P. v. Johns

Filed 3/29/06 P. v. Johns CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Loretta Murphy Begen, Judge.

Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan Cross and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Daniel Dewey Johns was initially charged with three counts of committing lewd and lascivious acts on three minor children: his granddaughter and two foster children. (Pen. Code,^[1] § 288, subd. (a).) He went to trial and was acquitted of one count based on a foster child; the jury was unable to reach verdicts on the other two counts but strongly leaned toward acquittal.

Appellant subsequently pleaded guilty to one count of felony abuse of a child under circumstances likely to cause great bodily harm (§ 273a, subd. (a)) as to C., his granddaughter, and placed on probation. As part of the negotiated disposition, the court dismissed the remaining count based on the foster child. Appellant entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey)^[2] as to consideration of the dismissed count for purposes of sentencing. As a condition of probation, appellant was ordered to pay victim restitution as determined by the probation department, based on counseling expenses the state had already paid for his granddaughter and the foster child.

The Victim Compensation and Government Claim Board (the Board) subsequently advised the probation department that C.'s mother was also a victim in this case, the Board had approved and paid for her counseling sessions, and that appellant should be ordered to repay the Board for these expenses as part of the victim restitution order.

Appellant objected to the inclusion of C.'s mother within the order for victim restitution. The court conducted a noticed hearing, found C.'s mother was a victim within the meaning of the restitution statute, and modified the victim restitution order to include reimbursement for her counseling expenses.

On appeal, appellant contends the trial court improperly included C.'s mother within the restitution order, and that such an order was not within the terms of the plea bargain. Appellant also contends the court violated his due process rights because he was unable to confront and cross-examine the counselors who provided services to C. and her mother, to determine if such services were directly related to the instant offense.

We will affirm.

FACTS^[3]

Appellant and his wife lived in a mobile home, and their residence was licensed by the Stanislaus County Child Protective Services (CPS) as a foster home. In October and November 1999, Detective Ken Hedrick of the Stanislaus County Sheriff's Department interviewed three girls who claimed that appellant inappropriately touched them: C., appellant's granddaughter; and N. and A., who lived in appellant's house as foster children.

C. (born 1989) was appellant's granddaughter; C.'s father was appellant's son. C.'s parents were divorced, but appellant and his wife maintained a good relationship with C.'s mother, E.M. (their former daugher-in-law), and they helped C.'s mother by providing free after-school daycare for C. and her minor brother. C. told Detective Hedrick that appellant had touched her inappropriately, and she believed the incidents occurred about a year before their interview. She could not remember the exact number of times appellant touched her, but thought it was at least five times. The touchings occurred at appellant's residence, either in the living room or appellant's bedroom. Appellant touched her on the breast and the pubic area, over her clothes, and whispered, â€