Opinion
B226197
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO EDUARDO ALARCON, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA065397)
APPEAL from an order of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Ignacio Eduardo Alarcon appeals from a victim restitution order entered after judgment. He contends that the trial court abused its discretion in ordering restitution for future medical treatment without proof that the victim would, in fact, seek such treatment. We find no abuse of discretion, and affirm the order.
BACKGROUND
Defendant entered into a plea agreement after an information was filed against him alleging six felony counts of lewd acts upon a child under the age of 14 years, in violation of Penal Code section 288, subdivision (a). Defendant agreed to plead no contest to two counts in exchange for a prison sentence of five years. Defendant entered his plea, was sentenced and a restitution hearing was scheduled.
At the restitution hearing, both counsel stipulated that the victim (defendant's granddaughter) had undergone 55 therapy sessions at the cost of $97.88 per session. Defendant stipulated to an award of $5,383.40 for that treatment.
It was then agreed that in the therapist's opinion the victim would need three additional years of therapy. Defendant, through his counsel, asked that a restitution order for future treatment be delayed until costs were actually incurred and suggested that the court calendar a further restitution hearing in one or two years. The court denied defendant's request, but indicated that if the victim did not participate in therapy, defendant would be entitled to seek reimbursement of unused funds. The court ordered restitution to include the cost of 156 sessions of prospective treatment, at $15,269.28.
The total restitution award, including past treatment, was $20,652.68. Defendant filed a timely notice of appeal from the court's restitution order.
DISCUSSION
Defendant contends that the trial court abused its discretion by ordering restitution for future treatment. He argues that evidence of a need for future treatment, without proof that the victim would, in fact, seek such treatment, is insufficient to support such an order. Defendant's argument has no merit.
Crime victims have a constitutional right to restitution under article I, section 28, subdivision (b), of the California Constitution. Under the implementing legislation, Penal Code section 1202.4, subdivision (a)(1), "a crime victim is entitled to restitution for 'any economic loss' incurred as the result of the defendant's criminal activity." (People v. Ortiz (1997) 53 Cal.App.4th 791, 798.)
A restitution order is reviewed for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498 (Mearns).) So long as "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. Dalvito (1997) 56 Cal.App.4th 557, 562.) Any rational method reasonably designed to make the victim whole and which is neither arbitrary nor capricious will be upheld. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992 (Thygesen).)
As defendant concedes, a sentencing court is authorized to order restitution for the victim's prospective economic losses, such as future medical expenses. (People v. Phelps (1996) 41 Cal.App.4th 946, 949 (Phelps).) A victim may also recover prospective mental health counseling expenses. (People v. Giordano (2007) 42 Cal.4th 644, 658 (Giordano).) The prosecution bears the burden of making a prima facie showing of the likely amount of future losses. (People v. Millard (2009) 175 Cal.App.4th 7, 30.) Once the prosecution has made its prima facie showing, the burden shifts to the defendant to show that there are no prospective losses or that the amount is overstated. (Ibid.)
Defendant contends that there was no evidence whatsoever of the likelihood of future treatment. We disagree. The prosecution met its burden with the parties' stipulation to the cost of the victim's therapy sessions and that in her therapist's opinion the victim needed three more years of treatment. In addition, the likelihood of attendance at the therapy sessions was shown by the victim's continued need for treatment and her having previously attended 55 sessions. We conclude that this prima facie showing was sufficient to shift the burden to defendant to show that the amount awarded was not justified. Defendant, however, presented no such evidence, and although he now argues that the victim's parents could have testified regarding the likelihood of future treatment within a specified time period, he did not call them.
Having failed to present evidence to show that the amount awarded for future treatment was not justified, defendant nevertheless contends that the trial court should have exercised its inherent equitable power to schedule a future review hearing and to place an additional burden on the victim by requiring her to prove that she had been in treatment.
Defendant's argument assumes that unless the victim continuously takes part in the recommended three years of therapy without any periods of hiatus, she will have a windfall. Based upon information that the victim may have stopped treatment for an unknown period before the restitution hearing, defendant argues that she must be made to bear the burden to prove that she will obtain all recommended treatment within a specified time certain. Defendant's reasoning is flawed. The victim's treatment may be interrupted periodically for any number of reasons. "'[N]othing in the language of the Constitution suggests an intent to limit the right to restitution for financial losses occurring within a particular time frame . . . .' [Citation.]" (Giordano, supra, 42 Cal.4th at p. 658, quoting Phelps, supra, 41 Cal.App.4th at p. 950.)
The sole authority advanced by defendant for his theory is People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172, which merely states the general principal that a restitution order is intended to provide compensation for the victim's actual loss, not a windfall. The case does not involve prospective economic losses or medical expenses, and does not justify placing such a burden on the victim. "A victim's restitution right is to be broadly and liberally construed. [Citations.]" (Mearns, supra, 97 Cal.App.4th at p. 500.) Entering what would be, in effect, a conditional restitution order, subject to further proof by the victim, would require a narrow and restrictive construction of the victim's restitution rights. As such, we cannot find the trial court's rejection of such a procedure to have been irrational or arbitrary. Accordingly, we find no abuse of discretion. (See Thygesen, supra, 69 Cal.App.4th at p. 992.)
DISPOSITION
The trial court's restitution order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
J.
CHAVEZ
We concur:
______, P. J.
BOREN
______, J.
DOI TODD