Opinion
E072794
03-25-2020
In re E.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.R., Defendant and Appellant.
Rachel Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J276234) OPINION APPEAL from the Superior Court of San Bernardino County. Winston S. Keh, Judge. Affirmed as modified. Rachel Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On May 18, 2018, a juvenile wardship petition under Welfare and Institutions Code section 602 alleged that defendant and appellant E.R. (minor) committed forcible rape under Penal Code section 261, subdivision (a)(2) (count 1); and sexual penetration by a foreign objection under section 289, subdivision (a)(1)(A) (count 2). On August 7, 2018, the juvenile court granted the People's motion to amend the petition and add a third count, sexual battery under section 243.4, subdivision (a) (count 3). On the same day, minor admitted the allegation on count 3. In exchange, the juvenile court dismissed counts 1 and 2.
All statutory references are to the Penal Code unless otherwise specified.
At the disposition hearing on October 3, 2018, the parties stipulated to formal probation. The juvenile court then adopted the probation department's recommendations. The juvenile court found the offense a felony. The court also declared minor a ward of the court, in the parents' custody, maintained in the parents' home, and on the terms and conditions of probation. The court stayed probation term No. 22 on minor's objection.
At the restitution hearing on May 16, 2019, the juvenile court ordered minor to pay $8,125.87 to the victim.
On May 20, 2918, minor filed a timely notice of appeal.
B. FACTUAL HISTORY
As a factual basis for the plea, minor agreed "that on or about March 21, 2018, [he] committed the crime of sexual battery against Jane Doe, with a date of birth of July 18, 2002. Under Penal Code 243.4 it's defined as the touching of an intimate part of another person while that person is unlawfully restrained by [him], and the touching is against the will of the person, Jane Doe, for purposes of sexual arousal, sexual gratification, or sexual abuse."
DISCUSSION
Defendant contends that the trial court abused its discretion when it imposed a restitution order that included reimbursement for (1) the repair costs of the victim's family's car; and (2) the roundtrip airfare for victim's grandmother.
A. LEGAL BACKGROUND
A defendant is to compensate his crime victims for the economic losses they incur as a result of his crimes. (§ 1202.4, subd. (a)(1).) The court shall provide full restitution, which must be based on every determined economic loss incurred as a result of the defendant's criminal conduct. (§ 1202.4, subd. (f)(3).) Restitution is based on the amount of loss claimed by the victim or victims or any other showing to the court. (§ 1202.4, subd. (f).) It is well settled that a victim's right to restitution is to be broadly and liberally construed. (People v. Stanley (2012) 54 Cal.4th 734, 736.)
The list of categories of loss included in section 1202.4, subdivision (f)(3), is not exclusive because of the constitutional and legislative intent to provide restitution for all losses to crime victims. No implied limitation on restitution should be read into the statute. (People v. Giordano (2007) 42 Cal.4th 644, 660 (Giordano).)
We review a lower court's determination of restitution for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) Under the abuse of discretion standard, we discern "whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162.) We must abide by the trial court's findings of fact if they are supported by substantial evidence. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.)
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING REPAIR COSTS FOR THE CAR
Victim restitution may include the costs the victim incurred in attending the trial. (People v. Crisler (2008) 165 Cal.App.4th 1503, 1509.) In Crisler, the trial court upheld a restitution fine awarded to the parents of a murder victim that included lost wages, mileage, and parking fees the parents incurred while attending the trial. The parents neither testified nor assisted the prosecution. (Ibid.) The court, nonetheless, found that the costs of attending the trial readily qualified as an "economic loss incurred as the result of the defendant's criminal conduct" since such costs would not have been incurred if the defendant did not kill the victim. (Ibid.)
In this case, the court awarded the victim $2,640 for car repairs so she and her family could attend the criminal proceedings against minor. At the restitution hearing, when minor's counsel asked about the restitution fine that included the cost of car repairs, the court responded: "I am allowing it because they needed the transportation to get to court. So the Court finds that it's rationally related to the subject incident. Yes, I'm allowing it." As in Crisler, supra, the juvenile court's restitution order reimbursing the family to fix their vehicle so they could get to the court was reasonable, especially since the victim and her family relocated to Arizona as a result of the incident.
Minor, however, claims that the juvenile court's reasoning exceeded the bounds of reason because repairing the car was a basic necessity and such repair would have been required regardless of the family attending court proceedings. We disagree with minor's argument. Here, but for minor's sexual assault, the victim and her family would not have needed transportation from Arizona to California to attend the court proceedings. There is nothing in the record to support minor's contention that repairs would have been necessary but for the trips made to California. Had the car not been repaired, it is likely that the family would have incurred costs associated with traveling by air or by renting a car for the multiple trips made by them. Therefore, the family's need for car repairs was rationally related to minor's actions.
Based on the above, we find that the juvenile court's restitution order for car repairs did not fall outside the bounds of reason, or that it was arbitrary, capricious or patently absurd.
C. THE TRIAL COURT ERRED IN AWARDING THE AIRFARE FOR THE GRANDMOTHER
Next, we determine whether the trial court properly ordered reimbursement for the victim's grandmother's airfare of $400. When the court awarded $400 for the airfare for the victim's grandmother, the court simply stated: "I'm allowing that because it's rationally related to the subject incident." The court made no other finding or statement. Although the court has broad discretion to determine restitution, as noted above, it must still have some rational basis for awarding restitution and must provide some reason for the award. (Giordano, supra, 42 Cal.4th at pp. 663-664.)
In this case, the grandmother visited the victim to comfort her after the minor's sexual assault on the victim. The People claim that "[a] court may properly order restitution for mental health counseling expenses. (Penal Code § 1202.4, subd. (f)(3)(C).) For example, in People v. O'Neal (2004) 122 Cal.App.4th 817, 821, the court found the defendant's restitution payment for the victim's brother's psychological counseling proper. There, the victim was sexually molested as a child. [Citation.] The court classified his brother as a victim as well, and concluded that the trial court may properly order the defendant to pay restitution to the agency that provided counseling to the brother. [Citation.]" The People thereafter stated that, here, "the victim's grandmother flew out in order to support the victim emotionally. After [minor] sexually assaulted her, the victim needed continued emotional support from her family because in the aftermath of the assault and during the pendency of the juvenile proceedings, [minor's] friends harassed the victim on social media."
We have no doubt that the victim needed emotional support and her grandmother provided the victim with love and comfort. There is nothing on the record, however, to support the People's contention that the grandmother qualified as a mental health counselor under section 1202.4, subdivision (f)(3)(C). "The burden is on the party seeking restitution to provide an adequate factual basis for the claim." (Giordano, supra, 42 Cal.4th at p. 664.) Here, there is nothing in the record to indicate on what basis the airfare should have been reimbursed.
Because there is no basis upon which the airfare should have been reimbursed, we find the restitution order to be arbitrary, capricious and unreasonable. Therefore, we find that the trial court abused its discretion in awarding $400 for the reimbursement of the grandmother's airfare.
DISPOSITION
The juvenile court's order awarding $400 restitution for the victim's grandmother's airfare is stricken. The court is directed to prepare and forward an amended order to the appropriate juvenile commitment authority. The dispositional order is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.