State v. Cervantes

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND
MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

GABRIEL CERVANTES, Appellant.

No. 1 CA-CR 18-0224
FILED 7-30-2019

Appeal from the Superior Court in Maricopa County
No. CR2013-442993-003
The Honorable Gregory Como, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Gabriel Cervantes appeals the superior court’s order granting
the victim additional restitution more than three years after the court
entered its initial restitution award, but before Cervantes’ release from
prison. Challenging the restitution order on two grounds, Cervantes argues
that: (1) the superior court lacked jurisdiction to grant the additional
restitution request; and (2) insufficient evidence supports the amount of
restitution awarded. For the following reasons, we conclude that the
restitution request was appropriately granted and affirm.

BACKGROUND1

¶2 At some point during a physical altercation involving six
men, the victim was struck unconscious and collapsed. While he lay
motionless on the ground, Cervantes repeatedly kicked the victim’s face
and head, causing an orbital fracture.

¶3 After a jury convicted Cervantes of aggravated assault—
having caused serious physical injury to the victim—the superior court
sentenced him to a term of six years’ imprisonment and ordered him to pay
$9,349.79 in restitution. Almost three years later, the State requested
additional restitution for the victim’s post-sentencing cost of care and
rehabilitation. The court granted the request and ordered Cervantes to pay
an additional $11,226.59 in restitution to the Victim Compensation Unit for
reimbursement funds paid to the victim.

¶4 Cervantes timely appealed the second restitution order.

1 We view the facts in the light most favorable to sustaining the
restitution order. State v. Stutler, 243 Ariz. 128, 130, ¶ 4 (App. 2017).

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DISCUSSION

I. The superior court had jurisdiction to order additional restitution.

¶5 Asserting a court is divested of jurisdiction once it enters a
restitution award, Cervantes argues that the superior court lacked statutory
authority to award additional restitution. As support for this claim,
Cervantes relies on Arizona Revised Statutes (“A.R.S.”) section
13-805(A)(1), which he contends limits a superior court’s post-sentence
jurisdiction to ordering, modifying, or enforcing only the way restitution
payments are made.

¶6 Whether a superior court has jurisdiction over a restitution
claim “presents a pure question of law requiring this court to apply basic
tenets of statutory construction.” State v. Zaputil, 220 Ariz. 425, 427, ¶ 7
(App. 2008). “Thus, we review the [superior] court’s ruling de novo.” Id. To
construe statutes, “we apply fundamental principles of statutory
construction, the cornerstone of which is the rule that the best and most
reliable index of a statute’s meaning is its language and, when the language
is clear and unequivocal, it is determinative of the statute’s construction.”
State v. Hansen, 215 Ariz. 287, 289, ¶ 7 (2007). Nonetheless, a plain language
interpretation does not focus on statutory words or phrases in isolation but
considers related statutes “as though they constitute one law,” giving effect
to all the provisions involved. State v. Gamez, 227 Ariz. 445, 449, ¶ 27 (App.
2011).

¶7 In Arizona, a crime victim has “a constitutional right to
restitution from the person convicted of the criminal conduct that caused
the victim’s loss.” Zaputil, 220 Ariz. at 428, ¶ 10 (citing Ariz. Const. art. 2,
§ 2.1(A)(8)). To effectuate this right, “the [superior] court shall require the
convicted person to make restitution to . . . the victim . . . in the full amount
of the economic loss as determined by the court.” A.R.S. § 13-603(C). In
determining the “full amount” of a victim’s economic loss, the court shall
consider “all losses caused by the criminal offense,” irrespective of the
defendant’s ability to pay. A.R.S. § 13-804(B), (C).

¶8 While A.R.S. § 13-603 establishes a broad mandate to the
court, requiring it to award restitution for the “full amount” of a victim’s
losses, A.R.S. § 13-805(A) regulates only “the manner in which court-
ordered payments are made,” extending a court’s jurisdiction to order,
modify, and enforce payments until restitution has been paid in full or
“until the defendant’s sentence expires.” Contrary to Cervantes’ argument,
A.R.S. § 13-805(A) does not, by its express terms, address a court’s authority

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to award restitution, and certainly does not relieve the court of its obligation
to order restitution for the “full amount” of the victim’s losses upon the
presentation of sufficient evidence.

¶9 Although restitution is generally “ordered at the time of
sentencing,” A.R.S. § 13-603 is “silent as to when restitution must be
assessed.” State v. Grijalva, 242 Ariz. 72, 74, ¶ 9 (App. 2017) (citation
omitted). While a determination of the amount and entry of a restitution
order is “part of the sentencing function,” In re Stephanie B., 204 Ariz. 466,
469-70, ¶ 15 (App. 2003) (citation omitted), “restitution is not a punishment
exacted by the [S]tate,” Zaputil, 220 Ariz. at 428, ¶ 11, but a mechanism “to
make victims whole for the economic losses they suffer from crimes.” State
v. Cota, 234 Ariz. 180, 184, ¶ 10 (App. 2014). For this reason, a different
burden of proof applies to determining restitution amounts—a
preponderance of the evidence standard rather than proof beyond a
reasonable doubt. In re Stephanie B., 204 Ariz. at 470, ¶ 15.

