Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD194656, Frank A. Brown, Judge.
IRION, J.
Leutenant House pleaded guilty to one count of forcible rape (Pen. Code, § 261, subd. (a)(2)), two counts of lewd or lascivious acts on a child under the age of 14 (§ 288, subd. (a)) and one count of incest (§ 285). House also admitted the applicability of a sentencing enhancement that denies the possibility of a suspended sentence or probation to a person who violates section 288 and in so doing "has substantial sexual conduct with a victim who is under 14 years of age." (§ 1203.066, subd. (a)(8).)
All statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced House to a stipulated sentence of 20 years in prison. The court also ordered House to pay restitution to the victim in the amount of $1,864,000: $364,000 in economic damages and $1.5 million in noneconomic damages.
House appeals the trial court's restitution order, contending that the trial court erred as a matter of law by including in its restitution order financial compensation for the victim's pain and suffering. House contends that pain and suffering is not properly encompassed within the trial court's statutory authority to order restitution to child molestation victims for "[n]oneconomic losses, including, but not limited to, psychological harm . . . ." (§ 1202.4, subd (f)(3)(F).) House also argues that the trial court's inclusion of $364,000 in economic damages for ongoing mental health treatment is improper because the victim's need for treatment is speculative and not supported by the record. As discussed below, we find these contentions to be without merit and affirm.
As House pleaded guilty and does not contest the validity of his conviction, we summarize only the facts that are relevant to the restitution order challenged on appeal.
House raped a family member repeatedly from the time the victim was 12 years old until becoming a runaway at age 17.
As a result of the sexual abuse (and other abuse) at the hands of House, the victim developed symptoms associated with posttraumatic stress disorder. These symptoms impaired the victim's ability to form relationships and led to chronic depression. The victim suffers from anxiety, low energy, nightmares, suicidal ideation, loneliness, hopelessness, emptiness and restlessness.
Medical expert reports submitted by both the prosecution and the defense recommended that the victim receive ongoing, long-term psychotherapy. The experts estimated that the costs of this psychotherapy would range anywhere from $175,200 to $1,142,000.
A retired trial attorney who specialized in plaintiff's litigation opined that a proper restitution amount for the victim's noneconomic damages, including pain and suffering, would be between $1.5 and $2 million.
DISCUSSION
On appeal, House raises two challenges to the trial court's restitution order. He contends that the $1.5 million figure for noneconomic damages must be reversed because it includes compensation for pain and suffering which is not cognizable under the applicable restitution statute. House also argues that the $364,000 figure for economic damages is erroneous because it relies on a speculative and unsupported assumption that THE VICTIM will need ongoing mental health treatment for a 30-year period. We discuss these challenges below after summarizing the applicable legal framework and standard of review.
A. Constitutional and Statutory Framework
Article I, section 28 of the California Constitution provides the basic framework for the criminal restitution statutes. This constitutional provision states:
"It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. . . ." (Cal. Const., art. I, § 28, subd. (b).)
To implement the command of California Constitution, article I, section 28, the Legislature enacted section 1202.4. Subdivision (f) of that section states that "in every case in which a victim has suffered economic loss as a result of the defendant's conduct," the trial court must "require that the defendant make restitution to the victim . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court." (§ 1202.4, subd. (f); see also Cal. Const., art. I, § 28, subd. (b) [requiring the Legislature to "adopt provisions to implement this section"].) "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." (§ 1202.4, subd. (f); see also § 1202.4, subd. (f)(3) [the restitution order "shall be of 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"].) Restitution orders, under this statute, must include reimbursement for "[m]edical expenses" and "[m]ental health counseling expenses." (§ 1202.4, subd. (f)(3)(B) & (C).)
While restitution under section 1202.4 is generally limited to economic losses, the statute broadens the restitution available for "restitution orders relating to felony convictions for lewd or lascivious acts (Pen. Code, § 288), for which noneconomic losses may be included in a direct restitution order." (People v. Giordano (2007) 42 Cal.4th 644, 656 (Giordano); People v. Fulton (2003) 109 Cal.App.4th 876, 884, fn. 5 (Fulton) [recognizing recovery of noneconomic losses for § 288 victims as the "sole exception" to the Legislature's determination that only economic losses would be recoverable as restitution].) The statute specifically commands that in the event of a conviction for a lewd or lascivious act on a child under the age of 14 years, the restitution order must also include compensation for "[n]oneconomic losses, including, but not limited to, psychological harm . . . ." (§ 1202.4, subd. (f)(3)(F).)
