see id. at p. 667 [“Nor does the

ballot pamphlet for the November 1966 election mention a right of

appeal under the state Constitution.”].)

We see no reason for a different construction of the

constitutional right under section 28 to “enforce” the victim’s rights

“in any trial or appellate court with jurisdiction over the case as a

matter of right.” (Id., subd. (c)(1).) That is to say, the right to

enforcement in an appellate court is not necessarily the equivalent

of a right to direct appeal. “[A] reviewing court may exercise

appellate jurisdiction – that is, the power to review and correct

error in trial court orders and judgments – either by a direct appeal

or by an extraordinary writ proceeding.” (Leone, supra, 22 Cal.4th

at p. 668.) An extraordinary writ proceeding is particularly

appropriate in circumstances where the person with the

enforcement right is not a party to the proceeding.

Thus, in the unusual case where the trial court improperly

refuses or otherwise errs in awarding restitution, and no appeal is

taken, the victim may enforce the right to restitution in the

appellate courts by seeking a writ of mandate.

We recognize that the Dix case involved a writ of mandate,

and that Dix rejected “the holding below that [the victim] may

intervene by writ in [the defendant’s] sentencing.” (Dix, supra, 53

Cal.3d at p. 451.) But the court prefaced its ruling with the caveat,

“[e]xcept as specifically provided by law.” (Ibid.) Dix preceded the

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passage of Marsy’s Law, which allows crime victims to enforce their

enumerated rights in appellate courts. It seems clear to us that the

right specified in Marsy’s Law, unlike the circumstances in Dix,

satisfies the principle that “[o]rdinarily, the writs will be issued

only to persons who are ‘beneficially interested.’ ”8 (Dix, at p. 450.)

A victim is necessarily “beneficially interested” in an award – or a

refusal to award – restitution.

In short, our conclusion – that the enforcement right in

section 28 is not a right of direct appeal, but a right to obtain

appellate review by seeking a writ of mandate – is consonant both

with the language and intent of Marsy’s Law, and with principles of

prosecutorial discretion and appellate review that were well

established when the voters approved Marsy’s Law.

9



8 Dix did not involve restitution. Dix recognized that the

Constitution and statutes at that time accorded individual felony

victims certain rights, including the right to restitution in

appropriate circumstances, and concluded that “[w]hatever special

considerations of standing may apply to this limited category of

‘victims’ rights,’ ” challenges based on the recall statute did not

implicate those rights. (Dix, supra, 53 Cal.3d at p. 453.)

9 Petitioners’ next argument is that the Legislature may not, by

failing to amend the Penal Code with express statutory language

stating victims have the right to appeal, abridge their

constitutionally granted right to appeal. They cite Byers v. Smith

(1935) 4 Cal.2d 209, 214 (Legislature has no power “either through

direct enactment or indirect device, to destroy or abridge the right

of an appeal constitutionally granted”). As we have just discussed,

section 28 does not grant a “right to appeal.” Moreover, in Leone

the court found reliance on Byers for a constitutional right to appeal

was “misplaced,” among other reasons because Byers did not

construe the clause at issue and did not distinguish between review

by writ petition and review by direct appeal. (Leone, supra,

22 Cal.4th at pp. 667-668.)

21

ii. The case authorities

Petitioners contend that appellate decisions have

acknowledged a crime victim’s right to appeal, citing Melissa J. v.

Superior Court (1987) 190 Cal.App.3d 476 (Melissa J.) and People v.

Hannon (2016) 5 Cal.App.5th 94 (Hannon). Petitioners misconstrue

these cases.

Melissa J.

Petitioners contend that, even before Marsy’s Law gave

enforcement rights to victims, Melissa J. recognized that crime

victims had the right to appeal. That is not so.

