Opinion
A151178
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN HENRY CHAPMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR318522)
Defendant John Henry Chapman appeals from a restitution order entered after a plea of no contest to one count of unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c)) and one count of oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1)). The order required him to pay $60,000 for lost wages to J.B., the aunt of the minor victim he was convicted of sexually abusing. He contends the trial court abused its discretion because the amount ordered was speculative. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
In December 2015, police arrested defendant after he admitted, in a pretext call, that he had engaged in various sexual activities with his then 16-year-old daughter, D.B., between August and September of that year. He was charged by felony complaint of two counts of unlawful sexual intercourse (§ 261.5, subd. (c)), two counts of oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1)), two counts of sexual penetration by a foreign object (§ 289, subd. (h)), and two counts of incest (§ 285).
In June 2016, defendant pleaded no contest to one count of unlawful sexual intercourse and one count of oral copulation of a person under 18, and was sentenced to three years eight months in state prison. The remaining counts were dismissed pursuant to a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
Prior to sentencing, D.B. testified about the trauma she suffers as a result of defendant's criminal conduct—she suffers from post-traumatic stress disorder and "major depression," has "attempted suicide multiple times," has run away "on several occasions," has "mutilated" her body with razors, and has been hospitalized four to five times.
Following the negotiated disposition, the People sought $600,000 in noneconomic restitution for D.B. and $82,540.78 in lost wages for J.B. At the March 2017 restitution hearing, J.B. testified she had raised D.B. from the time she was one and a half years old until she was five years old, and then from the time she was six years old, except for the period between May 2014 and September 2015, when D.B. lived with her biological mother. Following defendant's criminal conduct, D.B. returned to live with J.B. from September 2015 through September 2016.
J.B. further testified she had been unemployed, beginning in the summer of 2015, when she decided to leave her job to spend time with family, seek other employment opportunities, and spend more time looking after D.B. because she "sensed something was wrong" with her. J.B. sought out numerous employment opportunities, but before many of her interviews, D.B. would run away or attempt suicide, which worried J.B. and made her feel unable to work. J.B. felt D.B. was more insecure than a typical teenager, and D.B.'s aberrant behavior not only worried J.B., but crippled her ability to work. J.B. eventually returned to work part-time the last week of September 2016. However, within a week, D.B. was hospitalized again. The following month, D.B. was placed in a 24-hour care facility.
After the hearing, the trial court issued a tentative ruling, ordering defendant to pay $600,000 in noneconomic restitution to D.B. and $60,000 in restitution for lost wages to J.B. Defendant objected to the tentative ruling, but challenged only the $600,000 in noneconomic restitution, asserting there was no statutory basis for it.
At the subsequent hearing on defendant's objection, the People withdrew their request for noneconomic restitution. Defendant then orally objected to the restitution for lost wages, claiming J.B. had left her employment voluntarily and there was no nexus between her loss of income and his criminal conduct. The court affirmed its tentative ruling, pointing out J.B. had tried to attend job interviews during the period between September 2015 and September 2016, but "every time she tried to go to a job interview, it coincided with a meltdown . . . by the victim." Given D.B.'s "significant psychological problems," "there was certainly a need for the aunt, who was her guardian . . . to be present . . . [a]nd it was very difficult for her to return to a normal employment based upon the need to care for D.B."
Defendant first filed a notice of appeal on April 24, 2017, from the trial court's tentative ruling. The trial court struck this notice as premature at the May 4, 2017 hearing on the tentative. Defendant filed a second notice of appeal on May 9, 2017, purporting to appeal from the May 4, 2017 minute order following the hearing on defendant's objection to the tentative. The trial court did not issue its written restitution order until May 19, 2017. We need not decide whether defendant could properly appeal directly from the minute order, as even assuming his notice of appeal was premature, we may treat it as an appeal from the court's subsequently filed written order. (Cal. Rules of Court, rule 8.406(d) ["notice of appeal is premature if filed before the judgment is rendered or the order is made, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order"].) --------
DISCUSSION
Defendant contends the trial court abused its discretion because the restitution award for J. B.'s lost wages was speculative. He asserts the People failed to show J.B. had "stopped looking for employment because her obligations to D.B. made employment impossible."
