Opinion
A164683
07-12-2023
In re R.W. a Person Coming Under the Juvenile Court Law. v. R.W., Defendant and Appellant. PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J2000291)
Petrou, J.
Appellant R.W. was the subject of a juvenile wardship petition (Welf. &Inst. Code, § 602, subd. (a)) alleging that then 17-year-old R.W. had committed several violent crimes. R.W. pled no contest to a charge of assault with a firearm on a person (Pen. Code, § 245, subd. (a)(2)) and the remaining charges were dismissed.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
At disposition, the juvenile court found appellant and one co-offender jointly and severally liable for victim restitution. One of the victims was S.H., who was present in her home during shooting incidents that occurred in late May 2019 and that were targeted, at least in part, at her son. S.H. applied to the Victim Compensation and Government Claims Board (VCB) and received compensation for lost income and her family's relocation expenses. After a series of restitution hearings, the juvenile court directed R.W. to pay VCB to reimburse it for its payments for S.H.'s income loss and relocation expenses.
R.W. appeals from the restitution order, challenging only the sum related to income loss. He contends the court erred in directing reimbursement because the prosecution did not meet its initial burden of providing an adequate factual basis for the income loss. In the alternative, he asserts that if the prosecution did meet its initial burden, he rebutted it by proving he was not the cause of the income loss. We affirm.
Factual and Procedural Background
The factual background is taken from the San Joaquin County Probation Transfer Report and the Contra Costa County Probation Disposition Report.
Background
In July 2019, the San Joaquin County District Attorney filed an amended juvenile wardship petition (§ 602, subd. (a)) alleging, in part, that then 17-year-old R.W. had committed multiple counts of attempted murder, multiple counts of carrying a loaded firearm while being an active participant in a criminal street gang, and multiple counts of shooting at a building or vehicle. The relevant charges arose from two shooting incidents on May 26 and 27, 2019.
On May 26, another juvenile, D.O., was walking home when a white Lexus drove by and the passenger in the backseat of the Lexus shot at him. D.O. believed the shooting was gang related. He identified R.W. as the shooter and as someone who had shot at him in the past. D.O.'s mother, S.H., was inside the family residence when she heard shots being fired. She went outside, where she saw D.O. running and a vehicle speeding away. In the wee hours of the following day, May 27, the police responded to another shooting at D.O.'s home. S.H. reported she was inside with family members, not including D.O., when someone fired multiple shots into their home. The police officers located 29 spent shell casings and one live round at the scene.
R.W. was arrested on July 13, 2019. He admitted to being the driver of the vehicle during the May 2019 shootings and reported that a co-offender was the shooter.
On April 15, 2020, the San Joaquin Superior Court granted the prosecution's motion to amend one of the attempted murder counts (attempted murder of D.O., alleged to have occurred on May 26, 2019) to allege that R.W. had committed assault with a firearm. (Pen. Code, § 245, subd. (a)(2).) That same day, R.W. pleaded no contest to the amended count of assault with a firearm and all remaining counts and enhancements were dismissed. The case was transferred for disposition to Contra Costa County (hereinafter the juvenile court) where R.W.'s mother had moved the family.
At the May 2020 disposition hearing, the juvenile court adjudged R.W. to be an indefinite ward of the court and committed him to a county institution under probation supervision for a term not to exceed his maximum custodial time of three years and 21 days, or until the age of 21, whichever occurred first. R.W. and one co-offender were held jointly and severally liable to pay victim restitution.
Contested Victim Restitution Proceeding
A contested victim restitution proceeding was held over several days in 2021 and 2022.
The probation department filed a September 2020 report regarding restitution, which included VCB's request for reimbursement of payments made to S.H. The report included attachments detailing payments for lost income and relocation expenses. R.W. did not dispute the relocation expenses.
At the September 1, 2021 hearing, the court admitted, without objection, Exhibit F. Exhibit F contained VCB's certified records in support of its request for reimbursement for S.H.'s lost income in the sum of $33,869.05. Those records included an employment verification form from S.H.'s employer at the time of the shootings, and payment statements for two disability periods (June 7, 2019 to June 30, 2020 and November 25, 2020 to April 25, 2021).
The parties entered into the following stipulations: (1) VCB's reimbursement of income loss was based on S.H.'s income at the time of the crime or incident, and VCB did not consider prior employment history; (2) VCB had considered injuries related to the crime that prevented the victim from working when determining the period of time to calculate income loss; and (3) VCB had made an "original" calculation of S.H.'s income loss and then adjusted that sum downward (resulting in a revised income loss of $33,869.05) based on documents subpoenaed by R.W.'s counsel.
