Opinion
A149699
05-12-2017
THE PEOPLE, Plaintiff and Respondent, v. MAXIMILANO BRISENO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 171593)
INTRODUCTION
In this appeal, appellant challenges the order of restitution imposed by the trial court after a hearing. Specifically, appellant contends he was denied his right to examine the victim and her daughter on the nature of therapy they have received as a result of the conduct to which appellant pleaded no contest. We have reviewed the record and concluded the restitution amount was properly imposed and appellant's due process rights were not violated. We therefore affirm the judgment.
STATEMENT OF THE CASE
On May 30, 2013, the District Attorney of Alameda County filed an information charging appellant with making a criminal threat, a violation of Penal Code section 422 (count 1) and indecent exposure, a violation of section 314, subdivision (1), a misdemeanor (count 2).
Unless otherwise stated, all references in this opinion are to the Penal Code.
On July 22, 2013, appellant entered a no contest plea to count 1, and count 2 was dismissed.
On August 19, 2013, appellant was sentenced to five years of probation.
In both September 2015 and April 2016, appellant's probation was revoked and then reinstated.
On August 15, 2016, after conducting a properly noticed restitution hearing, the trial court ordered appellant to pay reimbursement to the California Victim's Compensation Board (VCB) for payments made by the VCB to cover therapy sessions for the victim and her daughter in this case. The restitution amount was $6,286.50.
A notice of appeal was filed in this case on September 21, 2016.
STATEMENT OF FACTS
Since appellant entered a no contest plea before trial, the facts are based on the narrative contained in the probation report. "[O]n 4/30/13, at 1013 hours, police were dispatched to the victim's home on the report that her next-door neighbor, the defendant, was harassing and threatening her. When the police arrived at the scene, they observed that the victim was upset and crying. She told police that she was talking on the phone outside of her apartment when the defendant, who was in his underwear and standing on his porch, began cursing at her and saying, 'Look at me, stupid! Look at what I'm doing and what I'm going to do to you! I'm going to rape you!' The defendant then exposed his penis and began masturbating. The victim then went inside her home and called police. The defendant stood outside the victim's front door and continued to yell and curse at her until the police arrived. The victim's minor children saw and heard the defendant's threats."
ANALYSIS
In this appeal, appellant challenges the trial court's restitution order. He contends the trial court prevented him from examining the victims at the restitution hearing regarding the mental health services they received. He contends this preclusion violated his right to due process.
Appellant entered a no contest plea to a violation of section 422, criminal threats. In its report, the probation department suggested restitution be reserved until the department obtained the full amount of payment for mental health services to the victim and her daughter in the case.
The prosecution later filed a request for restitution in the sum of $6,286.50. The amount was to compensate the VCB for payments they covered for the two victims in this case. Appellant served a subpoena on the victim Jane Doe and her daughter, minor Jane Doe, to compel their testimony regarding specifics on the treatment. The district attorney moved to quash the subpoenas.
In support of the subpoena, appellant made an offer of proof about a meeting between the defense investigator and Jane Doe's daughter. Contrary to information reported in the probation and police reports, the daughter claimed to the investigator she "was not present for the alleged incident." She said she was receiving mental health treatment for "anger issues" arising from an unrelated theft of a backpack, as well as from two uncharged incidents in which appellant confronted her at her workplace and at home. Appellant also indicated his investigator learned Jane Doe was seeing a therapist on a weekly basis because it made her feel better and the therapist tells her what to do when she is scared.
In his motion to quash, the deputy district attorney argued the two individuals who were receiving therapy began their treatment during the time appellant was sentenced and released from custody. The treatment was continued when appellant violated the terms of probation by coming to the home of Jane Doe and her daughter. Their fear of appellant after his release triggered the need for additional therapy.
The trial court also relied on a letter from Maria Suniga of the district attorney's office. Suniga related an incident when the defense investigator confronted Jane Doe and her minor daughter at their home and demanded information on treatment. The mother spoke only Spanish. The daughter told the investigator the conversations with the therapist were confidential.
In its decision, the court relied on the temporal proximity between the sentencing and release of appellant, and the initiation of counseling by the victims. The court noted appellant presented no evidence to rebut the presumed validity of the records of VCB and the fact they arose as a result of this criminal incident by appellant. The court quashed the subpoenas and approved the payment of restitution to VCB in the sum of $6,286.50.
In our review, we begin with the notion victim restitution in California is both constitutionally and statutorily mandated. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) Restitution includes mental health services to any victim of a crime, and covers costs incurred after the event. (People v. Giordano (2007) 42 Cal.4th 644, 658.) If payment is made by the VCB for health services, that amount shall be presumed to be a direct result of appellant's criminal conduct and "shall be included in the amount of restitution ordered." (§ 1202.4, subd. (f)(4)(A).) The standard of proof in a restitution hearing is preponderance of the evidence. (People v. Keichler, at p. 1045.)
The Legislature has stated: "The amount of assistance . . . shall be established by copies of bills . . . reflecting the amount paid by the board . . . . 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." (§ 1202.4, subd. (f)(4)(B).) --------
It is also true a restitution hearing does not require the formalities of other phases of criminal proceedings. (People v. Cain (2000) 82 Cal.App.4th 81, 87.) Under Cain, the appellant's due process rights are protected when the probation report gives notice of the amount of restitution claimed and the appellant has the chance to challenge these figures at the hearing. He has no Sixth Amendment right to confront the victim(s) at the hearing on restitution. (Id. at p. 86.) Due process is violated only if the hearing procedures are fundamentally unfair. (Id. at p. 87.)
In this case, appellant was given notice of the restitution sum and the records from VCB supporting that amount. Since the government agency paid the cost, they are services presumed to be the direct result of criminal conduct by appellant. (People v. O'Neal (2004) 122 Cal.App.4th 817, 818-819 [counselling services to the brother of a molestation victim]; People v. Garcia (2010) 185 Cal.App.4th 1203, 1217 [billing summary of therapy costs amount to substantial evidence].) While appellant was not allowed to subpoena the victims to testify regarding matters of privileged communication and mental health treatment, appellant could have challenged the documents from VCB with expert witnesses, or challenged the interval between the time of the crime and the length and commencement of treatment. The trial court did allow appellant to provide an offer of proof regarding his challenge of the prosecution's information on restitution. However, trial counsel for appellant only related the comments of his investigator regarding his subpoena of Jane Doe and her daughter. There was no evidence challenging the payments by VCB; nothing was said regarding the expenditures. Additionally, appellant did not develop any evidence regarding preexisting condition or malingering on the part of Jane Doe or her daughter. Everything at the hearing pointed to the period of the crime and the sentencing, as well as other threatening incidents involving appellant and the daughter of Jane Doe.
Additionally, the hearing was not fundamentally unfair due to the trial court's consideration of hearsay information contained in the VCB documents supporting the payments to Jane Doe and her minor daughter. In People v. Arbuckle (1978) 22 Cal.3d 749, 755, the Supreme Court decided a trial court could consider a probation report containing hearsay statements because the document was inherently reliable as an item prepared by a governmental employee in furtherance of his or her official duties. These memos prepared by the VCB appear just as reliable as the probation report.
We are convinced the hearing in this matter satisfied due process requirements. Appellant presented no additional evidence on the amount he is obligated to pay, and the restitution order of $6,286.50 is supported by substantial evidence.
DISPOSITION
Since we affirm the restitution order in this case and no additional issue is presented in this appeal, we affirm the judgment.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.