Opinion
A152943
12-19-2018
THE PEOPLE, Plaintiff and Respondent, v. CARL RAY BROWN, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-160446-1) MEMORANDUM OPINION
This appeal is appropriate for disposition by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
Defendant Carl Ray Brown Jr. was ordered to pay $6,970.40 in restitution for relocation expenses, $6,820.40 payable to the Victim Compensation Board and $150 payable directly to the victim, his former wife. He challenges the restitution for relocation expenses on several grounds. He first claims the law enforcement verification form submitted to establish that the relocation expenses were "necessary for the personal safety of the victim" is too cursory to satisfy the statutory verification requirement (Pen. Code, § 1202.4, subd. (f)(3)(I)). He next claims the evidence does not support a finding that relocation was necessary for the safety of the victim. He additionally claims the restitution cannot be upheld on the alternative ground relocation was necessary for the "emotional well-being of the victim" given the absence of statutorily required verification by a mental health treatment provider. (Ibid.) Although it is a close call whether the law enforcement verification is adequate, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Standard of Review
We review a restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) " ' " '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.' " [Citations.]' [Citation.] 'The court abuses its discretion when it acts contrary to law [citation] or fails to "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." ' " (In re Travis J. (2013) 222 Cal.App.4th 187, 202-203.)
The Law Enforcement Verification
Section 1202.4, subdivision (f)(3)(I) provides that restitution shall include: "Expenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim."
To the extent the Attorney General suggests this statutory verification requirement does not apply to restitution fund assistance provided to the victim by the Victim Compensation Board (Board) while criminal proceedings are ongoing, and for which restitution is subsequently sought, he is mistaken. Relocation assistance advanced by the Board, and subsequently ordered as restitution to be paid directly to the Board (§ 1202.4, subds. (f)(2) & (f)(4)(A)), is part and parcel of the restitution a court must order "for every determined economic loss incurred as the result of the defendant's criminal conduct." (§ 1202.4, subd. (f)(3); see generally People v. Giordano, supra, 42 Cal.4th at pp. 651-656 [discussing history of restitution requirement].)
Indeed, the Board's own regulations and publications acknowledge that verification by a law enforcement official or a mental health treatment provider is required for Board assistance for relocation expenses. (E.g., Gov. Code, § 13957, subd. (a)(7)(A); Cal. Code Regs., tit. 2, §§ 649.17, subd. (b) and 649.17.1, subd. (a)(1) & (2); CalVCB Compensation Benefit Guide <https://victims.ca.gov/docs/forms/victims/CalVCPBenefitReferenceGuide.pdf> [as of Dec. 19, 2018].) And to that end, the Board has produced a "Law Enforcement Relocation Verification Form" which "Must be completed by Law Enforcement" and the purpose of which is "to document the threat to the personal safety of the qualifying crime victim seeking relocation benefits from the California Victim Compensation Board (CalVCB)." (CalVCB Law Enforcement Relocation Verification Form, <https://victims.ca.gov/docs/forms/victims/relocation/LEVerification.pdf?2018-07-5> [as of Dec. 19, 2018].) In fact, the law enforcement verification submitted to the trial court in this case is on a prior version of the Board's own verification form.
In the trial court, defendant claimed the law enforcement verification submitted in this case is deficient in two respects. First, he asserted the statements on the form are too cursory to establish that the claimed relocation expenses were "necessary for the personal safety of the victim." (§ 1202.4, subd. (f)(3)(I).) Second, he complained the identifying information pertaining to the law enforcement official who executed the verification had been redacted, thus depriving him of the opportunity to show the form was not, in fact, completed "by law enforcement" and depriving him of the opportunity to call and cross-examine that individual. On appeal, defendant pursues only his complaint that the statements on the form are too cursory to establish the claimed relocation expenses were "necessary for the personal safety of the victim." (Ibid.)
When the trial court asked the deputy district attorney why the law enforcement official information was redacted, she replied she did not know why and that the copy her office received from the Board was redacted.
We therefore do not address the merits of defendant's complaint about the redaction of the identifying information pertaining to the law enforcement official completing the form. However, we are compelled to note that we have some concern if this reflects a standard practice by the Board. The Board certainly must redact victim information, as it did in this case. However, there appears to be no reason why the law enforcement identifying information required on the form (the name of the official and his or her badge number) should be redacted. At the very least, the trial court must be able to find, as required by the restitution statute, that the verification is by "law enforcement."
The People sought restitution for relocation expenses associated with the victim's move to Southern California, asserting the victim wanted to be closer to her family, given her "physical limitations." Specifically, the People requested restitution of $6,820.40 payable to the Board for moving costs ($3,920.40), a security deposit ($1,500), and first month's rent for the victim's new residence ($1,400). The People additionally sought $421.59 in relocation expenses payable directly to the victim for the cost of renter's insurance ($209), water service deposit ($150), and the first month's water bill ($62.59).