Prior to hearing argument, the court found the certified VCB documents in Exhibit F established a prima facie case for restitution, shifting the burden to R.W. to prove the revised income loss ($33,869.05) was not appropriate.
Counsel for R.W. argued VCB's calculation was flawed because S.H.'s prior employment history (employed approximately three months during the five years before the shootings) and the time at her employment at the time of the shootings (a few days before and after the shootings) meant it was unlikely her income loss was due to the shootings. Counsel also asked the court to consider that S.H. had lied on employment applications and, since the shootings, had been able to secure two jobs but only worked a few days at each job before either leaving or being fired.
The prosecutor responded that S.H.'s veracity was irrelevant as VCB did not rely on statements by S.H. to determine income loss. Rather, VCB relied on information provided by S.H.'s employer at the time of the shootings and her employer had no motive or incentive to be dishonest in its filings with VCB. The prosecution explained it was VCB's practice to calculate income loss based on a victim's employment at the time of the incident and consideration of a victim's past employment history would not be a "workable strategy" as it would amount to engaging in "speculation" and "would almost certainly result in inconsistent actions" by VCB.
The prosecutor then requested the juvenile court conduct an in camera review of VCB's records as permitted when determining the amount of restitution to be paid by adult offenders under the Penal Code. The juvenile court agreed to do so over the objection of R.W.'s counsel, who contended that as a matter of due process the parties were entitled to review all the records. The court overruled the objection, noting that some of the records included medical information concerning the victim. After the in camera review, the court released copies of pages VCB 1 through 702, except for "pages 413-446, as redacted."
The court also conducted an in camera review of additional medical records concerning S.H., which had been subpoenaed by R.W, and released copies of certain pages of the medical records concerning S.H. R.W.'s counsel did not object to the court reviewing these records in camera and, after the court's review, did not object to the scope of the redaction. On January 19, 2022, the court admitted into evidence the redacted portions of medical records concerning S.H. (Exhibit K) and the redacted portions of VCB's records supporting the payments for income loss (Exhibit L).
The court then heard further argument by counsel. Counsel for R.W. argued that the disability statement signed by the therapist certifying that S.H. was not able work due to a crime-related injury for the period from November 25, 2020 to April 25, 2021, was not reliable. Counsel repeated her argument concerning S.H.'s alleged lies to her previous employers, that S.H. had only worked a few days and left early from her employment at the time of the shootings, and that before and after the shootings S.H. had a pattern of leaving jobs after only a few weeks. The prosecution responded by again arguing that VCB did not make their determination of loss income based on a victim's full employment history. As to S.H.'s employment after the shootings, the job instability could be explained by stress and trauma due to the shootings.
Juvenile Court's Restitution Order
On February 22, 2022, the juvenile court issued a written order finding VCB entitled to $34,710.05 in restitution, including $33,869.05 for S.H.'s income loss. The court adopted VCB's calculations in its revised Certification of Record dated August 25, 2021, admitted as Exhibit F, noting that VCB had correctly calculated the wages based on S.H.'s employment at the time of the shootings and that each payment was supported by "a certification by a qualified medical professional that the [v]ictim was not capable of working due to the Minor's and his co-responsible's conduct." The court found no evidence S.H. had lied about the medical conditions suffered because of the crimes or that the medical professionals who certified her inability to work were somehow "tricked" by her. In conclusion, the court found R.W. had not rebutted VCB's prima facie showing that it had properly paid the requested amounts to S.H.
On February 23, 2022, the juvenile court found R.W. had successfully completed probation and terminated his wardship. On that same date, the court issued a Judicial Council form order for victim restitution, directing R.W. to pay restitution to VCB, "to reimburse payments to the victim from the Restitution Fund, in the amount of" $34,710.05, which amount included income loss incurred and moving expenses.
S.H. received payments from the state's restitution fund, which is "in the state treasury department, and is used to compensate victims for certain kinds of 'pecuniary losses they suffer as a direct result of criminal acts.' ([Gov.] Code, § 13950, subd. (a).)" (People v. Holman (2013) 214 Cal.App.4th 1438, 1452.) "Crime victims may," as in this case, apply to VCB to receive payments from the restitution fund "as one avenue to recover monetary losses caused by criminal conduct." (Ibid.) If the victim has received assistance from the restitution fund, the amounts a juvenile offender is ordered to pay as direct victim restitution are paid to the restitution fund up to the amount of assistance received from the fund. (§ 730.6, subd. (i).)
