Filed 3/15/16 P. v. Tansiel CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B261073

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA428462)
         v.

ROMAN TANSIEL,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Paul T.
Suzuki, Judge. Affirmed.
         Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen and
Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
                                       __________________________
       Roman Tansiel appeals from the restitution order entered after he pleaded no
contest to assaulting Jose Gomez with a deadly weapon (a bottle) and admitted the
special allegation he had inflicted great bodily injury. Tansiel contends he should not
have been ordered to pay restitution for Gomez’s lost wages because the back injury that
prevented Gomez from working was not caused by the assault. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Plea
       Tansiel was charged by felony complaint with one count of assault with a deadly
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weapon. (Pen. Code, § 245, subd. (a)(1).) It was specially alleged the offense was a
hate crime (§ 422.75, subd. (a)) and Tansiel personally inflicted great bodily injury
(§ 12022.7, subd. (a)). On November 13, 2014 Tansiel pleaded no contest to assault with
a deadly weapon and admitted the great bodily injury allegation; the hate crime allegation
was dismissed. Pursuant to a negotiated disposition, the court sentenced Tansiel to a two-
year state prison term. A restitution hearing was set for November 25, 2014.
       2. The Restitution Hearing
       At the restitution hearing Gomez testified Tansiel struck him on the back of the
head with a bottle as he was about to step off a bus at its front door. Tansiel subsequently
tried to hit Gomez’s partner with the bottle, but Gomez pushed Tansiel. Tansiel then hit
Gomez in the chest and abdomen. The further altercation between Tansiel and Gomez
occurred outside the rear door of the bus.
       Gomez received three stitches in the back of his head. Medical insurance paid all
but $676.79 of the cost.
       As of the time of the hearing, approximately five months after the incident, Gomez
had been unable to return to work because of back pain. An in-home care services
provider, he had been earning $1,250 every two weeks. Nine weeks after the incident he
began receiving disability payments of $200 per week. Gomez testified he did not know
when he would be able to return to work. When challenged on cross-examination

1      Statutory references are to this code.

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whether the back pain had been caused by being hit with the bottle, Gomez responded, “I
have no way of knowing if it was or not. All I know is that after that happened, I have
been in pain.” Gomez conceded his back was not bothering him when he walked to the
back of the bus after the initial attack.
       During argument the prosecutor stated Gomez was seeking restitution in the
amount of $6,189.29: $5,512.50 for lost wages and $676.79 for medical expenses.
Defense counsel contended Tansiel should not be required to pay restitution for lost
wages because it was clear Gomez hurt his back during the brawl, not as a result of the
assault with the bottle. She argued, “Mr. Gomez took it into his own hands to go after
Mr. Tansiel, and I get that. But that doesn’t mean . . . Mr. Tansiel is liable financially for
what happened during that incident. He didn’t plead to a battery. He didn’t plead to an
assault on Mr. Gomez’s friend or whatever have you. He plead[ed] to hitting Mr. Gomez
on the back of the head with a bottle.”
       The court ordered Tansiel to pay $6,189.29 in restitution. The court found,
“[T]his is a continuation of the . . . attack upon the victim and then the subsequent
coming to the defense of another. Also, there was an indication that the witness could not
testify as to when the back pain occurred, whether it was a result of the head or the
fighting. But the court did view it as one single act. Not only that, the court does feel
that when people are under certain stresses, adrenaline kicks in. It’s foreseeable that
someone would not feel the pain while in combat with somebody such as this one.”
                                        DISCUSSION
       The California Constitution mandates restitution from a convicted wrongdoer to a
victim who has suffered an economic loss unless compelling or extraordinary reasons
exist for not ordering restitution. (Cal. Const., art. I, § 28, subd. (b)(13)(B).)
Section 1202.4, subdivision (f), part of the implementing legislation for this mandate,
states, “Except as provided in subdivisions (q) and (r), in 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 in an amount established by court
order, based on the amount of loss claimed by the victim or victims or any other showing

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to the court.” The statutory restitution provisions are to be construed broadly to further
the goals of public safety, victim compensation and offender rehabilitation. (Luis M. v.
Superior Court (2014) 59 Cal.4th 300, 304.)
       The standard of proof at a restitution hearing is preponderance of the evidence.
(People v. Millard (2009) 175 Cal.App.4th 7, 26.) We review restitution orders for abuse
of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) If there are questions of
statutory interpretation, we review those de novo. (In re Tobacco II Cases (2009)
46 Cal.4th 298, 311; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th
415, 432.)
       Relying primarily on People v. Lai (2006) 138 Cal.App.4th 1227, Tansiel
contends it was improper to order restitution for Gomez’s lost wages because that
economic loss was not incurred as a result of the criminal conduct—assault with a deadly
weapon—to which Tansiel pleaded no contest. In Lai the defendant was convicted of
offenses including welfare fraud and ordered to pay victim restitution of $261,543.57.
On appeal Lai challenged $11,230 of the award attributable to fraud occurring before the
charged period, arguing “he [could not] be assessed restitution for losses that did not
result from the crimes of which he was convicted.” (Id. at p. 1246.) The court agreed,
reversing that portion of the award. (Ibid. [“when a defendant is sentenced to state
prison, section 1202.4 limits restitution to losses caused by the criminal conduct for
which the defendant was convicted”].) In the case at bar Tansiel argues the only conduct
for which he was convicted was hitting Gomez’s head with a bottle and that did not cause
his back pain: Gomez testified his back was not bothering him when he walked toward
the back of the bus after he was struck.
       Tansiel’s argument is wholly without merit. The Lai court addressed losses that
had occurred before the charged criminal conduct and thus could not possibly have been
caused by it. Here, Gomez’s lost wages occurred after the criminal conduct. The
question whether Tansiel’s conduct caused Gomez’s economic loss is analyzed by
applying tort principles of causation. (People v. Holmberg (2011) 195 Cal.App.4th 1310,
1321; People v. Jones (2010) 187 Cal.App.4th 418, 424-427.) “California courts have

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adopted the ‘substantial factor’ test in analyzing proximate cause. [Citation.] ‘“The
substantial factor standard is a relatively broad one, requiring only that the contribution of
the individual cause be more than negligible or theoretical.” [Citation.] Thus, “a force
which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage,
or loss is not a substantial factor” [citation], but a very minor force that does cause harm
is a substantial factor [citation]. This rule honors the principle of comparative fault.’”
(Holmberg, at pp. 1321-1322.) Even if Gomez’s back pain resulted from the scuffle after
the assault, there is no question the assault played a significant role in bringing about the
injury. Regardless whether Gomez prompted the skirmish as a reaction to the assault or
to defend his companion whom he believed Tansiel was about to hit, it was Tansiel’s
conduct that initiated the conflict and provoked Gomez’s response. (See id. at p. 1322
[defendant’s knowing receipt of stolen property and failure to turn it over to the police
“was a concurrent cause in depriving the victims of the use of their property . . . and was
a substantial factor in causing the harm they suffered”].) The finding that Gomez’s back
injury was caused by Tansiel’s aggravated assault is amply supported by the record.
                                      DISPOSITION
       The order is affirmed.




                                                                 PERLUSS, P. J.
       We concur:



              SEGAL, J.


              BLUMENFELD, J.*



*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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