The trial court ordered restitution directly to the victim only for the $150 water service deposit.
In support of the requested restitution for relocation expenses, the People submitted a redacted copy of the Board supplied "Law Enforcement Relocation Verification Form." At the top of the form the crime date, "7/10/15," and crime code, "244," were supplied. A "244" is the crime of throwing a caustic or flammable substance at a person with the intent to injure or disfigure the person. (§ 244.) At the bottom, the form was dated "12/10/15."
In response to the question on the form asking, "Is or was it necessary for the victim to relocate for personal safety," the "Yes" box was checked. The form next directed, if "Yes, besides the elements of the crime, please describe the threat to the victim's personal safety." (Boldface omitted.) The description provided was: "Case was initially mis-filed as a misdemeanor. [¶] Victim is disabled."
The form subsequently asked, "If more than 90 days has passed since the crime, is there still a credible threat to the victim?" The "Yes" box was checked. The form then directed, "If Yes, please explain." The explanation given was: "Case is still pending preliminary hearing."
Thus, it is clear that the verification form was completed during the early stages of the criminal proceedings—after defendant had been arrested and charged with a number of crimes, including throwing a caustic or flammable substance, and long before he was found not guilty of that crime and guilty, instead, of making a criminal threat (§422). Indeed, the verification was made even before the preliminary hearing.
Given that the Board is authorized to provide early relocation assistance to victims (see Gov. Code, §§ 13952, 13952.5; Cal. Code Regs., tit. 2, §§ 649.17, 649.17.1) and that restitution must be ordered for such (substantiated) assistance by the Board (§ 1202.4, subd. (f)(3) & (4)), we cannot find fault in the identified crime code on the form, a section 244. The nature of that crime, plus the information that the victim was "disabled" and the case was still in the early stages, is, we conclude, sufficient for purposes of the required verification that the relocation expenses were "necessary for the personal safety of the victim," (§ 1202.4, subd. (f)(3)(I)) although just barely so. Undoubtedly, more detail could have been provided, and that certainly would have been preferable. However, the Board is expressly charged with verifying applications for assistance (Gov. Code, §13954), and nothing in this record suggests it did not fulfil its statutory duty.
We therefore conclude that the statutory verification requirement that relocation expenses be "necessary for the personal safety of the victim" was satisfied.
Sufficiency of the Evidence
Apart from challenging the facial adequacy of the law enforcement verification, defendant maintains the evidence does not support the trial court's determination that the victim relocated for her personal safety.
As the Attorney General points out, in challenging the sufficiency of the evidence, defendant is confronted with the presumption that adheres to substantiated assistance provided by the Board—namely, that "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 the restitution ordered." (§ 1202.4, subd. (f)(4)(A).) "The statute's use of the word 'direct' signifies that the payment is presumed to have resulted directly, or in fact, from the defendant's criminal conduct. [Citation.] Stated differently, the defendant's conduct is presumed to be a cause in fact of the Board's payment." (People v. Lockwood (2013) 214 Cal.App.4th 91, 101, italics omitted.) While this presumption is rebuttable, a defendant carries a heavy burden in this regard. (Id. at p. 103 ["to overcome the subdivision (f)(4)(A) presumption that the assistance given the victim was 'a direct result of the defendant's criminal conduct,' a defendant must prove that his criminal conduct played, at most, ' " 'only an "infinitesimal" or "theoretical" part in bringing about' " ' the injury," italics omitted].) Although this presumption does not apply to the restitution sought directly by the victim, the lion's share of restitution for relocation expenses was for assistance provided by the Board.
Defendant claims he and the victim were "headed for divorce well before . . . his conviction." To support this assertion, defendant focuses on the fact he told the victim that he wanted a divorce while they were arguing, before he retrieved the lighter fluid and threatened to burn her, their house, and dog on the night of the incident that led to his conviction. He also points to the fact the victim had sought a valuation of their house a few weeks before the incident, and she had previously moved out on other occasions. He additionally maintained he had always provided a "high level of care to" his wife, and there had been no history of violence in the couple's relationship.
While this may be defendant's take on the situation, none of the facts he proffers proves his criminal conduct had only an "infinitesimal" or "theoretical" role in precipitating the victim's move to Southern California. In fact, defendant's assertion that divorce was a certainty before he threatened the victim, is belied by the fact the couple had had prior difficulties but had always reconciled. At the time of his criminal conduct, neither he nor the victim had consulted a divorce attorney or filed for divorce. In short, defendant is simply re-arguing his view of the case, which does not suffice to rebut the presumption that the relocation expenses were directly attributable to his criminal conduct.