B. Standard of Review
We review a trial court's restitution order for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) Our review is " 'deferential,' but it 'is not empty,' " asking " 'whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts[.]' " (Ibid.)
In light of the clear intent of the restitution provisions to award full restitution to crime victims, " '[a] victim's restitution right is to be broadly and liberally construed.' " (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) " ' "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." ' " (Ibid.; People v. Carbajal (1995) 10 Cal.4th 1114, 1122 [" 'In view of the strongly expressed concern for victims suffering losses as a result of a criminal activity an interpretation effectively limiting a victim's rights to restitution would be in derogation of the expressed intent and purposes of Proposition 8 and the provisions adopted by the Legislature to implement this measure' "].)
A challenge to the trial court's interpretation of the meaning of a restitution statute is reviewed de novo. The role of the courts in construing a statute is to " 'ascertain the intent of the Legislature so as to effectuate the purpose of the law.' " (People v. Wright (2006) 40 Cal.4th 81, 92 (Wright).) " 'Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning.' " (Ibid.) " '[I]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.' " (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227 (Allen).)
C. The Applicable Restitution Statute Grants the Trial Court Authority to Order Restitution for Pain and Suffering
House's primary contention is that the trial court's order that he pay $1.5 million in restitution for noneconomic damages is improper because it includes compensation for pain and suffering, which House contends is not authorized by the applicable statute. We disagree.
We reject the Attorney General's contention that House forfeited his challenge by failing to object on these grounds in the trial court. Even if we agreed that House's counsel did not specifically argue that section 1202.4 prohibited a restitution order that compensates for the victim's pain and suffering, the legal question of whether such damages can be ordered under that section can be raised on appeal without objection. (See People v. Franco (1993) 19 Cal.App.4th 175, 183, fn. 16 ["While factual issues are subject to waiver, those which involve the trial court's power to impose the restitution aspect of sentence are not"]; People v. Zito (1992) 8 Cal.App.4th 736, 741-742 [recognizing that " ' "when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court," ' " and that " '[t]his rule also applies to sentences which are unauthorized because of an error in the matter of restitution' "].)
As we have noted, the statutory framework governing restitution in criminal cases demonstrates an intent to grant trial courts sweeping power to order full restitution to crime victims. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046 (Keichler) [" '[T]he intent of the voters is plain: every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss' "]; Fulton, supra, 109 Cal.App.4th at p. 884 [recognizing desire to fully reimburse crime victims as "meaning and purpose of the entire statutory scheme"].) As a result, the courts have consistently held that "[a] victim's restitution right" under these provisions "is to be broadly and liberally construed." (People v. Mearns (2002) 97 Cal.App.4th 493, 500 (Mearns).)
In the instant case, the trial court's authority to grant restitution is at its apex because House was convicted of violating section 288. The statutory restitution framework singles out this one criminal offense for special treatment and commands the trial court to include "[n]oneconomic losses" in its restitution order to help make child sexual abuse victims whole. (§ 1202.4, subd. (f)(3)(F).)
Although not defined in the statute itself, " 'non-economic damages' " are defined elsewhere under the California Code as "subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation." (Civ. Code, § 1431.2, subd. (b)(2), italics added.) This definition tracks the common understanding that while economic damages include only tangible harms, noneconomic damages include intangible harms, such as pain and suffering. (Cf. Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1203, fn. 10 [equating noneconomic damages and " 'pain and suffering' " and noting that money damages " 'are at best only imperfect compensation for such intangible injuries' "].)
By contrast, the Civil Code defines " 'economic damages' " as "objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities." (Civ. Code, § 1431.2, subd. (b)(1).) House concedes that these Civil Code definitions are instructive as to the intended meaning of "[n]oneconomic losses" in section 1202.4, subdivision (f)(3)(F).
House ignores the broad sweep of the statutory phrase "[n]oneconomic losses" and the generally expansive tone of section 1202.4, subdivision (f)(3)(F), focusing instead on one portion of that section — the use of the term "psychological harm." House argues the use of this term limits the trial court's authority in ordering noneconomic damages to "categories similar to psychological harm rather than an unrestricted and generalized category of pain and suffering." We disagree for two primary reasons.