This appeal from the victim restitution order ensued.
We dismiss R.W.'s separate appeal of earlier findings and orders made during the July 7, 2021, September 1, 2021, October 6, 2021, November 17, 2021, December 15, 2021, and January 19, 2022 contested restitution hearings. Even if those orders and findings were appealable and properly before us, any issues raised based on those findings and orders have been considered in the appeal from the February 23, 2022 victim restitution order.
Discussion
I. Applicable Law and Standard of Review
"Restitution is constitutionally and statutorily mandated in California." (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045; see Cal. Const., art. 1, § 28, subd. (b).) Section 730.6, subdivision (i) provides, in pertinent part, that the juvenile court may order a minor adjudicated a section 602 ward of the court to reimburse VCB to the extent a victim "has received assistance from the [Restitution Fund] pursuant to Article 5 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code." VCB may, in pertinent part, and subject to certain limitations not relevant here, "authorize compensation equal to the loss of income" that a victim incurs as a direct result of the victim's injury. (Gov. Code, §§ 13957, subd. (a)(3),(7); 13957.5.) VCB must verify the victim's treatment, the circumstances of the crime, amounts paid or received by or for the victim, and "any other pertinent information" deemed necessary by VCB. (Id., § 13954, subd. (a).)
"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 [the victim's] economic loss. [Citations.] 'Once the victim has [i.e., the People have] made a prima facie showing of [the victim's] loss, the burden shifts to the defendant to demonstrate that the amount of loss is other than that claimed by the victim.'" (People v. Millard (2009) 175 Cal.App.4th 7, 26.) "There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
We review a victim restitution order for abuse of discretion. When there is a rational basis for restitution, no abuse of discretion will be found. (People v. Baker (2005) 126 Cal.App.4th 463, 467; see People v. Prosser (2007) 157 Cal.App.4th 682, 690 [" '[i]n determining the amount of restitution, all that is required is that the trial court "use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious"' "].)
To the extent there is a challenge to the amount of restitution, we review for substantial evidence. (Griffith Co. v. San Diego College for Women (1955) 45 Cal.2d 501, 508.) In so doing, our authority "begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary result." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
II. Substantial Evidence Supports the Restitution Order
We find no merit to the argument that a prima facie showing was not made. The juvenile court could properly rely on the documents that comprised Exhibit F, which demonstrated that payments were made based on S.H.'s then current, albeit very recent, employment at the time of the shootings, and that each payment was based on a qualified medical professional's certification that S.H. was not capable of working due to R.W.'s conduct. (See In re S.E. (2020) 46 Cal.App.5th 795, 808, 811 [because VCB may establish amount of assistance provided by restitution fund to a victim at a juvenile restitution hearing in the same manner as provided in Pen. Code § 1202.4, subd. (f)(4)(B) for adult offenders, the juvenile court could rely on VCB's certified documents "as evidence of the amounts paid, and as prima facie evidence the victims' counseling was directly related to S.E.'s conduct"].) We also see no merit to the argument that the juvenile court erred in finding R.W. had failed to meet his burden of refuting the prosecution's prima facie case for restitution.
Penal Code 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 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 the 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."
R.W. contends the juvenile court erred in accepting VCB's calculation of income loss based on S.H.'s then current, albeit very recent, employment at the time of the shootings. However, the court was free to accept the prosecution's arguments that in calculating income loss VCB did not rely on S.H.'s "word" but instead relied on information from her current employer who had no motive or incentive to be dishonest in its filings with VCB. The court was also free to credit VCB's position that reliance on a victim's prior employment history would not be a "workable strategy," as it would lead to decisions speculative in nature and "inconsistent actions" by VCB.
In support of his argument that the juvenile court's order was a "windfall" to VCB, R.W. relies on In re Travis J. (2013) 222 Cal.App.4th 187. His reliance is misplaced. In In re Travis J., the victim sought restitution for lost wages for time spent in securing car repairs and a new car tire. (Id. at p. 203.) However, there was no documentation showing where the victim worked or showing she incurred lost wages related to the car repair. In addition, the juvenile court both had never seen the victim in court and raised credibility concerns. (Ibid.) Nonetheless, because the court knew" 'there is some trouble when you have to take the tire to repair it and to retrieve it,'" it awarded $50 (of $400 requested) for lost wages. (Ibid.) The appellate court set aside the award, noting the juvenile court had explicitly found the victim's statement to the probation officer not credible and the award of restitution was based on nothing more than sheer speculation. (Id. at p. 204.) Here, in contrast, the record contains documentation of S.H.'s employment and salary at the time of the shootings, thereby providing a sufficient basis for the income loss awarded by the juvenile court.
