Opinion
A145929 A147201
04-18-2017
THE PEOPLE, Plaintiff and Respondent, v. JAN VAN DUSEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. C169934A, C169934B) MEMORANDUM OPINION
We conclude this matter is proper for disposition by memorandum opinion in accordance with California Rules of Court standard 8.1.
This is the second appeal arising out of defendant's conviction for felony animal cruelty. In the first appeal, A142665, we affirmed defendant's conviction under Penal Code section 597, subdivision (b). Defendant now challenges restitution orders made to two entities-BrightHaven, Inc. (BrightHaven) and Oakland Animal Services (OAS)-for costs related to impounding and caring for the cats defendant neglected. Defendant claims BrightHaven was not entitled to a restitution award. As to OAS, defendant contends the award is not supported by substantial evidence. We affirm.
All further statutory references are to Penal Code.
BACKGROUND
Because the issues raised in this appeal do not depend on the details of the underlying conviction, we do not repeat the summary of facts from our prior opinion.
OAS seized 93 alive cats (and 11 dead ones) from defendant's house during the execution of a search warrant. The cats had been living in dire conditions; many were sick and all needed some level of medical services. OAS provided shelter and medical care to many of the animals. But because there was such a large number, it was not able to care for all of them. BrightHaven, a non-profit animal rescue organization, impounded and provided care to some of the cats under its contract with OAS.
At defendant's sentencing hearing, the trial court reserved restitution and ordered the matter set for further hearing. The court eventually ordered defendant to pay $9,399.05 in restitution to BrightHaven and $37,629 to OAS. Defendant timely appealed both orders in separate cases. We consolidated the appeals.
BrightHaven Restitution Order
Defendant contends BrightHaven is not entitled to restitution under either section 1203.1 (governing restitution as a condition of probation) or section 597, subdivision (g)(1) (allowing costs of impoundment to "the impounding officer" in an animal cruelty case).
Under section 1203.1, trial courts have broad discretion to impose reasonable probation conditions to foster rehabilitation and protect public safety. (§ 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 (Carbajal).) "Restitution has long been considered a valid condition of probation." (Carbajal, at p. 1121; see § 1203.1, subd. (a)(3) ["The court shall provide for restitution in proper cases."].)
On appeal, we determine whether the trial court's order is arbitrary, capricious or otherwise exceeds the bounds of reason under the circumstances. (Carbajal, supra, 10 Cal.4th at p. 1121.) "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486, superseded on another ground as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-295.) Unlike mandatory restitution orders imposed under section 1202.4, section 1203.1 does not limit the award of restitution to a "direct victim" of crime. (People v. Anderson (2010) 50 Cal.4th 19, 28-29 (Anderson).)
The award of restitution to BrightHaven clearly relates to defendant's crime. Defendant was convicted of felony animal cruelty for her mistreatment of over 100 cats in her home-treatment detailed by the court in its restitution order. BrightHaven, under contract with OAS, impounded many of the cats and provided veterinary and other services. The expenses for which BrightHaven sought payment were a direct economic consequence of defendant's criminal negligence in failing to care for the animals.
The award also relates to defendant's rehabilitation and the goal of deterring future criminality. Requiring defendant to pay BrightHaven's expenses forces her to shoulder the consequences of her criminal behavior and the suffering her animals endured. (See Carbajal, supra, 10 Cal.4th at p. 1124 [" 'Restitution is an effective rehabilitation penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused.' "].)
Defendant contends a restitution award to BrightHaven under section 1203.1 is improper because this case is factually distinguishable from Anderson, supra, 50 Cal.4th 19. In Anderson, the California Supreme Court affirmed a restitution award to a hospital that provided medical services to the victim of defendant's crime. (Id. at pp. 32, 34.) The Anderson court held direct payment to the hospital would redress the injury done to the victim, assure amends be made to society, contribute to defendant's rehabilitation, and was appropriate under the particular circumstances of the case. (Id. at pp. 33-34.) This case is analogous. As in Anderson, the restitution award to BrightHaven makes defendant accountable for the financial loss related to her crime and serves to foster her rehabilitation. (Id. at p. 34.)