First, we are unaware of any authority, and House provides none, that suggests that the term "psychological harm" itself does not encompass pain and suffering. As House notes, while there is no California case law defining the term psychological harm, it is often used as a generic catch-all term for the trauma likely to be suffered by child abuse victims. (See, e.g., § 11164, subd. (b) [instructing persons participating in investigation of cases under the Child Abuse and Neglect Reporting Act to "do whatever is necessary to prevent psychological harm to the child victim"]; People v. Stephenson (1984) 160 Cal.App.3d 7, 10 [recognizing the "extreme psychological or emotional harm caused by" violations of § 288].) Indeed, the common understanding of the term "psychological" is "relating to [or] influencing . . . the mind." (Webster's 3d New Internat. Dict. (2002) p. 1833.) Clearly, then, the pain and suffering inflicted upon a child molestation victim falls squarely within the " 'usual and ordinary meaning' " of the phrase "psychological harm." (Wright, supra, 40 Cal.4th at p. 92.)
House notes that commentary to the United States Sentencing Guidelines explains the phrase "extreme psychological injury to victims" as "substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim." (U.S. Sentencing Guidelines, § 5K2.3.) We fail to see how this authority speaks to the question presented in the instant appeal. The sentencing guidelines are not the product of the California Legislature and, as cited here, define a distinct term ("extreme psychological injury") in a nonrestitution context.
Second, even if we accepted House's contention that psychological harm does not itself include pain and suffering, we still would conclude that pain and suffering damages are encompassed by section 1202.4, subdivision (f)(3)(F). The statute specifically states that the types of harms cognizable under that section are those "including, but not limited to, psychological harm." (§ 1202.4, subd. (f)(3)(F), italics added.) This phrasing demonstrates an unambiguous legislative command that the reference to psychological harm is intended as an example of the harms to be addressed, not a limitation. (Allen, supra, 28 Cal.4th at p. 227 [where statute is unambiguous, reviewing courts must " 'presume the lawmakers meant what they said, and the plain meaning of the language governs' "]; Keichler, supra, 129 Cal.App.4th at p. 1046 [recognizing that use of "the language 'including, but not limited to' " demonstrates that trial court may order restitution for losses that are "not specifically enumerated in the statute"]; Mearns, supra, 97 Cal.App.4th at p. 501 [upholding restitution order that included the difference in purchase price between victim's prior mobilehome and new mobilehome even though such costs are not specifically enumerated in statute, because statute allows relocation expenses " 'including, but not limited to' " enumerated items].) This is particularly the case where we are required to "broadly and liberally construe[]" the victim's right to restitution. (Mearns, at p. 500; see also Fulton, supra, 109 Cal.App.4th at p. 885 [recognizing "the strong public policy seeking to provide crime victims with direct restitution for all the 'losses they suffer' "].)
House invokes the canon of statutory interpretation, ejusdem generis, in which " 'the general term or category is "restricted to those things that are similar to those which are enumerated specifically." ' " (Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 141.) Accepting that this doctrine applies, however, does not aid House's argument. As we have noted, pain and suffering is similar to, if not contained within, the term "psychological harm." Thus, the canon of ejusdem generis supports rather than undermines the trial court's restitution order.
House also argues that interpreting section 1202.4, subdivision (f)(3)(F) to encompass compensation for pain and suffering is in conflict with People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 1091 (Vega-Hernandez). We disagree.
In Vega-Hernandez, supra, 179 Cal.App.3d 1084, 1091, our colleagues in the First District determined that a trial court's restitution order for damages caused by a hit-and-run driver that included "pain and suffering" was unauthorized by the restitution statutes in effect at the time. The court concluded that those statutes did not "provide[] for direct restitution, orders greater than $10,000, or compensation for property losses or pain and suffering." (Ibid.)
Vega-Hernandez is easily distinguished. As the quoted language indicates, Vega-Hernandez was interpreting different restitution statutes in a different context. Thus, its discussion, even if persuasive, would not be instructive as to the interpretation of section 1202.4, subdivision (f)(3)(F), which, as we have noted, expresses a singular legislative intent to award noneconomic damages to child victims of sexual abuse.
