Opinion
NOT TO BE PUBLISHED
Superior Court County No. F441413 of San Luis Obispo Michael L. Duffy, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Bradford Allen Mitchell appeals the judgment entered after he pleaded no contest to unlawful sexual intercourse with a minor (Pen. Code, §§ 261.5, subd. (c)), oral copulation with a minor (288a, subd. (b)(1)), and communicating with a minor for lewd purposes (288.3, subd. (a)). The trial court sentenced appellant to two years in state prison and ordered him to pay $72,120 in victim restitution, including $69,210 for the victim's education at a therapeutic boarding school. Appellant contends that the court abused its discretion by including the entire expense of the victim's therapeutic education in the restitution award. We affirm.
All statutory references are to the Penal Code.
BACKGROUND
In 2009, appellant, a 52-year-old man, lived in Michigan. While playing an internet game, he met the victim, a 16-year-old California resident. After communicating with the victim for several weeks, appellant decided to travel to California to help her. In early December 2009, the victim ran away from home, shortly before her 17th birthday. On December 8, 2009, the police found the victim at a Super 8 motel where she was staying with appellant. Appellant told the police that he and the victim planned to marry in December 2010.
In January 2010, the victim started attending a therapeutic boarding school (School). On February 3, 2010, appellant pleaded no contest to unlawful sexual intercourse with a minor, oral copulation with a minor, and communicating with a minor for lewd purposes.
The probation officer requested $74,220 in victim restitution, including $69,210 for the victim's education at the School. The probation report includes a statement that was submitted by the victim's mother. She explained that the School helps teens who struggle with learning disorders, attention deficit disorder, post traumatic stress disorder, and girls like the victim "who have been sexually and emotionally victimized and need intensive intervention." Mother selected the School because "of the severity of the crimes committed against [the victim] by [appellant]" and because the victim "needs to be at the School where she can receive maximum therapy and group work." Four different "doctors..., as well as the victim's special education teacher and counselor, strongly recommended that the victim would benefit highly from attending the School." Mother said that there would not have been a need to send the victim away from home if she had not been the victim of appellant's crimes.
During the restitution hearing, appellant challenged the inclusion of the entire expense of the victim's therapeutic education because it included therapy for conditions that did not result solely and directly from his criminal conduct. Before appellant arranged to meet with her, the victim was severely depressed and suffered from post traumatic stress disorder. Those conditions developed after she found her father dead in her home in April 2007. The victim suffered further trauma as a result of the July 2008 vandalism of her home by neighborhood boys. As a result of the vandalism, mother and the victim spent 44 nights in a motel while workers repaired their home.
The trial court awarded victim restitution, including $69,210 for the expense of the victim's education at the School. In ruling, the court explained that "if appellant had victimized a more healthy individual, then he sure wouldn't be facing such huge sums of restitution, but he didn't. He victimized a young woman and child being traumatized by the unexpected death of her father, her discovery of her father's body, so she was fragile and more easily damaged by [appellant's] crimes against her. [¶] Local experts and institutions may have been coping with her needs prior to [appellant's] crimes against her, but thereafter I can appreciate her mother's position and believe that something drastic was needed in order to try and save her daughter. [¶] Consequently, I do believe and find that [appellant] is responsible and that it's reasonably, if not directly related, to his crimes against her for the cost of this... special school that the victim is attending.... "
DISCUSSION
Appellant contends that the trial court abused its discretion in ordering him to pay the full cost of the victim's therapeutic education in the absence of any showing that her need for that education was the sole, direct result of his criminal conduct. We disagree.
California Constitution, article 1, section 28, subdivision (b)(13)(A), gives victims of criminal activity "the right to seek and secure restitution from the persons convicted of the crimes causing the loss they suffer." Similarly, section 1202.4, subdivision (a)(1), provides in part: "[A] victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." In addition to victim compensation "a restitution order is intended to rehabilitate the defendant and to deter the defendant and others from future crimes. (People v. Crow (1993) 6 Cal.4th 952, 957.)" (People v. Vasquez (2010) 190 Cal.App.4th 1126, 1133.)
Restitution awards are vested in the trial court's discretion and will be disturbed on appeal only where an abuse of discretion appears. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Fortune (2005) 129 Cal.App.4th 790, 794.) "'When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' [Citation.]" (People v. Mearns (2002) 97 Cal.App.4th 493, 499.) The standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
Appellant places substantial reliance on People v. Cain (2000) 82 Cal.App.4th 81, in arguing that the court abused its discretion by including the full amount of the victim's therapeutic education in the restitution because there is not substantial evidence that her need for that education was directly and solely caused by his criminal conduct. In Cain, the reviewing court rejected a claim that the trial court abused its discretion by including counseling expenses in the restitution award where the defendant failed to present affirmative evidence that the victim's counseling was not directly related to the crime. The court noted that the defendant could have called an expert to show that given the time gap between the crime and the treatment, it "could not have been related only to the crime" and/or "evidence that the victim was previously treated by a mental health professional." (Id. at p. 87.)
In this case, appellant elicited testimony from mother regarding the victim's pre-existing conditions and her prior treatment. However, he presented no evidence to indicate what portion, if any, of her therapeutic education was necessary as a result of her pre-existing conditions.
Appellant also relies on People v. Fortune, supra, 129 Cal.App.4th at p. 794, a food stamp fraud case. In such cases, the amount of restitution that should be ordered is determined by "'subtracting the amount the government would have paid had no acts of fraud occurred from the amount the government actually paid.'" (Ibid., citing People v. Crow, supra, 6 Cal.4th at pp. 961-962.) In Fortune, the prosecution appealed and challenged the trial court's use of the method that the defendant had proposed for calculating the restitution; the reviewing court upheld the restitution order. The record in Fortune, however, included evidence regarding the amount of benefits that the victim would have received absent the acts of fraud. Here, in contrast, the record lacks evidence regarding what portion, if any, of the victim's need for therapeutic education resulted from her pre-existing conditions. Appellant neither presented such evidence nor requested a continuance in order to do so.
There is a factual and rational basis for the amount of restitution ordered by the trial court. Mother indicated that but for and until appellant's crimes against the victim, there was no need for the victim to enter a therapeutic residential school for treatment, and that four doctors, the victim's counselor and her special education teacher recommended the school. The prosecution also presented evidence to show the expense of the victim's education at the school. The trial court did not abuse its discretion by including the victim's entire therapeutic education expense in the restitution.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.