Defendant also contends the trial court did not, in any event, order restitution under section 1203.1, but under section 597, subdivision (g)(1). However, while the trial court cited to section 597 and cases applying it, the court stated it was "awarding [BrightHaven] $9,399.05 to be paid by Ms. Van Dusen as a condition of her probation." Further, in making its award, the court referred to BrightHaven as a "victim," a term not relevant to an award of restitution under section 597, subdivision (g)(1). Accordingly, the record can reasonably be read as imposing restitution as a condition of probation under section 1203.1. Finally, even if the basis for the court's ruling was unclear, we can affirm a correct decision regardless of the reasons stated. (People v. Smithey (1999) 20 Cal.4th 936, 972; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 346 ["If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds on which the court reached its conclusion."].)
Under the circumstances of this case, the trial court's award of restitution was not an abuse of discretion. Because we conclude the order was correctly made under section 1203.1, we need not, and do not, consider whether BrightHaven was entitled to restitution under section 597, subdivision (g)(1).
OAS Restitution Order
Section 597, subdivision (g)(1) provides a person convicted of animal cruelty "shall be liable to the impounding officer for all costs of impoundment from the time of seizure to the time of proper disposition." Defendant does not dispute she is liable to OAS under section 597, subdivision (g)(1), but claims the trial court's restitution order was not supported by substantial evidence of OAS's actual costs for services provided.
A party seeking restitution must provide an adequate factual basis for the claim. (People v. Giordano (2007) 42 Cal.4th 644, 664.) Once a prima facie case for restitution is made, the burden shifts to defendant to rebut the claimant's showing. (People v. Sy (2014) 223 Cal.App.4th 44, 63.) " ' "[T]he court's discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole." "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." ' " (Ibid., quoting People v. Millard (2009) 175 Cal.App.4th 7, 26-27.)
We review the trial court's order regarding the amount of restitution for abuse of discretion. (People v. Sy, supra, 223 Cal.App.4th at p. 63.) In reviewing the sufficiency of the evidence to support a factual finding, we determine whether there was any substantial evidence supporting the findings. (Ibid.)
In this case, there was an ample basis for the restitution awarded to OAS. At the restitution hearing, OAS presented a letter to defendant showing the number of animals it seized (93 cats and two dogs) and its costs for boarding the animals, impound fees, vaccinations, and veterinary services., OAS also offered a chart showing the number of animals held at the shelter, the number of days they were there, the total dollar amount for boarding the animals, and the specific costs of impound fees ($40 for 95 animals), veterinary services (including number of hours and rate per hour), vaccinations (for 88 animals) and euthanasia (for 11 animals). Further, OAS introduced a union memorandum of understanding showing monthly salary ranges for its veterinarians and a schedule of fees for the costs of impounding, boarding, and vaccinating animals. Such evidence was more than sufficient to make a prima facie showing of OAS's costs to shelter, care for, and in some cases, euthanize the animals. Defendant failed to rebut OAS's showing as to the amount of its loss.
Defendant's opening brief contains a footnote requesting the court take judicial notice of OAS's restitution request form and its contents as part of the appellate record in A142665. Because we granted defendant's motion to augment the record in this case to include the OAS restitution request form, the request is denied as moot.
OAS also sought restitution for "officer time" which the trial court denied.
Defendant's reliance on Luis M. v. Superior Court (2014) 59 Cal.4th 300 is misplaced. Luis M. involved review of a juvenile court's restitution order based on felony vandalism. (Id. at p. 303.) There, the trial court used an outdated general cost model that estimated graffiti abatement costs based on average cost per incident rather than a rational estimate of actual costs occasioned by the minor's specific conduct as required by the applicable statute. (Id. at p. 309) In contrast, here OAS made a prima facie showing of the specific expenses incurred for care and treatment of defendant's animals, including the number of cats boarded and impounded, the number of hours of services provided, and the costs of each of the services provided. Defendant cites no authority for her assertion the actual costs claimed must be supported by "account books, invoices, expense records, payroll records, billings . . . ," or similar evidence and Luis M. does not so hold.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, P.J. /s/_________
Dondero, J.