We find unavailing appellant's arguments that the VCB documents and claim procedures were not reliable because VCB adjusted its reimbursement request downward to exclude payments made for overtime hours and payments made while S.H. was employed during disability periods. The juvenile court accepted these downward adjustments and R.W. acknowledges the adjustments were made. By its award of the revised amount for income loss, the court impliedly found R.W. should not be required to reimburse VCB for payments made for overtime or when S.H. was employed. In so ruling, however, the court was free to accept the prosecution's argument that reimbursement was warranted for the remaining disability periods for which payments were made as S.H.'s lack of employment could be attributed to the trauma caused by the shootings.
We also see no merit to the challenges to the disability certifications filed by medical professionals indicating S.H. was not capable of working due to R.W.'s conduct for two disability periods: (1) May 27, 2019 to July 1, 2020; and (2) November 25, 2020 to April 25, 2021.
The certification for May 27, 2019 to July 1, 2020 (Exhibit K) was signed by a licensed physician with a primary practice area of psychiatry. It indicates S.H. was not able to perform modified work-related duties due to "a crime-related injury," and includes a certification under penalty of perjury that "based on [the physician's] examination, the Disability Statement truly describes the patient's disability and the estimated period of disability, if any." R.W. complains that no unredacted reports supported this disability statement and there was no evidence that the medical provider was familiar with S.H.'s mental health diagnosis or treatment. In support of this argument, R.W. asks us to consider documents in Exhibit J, which exhibit was withdrawn by R.W., and therefore not admitted into evidence or considered by the juvenile court. Because Exhibit J was not admitted at the restitution hearing, we may not consider it in determining the sufficiency of the evidence to support the award of restitution. (See Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 828 ["[i]t is axiomatic that . . . we may not review exhibits identified, but not admitted at trial" in determining the sufficiency of evidence to support the verdict].)
The certification for November 25, 2020 to April 25, 2021 (Exhibit L) was signed by a physician and a supervising psychologist. This certification also indicated the disability statement was for "a crime-related injury" and that S.H. was not able to perform modified work-related duties. S.H.'s diagnosis was posttraumatic stress disorder complex, and her prognosis indicated her condition was treatable with six months of mental health support therapy. The physician certified under penalty of perjury that "[the physician's] examination of the patient was within the scope of [the physician's] licensure," and that "[b]ased upon this examination," "this Disability Statement accurately describes the patient's disability and the estimated period of disability, if any." R.W.'s arguments challenging the certification were presented during the restitution hearing, as we have noted ante, and were impliedly rejected by the juvenile court. As an appellate court, "[a]ll of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity, to be accepted by the trier of fact." (Estate of Teel (1944) 25 Cal.2d 520, 527.)
Because the two described disability statements support the payments made by VCB for which the juvenile court directed reimbursement, we do not address R.W.'s challenge to a third disability statement, which relates to a time period that either overlaps in part with the two described disability statements or includes a time period when VCB made no payments to S.H.
We conclude our discussion by noting that R.W. misconstrues our limited authority as an appellate court. R.W.'s opening brief summarizes large swaths of evidence to argue factual issues decided adversely to him by the juvenile court. This is "contrary to the established precepts of appellate review" and therefore "doomed to fail." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) To the extent R.W. challenges S.H.'s credibility, we do not consider those arguments as her credibility was within the exclusive realm of the juvenile court. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The juvenile court's evaluation of the documentary evidence proffered by the parties was similarly a question particularly for resolution by that court as the trier of fact. R.W.'s complaints that the court disregarded evidence are unavailing. The juvenile court was free to accept part of the evidence and reject another part even if the rejected part contradicted the part accepted. (Stevens v. Parke, Davis &Co. (1973) 9 Cal.3d 51, 67-68.) This rule applies "even though to some triers of fact the evidence . . . would have seemed so improbable, impossible and unbelievable that a judgment contrary to that now on appeal would have inevitably followed." (Romero v. Eustace (1950) 101 Cal.App.2d 253, 254.)
III. There is No Showing that the Redaction of VCB Records and Medical Records Denied R.W. a Fair Hearing
R.W. argues his right to fair hearing was violated by the juvenile court's refusal to allow him full access to S.H.'s medical records and VCB records, which redacted portions were admitted as Exhibits K and L, respectively. We find this argument unavailing as there is no evidence the juvenile court relied on any redacted documents in ordering restitution. To the contrary, the court stated that those records were not relevant to the restitution issues before it.