Defendant's reliance on People v. Scroggins (1987) 191 Cal.App.3d 502 (Scroggins) and People v. Rivera (1989) 212 Cal.App.3d 1153 (Rivera) is misplaced.
In Scroggins, several burglaries occurred in the apartment complex where the defendant lived, but only some of the stolen property was recovered from his apartment. He pled guilty to receiving stolen property, and the trial court ordered restitution for all of the items stolen but not recovered as a condition of probation. The defendant appealed, claiming the restitution was not related to the crime for which he was convicted. (Scroggins, supra, 191 Cal.App.3d at pp. 504-505.) Citing extensively to People v. Richards (1976) 17 Cal.3d 614, in which the Supreme Court held "that absent extraordinary circumstances probation may not be conditioned on restitution involving a purported crime for which the defendant was acquitted" (Scroggins, at p. 505), the Court of Appeal concluded restitution for the stolen, unrecovered property was not for economic loss "connected" to the crime for which he was convicted, namely possession of stolen property. (Id. at p. 506.) Since the defendant "was never charged with or found to be criminally responsible for the burglaries," the trial court "did not conclude—nor from this record could it have—that [the defendant] was responsible for these other losses that it ordered paid." (Ibid.)
In Rivera, the defendant took tools from two individuals. One of the victims recovered all of his tools while the other recovered only some of her tools (found in the stolen car the defendant was driving). (Rivera, supra, 212 Cal.App.3d at p. 1156.) The defendant pled guilty and, pursuant to the then operative restitution statute, was ordered to pay restitution to the second victim for the unrecovered tools. (Id. at pp. 1156-1157.) Citing to Richards and its recent opinion in Scroggins, the appellate court concluded the reasoning of Scroggins was equally applicable to statutory restitution. Since the defendant had been convicted only of receiving stolen property in connection with the tools of the second victim and those tools had been returned to the victim, "there was 'no showing . . . [the defendant was responsible for the] losses suffered by the burglary victims.' " (Id. at p. 1162.)
To begin with, these cases are factually distinguishable—both involved thefts from multiple victims and the principal issue was whether restitution could be ordered for losses suffered by victims as to whom the defendant was not convicted specifically of theft. The circumstances here are entirely different. In addition, the principal case on which both cases relied, Richards, was overruled in pertinent part by the Supreme Court in People v. Carbajal (1995) 10 Cal.4th 1114. Indeed, the high court expressly disapproved Richards to the extent it "require[d] that trial courts refrain from conditioning probation on restitution 'unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted.' " (Carbajal, at p. 1126.) Rather, restitution may be ordered even as a condition of probation if it is "reasonably related either to the crime of which the defendant is convicted or to the goal of deterring future criminality." (Id. at p. 1123; see In re T.C. (2009) 173 Cal.App.4th 837, 848 [recognizing holding in Scroggins was "based, in part on a principle, [set forth in Richards] later disapproved in Carbajal"].)
Defendant additionally maintains that People v. Mearns (2002) 97 Cal.App.4th 493 (Mearns), on which the Attorney General places significant reliance, is readily distinguishable. In that case, the defendant broke into the victim's mobile home while she was not there and, when she returned, raped her, telling her that if she did not keep quiet he would track down and hurt her son. (Id. at p. 496.) The victim quickly sold her mobile home for $13,000 to the first available buyer and bought a new mobile home in a gated community for approximately $26,500. (Id. at p. 497.) The trial court ordered the defendant to pay the difference as part of the restitution ordered. (Id. at p. 496.) The requested restitution was supported by a letter from a detective who stated the victim's original mobile home could not be secured against intruders and the victim was in constant fear of being assaulted again. (Id. at p. 497.)
It is true the crime in Mearns was brutal, and the victim had to move in order to have any degree of security in her residence. However, the fact that egregious circumstances supported the restitution ordered for the victim's relocation expenses in Mearns, does not alter the fact that sufficient evidence supports the restitution ordered for relocation here.
In sum, the trial court's order requiring defendant to pay restitution for the victim's documented relocation costs "was rational, well reasoned, based on factual evidence presented at the hearing, and within its broad discretion." (Mearns, supra, 97 Cal.App.4th at p. 502.)
Given our conclusion that there was adequate verification of and sufficient evidence supporting restitution for relocation expenses "necessary for the personal safety of the victim," we need not, and do not, address defendant's additional argument that the restitution cannot be affirmed on the alternative ground as "necessary for the emotional well-being of the victim." (§ 1202.4, subd. (f)(3)(I).)
DISPOSITION
The restitution order is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Kelly, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------