IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
October 31, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOHN ALAN CARPENTER, DEFENDANT AND APPELLANT.
(Super. Ct. No. P08CRF0105)
The opinion of the court was delivered by: Nicholson , J.
P. v. Carpenter
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 John Alan Carpenter entered a negotiated plea of no contest to oral copulation of a child under the age of 14 years and more than 10 years younger than defendant (Pen. Code, § 288a, subd. (c)(1); undesignated section references are to this code; count I) in exchange for a stipulated upper term of eight years in state prison and the dismissal of the four remaining counts.
The court sentenced defendant to state prison for the stipulated term and granted the prosecutor's motion to dismiss the remaining counts.
Ten months later, after a contested hearing, the court ordered defendant to pay victim restitution in the amount of $25,211.03 to the victims' mother (Mother). The amount included non-economic losses of $18,000 for psychological harm defendant caused to the victims.
Defendant appeals from the victim restitution order.
Two months after defendant filed his notice of appeal, the court subsequently ordered defendant to pay an additional $1,258.03 to the California Victim Compensation and Government Claims Board (Board) to reimburse the Restitution Fund (Fund) for payments made on behalf of defendant's victims.
Defendant did not file a notice of appeal from this order.
Defendant challenges the original restitution order in various respects. He does not challenge the subsequent order of restitution. We find no error and affirm the original restitution order.
The parties stipulated to a statement of facts which was not set forth when defendant entered his plea. Defendant entered a plea to orally copulating a female child (Jane Doe) who was under the age of 14 years and more than 10 years younger than defendant.
Defendant challenges the amount allocated for the psychological harm as not authorized by statute as well as the payee because Mother had no out-of-pocket expenses. We find no reversible error.
At the restitution hearing on October 23, 2009, defense counsel stipulated defendant should pay $2,510 in mental health counseling expenses and $4,493 for lost wages or profits for time Mother spent as a witness. Defense counsel objected to the expenses for increased residential security because he did not know what was done. He also objected to psychological harm losses as not authorized by statute.
Mother testified the increased residential security expenses totaled $208.03. She had the locks changed and a gate lock installed. She stated "Victim Witness" paid for it.
Mother explained her 13-year-old daughter and her 11-year-old son had been receiving psychological therapy, the daughter due to defendant's offense and the son due to problems caused by extreme anger, fear and trust issues. The daughter had slit her wrists and went to the emergency room. The son had spent over a week in a mental institution because he was angry at defendant as well as Mother for not protecting his sister and feared defendant because of things he had said he wanted to do to boys his age. The daughter had previously been molested by her biological father. Mother stated the therapist said the victims would need counseling when they began their teenage years, when they began sexual relationships, and when they had children of their own. The cost of therapy through April 29, 2009, totaled $2,510. According to Mother, the therapist estimated the cost of therapy since then plus the cost of future therapy for each child totaled $9,000. Therapy had been increased to once a week because of the victims' needs. Upon court questioning, Mother said therapy was an ongoing amount submitted to and paid in full by the Fund. She later clarified she had no out-of-pocket expenses for therapy at the time of the hearing but she had been paying a $10 co-pay.
After requesting and receiving briefing from the parties on various issues including whether restitution for psychological harm was authorized under section 1202.4, subdivision (f)(3)(F), the trial court ordered defendant to pay a total of $25,211.03 which included $4,493 in lost wages for time Mother spent as a witness, $2,510 for previous mental health counseling expenses, $208.03 for increased security, and $18,000 for psychological harm ($9,000 for each child). The court noted mental health counseling "is being paid for at this time by the Victim Restitution Fund and that would need to be reimbursed." The court found that section 1202.4, subdivision (f)(3)(F) covered restitution for psychological harm resulting from a conviction under section 288a because section "288 is a charge for which the other crimes that are related could be charged under and are part of the same statutory scheme" and that to exclude restitution for victims of section 288a would "cause rather absurd results."
At the hearing on January 22, 2010, defense counsel stipulated to an additional order for $1,258.03 to be paid to the Board to reimburse payments to the victim from the Fund, an amount that should have been included in the original restitution order. The amount covered medical expenses.
Initially, we consider and reject the People's assertion that on January 22, 2010, defendant stipulated to paying $1,258.03 to the Fund and agreed to all other terms remaining the same thereby forfeiting any challenge to the original amount of $25,211.03 to Mother.