In Melissa J., the court granted the victim’s petition for writ

of mandate, and set aside the trial court’s order terminating a

restitution provision in the defendant’s probation order. The court

held that, as to restitution, “the notice and right to appear

requirements [in the Victims’ Bill of Rights] are mandatory,” and if

those requirements are not satisfied, “the victim may challenge a

ruling regarding restitution.” (Melissa J., supra, 190 Cal.App.3d at

p. 478.) The court held the trial court erred “in terminating

restitution without first satisfying itself that petitioner had been

properly notified of the hearing.” (Ibid.)

Melissa J. did not recognize a victim’s right to appeal.

Indeed, the court observed that the petitioner “could have received

the same relief by moving the trial court to vacate its ruling

terminating restitution.” (Melissa J., supra, 190 Cal.App.3d at

p. 479.) The court explained that the victim is not considered a

party to a criminal proceeding, but “where the court has issued an

order concerning restitution, the victim may assert his or her

legitimate rights by the procedures available to parties. Thus, in

future cases, victims not notified of proceedings will be required to

exhaust their remedies in the trial courts before seeking relief in

appellate courts.” (Ibid.)

22

Petitioners assert – with no rational basis – that by the

language just quoted, Melissa J. establishes that, like parties,

“future victims would have standing to appeal.” The contention is

patently wrong. Melissa J. supports the proposition that, in future

cases, a writ would be denied if the victims did not exhaust

remedies in the trial court. It neither says nor implies anything

about a right to appeal.

Subramanyan

Before we turn to Hannon, we pause to describe the case to

which Hannon refers: People v. Subramanyan (2016)

246 Cal.App.4th Supp. 1 (Subramanyan). Petitioners describe that

case as an “Appellate Division outlier[].”

Subramanyan was an appeal by a victim from a trial court’s

order denying him additional restitution for attorney fees he

incurred in a civil action against the defendant. (Subramanyan,

supra, 246 Cal.App.4th at p. Supp. 4.) The court saw “no provision

in Marsy’s Law that specifically permits a victim to appeal a

restitution order,” while the Penal Code “specifically directs that

appeals are limited to the People or the defendant,” citing section

1466. (Subramanyan, at p. Supp. 7.) The court found that

“[n]othing in the legislative intent or [Marsy’s Law] itself allows the

victim to substitute in and replace the role of the prosecutor.”

(Ibid.) Subramanyan concluded that, “once the judgment was

entered at the trial court, only the prosecutor, acting on behalf of

the People, or the defendant could initiate the appeal. If such an

appeal were initiated, the victim could then participate pursuant to

Marsy’s Law.” (Id. at p. Supp. 8.) Thus, the court dismissed the

appeal for lack of standing. (Ibid.)

Hannon

That brings us to Hannon, on which petitioners place their

principal reliance. In Hannon, the defendant appealed from the

23

trial court’s restitution award, and the court granted the victim’s

request to file an impact statement on appeal. The court held that

Marsy’s Law “entitles a victim to file an impact statement on appeal

but does not obligate this court to consider new issues and facts in

such a statement.” (Hannon, supra, 5 Cal.App.5th at p. 101,

capitalization omitted.) The court observed its interpretation of

section 28 “means the victim’s claims of error will remain

unresolved. That is because, absent those circumstances where

writ proceedings are appropriate, the mechanism by which claims of

error are properly brought to this court’s attention is through the

filing of an appeal,” and the victim did not attempt to appeal the

trial court’s restitution order. (Hannon, at p. 107.) Then the court

stated, “We recognize there is some uncertainty whether the victim

would have had standing to appeal the restitution award, but we do

not have occasion in the present case to decide that issue.” (Ibid.)