¶10 With the constitutional import of victims’ rights in mind, we
broadly construe the statutes governing restitution to expand, rather than
limit, a court’s jurisdiction. State v. Pinto, 179 Ariz. 593, 596 (App. 1994); cf.
State v. Howard, 168 Ariz. 458, 459-60 (App. 1991) (upholding a restitution
award for future medical expenses, reasoning that including only the
expenses already incurred by the victim at the time of sentencing would fail
to make the victim “whole”); Matter of Estate of Vigliotto, 178 Ariz. 67, 69-70
(App. 1993) (holding the rights of a crime victim to be made whole by
receiving restitution survives a defendant’s death); State v. West, 173 Ariz.
602, 609 (App. 1992) (holding restitution orders are not dischargeable in a
bankruptcy proceeding). In some cases, to fulfill the court’s mandate—to
make crime victims whole—the court must retain jurisdiction over requests
for additional restitution to compensate victims for economic losses
incurred after the court’s pronouncement of sentence, but during the
defendant’s term of incarceration or period of probation. Stated differently,
in the event a victim’s loss cannot be calculated to a sum certain at
sentencing, such as in the case of ongoing medical care, allowing for
submission of additional restitution amounts for a reasonable time after
sentencing, but prior to the expiration of that sentence, is warranted.

¶11 While what constitutes a reasonable time period is a fact-
specific inquiry that may vary from case to case, the State and the court are
tasked with ensuring that restitution claims are presented and adjudicated
in a timely manner. To encourage the timely submission of evidence to
support a restitution award, a court may, in its discretion, impose a
deadline for the submission of restitution claims, but this is a procedural

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limitation that does not act to terminate the court’s jurisdiction. See Grijalva,
242 Ariz. at 74, ¶ 12 (“[A]lthough a victim may waive restitution by failing
to comply with a time limit set by the court, this rule is a matter of
procedure. A procedural rule is based on the orderly administration of
justice rather than the court’s jurisdiction.” (internal citation omitted)).
Thus, timeliness and jurisdiction are two distinct issues, and “a request for
restitution is not timely simply because the superior court retains
jurisdiction to order it.” State v. Nuckols, 229 Ariz. 266, 269, ¶ 8 (App. 2012).

¶12 Even though the legislature did not include a general
jurisdictional statement in A.R.S. § 13-603(C), the statute mandates that the
court order restitution “in the full amount of the economic loss as
determined by the court.” By enacting A.R.S. § 13-805(A), the legislature
provided the court continuing jurisdiction to regulate the payment of
restitution until a defendant has: (1) satisfied the debt; (2) completed his
incarceration or probation; or (3) absconded from supervision entirely.
Read together, these statutes ensure that the court has the statutory
authority to protect and enforce victims’ constitutional right to restitution.

¶13 Applying these statutes to the facts of this case, the victim’s
full medical expenses from the aggravated assault had not been realized at
the time the court entered the initial restitution award. The victim’s medical
treatment was ongoing, the court did not impose a deadline for submitting
any supplemental restitution request, and the State submitted its
supplemental request while Cervantes was still serving his sentence.
Cervantes asks us to find that the legislature’s grant of continuing
jurisdiction under A.R.S. § 13-805 to order, modify, and enforce restitution
payments impliedly divests the court of jurisdiction to order additional
amounts of restitution that have accrued after sentencing, but prior to the
expiration of a defendant’s sentence. However, nothing in the text of the
statute supports the proposition that A.R.S. § 13-805 limits the court’s
authority to award restitution under A.R.S. § 13-603 or the victim’s right to
full restitution under Article 2, Section 2.1(A)(8) of the Arizona
Constitution. Therefore, to fulfill the court’s mandate—to make the victim
whole from the economic losses caused by Cervantes’ criminal conduct—
the court properly exercised jurisdiction over the request for additional
restitution.

II. The superior court did not abuse its discretion by ordering the
additional amounts of restitution.

¶14 Cervantes contends the superior court improperly awarded
the amount of restitution requested. Specifically, he asserts the State failed

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to demonstrate that the victim’s post-sentence medical expenses were
directly caused by the aggravated assault.

¶15 Viewing the evidence in the light most favorable to sustaining
the court’s restitution order, we review that order for an abuse of discretion.
State v. Stutler, 243 Ariz. 128, 130, ¶ 4 (App. 2017). A victim may recover any
economic loss directly caused by a defendant’s criminal conduct but may
not recover consequential damages. Id. “Economic loss includes lost
interest, lost earnings and other losses that would not have been incurred
but for the offense.” A.R.S. § 13-105(16).

¶16 Here, the State proved by a preponderance of the evidence
that the additional requested restitution directly flowed from the
aggravated assault. At the restitution hearing, the State presented a list of
expenses and testimony regarding the physical and mental treatment the
victim received in the years following Cervantes’ sentencing. The majority
of expenses involved medical treatment for the victim’s eye, which
Cervantes seriously injured during the aggravated assault. In addition, the
State presented evidence that a victim compensation board had verified
that all the expenses stemmed from the aggravated assault. Given this
evidence, the court did not abuse its discretion by finding that the
additional medical expenses were a direct result of Cervantes’ criminal
actions and ordering him to pay additional restitution accordingly.

CONCLUSION

¶17 The restitution order is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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