House points to a footnote in Vega-Hernandez that states amended Government Code section 13967 (which has since been repealed) authorized compensation for " 'intangible losses, such as psychological harm' "; and the court states that the amended statute does not "expressly authorize damages for pain and suffering." (Vega-Hernandez, supra, 179 Cal.App.3d at p. 1091, fn. 12.) House argues that this statement is both instructive as to the meaning of "psychological harm" and controlling because the legislature is presumed to have adopted this interpretation when it subsequently enacted section 1202.4. We find this contention unconvincing.
It is difficult to understand precisely what the Vega-Hernandez court intended by its statement that a portion of former Government Code section 13967 — which was similar, but not identical to Penal Code section 1202.4, subdivision (f)(3)(F) — did not "expressly" authorize damages for pain and suffering. (Vega-Hernandez, supra, 179 Cal.App.3d at p. 1091, fn. 12.) There is no dispute that section 1202.4, subdivision (f)(3)(F) (like former Gov. Code, § 13967) does not expressly authorize restitution for pain and suffering, the question is whether such authorization is implicit. Further, the Vega-Hernandez statement is not followed by any analysis, and the only authority cited is a 1983-1984 law review note that states, also without analysis, that " '[p]ain and suffering' can be compensated in six states, but has never been authorized in California[,]" and includes no discussion of section 1202.4, subdivision (f)(3)(F). (See Note, Restitution for Crime Victims: The California Legislature Responds to Proposition 8, 14 Sw.U. L.Rev. 745, 766, fn. omitted.)
In sum, both the plain text of section 1202.4, subdivision (f)(3)(F), and the clear legislative intent underlying that section — requiring the trial court to order "full restitution," including restitution for both economic and noneconomic harm to victims of child molestation — belie House's appellate contention. (§ 1202.4, subd. (f).) The statute clearly authorized the trial court to include damages for pain and suffering within its restitution order.
D. The Trial Court Did Not Abuse Its Discretion in Setting the Amount of Economic Damages
House also contends that the trial court abused its discretion by ordering him to pay $364,000 in economic damages to cover the victim's need for ongoing mental health counseling. House argues that this portion of the court's order is impermissibly speculative in that it assumes (without adequate record support) that the victim will require mental health counseling for the next 30 years.
The Attorney General, citing People v. Majors (1998) 18 Cal.4th 385, argues that we should reject this contention because House "invited" any error by suggesting the $364,000 figure in the first place. (See id. at p. 409 [holding that defendant could not claim ineffective assistance of counsel on appeal where counsel's purported error was committed at defendant's urging].) We disagree. While House did suggest the $364,000 figure (as an alternative to the district attorney's $500,000 request), it is clear from the transcript of the restitution hearing that House's position at the hearing was that the trial court should order him to pay $35,000 in economic damages with future amounts determined at a subsequent one-year review. House's counsel based this request on the observation that every person responds to trauma differently, and the victim was unusually "tough" and might not, in fact, need the extensive mental health counseling proposed by the experts. House's counsel only voiced the $364,000 figure as a fallback position after his initial position was rejected by the trial court.
In calculating a restitution amount that encompasses economic damages in the form of medical expenses, the trial court should include "all expenses necessary to treat [the victim's] injuries, regardless of when they arise," i.e., before or after sentencing. (People v. Phelps (1996) 41 Cal.App.4th 946, 950 (Phelps) [restitution order properly included "future medical expenses"].)
The evidence before the trial court on the question of the amount of future "[m]ental health counseling expenses" necessary to treat the victim's mental health trauma consisted primarily of the reports of two expert witnesses. (§ 1202.4, subd. (f)(3)(C).) The experts opined as to the victim's present mental health, the likely necessity for ongoing treatment and the cost of such treatment. While recognizing that every individual is different, both experts indicated that there was reason to believe the victim's needs in this respect would be substantial and long term. These experts' reports provided sufficient evidence to support the trial court's order.
The defense expert, Dr. Raymond Murphy, submitted a report that highlighted the various aspects of House's criminal conduct that were consistent with the infliction of extreme, long-term mental trauma and notes that the victim's situation presents "an extremely difficult and problematic, long-term treatment paradigm." The report then outlined "an estimate of the possible range of individual therapies that may be necessary over a period of some 30 years." Murphy provided low-, middle-, and high-term estimates for the likely cost of each category of recommended mental health treatment: individual therapy, group psychotherapy, psychiatric intervention, hospitalization and substance abuse treatment. The aggregate low-term estimate was $175,200, the middle-term estimate was $544,000, and the high-term estimate was $1,142,000.
