IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
April 14, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ROBERT NORMAN DOUGLASS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 6288118)
The opinion of the court was delivered by: Mauro, J.
P. v. Douglass
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Robert Norman Douglass pleaded no contest to vandalism, attempted vandalism, prowling, driving under the influence and with a blood alcohol level of .08 percent or more, and driving with a suspended license. The trial court placed defendant on felony probation and subsequently ordered defendant to pay restitution to his victims, including costs for victim mental health counseling, surveillance and alarm systems, and attorney's fees, among other things.
Defendant appeals the restitution order, contending (1) the trial court erred in allowing the prosecutor to delegate its role at the restitution hearing to the victims' private counsel, (2) the restitution award for the cost of a victim's mental health counseling was improper because the counseling was not necessary and was not a "direct result" of the crime of attempted vandalism, (3) the restitution award for the victims' attorney's fees was unreasonable in amount and was inappropriate because the victims' attorney never recovered any money for them, and (4) the restitution award for surveillance and alarm system expenses was not authorized because defendant was not convicted of a violent felony.
Regarding defendant's contention that the prosecutor improperly delegated his role at the restitution hearing, we conclude defendant forfeited this claim because defendant did not object to the hearing process in the trial court. But the contention also lacks merit, because the prosecutor was present throughout the hearing, questioned the witness himself, and gave a closing argument.
Regarding defendant's challenges to specific restitution awards, we conclude those awards were authorized by law and supported by substantial evidence and that the trial court did not abuse its discretion.
We will affirm the restitution order.
Kevin Larscheid allegedly assaulted defendant in 1990, resulting in Larscheid's misdemeanor assault conviction. Defendant filed a civil lawsuit against Larscheid and the parties reached a settlement in 1991. But the conflict between the two did not end.
At defendant's sentencing hearing on October 23, 2009, Kevin Larscheid testified that defendant had waged a 20-year campaign of harassment against the Larscheid family. As a result, the family obtained a restraining order and installed a surveillance system at their home after multiple acts of vandalism. On March 3, 2009, shortly after the restraining order expired, the Larscheid home surveillance system captured defendant wearing a black trench coat and black gloves. Defendant had a hatchet and he placed six-inch spikes under the tires of a Larscheid vehicle.
Continuing his testimony at the sentencing hearing, Kevin Larscheid said defendant then crossed the street and chopped at the golf course green with his hatchet. Mr. Larscheid said defendant told a peace officer he had the right to harass Larscheid, and another peace officer had advised Larscheid to buy firearms, because defendant was "a ten" on a danger scale of one to ten. For this reason, the Larscheids installed the surveillance system and an alarm system, bought a firearm, and Barbara Larscheid sought weekly therapy due to her fear of defendant.
Barbara Larscheid testified at the sentencing hearing that she had pictures of defendant "keying" their vehicles. She also had "filthy, dirty cards and letters" defendant had written, and she was unable to get the image of him "sneaking around our house in a trench coat, out of my mind." She had seen defendant "crouching down" in the parking lot where she plays tennis and walk toward them when they were at dinner.
Deputy Garland Lew with the Placer County Sheriff's Department testified at the preliminary hearing. He said defendant's vehicle was located across the street in the golf course parking lot, but defendant was not with the vehicle. The golf course green was damaged, consistent with someone taking an ax to it. Defendant's vehicle contained a sheath that "appeared to fit an ax." It also contained spikes similar to the ones placed under the Larscheid vehicle.
Deputy Charles Bardo also testified at the preliminary hearing. He said defendant subsequently returned to his vehicle in the golf course parking lot and drove away. Deputy Bardo stopped defendant. Defendant was found to have a blood alcohol level of .13 percent that night.
The information charged defendant in count one with attempted vandalism of the Larscheid vehicle (Pen. Code, §§ 594, subd. (b)(1), 664); in count two with vandalism of the golf course (Pen. Code, § 594, subd. (b)(1)); in count three with prowling (Pen. Code, § 647, subd. (h)); in count four with driving under the influence (Veh. Code, § 23152, subd. (a)); in count five with driving with a blood alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b)); and in count six with driving while license suspended due to a prior driving under the influence conviction (Veh. Code, § 14601.2, subd. (a)). As to counts four and five, it was also alleged that defendant had a prior driving under the influence conviction within the last 10 years. (Veh. Code, § 23540.) An earlier charge of stalking was not sustained at the preliminary hearing.
On August 27, 2009, defendant pleaded no contest to all of the charges in the information. The trial court suspended imposition of sentence and placed defendant on felony probation. Determination of the amount of victim restitution was scheduled for a later hearing. The Larscheids filed letters and receipts regarding claimed restitution. Items claimed for restitution included a shotgun, ammunition, shooting lessons, legal fees and installation of the alarm system at their home. David M. Daniels, a private attorney representing the Larscheids, also filed a written memorandum regarding victim restitution. An attached exhibit claimed items amounting to nearly $10,000.
