Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS071488A
Mihara, J.
Defendant Ronald Lee Pence pleaded no contest to two counts of committing a lewd act on a child of 14 or 15 (Pen. Code, § 288, subd. (c)(1)), exhibiting harmful matter to a minor (§288.2, subd. (a)), and dissuading a victim from reporting a crime (§ 136.1, subd. (b)(1)). The trial court suspended imposition of sentence, placed him on five years’ formal probation and, after a contested hearing, ordered him to pay $5,365 in victim restitution. On appeal, defendant contends that the trial court abused its discretion and denied him due process because the amount the court ordered him to pay was not supported by substantial evidence. We affirm.
Further statutory references are to the Penal Code unless otherwise noted.
I. Background
The facts of defendant’s offenses are largely irrelevant to his claim on appeal, so we need not describe them in detail. At various times in January and February 2006, defendant sexually abused his niece S., whom he and his now ex-wife had raised since she was five years old. Defendant was 48 years old at the time; S. was 14 years old.
At the Attorney General’s request, we took judicial notice of the record in defendant’s previous appeal (H032741, filed May 21, 2008), which was dismissed at his request on September 19, 2008.
The Pences had legal custody of S., who is the biological daughter of defendant’s ex-wife’s sister.
In December 2009, the Victim Compensation and Government Claims Board (the Board) set the amount of restitution at $5,750.00. In February 2010, defendant requested a hearing.
At a contested hearing in June 2010, the district attorney sought an order requiring defendant to pay $5,365 in restitution. He relied on a compilation of mental health therapy “bills submitted to and paid by the Board... on behalf of [S. and her biological mother, V.H.].” In a declaration accompanying the compilation, Chantel Bermudez, the Board’s custodian of records, certified that the records were “accurate reproductions of bills that were submitted to and paid by the Board in the amounts indicated, by or on behalf of the... victims.” Bermudez also declared that “[t]he treating therapist provided verification to the Program that the treatment rendered to the... victims [wa]s necessary as a direct result of the crime and 100% related to the crime committed by the above defendant.”
Defendant objected that the records were inadmissible hearsay and lacking in foundation; those objections were overruled. He disputed $1,325 attributed to therapy for S.’s mother, asserting that she was not a direct victim because her sessions with the therapist were for issues unrelated to his crimes. Defendant claimed that the only amounts that could “actually be accounted for” were those paid for sessions his ex-wife personally confirmed that S. attended.
Defendant’s ex-wife testified that she took S. to therapy sessions from November 2006 through mid-February 2007, as reflected in certain of the bills certified by the Board. She claimed her insurance company paid for those sessions, because “[t]hey asked me for a copy of my insurance card at the time.” She reported that after “a little bit” fewer than 20 sessions, S. “was being defiant” and had to be told to attend. “And then after a while she would get out of the car. So I just went ahead and went home.” Defendant’s ex-wife had no information about any sessions S. may have attended without her after that. She also had no information about sessions S. may have attended after December 2007, since S. left the Pences’ custody and returned to her biological mother “around Christmastime” that year.
The court took the matter under submission. On June 28, 2010, the court ordered defendant to pay $5,365 in restitution through the Revenue Department. The court noted for the record that it had “reviewed again the documents provided by the... Board, ” including Bermudez’s sworn statement that the treating therapist had verified that “the program [of] treatment rendered to the victim [w]as necessary as a direct result of the crime, 100 percent related to the crime.” The court reminded defendant that at his sentencing hearing in 2007, “[y]ou did indicate... that you’d be making restitution in this case. And that was understood.”
At defendant’s September 14, 2007 sentencing hearing, his counsel represented that defendant “has been doing everything he can to pay the family’s bills, including these restitution bills all along. And I know he doesn’t quarrel with that. And I talked to him in general terms about restitution. And I know that he has -- he fully accepts his responsibilities to pay for that, and has been paying for it.”
Defendant filed a timely notice of appeal.
II. Discussion
A. Standard of Review
We review a trial court’s restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) “ ‘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.]” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) Reversal is warranted, however, when the restitution order exceeds the bounds of reason under all of the circumstances. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
“At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim’s testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] ‘Once the victim has [i.e., the People have] made a prima facie showing of... loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]’ [Citation.]” (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).)
B. Substantial Evidence
Defendant contends that there was insufficient evidence to support $1,350 of the restitution amount “based on claims... for therapy sessions for [V.H.].” We disagree.
“In reviewing the sufficiency of the evidence [to support factual findings], 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. [Citations.]” (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.)
Defendant argues that the evidence failed to establish that V.H. is S.’s mother. He acknowledges, however, that each of the claim forms listing V.H. as the “patient” also listed the “insured” as “[S.] (daughter).” Those claim forms, certified by the Board’s custodian of records, were substantial evidence of the mother-daughter relationship. Bolstering that evidence was the clear inference of a mother-daughter relationship that we think can be drawn from defendant’s ex-wife’s testimony about the day “around Christmastime” in 2007 that S. left her custody. “It broke my heart, ” defendant’s ex-wife told the court, “that she wanted to go to see her mom....” (Italics added.) Although defendant’s ex-wife told S. that she should not go, “[m]y sister came down anyway to pick her up, and then she left.” (Italics added.) Defendant offered nothing to controvert this evidence of the mother-daughter relationship.