Defendant had already filed an appeal from the original order of $25,211.03 when defense counsel stipulated to the subsequent order of $1,258.03 for medical expenses. On January 22, 2010, defense counsel responded, "Correct," when the court stated, "All other terms remain the same" after ordering $1,258.03 to the Fund. Defendant's challenge on appeal to the original restitution order is based in part on the claim that $18,000 awarded for psychological harm is unauthorized; such claim is not forfeited. (People v. Scott (1994) 9 Cal.4th 331, 351-354; People v. Percelle (2005) 126 Cal.App.4th 164, 179.) Counsel's response does not constitute forfeiture of defendant's challenge to the original restitution order.
Crime victims have the constitutional right "to receive restitution directly 'from the persons convicted of the crimes for losses they suffer.' [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) "A victim's restitution right is to be broadly and liberally construed." (People v. Mearns (2002) 97 Cal.App.4th 493, 500; see also People v. Moore (2009) 177 Cal.App.4th 1229, 1231.)
Defendant first contends the trial court erred in directing him to pay Mother rather than the Fund. The People assert defendant does not have standing to raise the claim the trial court erred in apportioning restitution between the Fund and Mother because the apportionment does not affect defendant's substantial rights, that is, the apportionment does not increase the total amount of restitution that defendant must pay and he cannot urge errors which affect another party who does not appeal. Defendant replies that Mother has received assistance from the Fund, restitution is meant to reimburse the Fund for that assistance, and thus, restitution must go to the Fund. Defendant "does not want to be subjected to the same costs twice." We conclude, although defendant may claim an error of law in the court's apportionment, he has failed to demonstrate such error.
"The trial 'court's allocation of restitutionary responsibility must be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law.' [Citations.]" (People v. Draut (1999) 73 Cal.App.4th 577, 581-582; see also People v. Millard (2009) 175 Cal.App.4th 7, 26.)
Defendant will not be required to pay the amounts twice. Section 1202.4, subdivision (j) provides: "The making of a restitution order pursuant to subdivision (f) shall not affect the right of a victim to recovery from the Restitution Fund as otherwise provided by law, except to the extent that restitution is actually collected pursuant to the order. Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the defendant arising out of the crime for which the defendant was convicted."
Further, section 2085.5, subdivision (b) provides, in relevant part, as follows:
"In any case in which a prisoner owes a restitution order imposed pursuant to . . . subdivision (f) of Section 1202.4, the Secretary of the Department of Corrections and Rehabilitation shall deduct a minimum of 20 percent or the balance owing on the order amount, whichever is less, up to a maximum of 50 percent from the wages and trust account deposits of a prisoner, unless prohibited by federal law. The secretary shall transfer that amount to the California Victim Compensation and Government Claims Board for direct payment to the victim, or payment shall be made to the Restitution Fund to the extent that the victim has received assistance pursuant to that program. The sentencing court shall be provided a record of the payments made to victims and of the payments deposited to the Restitution Fund pursuant to this subdivision." (Italics added.)
Accordingly, Mother cannot recover twice. And while in prison, defendant's payments will be apportioned by the Board.
The People assert defendant has failed to demonstrate the Fund is entitled to more than $1,258.03 ordered on January 22, 2010. The People note defendant relies on the testimony of Mother as to payment of expenses. We agree with the People's assertion.
Section 1202.4, subdivision (f)(4)(A) provides: "If, as a result of the defendant's conduct, the Restitution Fund has provided assistance to or on behalf of a victim . . . , the amount of assistance provided shall be presumed to be a direct result of the defendant's criminal conduct and shall be included in the amount of the restitution ordered." (§ 1202.4, subd. (f)(4)(A); Giordano, supra, 42 Cal.4th at p. 654 ["If a victim has received compensation from the Restitution Fund, the defendant must pay the amount thus compensated to the Restitution Fund rather than the victim."])
However, section 1202.4, subdivision (f)(4)(B) provides that "[t]he amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation. Certified copies of these bills provided by the board and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the board, shall be sufficient to meet this requirement."
Defendant fails to demonstrate that more than $1,258.03 should be apportioned to the Fund. While the Fund is entitled to reimbursement for assistance provided to Mother, the prosecution presented only the Mother's testimony. The record does not include copies of bills or a statement under penalty of perjury that the bills were submitted and paid by the Board.
Defendant has failed to demonstrate error. Other than defense counsel's stipulation on January 22, 2010, to an award to the Fund for medical expenses, we conclude that the trial court properly awarded the remaining amounts to Mother.