R.W. also challenges the court's redaction of medical records marked as Exhibit J. That challenge is not properly before us as R.W.'s counsel withdrew Exhibit J and it was not considered by the juvenile court in reaching its decision. (See Frank v. County of Los Angeles, supra, 149 Cal.App.4th at p. 828 ["it is axiomatic that . . . we may not review exhibits identified, but not admitted at trial"].)
As a general rule "[t]he scope of a criminal defendant's due process rights at a hearing to determine the amount of restitution is very limited:' "A defendant's due process rights are protected when [the defendant has] notice of the amount of restitution claimed . . ., and . . . has an opportunity to challenge the figures . . . at the sentencing hearing." '" (People v. Cain (2000) 82 Cal.App.4th 81, 86.) Here, R.W. was given both notice and an adequate opportunity to challenge the request for reimbursement of S.H.'s income loss.
We see no merit to R.W.'s arguments challenging the juvenile court's decision to conduct an in camera review of certain VCB records before releasing the records to the parties. Indeed, the law governing restitution to be paid by adult offenders (Pen. Code, § 1202.4 ; People v. Lockwood (2013) 214 Cal.App.4th 91, 101-102), cited by R.W., supports the court's decision to examine VCB's records in camera to determine if they were necessary for R.W. to dispute the amount of S.H.'s income loss.
Unlike the restitution statute governing juvenile cases in section 730.6, the Legislature has statutorily provided procedures for determining the amount of restitution to be paid by adult offenders where a victim has received compensation from the restitution fund after applying for relief with VCB. Specifically, Penal Code section 1202.4 provides, in pertinent part: "(4)(A) If, as a result of the defendant's conduct, the Restitution Fund has provided assistance to or on behalf of a victim . . ., the amount of assistance . . . shall be included in the amount of the restitution ordered. [¶] . . . [¶] (C) . . . [T]he court may release additional information contained in the records of the [VCB] to the defendant only after reviewing that information in camera and finding that the information is necessary for the defendant to dispute the amount of the restitution order."
R.W. also argues he was entitled to full access to the records to dispute the court's findings "[i]f the court relied on records it reviewed in camera to order restitution." Again, there is no indication the court relied on those records. Additionally, R.W. has forfeited any claim challenging the scope of the redactions made by the court. After the court released the redacted VCB records, R.W. made no objection to the redactions including any assertion that the released records left him unable to meaningfully challenge the amount for income loss. Had R.W. made a challenge to the redactions, the juvenile court could have addressed the issue." '[T]he absence of an adverse ruling'" concerning the scope of redactions" 'precludes any appellate challenge.'" (People v. Rowland (1992) 4 Cal.4th 238, 259.)
Finally, we deny the request that we perform an in camera review of the redacted records. R.W. has made no request that those records be transmitted to this court as required by our court rules. (Cal. Rules of Court, rules 8.224, 8.320(e).) (See People v. Whalen (2013) 56 Cal.4th 1, 85 [appellant has burden to present a record adequate for appellate review].) We decline to request, on our own motion, that the juvenile court transmit the sealed records (Cal. Rules of Court, rule 8.224(d)) given the lack of any indicia that the court relied on information in records not released to the parties.
The clerk's transcript included a protective order and the redacted VCB records consisting of VCB pages 1-412 and 447-702 (admitted as Exhibit L) and a protective order and 39 pages of redacted medical records concerning S.H. (admitted as Exhibit K). Each protective order noted the juvenile court would retain under seal all materials reviewed by the court. Before filing his opening brief, R.W. made a motion requesting we direct the superior court to transmit Exhibits K (medical records) and L (VCB records); the motion did not refer to any sealed records. Hence, our order granting R.W.'s request was limited to the transmittal of Exhibits K and L and made no mention of the sealed records subject to the protective orders. We note that the motion papers mention the protective order only as related to Exhibit K (not Exhibit L) and do not attach the protective order. While the opening brief mentions the motion for transmittal of the exhibits, R.W. does not contend the request included the sealed records subject to the protective orders.
DISPOSITION
The appeals from the findings and orders of July 7, 2021, September 1, 2021, October 6, 2021, November 17, 2021, December 15, 2021, and January 19, 2022, are dismissed.
The Judicial Council form order for victim restitution, dated February 23, 2022, is affirmed.
WE CONCUR: Fujisaki, Acting P.J., Rodriguez, J.