The restitution hearing occurred on July 14, 2010. Participants included a deputy district attorney, the Larscheid's private attorney, and defendant's retained attorney. The trial court said it remembered the testimony by the Larscheids at the prior sentencing hearing. Barbara Larscheid testified again at the restitution hearing, saying she saw a counselor because seeing defendant on the security video "was just something I couldn't get rid of in my mind." She said the family bought a gun, took shooting lessons, and incurred attorney's fees, counseling fees, alarm system expenses, and a homeowner's association bill for a damaged call box.
The trial court ordered victim restitution as a condition of probation in the amount of $6,505.25, including counseling expenses ($1,875), attorney's fees ($3,760), alarm system expenses ($360), surveillance system expenses ($438.75), and other costs, but the trial court did not include costs for the firearm and the shooting lessons.
Defendant first challenges the procedure employed at the restitution hearing, contending it was improper to have private counsel conduct the hearing. But defendant did not object to the restitution hearing procedure in the trial court. Before any testimony was taken, the trial court asked the prosecutor "if you want to proceed by just having Mr. Daniels [counsel for the Larscheids] call his witness." When the prosecutor said he did, defense counsel remained silent. If he thought there was anything improper about having private counsel question Barbara Larscheid, defendant's counsel could have objected and preserved the contention, but he did not. The appellate contention is thus forfeited. (See People v. Brach (2002) 95 Cal.App.4th 571, 577.)
In any event, the contention lacks merit. Defendant relies on this court's opinion in People v. Dehle (2008) 166 Cal.App.4th 1380 (Dehle). In that case the prosecutor asked, over defense objection, that the victim's private counsel conduct the restitution hearing. The trial court initially denied the request and directed the prosecutor to be present at the restitution hearing. But when the prosecutor did not appear at the restitution hearing, defense counsel's further objection was overruled and the hearing was completed in the absence of the prosecutor. (Id. at p. 1385.) This court emphasized the role of the prosecutor in exercising discretion while representing the People in criminal cases. The procedure employed was infirm because it "did not allow the People to be heard on several issues that may have affected a fair and just result on the question of victim restitution" and because private counsel "was appearing solely on behalf of" the victim. (Dehle, supra, 166 Cal.App.4th at pp. 1388, 1390.)
In this case, however, the prosecutor was present throughout the hearing. Defendant is incorrect in asserting that the restitution hearing "was conducted entirely" by private counsel. After private counsel questioned Barbara Larscheid, the prosecutor also questioned her, and the prosecutor made a closing argument. The prosecutor was present and advanced the People's interests at the restitution hearing.
Defendant next challenges certain components of the victim restitution award. Before addressing those contentions, we summarize the substantive law pertaining to victim restitution and the applicable standard of review.
"One portion of Proposition 8, the 'Victims' Bill of Rights,' passed by the people in the exercise of their reserved initiative powers in 1982, states '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.'" (People v. Bartell (2009) 170 Cal.App.4th 1258, 1261.) "'A victim's restitution right is to be broadly and liberally construed.' [Citation.] '"'[S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider'"' in determining victim restitution. [Citations.] Restitution orders are reviewed for abuse of discretion. [Citation.] When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found." (People v. Phu (2009) 179 Cal.App.4th 280, 283-284 (Phu).)
Penal Code section 1202.4, subdivision (f)(3)(C) expressly provides for restitution of mental health counseling expenses. Nonetheless, defendant challenges the trial court's award of $1,875 for 15 sessions of Barbara Larscheid's mental health counseling at $125 per session.
Defendant first contends that the counseling was not a "direct result" of the crime of attempted vandalism. But defendant was also convicted of prowling, among other things. His actions around the Larscheid home were captured on video. Barbara Larscheid testified she saw a counselor because "seeing it on security cameras, it was just something I couldn't get rid of in my mind." Substantial evidence indicates that Ms. Larscheid was emotionally upset after seeing defendant prowling around her house at night dressed in black and carrying a hatchet.
Defendant also contends that because the spikes were removed from behind the tires, no damage was done. Although defendant's attempt to vandalize the Larscheid vehicle with spikes failed because his actions were observed on camera, that does not mean no loss occurred. In People v. Brasure (2008) 42 Cal.4th 1037, the California Supreme Court considered a victim restitution order in the amount of a mother's lost wages "due to the trauma of her son's murder." (Id. at p. 1074.) The court upheld the award, noting that "Section 1202.4, subdivision (f) provides for a direct restitution order 'in every case in which a victim has suffered economic loss as a result of the defendant's conduct.' The order is to be for an amount 'sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct.' [Citation.] The statute does not distinguish between economic losses caused by physical injuries and those caused by psychological trauma." (Id. at pp. 1074-1075.)
