Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB051334, Arthur Harrison, Judge.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Peter Quon, Jr., Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
Defendant pled guilty to assaulting the victim with force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The court granted defendant probation with the condition that he serve 120 days in jail. Defendant contends (1) the court erred by ordering defendant to pay restitution to the Victim Compensation Board; (2) the court erred by imposing a probation revocation fine that exceeded the amount of his restitution fine; and (3) the probation condition requiring defendant to cooperate in field interrogations impermissibly infringes on his Fifth Amendment privilege against self-incrimination. We affirm the judgment as modified in this opinion.
All further statutory references will be to the Penal Code unless otherwise indicated.
FACTS
The parties agreed the police report and preliminary hearing transcript formed a factual basis for the plea. On April 28, 2005, the victim, who is female, invited a male friend and defendant, who was also a friend of the victim, to her apartment. Defendant and the friend drank alcohol, but the victim did not. As the victim lay on her couch, defendant and the friend approached the victim. Defendant grabbed the victim’s pants and pulled on them in an attempt to remove them. At one point, defendant pulled on the victim’s pants with enough force to pull the victim off the couch, causing her to hit her head on the coffee table. The friend pulled on the victim’s arms while defendant continued trying to remove the victim’s pants. The victim yelled “no,” kicked her legs and swung her arms. Defendant pinned the victim’s arms behind her head and used his free hand to unclasp her bra. Defendant and the friend both placed their mouths on the victim’s breasts multiple times. Both men also rubbed the victim’s genitals through her pants. Eventually, the victim broke free and locked herself in her bathroom.
The following pertinent conditions were included as terms of defendant’s probation:
Condition No. 13 directs defendant to “[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night.”
Condition No. 15 requires defendant to “[m]ake restitution to the victim(s) through Central Collections in an amount to be recommended by the Probation Officer and determined by the Court.”
Condition No. 16 requires defendant to “[m]ake restitution to the . . . Victim Compensation Board in the amount of $147.06 plus a 10% administrative fee, to be paid through Central Collections.”
Condition No. 17 requires defendant to “[p]ay a restitution fine in the amount of $200.00, plus a ten percent (10%) administrative fee through Central Collections.”
The court ordered defendant’s probation revocation fine would be $220, but stayed the fine pending successful completion of defendant’s future or current probation.
DISCUSSION
1.
VICTIM COMPENSATION BOARD
Defendant contends he should not be required to pay restitution to the Victim Compensation Board (the Board) because (1) there was insufficient evidence regarding a payment by the Board, such as what amount of money was paid and what expense of the victim’s was reimbursed; (2) the Board is not a direct victim within the meaning of section 1202.4, subdivision (k)(2); and (3) the court failed to pronounce the amount of the fine. We disagree.
The People assert defendant waived these arguments by failing to raise them at the sentencing hearing. We do not determine whether defendant has waived his arguments, because we choose to address the merits of defendant’s contention in order to forestall a future claim of ineffective assistance of trial counsel.
A. Sufficiency of the Evidence
Section 1202.4, subdivision (f)(4)(B), provides: “The amount of assistance provided by the Restitution Fund shall be established by copies of bills submitted to the California Victim Compensation and Government Claims Board reflecting the amount paid by the board and whether the services for which payment was made were for medical or dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or rehabilitation. Certified copies of these bills provided by the board 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 board, shall be sufficient to meet this requirement.”
“‘In reviewing the sufficiency of the evidence, “‘[t]he 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.]’ [Citation.]” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) “‘[T]he trial court is entitled to consider the probation report when determining the amount of restitution.’ [Citation.]” (Id. at p. 1048.) “Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion.” (Ibid.) Additionally, relying on hearsay statements to support a restitution award comports with state and federal due process rights. (See People v. Cain (2000) 82 Cal.App.4th 81, 88.)
In defendant’s probation report, Probation Officer Figueroa wrote, “According to an email received from Jeanetta Ringhofer with the District Attorney’s Office, the Victim Compensation Board has received claims from the victim through the Victims of Crime Program. To date, the Board has made payments in the amount of $147.06 to the victim. She requested that the Probation Department recommend restitution in the amount of $147.06 to the Victim Compensation Board.”
At the sentencing hearing, the prosecutor stated, “The victim did submit a bill for $147.06 for the loss of wages, I believe, according to [a] memo I received from [the Board]. They paid out that amount and they -- the loss of income was due to the defendant’s action.”
The information provided in the probation report informed the court that the victim submitted a bill to the Board, and the prosecutor confirmed that the Board paid the victim for lost wages. We conclude the information provided at the sentencing hearing is substantial evidence to support the court’s finding that the Board paid the victim $147.06 due to lost wages. Accordingly, we find the court did not err by requiring defendant to pay $147.06 to the Board as a term of his probation.
B. Definition of a Victim
Defendant argues the Board is not a direct victim within the meaning of section 1202.4, subdivision (k)(2), and therefore not entitled to restitution. We disagree.
Section 1202.4, subdivision (k)(2), provides that a victim shall include “[a]ny corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.”