Thus, far from “recogniz[ing] that crime victims must have a

right to appeal,” Hannon did not decide the issue, saying it was “for

future courts to address.” (Hannon, supra, 5 Cal.App.5th at p. 107,

fn. 7.) Petitioners point to Hannon’s comments, by way of footnote,

that if there is no right to appeal, “then the victim’s claims of error

may go unheard,” and “[a]rguably, a victim has a right to appeal

under” section 28’s enforcement provision. (Hannon, at p. 107,

fn. 7.) Hannon then described the Subramanyan opinion, and

suggested that it “did not explain how its result was consistent with

the language of Section 28, subdivision (c)(1) and did not explain

how, consistent with due process, a victim could enforce the right to

restitution without the ability to appeal an erroneous restitution

award. Those issues, including any conflict between the rights

given victims under Marsy’s Law and the People’s prosecutorial

authority, are for future courts to address.” (Hannon, at p. 107,

fn. 7.)

24

We are not persuaded by Hannon’s comments on an issue it

did not consider, analyze or decide. We have explained our analysis

in detail, and we summarize it again: Nowhere does section 28

state or imply that a victim may enforce his or her right to

restitution by appealing from a criminal judgment or order. Nor is

there any evidence the voters intended that the enforcement

provision of section 28 would expand the limitations in the Penal

Code on the right to appeal. In light of settled principles that the

only parties to a criminal case are the People and the accused; that

the prosecutor has exclusive discretion in the conduct of criminal

cases (Dix, supra, 53 Cal.3d at p. 451); and that a right to appellate

review does not necessarily imply a right of direct appeal, we can

only conclude that victims do not have that right under Marsy’s

Law.

Accordingly, we turn to the merits of the victims’ writ

petition.

2. The Claim that the Criminal Conduct for which

Defendant Was Convicted “Encompassed” the

Criminal Discharge of Hazardous Substances

Petitioners argue that, because defendant was convicted of

failure to immediately report the release of a hazardous material, a

“criminal release of hazardous materials” must have occurred.

Ergo, defendant’s “criminal discharge of hazardous materials is

criminal conduct encompassed in its criminal failure to timely

report that discharge,” entitling them to restitution for losses

caused by the criminal discharge of hazardous materials.

This facile contention cannot survive serious scrutiny. It

omits the fundamental requirement of an actual verdict after trial

or an admission by the defendant to a specific criminal charge. We

are unaware of any principle under which we may conclude a

defendant has been “convicted of the crime[]” (§ 28, subd. (b)(13)(A))

25

in the absence of a verdict on or plea to that crime. And nothing in

the case petitioners cite (People v. Walker (2014) 231 Cal.App.4th

1270 (Walker)) persuades us otherwise. Walker does not stand for

the proposition that restitution may be ordered for “criminal

conduct” to which the defendant has not pleaded or been found

guilty.

In Walker, the defendant pleaded no contest to four counts of

“DUI causing injury” based on a single incident in which he hit

eight different vehicles carrying nine passengers. (Walker, supra,

231 Cal.App.4th at p. 1273.) The defendant contended that the

court imposed restitution for crimes of which he was not convicted,

because two of the victims to whom restitution was awarded were

not named in the charging document. (Id. at p. 1274.) The court

concluded that, “[b]ecause there was only one instance of driving

under the influence,” and the defendant pleaded no contest to that

instance, the losses suffered by anyone involved in that instance

arose out of “ ‘the criminal conduct for which the defendant has

been convicted.’ ” (Id. at pp. 1275-1276.) “Whether these potential

victims were specifically named in the charging document is

irrelevant.” (Id. at p. 1276.)

In assessing defendant’s claim, Walker stated, at the

beginning of its analysis, that “understand[ing] the conduct of

which [the defendant] stands convicted . . . turns on what conduct is

encompassed by the crime of DUI causing injury.” (Walker, supra,

231 Cal.App.4th at p. 1275.) Petitioners seize on those words as, in

effect, establishing a rule of law that any conduct “encompassed” in

the elements of the crime of which a defendant is convicted is itself

“criminal conduct” of which the defendant has been convicted.

Walker suggests nothing of the sort.