Defendant further argues that the counseling was unnecessary and was only done at the behest of Barbara Larscheid's counsel. On cross-examination, Ms. Larscheid said she had not seen the counselor before, but sought counseling on the advice of her attorney some four months after the incident because she was so afraid. However, the fact that she only sought counseling after consulting with her attorney goes to the weight of the evidence. The trial court determined that the restitution award was appropriate, and substantial evidence supports the trial court's determination that the award of mental health counseling costs was appropriate on these facts.
Penal Code section 1202.4, subdivision (f)(3)(H) also provides that restitution may include "[a]ctual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim." Nonetheless, defendant contends the restitution award of attorney's fees must be stricken because the Larscheid's attorney never recovered any money for them and the amount was unreasonable.
Defendant cites People v. Maheshwari (2003) 107 Cal.App.4th 1406, in which the court upheld a victim restitution award including attorney's fees and investigative costs incurred by the victim in a civil action against the defendant to recover money the defendant embezzled. In part, the court rejected the claim that the victim should have relied on "public prosecutors and investigative agencies" to recoup his losses. (Id. at pp. 1409-1410.)
Defendant also cites People v. Fulton (2003) 109 Cal.App.4th 876, where the court upheld a victim restitution award of attorney's fees the victim incurred in a personal injury action against the defendant. (Id. at pp. 883-885.)
Based on the foregoing cases, defendant appears to argue that restitution for attorney's fees is not appropriate unless the victim's attorney recovers money for the victims in a separate civil action. But the law of restitution is not so limited, and the cases cited by defendant do not stand for the proposition asserted.
The victims retained counsel to press their "personally held and enforceable" right to restitution. (Cal. Const., art. I, § 28, subds. (a)(3), (b)(13).) Their attorney filed a written memorandum in support of victim restitution for his clients and participated in the restitution hearing in an effort to secure restitution for the victims. The law does not preclude an award of attorney's fees incurred by the victims in asserting their right to restitution, even when they do not assert the right in a separate civil action. (See Couzens & Bigelow, California Criminal Sentencing (Barrister Press 2010) Concluding the Sentence, p. 148.) Victim restitution is to be broadly and liberally construed. (Phu, supra, 179 Cal.App.4th at p. 283.)
Defendant further contends that the amount of the restitution award for attorney's fees was unreasonable. Counsel for the Larscheids submitted a detailed invoice identifying the fees by date, time spent, and task performed, totaling $5,170. But the trial court reduced the claim, concluding that $3,760 represented reasonable fees incurred to achieve an adequate restitution award. Defendant does not identify any specific item that was inappropriate. Accordingly, he has failed to show that the trial court abused its discretion in determining the amount of attorney's fees awarded as victim restitution.
In addition, defendant notes in his opening brief that certain copying costs were not warranted. But such an objection was not lodged in the trial court, and the claim is not included in an argument heading in appellant's opening brief on appeal. Therefore, the claim is forfeited. (People v. Roscoe (2008) 169 Cal.App.4th 829, 840; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.)
Defendant contends the restitution award for surveillance and alarm system expenses, totaling $798.75, were not authorized by statute because defendant was not convicted of a violent felony as defined by Penal Code section 667.5, subdivision (c).
Penal Code section 1202.4, subdivision (f)(3)(J) provides for restitution of "[e]xpenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks." Defendant reasons that because he did not commit a violent felony as defined by Penal Code section 667.5, subdivision (c), security system expenses were not properly awarded.
We disagree. Where a defendant is convicted of a violent felony, the trial court "shall" include in the victim restitution award expenses reasonably incurred by a victim in installing a security system. (Pen. Code, § 1202.4, subd. (f)(3)(J).) But the statute does not say that in other cases a trial court lacks discretion to grant such expenses so incurred.
The statute provides a nonexclusive list of items of restitution. (Pen. Code, § 1202.4, subd. (f)(3) [using phrase "including, but not limited to"]; see Cal. Judges Benchguide 83: Restitution (CJER 2011) § 83.52, p. 83-39.) As this court has said before, "Because the statute uses the language 'including, but not limited to' these enumerated losses, a trial court may compensate a victim for any economic loss which is proved to be the direct result of the defendant's criminal behavior, even if not specifically enumerated in the statute." (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046.) Thus, where a victim incurs the economic loss of a security system as a direct result of a defendant's conduct, the trial court may include that amount in a victim restitution award regardless of whether the defendant was convicted of a violent felony.
The trial court found "due to the nature of these charges," which included prowling, "the cost of improving and maintaining the security system is a reasonable and probable consequence of defendant's behavior." Defendant does not argue on appeal that the expenses were excessive or that they were not a direct
result of his crime. Accordingly, he has not established that the trial court abused its discretion.
The restitution order is affirmed.
We concur: HULL , Acting P. J. BUTZ , J.
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