A victim of a crime requests money from the Restitution Fund “by filing an application with the California Victim Compensation and Government Claims Board . . . .” (Moore v. State Bd. of Control (2003) 112 Cal.App.4th 371, 375.) Section 1202.4, subdivision (f)(4)(A) provides: “If, as a result of the defendant’s conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative victim . . . the amount of assistance provided shall be presumed to be a direct result of the defendant’s criminal conduct and shall be included in the amount of restitution ordered.”
Section 1202.4, subdivision (f)(4)(A) creates a rebuttable presumption that any money paid to the victim through the Restitution Fund was done so as “a direct result of the defendant’s criminal conduct.” Defendant did not present any evidence contradicting that a payment was made by the Board to the victim. Accordingly, the Board paid the victim as a direct result of defendant’s actions, which causes the Board to be a direct victim of defendant’s criminal conduct. Consequently, we find defendant’s argument unpersuasive.
C. Pronouncement of the Fine
Defendant contends the court erred by failing to pronounce the fine related to the Board. We disagree.
In the recommended terms of probation, the following condition was included: “Make restitution to the victim, Victim Compensation Board, in the amount of $147.06 plus a ten percent (10%) administrative fee, to be paid through Central Collections.” At the sentencing hearing, defendant’s trial counsel objected to the imposition of the condition. Later at the sentencing hearing, the following exchange took place:
“The Court: Have you read all of the terms and conditions of probation?
“The Defendant: Yes.
“The Court: Is it okay if I refrain from reading all of them to you now?
“The Defendant: Yes.”
At the conclusion of the sentencing hearing, the following discussion took place:
“The Court: That will be the order.
“[Defendant’s trial counsel]: I am sorry. I did make a request which was opposed by the People. I didn’t hear you rule one way or the other.
“The Court: No. I am awarding restitution, victim restitution to the Victim Compensation Board as requested.
“[Defendant’s trial counsel]: Thank you, your Honor.”
In response to defendant’s trial counsel’s request, the court stated that it was ordering restitution be paid to the Board in the amount requested, which was $147.06. Additionally, defendant explicitly waived the court’s pronouncement of the terms of his probation. Consequently, we find the court did pronounce the restitution order. Accordingly, we find defendant’s argument unpersuasive.
2.
PROBATION REVOCATION FINE
Defendant contends the court erred by imposing a probation revocation fine in the amount of $220 pursuant to section 1202.44, because it exceeded the restitution fine of $200 imposed pursuant to section 1202.4.
The People assert defendant waived this argument by failing to raise it at the sentencing hearing. We do not determine whether defendant waived his argument, because we choose to address the merits of defendant’s contention in order to forestall a future claim of ineffective assistance of trial counsel.
Section 1202.44 mandates that when a court grants probation it also “assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.”
In defendant’s case, the court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b), plus an additional $20 administrative fee, for a total amount of $220. The plain language of section 1202.44 dictates that the probation revocation fine and the restitution fine are to be the same amount. The statute does not state that the probation revocation fine may equal the amount of the restitution fine plus any administrative costs. Although the trial court was likely referring to the total amount owed—a $200 probation revocation fine plus associated administrative fees—when it pronounced the fine as $220, we must, for the sake of clarity, conclude the court erred to the extent the probation revocation fine could be interpreted as being $220 exclusive of administrative costs. In sum, we find the court should have pronounced the probation revocation fine as $200—the same amount as the restitution fine.
3.
FIELD INTERROGATION
Defendant contends probation condition No. 13, which requires him to submit to and cooperate in field interrogations, is unconstitutional because it impermissibly infringes on his Fifth Amendment privilege against self-incrimination.
A probation condition is valid under the Fifth Amendment unless there is a reasonable basis for concluding an impermissible penalty has been attached to the exercise of the privilege. (Minnesota v. Murphy (1984) 465 U.S. 420, 436-437 (Murphy).) Murphy sets forth the rule that the Fifth Amendment privilege is not lost when a person is granted probation: A state cannot “constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” (Murphy, at p. 438.)
In light of this well-settled rule, there is no reasonable basis for concluding probation term No. 13, requiring defendant to “[s]ubmit to and cooperate in a field interrogation by any peace officer,” places an impermissible penalty on defendant’s Fifth Amendment privilege. The condition does not state that defendant has forfeit his Fifth Amendment privileges, and nothing on the face of the condition, either expressly or by implication, suggests defendant would be subject to having his probation revoked if he were to assert his Fifth Amendment privilege while being questioned about a matter which could incriminate him for another crime. Accordingly, we conclude defendant’s Fifth Amendment privilege has not been infringed by probation condition No. 13.
Defendant speculates that due to this probation condition he will be subject to probation revocation and police harassment if he attempts to assert his Fifth Amendment privilege during a field interrogation. Speculation cannot support a finding that a probation condition is unconstitutional. (See People v. Gray (2005) 37 Cal.4th 168, 230 [speculation cannot support a reversal of a judgment].)
DISPOSITION
The judgment is modified to reflect that defendant’s probation revocation fine is $200. In all other respects, the judgment is affirmed.
We concur: Gaut, J., Miller, J.