Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FMB800450, J. David Mazurek, Judge.
Michael Anthony Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Richard Allen Marvin was ordered to provide restitution to the victim’s compensation board (VCB) in the amount of $1,744. He contends the trial court abused its discretion by including $875 for mental health counseling for the victim. We affirm.
BACKGROUND
On September 12, 2008, defendant “attacked his roommate [the victim] and prevented her from leaving their home [for] an hour and a half. During that time, [defendant] threw a television, trashcan, and a glass bottle at the victim.” Defendant threw a glass mirror at a responding sheriff’s deputy, resulting in small cuts to the deputy.
On September 24, 2008, the trial court suspended proceedings due to doubts as to defendant’s mental competence. Defendant was found mentally competent to stand trial on January 27, 2010. Defendant then pled guilty to resisting an executive officer. (Pen. Code, § 69.) His plea agreement included a Harvey waiver permitting the consideration of dismissed and unfiled charges for restitution purposes. Pursuant to his plea agreement, defendant was sentenced to 16 months in state prison, but released directly on parole because of his accumulated custody credits.
People v. Harvey (1979) 25 Cal.3d 754.
On March 8, 2010, the VCB’s request for restitution, including attached certified records, was filed. The VCB was billed $1,575 for mental health services, but paid only $875. The VCB’s certification stated, “the treating therapist provided verification to [VCB] that the treatment rendered to [the victim] is necessary as a direct result of the crime and 100% related to the crime committed by [defendant].” The certified records include a redacted copy of a “Mental Health Provider Benefit Relocation Verification Form.” The form requested an explanation why relocation was necessary for the victim’s emotional well-being and a description of the consequences the victim would face if she did not relocate. The mental health provider wrote: “Client fears retribution from perpetrators. They have seen each other on the street as this is a small town. Client is fragile. She fears further beatings, and having her personal items stolen from her. Still has difficulty sleeping due to nightmares.” Elsewhere on the form, the mental health provider recited 12 treatment dates between January and May 2009, indicated that treatment was ongoing, and that supportive counseling would continue to be provided. Also attached were redacted copies of 10 bills from the mental health provider, for 10 dates of service from January 28 to May 4, 2009, which ranged from $125 to $200 each and totaled $1,575.
On appeal, defendant does not challenge the $869 portion of the restitution award for relocation, and states: “It is reasonable for [the victim] to relocate from her residence as appellant’s housemate to a separate residence in order to avoid any additional interaction with [defendant].”
Defendant filed an opposition to the VCB’s request for restitution. Defendant contended that the mental health counseling was not a direct result of defendant’s criminal activity because the victim was also a victim in three other cases. Defendant’s opposition also requested the trial court take judicial notice of the three other cases. Defendant opposed the relocation expenses because the Mental Health Provider Benefit Verification Form referenced perpetrators seen by the victim in her small town. Thus, defendant contended the victim’s fears were not based on this case or this defendant, because defendant was a sole defendant, and he had been in custody since the time of the offense until after the date the form was submitted to the VCB.
Defendant requested we take judicial notice of seven documents filed in one of those cases. Defendant asserts the documents support his claim that the counseling was necessary from prior victimizations and not due to his actions. Absent an indication that the trial court reviewed these documents, we normally would not grant the request. Furthermore, while our brief review of the documents show that they support the apparent agreement of the parties that the victim had been previously victimized, the documents do not contradict the representations of counsel as to the timeline of offenses, or provide any information concerning the victim’s counseling. Accordingly, we deny the request.
The People’s response to defendant’s opposition noted the incident dates of four other offenses in which the victim was also victimized; two in January and February 2008 and two in October and November 2009. The People contended that the expenses were proximately caused by defendant, he should not receive a windfall because the victim had the misfortune of being the victim of other crimes, and the timing of the other offenses show the other incidents did not cause the victim’s losses.
On June 10, 2010, a restitution hearing was held. As to the mental health expenses, defendant’s trial counsel contended that the trial court could not determine if the mental health sessions were necessitated by defendant’s actions because the claim forms from the mental health provider had been heavily redacted so the timing of the sessions was “really the only information that’s contained on [the forms].” The trial court then asked if it could draw an inference based upon the timing in seeking counseling and the timing of the other offenses which “were more than six months prior and a year after.” Defendant’s trial counsel then asserted that the other persons who had victimized the victim had probation violations from contacting the victim and, thus, the trial court could not infer “that these mental health sessions were as a direct result [of defendant].”