A victim's assessment of economic loss is prima facie evidence of loss for the purposes of restitution. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) Once the victim makes a prima facie showing, the burden shifts to the defendant to establish that the amount of loss is less than that claimed by the victim. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 (Chappelone).) A restitution order is reviewed for abuse of discretion. (Luis M. v. Superior Court (2014) 59 Cal.4th 300, 305.) The order will be affirmed if there is any factual and rational basis for the amount awarded. (In re Alexander A. (2011) 192 Cal.App.4th 847, 857.)
Here, the People set forth a reasonable basis for their request for restitution to J.B. for lost wages. The attachments to their brief in support of the claimed restitution included evidence of J.B.'s average yearly salary from 2012 through 2016. In particular, W-2 forms showed J.B. made $5,215, $5,150, $5,953, and $7,265 per month between 2012 and 2016, respectively. This, then, showed average earnings of $5,895.77 per month, which yields an average annual income of $70,749.24. In doing this, the People met their initial burden, particularly given that J.B. also testified at the restitution hearing. (See People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).)
The record also establishes a causal connection between J.B.'s wage loss and defendant's criminal conduct. As we have set out above, J.B. testified to her efforts to obtain employment and how the trauma D.B. suffered adversely affected those efforts. As the trial court stated, each of J.B.'s attempts to obtain employment "coincided with a meltdown by . . . the victim." Given the victim's "significant psychological problems," the court found there had been a "need for the aunt . . . to be present," and thus it "was very difficult for her to return to a normal employment based upon the need to care for D.B." This was an entirely rational conclusion by the trial court based on the evidence presented. (See People v. Baker (2005) 126 Cal.App.4th 463, 470).
Defendant cites to Millard, supra, 175 Cal.App.4th 7 and Rodriguez v. Kline (1986) 186 Cal.App.3d 1145 (Rodriguez). Neither is of any assistance to defendant.
In Millard, the trial court awarded $750,000 in lost future wages to a seriously injured victim of a DUI accident. (Millard, supra, 175 Cal.App.4th at p. 13.) Both the defendant and the prosecution appealed, raising numerous issues. (Ibid.) As for the award for lost future income, the appellate court affirmed, pointing out the victim had testified to his prior employment, what he believed his prospects were for future employment, and the extent of his injuries. (Id. at pp. 29-30.) The nature of that evidence was not substantially different from J.B.'s testimony here.
Defendant cites to Rodriguez for the proposition that J.B. was required to show she was attempting to "cure her unemployment." In that civil action arising from a vehicle accident, the Court of Appeal considered whether an undocumented immigrant could recover damages for lost earning capacity based on his prior work history in the United States or in the country of which he was a citizen. (Rodriguez, supra, 186 Cal.App.3d at p. 1147.) The appellate court concluded that a trial court must first determine, as a legal question, the plaintiff's status. (Id. at p. 1149.) In connection with this preliminary determination, the defendant has the initial burden of producing proof that the plaintiff is undocumented. If the defendant does so, then the burden shifts to the plaintiff to demonstrate to the trial court's "satisfaction that he has taken steps which will correct his deportable condition." (Ibid.) If this preliminary issue is decided adversely to the plaintiff, then he or she cannot recover lost wages based on past and projected future income in the United States. (Ibid.) If decided favorably, then no evidence relating to his or her status is allowed, and he or she is entitled to put on evidence supporting lost wages in the United States. (Ibid.) Although the court did not decide whether the plaintiff had made a sufficient showing to support the recovery of damages for lost wages, it strongly indicated he had done so, pointing to his testimony about his work history. (Id. at pp. 1149-1150.) The testimony provided by J.B. here was every bit as detailed as that by the plaintiff in Rodriguez.
In a footnote in his opening brief, defendant asserts the restitution for lost wages should be calculated on the basis of 11, rather than 12, months because D.B. went back to live with J.B. the last week of September 2015 and J.B. returned to work the following September. However, as best as we can discern from the record, J.B. was only able to return to work part time during the last week of September of 2016, and D.B. returned to her care during the last week of September 2015. During this 12-month period, J.B. was unable to work—although she sought opportunities—because of her obligation to care for D.B. We also note that $60,000 in restitution is less than what the trial court could have awarded on the basis of J.B.'s average prior earning history.
In sum, the trial court acted well within its discretion in awarding $60,000 in restitution for lost wages to J.B. (See Chappelone, supra, 183 Cal.App.4th at pp. 1172-1173.)
DISPOSITION
The order is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.