Defendant next argues that V.H. was not entitled to restitution because she was not “a direct victim” of his criminal conduct. Again, we disagree.
The relevant statute defines “victim” to include “[a]ny person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions: [¶] (A) At the time of the crime was the parent... of the victim. [¶]... [¶] (E) Is the primary caretaker of a minor victim.” (§ 1202.4, subd. (k)(3)(A) & (E).) The statute also provides that in cases that, like this one, involve felony violations of section 288, victims are entitled to be made whole for “[n]oneconomic losses, including, but not limited to, psychological harm.” (§ 1202.4, subd. (f)(3)(F); People v. O’Neal (2004) 122 Cal.App.4th 817, 819, 820-821 [brother of molestation victim “also suffered emotionally and was thus a victim.”].)
Here, there was substantial evidence to support the trial court’s implied finding that V.H. qualified as a victim. First, as S.’s biological mother, she was “the parent... of the victim” when the crimes occurred in early 2006. (§ 1202.4, subd. (k)(3)(A).) She was also “the primary caretaker of a minor victim” from December 2007 on. (§ 1202.4, subd. (k)(3)(E).) Second, there was evidence that V.H. incurred economic harm. (§ 1202.4, subds. (f)(3)(C), (k)(3)(A) & (E).) Bermudez declared that the records, which listed S. and V.H. as claimants, were “accurate reproductions of bills... submitted to and paid by the Board... by or on behalf of the claimants listed above.” (Italics added.) Bermudez also declared that the treating therapist verified that the treatments were “necessary as a direct result of the crime and 100% related to the crime committed by the above defendant.” (Italics added.)
Defendant suggests, however, that V.H.’s therapy sessions “had nothing to do with this case.” His reliance on his ex-wife’s testimony to support that assertion is misplaced. Her testimony established only that V.H. had seen a therapist at some time in the past. Directing defendant’s ex-wife to focus her attention “right around the 2006 time period, ” defendant’s trial counsel asked if there was “any time before then” that she knew her sister was in therapy “for anything.” “Yes, ” she responded. She conceded that she had “no idea” why V.H. would have been seeing a therapist after that. The fact that V.H. may have seen a therapist in 2006 and earlier does not establish that her therapy sessions in 2009 were related to anything other than defendant’s crimes against her daughter.
The trial court could reasonably have inferred from the bills themselves that V.H.’s therapy sessions were occasioned by defendant’s crimes. A careful review of those bills reveals that between March 4 and June 24, 2009, S. and V.H. attended 16 counseling sessions together. That V.H. attended a single one-hour session alone on February 25, 2009 (the week before the 16-session course of joint counseling began) does not compel the conclusion that that solo session had nothing to do with defendant’s crimes. We think the court could reasonably have inferred that the therapist wanted to meet with S.’s mother alone before beginning the 16-session course of treatment to better focus that treatment. Alternatively, and equally reasonably, the court could have inferred that V.H. had some issues related to defendant’s crimes that she did not wish to discuss in her daughter’s presence. (A similar inference could be drawn about the three sessions between July 11 and August 12, 2009, that S. appears to have attended alone.)
Defendant next contends that there was insufficient evidence to establish “the exact basis for the payments or who was actually paid.” He suggests that his ex-wife’s insurance may have paid for S.’s early therapy sessions, that the Board may have improperly reimbursed the insurance company, and that the Board may have paid V.H. “for claims already paid” by his ex-wife’s insurer.
To the extent defendant contends the court should have reduced the amount of restitution by the amount paid by insurance, he misstates the law. “Determination of the amount of restitution ordered pursuant to [section 1202.4, subdivision (f)] shall not be affected by the indemnification or subrogation rights of any third party.” (§ 1202.4, subd. (f)(2).) As the California Supreme Court explained in People v. Birkett (1999) 21 Cal.4th 226, crime victims are entitled to receive “the full amount of the loss caused by the crime, regardless of whether, in the exercise of prudence, the victim had purchased private insurance that covered some or all of the same losses.” (Id. at p. 246; People v. Garcia (2010) 185 Cal.App.4th 1203, 1216 [trial court “appropriately ordered restitution for entire amount billed for Doe’s therapy... regardless of whether insurance covered a portion....”].) In any event, defendant adduced no evidence, apart from his ex-wife’s assertion, that her insurance paid for any therapy. It would have been an easy matter for him to have done so. He had the burden of proof. (Millard, supra, 175 Cal.App.4th at p. 26.)
We conclude that substantial evidence supported the trial court’s award of restitution. It follows that the court did not abuse its discretion ordering defendant to pay $5,365 to the Board. (People v. Hove (1999) 76 Cal.App.4th 1266, 1276 (Hove).)
C. Due Process
Defendant claims that the restitution award violated his due process rights. We disagree. “Due process is satisfied if [the defendant] is given notice of the amount sought and a hearing to contest that amount. [Citation.]” (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.) Here, defendant received notice in December 2009 that the Board had set restitution in the amount of $5,750. He sought and obtained a restitution hearing, and he was present and represented by counsel at that hearing. As we have determined, the trial court’s ruling was supported by substantial evidence. There was no due process violation. (Hove, supra, 76 Cal.App.4th at p. 1276.)
III. Disposition
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Lucero, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.