In Walker, the defendant pleaded no contest to committing the

criminal act – driving under the influence causing injury – that

26

caused the economic loss to the victims. While two of the victims

were not named in the charges, the defendant conceded they were

among the nine passengers in the eight different vehicles the

defendant hit in the accident he caused. (Walker, supra,

231 Cal.App.4th at p. 1273.) Those circumstances fit well within

the principle courts are required to apply: that “the court may

order restitution only for losses arising out of the ‘criminal conduct

for which the defendant has been convicted.’ ” (Id. at p. 1274, italics

added; see ibid. [“This result is dictated by the language of [Penal

Code] section 1202.4 . . . and by the unfairness that would result if a

defendant were held responsible for losses caused by conduct

underlying charges that were dismissed or of which he was

acquitted,” italics added].)

A conviction of a failure-to-report violation is not a conviction

for the underlying conduct that was not reported. Any other

conclusion is rationally unsustainable.

3. The “Transactionally-related” Argument

Next, petitioners tell us that, because the dismissed count 4 is

“transactionally related” to the crime to which defendant pleaded no

contest, restitution must be ordered for economic losses caused by

the dismissed count. We disagree. The legal authorities petitioners

cite do not support their claim.

In Harvey, supra, 25 Cal.3d 754, the Supreme Court

concluded it would be “improper and unfair” to permit a sentencing

court to consider any facts underlying a dismissed count “for

purposes of aggravating or enhancing defendant’s sentence.” (Id. at

p. 758.) Implicit in the plea bargain, Harvey stated, was “the

understanding (in the absence of any contrary agreement) that

defendant will suffer no adverse sentencing consequences by reason

of the facts underlying, and solely pertaining to, the dismissed

count.” (Ibid.)

27

The Harvey rule, however, does not preclude the sentencing

court “ ‘from reviewing all the circumstances relating to [the

defendant’s] admitted offenses to the legislatively mandated end

that a term, lower, middle or upper, be imposed on [the defendant]

commensurate with the gravity of his crime.’ ” (Harvey, supra,

25 Cal.3d at p. 758.) The court denominated such facts as

“transactionally related to the offense to which defendant pleaded

guilty.” (Ibid.)

The Harvey rule (or its exception) has been applied in cases

involving increased prison terms, and to conditions of probation.

(E.g., People v. Klaess (1982) 129 Cal.App.3d 820, 823 [“facts used

. . . to aggravate defendant’s sentence were inseparably and

integrally a part of defendant’s admitted offense and were therefore

properly considered”; “[t]he Harvey court recognized that the rule

must give way . . . when it would prevent the trial court from

considering all the factors necessary to an informed disposition for

the offenses to which defendant has pleaded guilty”]; People v.

Beagle (2004) 125 Cal.App.4th 415, 421, 417-418 [“[w]e see no basis

for distinguishing conditions of probation from prison sentences in

this context”; “[a] condition of probation adding a restriction on the

defendant’s conduct is an ‘adverse sentencing consequence’ ”; trial

court could not impose a drug-related probation condition on a

defendant who pleaded guilty to a weapon charge, based on facts

relating to the dismissed drug charge].)

Petitioners invoke the cases just cited to argue that the same

principle applies to restitution. We think not. The cases petitioners

cite involve a sentencing court’s authority to consider facts

underlying a dismissed count in deciding the length of a defendant’s

sentence, or the conditions of a defendant’s probation, on the

admitted charge. A court may consider those facts only if “some

action of the defendant giving rise to the dismissed count was also

28

involved in the admitted count.” (Beagle, supra, 125 Cal.App.4th at

p. 421.) But those principles have nothing to do with a court’s

constitutionally mandated duty – not its discretionary authority –

to order the defendant to pay full restitution to victims who incur

an economic loss “as a result of the commission of a crime,” from

“a defendant convicted of that crime.” (Pen. Code, § 1202.4,

subd. (a)(1).)