Mother testified the therapist estimated the amount of $9,000 for each child for ongoing mental health counseling. Defendant does not challenge the amount. Rather, he challenges the statutory basis for the award. Defendant contends the original restitution order must be reversed because the non-economic losses of $18,000 were ordered pursuant to section 1202.4, subdivision (f)(3)(F) ["[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288"] which does not apply to defendant's offense for which he was convicted (§ 288a, subd. (c)(1)).
Section 1202.4, subdivision (f)(3) provides that the court shall order the defendant to make restitution to the victim in "a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to, all of the following: (A) Full or partial payment for the value of stolen or damaged property. . . . [¶] (B) Medical expenses. [¶] (C) Mental health counseling expenses. [¶] (D) [Lost wages or profits due to a victim's injury or time spent caring for a minor victim.] [¶] (E) [Lost wages or profits due to time spent as a witness.] [¶] (F) Non-economic losses, including, but not limited to, psychological harm, for felony violations of Section 288.
(G) [Interest on the economic loss.] [¶] (H) [Attorney fees and costs of collection.] [¶] (I) [Relocation expenses.] [¶] (J) [Residential security expenses.] [¶] (K) [The cost of retrofitting a vehicle or residence due to the disability of a victim attributable to the crime] . . . ." (§ 1202.4, subd. (f)(3)(A)-(K), italics added; see also Giordano, supra, 42 Cal.4th at p. 654.)
The People cite the language of section 1202.4, subdivision (f)(3)(F) which refers to "felony violations of Section 288" (italics added), not felony convictions. The People emphasize the subdivision referred to "convictions" when originally enacted, but the language has been changed to refer to "violations."
For a defendant sentenced to prison, "[c]courts have interpreted section 1202.4 as limiting restitution awards to those losses arising out of the criminal activity that formed the basis of the conviction." (People v. Woods (2008) 161 Cal.App.4th 1045, 1049; People v. Lai (2006) 138 Cal.App.4th 1227, 1247 [construing "criminal conduct" language in section 1202.4, subd. (f)].) People v. Murphy (2001) 25 Cal.4th 136 concluded that a violation of section 288a, subdivision (c)(1), constitutes a lewd or lascivious act under the common and ordinary meaning of those words and for purposes of section 1192.7, subdivision (c)(6), which contained no specific reference to section 288 [serious felony as a strike prior]. (People v. Murphy, supra, 25 Cal.4th at pp. 142-149.)
Here, we need not interpret section 1202.4, subdivision (f)(3)(F), or determine whether a violation of section 288a, subdivision (c)(1) is a violation of section 288 (lewd and lascivious conduct) in order to award restitution for psychological harm because defendant agreed that the court could consider dismissed counts in determining sentencing.
Defendant entered a negotiated plea of no contest to oral copulation (§ 288a, subd. (c)(1)) in exchange for a stipulated eight-year prison term and the dismissal of the four remaining counts. The four dismissed counts included three counts of lewd or lascivious conduct on a child (the same Jane Doe) under the age of 14 years (§ 288, subd. (a)). On the written plea form, defendant initialed the following statement: "I understand the Court can consider the facts in count(s) _____ that will be dismissed, for purposes of determining my sentence."
In People v. Harvey (1979) 25 Cal.3d 754, the court concluded that facts of dismissed charges which are "transactionally related" to the admitted charge may be relied upon in sentencing but held that "facts underlying, and solely pertaining to" dismissed counts cannot be relied upon "absen[t]  any contrary agreement." (Id. at p. 758, italics omitted; see also People v. Moser (1996) 50 Cal.App.4th 130, 132-133.) The "contrary agreement" has become known as a Harvey waiver. Although the statement initialed by defendant in the written plea form did not cite Harvey, defendant agreed, by initialing the statement, that the court could consider the dismissed counts for purposes of sentencing.
The court was thus entitled to consider such counts in arriving at victim restitution in this case. (People v. Beck (1993) 17 Cal.App.4th 209, 214-216.) The dismissed counts reflected defendant's criminal conduct involving the same Jane Doe and included "felony violations of Section 288." The trial court did not err in ordering victim restitution for psychological harm.
In any event, the trial court may order victim restitution to cover future economic losses, here, mental health counseling. (Giordano, supra, 42 Cal.4th at pp. 657-658; People v. Phelps (1996) 41 Cal.App.4th 946, 950-951.) The trial court properly ordered defendant to pay $18,000 to Mother.
The original order of restitution is affirmed.
We concur: RAYE , P. J. MAURO , J.
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