Defendant’s trial counsel then restated the contentions regarding the relocation expenses raised in defendant’s opposition. The trial court responded, “If she is seeking counseling partly because of these other incidents, but also partly because of what happened with [defendant], which I think is a logical thing to conclude, do you not think that he is responsible for that in some manner; that this incident did not contribute, even in conjunction with those other incidents, to her need to seek some counseling and to relocate?” Defendant’s trial counsel contended it was not “a logical conclusion, because certainly the record that was submitted to justify these expenses don’t say that.” The trial court responded that none of the claims were for prior to the incident with defendant. Defendant’s trial counsel replied that they did not know what other treatment the victim may have had. The People noted there was no information to indicate that the other cases caused the victim mental damage or harm, and that the timing permitted the inference that the expenses directly related to defendant.
The trial court then awarded VCB the restitution it requested because of “the timing and the nature of the offense.”
DISCUSSION
Defendant contends the award of restitution for mental health counseling was an abuse of discretion because “there was no evidence provided from the [VCB] to suggest that the counseling received by [the victim] was related to any harm caused by [defendant].” We disagree.
“ ‘The standard of review of a restitution order is abuse of discretion. “A victim’s restitution right is to be broadly and liberally construed.” [Citation.] “ ‘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.’ ” [Citations.]’ [Citation.] However, a restitution order ‘resting upon a “ ‘demonstrable error of law’ ” constitutes an abuse of the court’s discretion. [Citation.]’ [Citation.] ‘In reviewing the sufficiency of the evidence [to support a factual finding], the “ ‘power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, ’ to support the trial court’s findings.” [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] “If the circumstances reasonably justify the [trial court’s] findings, ” the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. [Citation.]’ [Citation.]” (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
Subject to certain conditions, Government Code section 13957, subdivision (a)(2), authorizes the VCB to reimburse victims for mental health services “that became necessary as a direct result of the crime.” “[T]he amount of assistance provided [by the VCB] shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of the restitution ordered.” (Pen. Code, § 1202.4, subd. (f)(4)(A).) “The amount of assistance... shall be established by copies of bills... reflecting the amount paid by the [VCB] and whether the services for which payment was made were for... mental health counseling.... Certified copies of these bills provided by the [VCB] and redacted to protect the privacy and safety of the victim or any legal privilege, together with a statement made under penalty of perjury by the custodian of records that those bills were submitted to and were paid by the [VCB], shall be sufficient to meet this requirement.” (Pen. Code, § 1202.4, subd. (f)(4)(B).) Statements of claims from the VCB are “inherently reliable.” (People v. Cain (2000) 82 Cal.App.4th 81, 87 [Fourth Dist., Div. Two].) Furthermore, even methodological imprecision does not establish that an abuse of discretion occurred in determining restitution. (People v. Giordano (2007) 42 Cal.4th 644, 666.)
The VCB paid $875 toward the $1,575 in bills for mental health counseling incurred by the victim and submitted the documentation necessary to create the presumption that the assistance it provided was a direct result of defendant’s criminal conduct. The documentation submitted by the VCB was sufficient to create the presumption that the assistance it provided was a direct result of defendant’s criminal conduct. Once the presumption in favor of the validity of the amount paid by the VCB was established, it was defendant’s burden to bring affirmative evidence showing that the apportioned cost of the victim’s counseling was not attributable to him or less than the amount provided by the VCB. Defendant did not meet this burden.
Defendant’s reliance on the additional victimizations of the victim and the reference to perpetrators seen by the victim around town are insufficient to overcome the presumption. This is because the other offenses happened either almost a year prior to the first counseling session or six months after the last session, and the VCB did not pay the full costs of the sessions for which it was billed. While it is possible that the victim also needed mental health counseling because of being a repeat victim, the VCB only paid slightly more than half of the amount billed. This reduction implies apportionment which, combined with the timing of the counseling sessions, supports the inference that the amounts paid by the VCB were directly related to defendant’s conduct.
DISPOSITION
The order is affirmed.
We concur: McKINSTER J., KING J.