We are disinclined to apply legal rules for determining the

length of a defendant’s sentence or the conditions of his or her

probation to the entirely different question of the constitutionallyprescribed

circumstances for a restitution order. While restitution

may be an “adverse sentencing consequence” from the defendant’s

point of view, not all such consequences have the same

ramifications. For one thing, “direct victim restitution is not a

criminal penalty. [Citation.] ‘[D]irect victim restitution is a

substitute for a civil remedy so that victims of crime do not need to

file separate civil suits. It is not increased “punishment.” ’ ” (People

v. Foalima (2015) 239 Cal.App.4th 1376, 1398 (Foalima); see also

People v. Gross (2015) 238 Cal.App.4th 1313, 1315 [“[t]he obligation

to make a victim whole through direct victim restitution is a

constitutional mandate that serves to protect public safety and

welfare, rather than to punish the defendant”].)

More importantly, restitution is governed by provisions of the

Constitution and implementing statutes that are explicit in their

scope and application. Restitution is not akin or even analogous to

the length of a prison term (e.g., upper, middle or lower) or to the

conditions of a defendant’s probation, both of which involve an

exercise of the sentencing court’s sound discretion, as guided by

statute and court rules. (E.g., Pen. Code, § 1170, subd. (b);

Cal. Rules of Court, rule 4.420; see also rule 4.421 [“Circumstances

29

in aggravation include factors relating to the crime and factors

relating to the defendant.”].)

Restitution, by contrast, “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.” (§ 28,

subd. (b)(13)(B); Pen. Code, § 1202.4, subd. (f) [“The court shall

order full restitution.”].) No discretion is involved, and the award

does not depend on anything other than the crime of which

defendant was convicted and the economic loss caused by that crime

– no matter how “transactionally related” it may be to some other

charge of which a defendant has not been convicted. In short, the

appellate division did not “br[eak] with precedent,” as petitioners

claim, when it concluded that “transactional relationship is not the

test” for determining entitlement to direct victim restitution – quite

the contrary.

10



10 The point is further demonstrated by the differences between

a court’s power to order direct victim restitution and a court’s power

to order restitution as a condition of probation. “[T]he restitution

power conferred by [Penal Code] section 1202.4 stands in contrast

to a court’s power to order restitution as a condition of probation.”

(Martinez, supra, 2 Cal.5th at p. 1101.) In the latter case, the

court’s discretion “has long been held to include the power to order

restitution ‘even when the loss was not necessarily caused by the

criminal conduct underlying the conviction,’ including in cases in

which ‘the loss was caused . . . by conduct underlying dismissed and

uncharged counts . . . .’ ” (Ibid.) “A trial court’s power to order

restitution in probation cases is thus broader than its power to

order direct victim restitution under section 1202.4 in cases in

which the defendant receives a nonprobationary sentence.” (Ibid.)

“ ‘When section 1202.4 imposes its mandatory requirements in favor

of a victim’s right to restitution, the statute is explicit and

narrow.’ ” (Id. at pp. 1101-1102.)

30

This is not to say, of course, that a defendant may not agree,

by way of a Harvey waiver, to the payment of direct restitution on a

dismissed count as a condition of the plea, if the plea is “freely and

voluntarily made” – Penal Code section 1192.3 specifically provides

for that circumstance. But those are not the facts here.

In sum, the rules on restitution are set in constitutional and

statutory law, and we see no basis for construing them to say more

than they do. Direct victim restitution is available only for losses

resulting from the commission of a crime, from a defendant

convicted of that crime. (Cf. People v. Jessee (2013) 222 Cal.App.4th

501, 510 [“Based upon the plain language of these statutes, we

conclude restitution may only be awarded for crimes the defendant

is charged with and convicted of, even if the evidence shows beyond

a reasonable doubt and the trial court finds the defendant

committed an uncharged crime.”].)

4. The Claim for Economic Losses Resulting

From Defendant’s Failure to Report the Gas Leak

Petitioners’ final contention is that they are entitled to

restitution for economic losses they incurred as a result of

defendant’s failure to report the gas leak for three days.

