Opinion
A118670
4-17-2008
THE PEOPLE, Plaintiff and Respondent, v. DAVID PETERSON, Defendant and Appellant.
NOT TO BE PUBLISHED
After defendant pled no contest to two counts of committing a lewd act upon a child in violation of Penal Code section 288, subdivision (a), the trial court sentenced him to 16 years in prison. Subsequently, on November 3, 2006, the People moved to modify defendants sentence and to order him to pay $2,077 in restitution to the Victim Compensation Board (board). On May 31, 2006, the trial court granted this motion in part and ordered defendant to pay restitution in the amount of $1,300. Defendant appeals and argues that the lower court abused its discretion in ordering restitution. The restitution was for relocation expenses; defendant maintains that the victims relocation was due to the actions of the victims mother and not the result of defendants crimes against the victim. We conclude that the lower court did not abuse its discretion in ordering restitution and affirm the judgment.
BACKGROUND
Defendant pled no contest to two counts of committing a lewd act upon a child in violation of section 288, subdivision (a). The last date on which the victim, M.K., was assaulted was on July 1, 2003. The trial court sentenced defendant to 16 years in prison. At the time of sentencing, the court reserved the right to assess restitution. We affirmed the judgment (People v. Peterson, A110122) on October 26, 2005, pursuant to People v. Wende (1979) 25 Cal.3d 436.
Subsequently, on November 3, 2006, the People moved to modify defendants sentence and to order him to pay $2,077 in restitution to the board. This sum represented reimbursement of $700 in counseling expenses, which defendant did not challenge in the lower court. The remainder of $1,377 was for relocation expenses.
The court held the restitution hearing on April 30, 2007. The court considered documents that indicated M.K. had lived with her mother until M.K.s grandmother took custody of her on March 11, 2005. Grandmother stated that M.K.s mother had been homeless and had been using drugs for the prior three years. On September 23, 2005, the grandmother and M.K. moved to a different two-bedroom apartment. Grandmother paid $777 for her first months rent and $600 as a security deposit for a total of $1,377.
The People submitted two verification forms from mental health providers. The first form completed on November 7, 2005, indicated that M.K. had been receiving treatment since June 2005 and stated the following: "Client was a victim of abuse (sexual) at her old residence. Client was hypervigilant, anxious [and] emotionally volatile at old residence. A new residence will decrease symptoms and increase emotional well being." The second form dated March 13, 2006, stated the following: "Victim needs to relocate in order to help her progress . . . . Victims crime happened at present location and stresses her greatly. Victim will suffer delay in progress in treatment if she cannot relocate."
Additionally, the court took judicial notice of grandmothers filing in the superior court on June 7, 2005, a request for a restraining order against mother and the courts order placing a restraining order against mother. Grandmother stated that mother continued to use drugs and come over to the house. On one occasion, mother ran through the house screaming that her face was burning. Additionally, grandmother stated that on May 14, 2005, mother broke into the home and scared M.K. by telling her that she no longer wanted to live; M.K. refused to sleep in her bed for the next three weeks.
At the hearing, defense counsel argued, among other things, that the predominant need for the move was the mothers actions rather than the fact that M.K. was a victim of a crime.
The trial court issued its decision on May 31, 2007. The court awarded $1,300 restitution to the board, which represented $700 in counseling expenses and $600 in deposit money on the new apartment. The court did not award the $777 in rent, finding that this was not an economic loss, but a recurring expense.
The court explained: "Counsel for the defendant argues that the defendant did not cause the emotional instability that necessitated the move. He points to the facts that it has been years since the crime, that the actual victim had counseling around the discovery of the crime, but that the most recent counseling began only after the actual victims mother abandoned her. Counsel feels the events outlined in the request for a restraining order . . . are more likely the cause that necessitated the move.
"[I]t appears the actual victims mother came by the apartment on a number of occasions high and broke in once. The mother scared the actual victim; she feared she would be taken away from her stable home. This argument is persuasive. It does appear that [grandmother] moved to get away from the actual victims mother, not because of the location of the crime. This does not explain the mental health providers verification, which cites the crime as the need for the move. Moreover, [grandmother] infers in her restraining order request that she is finally trying to get help for the actual victim after many years."
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant claims that the trial court abused its discretion in ordering restitution that included the $600 paid for the deposit when grandmother and M.K. relocated. He asserts that the relocation was not the result of the crimes he committed against M.K.
"The court must order direct victim restitution in `every case in which a victim has suffered economic loss as a result of the defendants conduct, " and the "restitution order `shall be of a dollar amount sufficient to fully reimburse the victim for economic losses caused by the defendants criminal conduct." (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409; see § 1202.4, subd. (f)(3).) The trial court is vested with broad discretion in ordering and determining the amount of restitution. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) "The trial `courts allocation of restitutionary responsibility must be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law. " (People v. Draut (1999) 73 Cal.App.4th 577, 581, quoting In re S.S. (1995) 37 Cal.App.4th 543, 550.) "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." (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
In the present case, the record contains a factual basis supporting the trial courts determination that the relocation of M.K. and her grandmother was a direct result of the crimes defendant committed against M.K. Once grandmother was able to get counseling for M.K. so that she could begin to deal with the sexual crimes committed against her, the mental health provider stated that relocation was necessary for M.K. to heal and to benefit fully from the therapy. The mental health provider believed a move was necessary to separate M.K. from the environment in which she had been molested. This evidence provided a factual basis for the courts finding that the relocation by grandmother and M.K. was a result of defendants sexual crimes against M.K.
Defendant argues that the trial court "specifically found [he] was not the cause for the victims relocation . . . ." He claims the court found that M.K. and her grandmother moved to get away from M.K.s mother. This does not accurately reflect the courts findings. The court found defenses argument persuasive and stated that it did "appear" that the grandmother "moved to get away from the actual victims mother, not because of the location of the crime." However, the court proceeded to explain that defenses argument could not account for the mental health providers verification, which cited the crime as the need for the move. Further, the court inferred from the grandmothers restraining order request that grandmother was now finally after many years trying to get help for the actual victim. Thus, the court concluded that, while it was true that grandmother wanted to get away from the mother, defendants crimes were the actual cause because M.K. would not be able to benefit from therapy and begin to heal without being able to relocate. Accordingly, we conclude the lower court did not abuse its discretion in ordering defendant to pay $600 in restitution for the victims relocation expenses.
DISPOSITION
The judgment is affirmed.
We concur:
KLINE, P.J.
HAERLE, J. --------------- Notes: All unspecified code sections refer to the Penal Code.