The prosecution's expert, Dr. Clark Clipson, recommended similarly comprehensive ongoing mental health services and concluded that the victim "will most likely require ongoing psychotherapy" and "ongoing psychiatric services for the remainder of [the victim's] life." Clipson reached these conclusions after interviewing and evaluating the victim and reviewing numerous documents regarding the abuse to which the victim was subjected.
Clipson reported that the victim was 17.
In the restitution hearing, House's counsel argued that if the trial court intended to order restitution for economic loss based on the projected 30-year treatment horizon, that loss should be set at $364,000. Counsel arrived at this figure by taking the middle term for the defense expert's projections for individual therapy, group psychotherapy and substance abuse treatment, and the low term for psychiatric intervention and hospitalization. House's counsel relied on the lower terms for the latter based on his assertion that the victim would likely not need the more invasive treatment recommended. The prosecution requested an order for economic damages of "roughly [$]500,000."
The trial court adopted defense counsel's figure, and agreed to a review hearing in two years. Responding to both the defense and prosecution objections to the figure selected, the trial court stated that "if [the victim] incurs cost[s] of therapy above [$]364,000, [the victim] can come back" at the review hearing "and get that modified and if [the victim] did not engage in therapy and there [are] no expenses, then the defense can come back and modify" the amount.
Having reviewed the record, we cannot conclude that the trial court's resolution of the difficult question of the likely costs of the victim's ongoing mental health treatment constitutes an abuse of its discretion. As noted above, both defense and prosecution experts recommended extensive mental health services for the victim and suggested that these services would assist in recovery from the extensive abuse suffered. The trial court, then, made an informed judgment based on the experts' reports — as to the proper amount of economic damages, generally favoring the low end of the cost ranges recommended. It also set a review hearing at which the amount could be adjusted if, as the defense contends, the victim did not, in fact, need the extensive services suggested in the experts' reports. (Phelps, supra, 41 Cal.App.4th at p. 952 [rejecting claim that restitution orders for future expenses was practically unworkable, because judges can "award damages for future medical expenses based on input from experts" at a restitution hearing].) Given the evidence summarized above and the trial court's thorough analysis, there is " ' "a factual and rational basis for the amount of restitution ordered by the trial court." ' " (In re Johnny M., supra, 100 Cal.App.4th at p. 1132.) Consequently, we affirm.
House relies on civil case law to contend that any order of restitution for future medical care must be for services that are "reasonably certain" to be required. (See, e.g., Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1657 ["the toxic-tort plaintiff who seeks money damages for future medical surveillance is required to establish that the need for monitoring is a reasonably certain consequence of the exposure"].) This case law has little bearing on the present issue as it rests on different statutes (e.g., Civ. Code, § 3333) applied in a wholly different context. Further, even if it were applicable, we do not believe reversal would be warranted as the evidence permitted a reasonable trial court to conclude, even under the test put forth in the civil cases House cites, that the mental health expenses were reasonably certain. The case law cited by House notes five factors to consider in awarding medical monitoring costs to a toxic tort plaintiff: "(1) the significance and extent of the plaintiff's exposure to the chemicals; [¶] (2) the relative toxicity of the chemicals; [¶] (3) the seriousness of the diseases for which plaintiff is at an increased risk; [¶] (4) the relative increase in the plaintiff's chances of developing a disease as a result of the exposure, when compared to (a) plaintiff's chances of developing the disease had he or she not been exposed, and (b) the chances of members of the public at large developing the disease; and [¶] (5) the clinical value of early detection and diagnosis." (Miranda, at pp. 1657-1658.) Analogizing House's abuse to exposure to a toxic chemical, and considering the experts' reports summarized above, we believe the enumerated factors would support the instant restitution order.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.
Pursuant to House's plea, the prosecutor dismissed the remainder of a 25-count information but obtained a People v. Harvey (1979) 25 Cal.3d 754 waiver "which allowed the court to consider the dismissed counts for purposes of sentencing and restitution." (People v. Ozkan (2004) 124 Cal.App.4th 1072, 1074.)