As stated earlier, the trial court rejected this claim, observing that

the failure to report was not “a crime that includes obvious

causation,” and that “[t]he delay in the defendant’s required

notifications to various authorities upon discovery of the gas leak

did not cause the damage occasioned by the leak; the damage would

have occurred with or without the timely notification.”

The appellate division observed petitioners had the burden to

demonstrate defendant’s failure to report the gas leak was a

substantial factor in causing their injuries, and agreed with the

trial court that they “failed to establish a causal connection between

defendant’s failure to timely report the leak and any claimed

31

injuries or losses they sustained as a result of that criminal

conduct.” The court elaborated:

“The Victims offered no evidence in their written motion, nor

at the hearing on the motion, and they made no satisfactory offer of

proof to support the claim, made for the first time at the hearing,

that they were damaged by defendant’s three-day delay in reporting

the leak. They did assert at the hearing that, had defendant

reported the leak ‘immediately,’ the health department would have

‘red tagged’ the homes and then ‘all of this damage’ could have been

prevented. Notably, however, the Victims did not elaborate on what

damages were specifically attributable to defendant’s delay in

reporting the leak, as opposed to the leak itself. Indeed, the

individual victims who spoke at the hearing exclusively addressed

their right to restitution for the losses and injuries they suffered as

a result of the leak and their sustained exposure to the leaked

hazardous materials, not the delay in reporting the leak. No offer of

proof was made that certain victims would testify that, had the leak

been immediately reported, they could have responded immediately

by evacuating their homes, and they would not have sustained

injuries during the three days defendant did not report the leak.”

Petitioners tell us the court applied an “erroneous strict

causation standard” that is “unprecedented,” “overly stringent” and

“unsupported by the law.” That is simply not the case. The court

applied the “substantial factor” standard just as it was required to

do.

It is not enough to point out we are to give a “broad and

liberal construction” to the statute implementing the constitutional

right to restitution. (Martinez, supra, 2 Cal.5th at p. 1107.) As

Martinez states, “[e]ven giving broad and liberal construction to

[Penal Code] section 1202.4 [citation], we must give effect to the

unambiguous language the Legislature has chosen.” (Ibid.

32

[referring to the limitation of restitution to losses incurred “ ‘as a

result of the commission of a crime’ ”].) As was the case before the

trial court and the appellate division, petitioners point to no

evidence, and refer to no offer of proof that would support a finding,

that the three-day failure to report was a substantial factor in

causing their injuries.

Petitioners offer only counsel’s speculation that the losses

they suffered “could have been lessened or obviated altogether” by

reporting the leak three days earlier. Nothing in the record

suggests that is so. And the case petitioners cite for the (correct)

proposition that the substantial factor test should not be applied too

narrowly (Foalima, supra, 239 Cal.App.4th at p. 1397)

demonstrates the lack of merit in their claim. “The test, put simply,

is whether [the victim] would have incurred damages had there

been no [crime for which the defendant was convicted].” (Ibid.) In

Foalima, the answer was “clearly no.” (Ibid.) Here, the answer is

clearly yes. As the trial court stated, “the damage would have

occurred with or without the timely notification.” No evidence or

victims’ comments or other offer of evidence that could be produced

suggested otherwise.

We agree with the trial court and appellate division that the

evidence presented at the sentencing hearing was woefully

insufficient to prove damages from the reporting delay itself – the

proper measure of restitution. Nonetheless, we believe there was

enough confusion about the scope of the sentencing hearing to

warrant a new hearing on the issue of restitution only for damages

occasioned by the three-day delay in reporting the leak. The trial

court stated at the start of the hearing that “the whole point of the

hearing today was to allow people who wish to be heard to be heard

about their concerns with regard to victim restitution as an issue in

the case.” Counsel later stated that “[w]e weren’t quite sure how

33

the court wanted to proceed in regards to the victims,” and the court

responded that “the court wasn’t sure how you all wanted to

proceed, so I made arrangements to dedicate as much time as

necessary to resolve this.” These remarks establish that neither the

court nor counsel clarified in advance the proper legal parameters

of the hearing, that is, whether proof would be considered for all

losses stemming from the leak itself, or whether proof would be

limited to damages stemming only from the three-day delay in

reporting the leak.

The district attorney, as the local prosecutor of this

environmental crime, was responsible in the first instance to

propose to the court and the parties a process by which the victims

might seek to enforce their rights to restitution. As the victims’

counsel pointed out at oral argument, this was not the first

environmental crime to be prosecuted by the district attorney, nor is

it likely to be the last. Because the scope of the restitution hearing

was not settled in advance, we believe it fair (and within the spirit

of Marsy’s Law) to remand for a further hearing to determine what,

if any, damages were caused only by the three-day delay in

reporting the leak to the proper authorities, to which SoCalGas

pleaded no contest as charged in count 1.

There is one final point, however, regarding of the agreedupon

plea bargain notice to the victims. In their reply to the

returns of defendant and the district attorney, petitioners offer, as a

basis for concluding the courts below applied an “overly-strict”

causation standard, the claim that the district attorney violated

Marsy’s Law by (among other things) failing “to give notice to each

of the Victims, or at the very least their attorneys, prior to” the trial

court’s acceptance of the negotiated plea at the September 13, 2016

hearing. They say this deprived them of “a meaningful opportunity

34

to be heard or to submit evidence of their economic losses.” We

reject this contention for two reasons.

Petitioners did not assert any notice violations of Marsy’s Law

in their petition as a basis for seeking writ review. (See

Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11

[“Obvious reasons of fairness militate against consideration of an

issue raised initially in the reply brief of an appellant.”].)11

The district attorney notified Mr. Kiesel, liaison counsel in

the civil cases, the day before the hearing on the negotiated plea.

We agree with the trial court that this was satisfactory notice of the

proposed plea agreement. Petitioners have not explained how they

were prejudiced by the manner or timing of the notice to Mr. Kiesel

of the plea hearing.

CONCLUSION

We conclude with the observation we made at the beginning:

No injustice flows from the legal principles we have applied. While

many petitioners have suffered greatly from the Aliso Canyon gas

leak, there is recompense to be had in the civil courts, and indeed a

specially assigned civil court to hear such cases.

12



11 Amicus curiae raise the same issue: alleged violation of

victims’ constitutional rights “to be notified of a pending plea

agreement and to be present and heard at that hearing.” We

decline to consider it. “The general rule, which we apply here, is

that amicus curiae may not raise new issues but ‘must accept the

case as it finds it.’ ” (Bruno v. Superior Court (1990) 219 Cal.App.3d

1359, 1365.)

12 The prosecutor pointed out at the sentencing hearing that

some restitution had already been paid. “[A]t the time of the plea

over $500 million was expended on relocation costs, cleaning of the

homes, boarding animals, relocating schools, mileage if a victim’s

commute to work was longer in the relocated home than it would

35

We know, of course, that criminal restitution is an entirely

independent constitutional right, but it is available only for losses

resulting from crimes of which the defendant has been convicted.

Victims may seek writ review, as petitioners did here, when they

believe a trial court has failed to follow that constitutionally

mandated principle. Defendant pleaded no contest only to the

failure to report violation, and this court cannot interfere, in the

absence of any illegality, with the prosecutor’s discretion to accept

that plea. There was no illegality. The trial court found the plea

agreement “protect[ed] not only the potential direct victims in this

case, but the larger general citizenry.” We find no basis to say

otherwise.

The issue of restitution for damages caused only by the threeday delay in reporting the leak is remanded to the trial court for a new hearing. Otherwise the petition for writ of mandate is denied. Parties to bear their own costs.