Filed 8/16/22 In re T.R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill, Judge. Affirmed.

Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, A. Natasha Cortina, Senior Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

This is the second appeal of defendant and appellant T.R. (minor) from a victim restitution order made after he was adjudged a person coming within section 602 of the Welfare and Institutions Code.[1] In his first appeal, we agreed with minor’s claim of insufficiency of evidence to support the order. (People v. T.R. (In re T.R.) (Oct. 8, 2020, E074089) [nonpub. opn.] pp. 1-2 (T.R. I).) There, we reversed and remanded the case for further proceedings to permit the victim to provide a factual basis for the losses identified in his restitution claim. (Ibid.)

On remand, the trial court ordered minor to pay victim restitution in a sum greater than the amount set forth in the initial order. Minor appealed. We will affirm.

BACKGROUND

When minor was a teenager, he took his two young cousins into the bathroom of their parents’ home. He made his six-year-old female cousin touch his penis, and also pulled down her pants and touched her genitals and buttocks. He made his seven-year-old male cousin touch his penis with the cousin’s hand and mouth.

Minor admitted two counts of felony sexual battery. (Pen. Code, § 243.4, subd. (a).) The juvenile court adjudged him a ward of the court pursuant to section 602 and placed him on probation. As a condition of probation, he was ordered to pay victim restitution in the amount of $2,000 to the victims’ father.

The amount of restitution was based on the father’s statements made to the probation officer and set forth in his victim impact letter. In those statements, he reported spending money on copayments, counseling for all six of his children, missed work, transportation to and from the counseling appointments, and tutoring for his children because they missed school to attend the counseling sessions. Father did not have documentation to support his claim. The juvenile court found documents were not required and fundamental fairness supported a restitution order in the amount of $2,000. Minor appealed the order to this court.

On appeal, we held a statement to the probation office is sufficient prima facie evidence to establish a victim’s losses so long as it contains enough detail to provide a factual basis for the court’s order. (T.R. I, supra, pp. 3, 4, citing our opinion in People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).) We also found the categories of economic losses claimed by the father, including counseling and tutoring expenses for the victims, were proper. (Id., at p. 5.) But, we concluded the record did not provide enough detail to meaningfully assess the court’s exercise of discretion in making the award. (Ibid.) By way of example, we noted the father’s statement did not specify how much was awarded in each category of loss or include facts such as the amount charged per session of tutoring or counseling, or how often the sessions took place. (Ibid.) We reversed the restitution order and remanded the matter to permit the father to provide the probation officer with an adequate factual basis for his claim. (Id., at pp. 5, 6.)

On remand, the juvenile court ordered the probation department to contact the father for information and to prepare a restitution memorandum. In April 2021, the father reported tutoring and counseling for the children began about a month after the offenses took place (on or about July 20, 2018) and were continuing as of the time of the interview by the probation officer. He explained he pays a $15 copay for counseling sessions, which take place approximately two to three times per month. He pays a total of $240 per month for tutoring, that is, $60 per week for both victims to attend a one-hour session twice each week.

At the May 2021 hearing, the parties agreed the restitution order would be limited to expenses incurred between August 2018 (shortly after the offenses occurred) and August 2020 (when the court agreed to dismiss and seal the case, an order not entered by the clerk at that time because minor’s first appeal was still pending). Minor objected to inclusion of tutoring expenses in the award. He also noted the initial order was for $2,000 and said it was unfair to increase that amount.

The court ordered minor to pay victim restitution in the amount of $6,480, consisting of $720 for counseling ($15 twice each month for 24 months) and $5,760 for tutoring expenses ($240 per month for 24 months).

Minor appealed.

DISCUSSION

On appeal, minor argues (i) the juvenile court violated the principles of double jeopardy when, on remand from minor’s first appeal, it ordered restitution in a greater amount than that set forth in its initial order, and (ii) the restitution order is not supported by sufficient evidence.

Minor’s double jeopardy claim

Minor claims the order for victim restitution should be set aside to the extent it exceeds the amount ordered in 2019 prior to his first appeal because increasing the amount violated the principles of double jeopardy.

It is well settled that double jeopardy principles do not apply to victim restitution orders because that form of restitution is imposed to redress the economic losses suffered by victims, not to punish the offender. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1152 (Frandsen) [the principle that victim restitution does not constitute punishment for double jeopardy purposes is well-established], relying on People v. Harvest (2000) 84 Cal.App.4th 641, 645-650 (Harvest).)

Although minor acknowledges authority holding victim restitution is not punitive, he argues (i) imposition of an economic obligation on a juvenile delinquent and his family imposes an extreme hardship and is, therefore, akin to punishment, and, (ii) the $4,480 post-appeal increase in the amount of direct restitution to be paid “violates the spirit if not the letter” of double jeopardy principles. We are not persuaded.

There is no doubt the need to pay victim restitution may cause a juvenile delinquent and his family to suffer hardship. That does not, however, bring the obligation within the realm of punishment. The victim restitution provisions in Welfare & Institutions Code section 730.6 and the parallel provisions applicable to adults set forth in subdivision (f) of section 1202.4 of the Penal Code are not punitive measures. (Luis M. v. Superior Court (2014) 59 Cal.4th 300, 304 [the purpose of Welfare & Institutions Code section 730.6 is to provide victim restitution requirements for juvenile offenders parallel to those set forth in subdivision (f) of section 1202.4 of the Penal Code, which apply to adults].) Rather, those provisions were enacted to put into effect our state’s constitutional mandate setting forth the unequivocal intention of the people of this state that the burden of economic hardship suffered by a victim as a result of criminal activity must be borne by the person who caused it. (Cal. Const., art. I, § 28, subd. (b)(13)(A); Welf. & Inst. Code. § 730.6, subds. (a)(2)(B), (h)-(k), (r); Pen. Code § 1202.4, subd. (f); People v. Evans (2019) 39 Cal.App.5th 771, 777 (Evans).)

Minor cites Justice Poche’s dissenting opinion in Harvest in support of his argument that the court’s order increasing the amount of restitution is contrary to the letter and spirit of the prohibition against double jeopardy. (Harvest, supra, 84 Cal.App.4th at pp. 654-658 (dis. opn. of Poche, J.).) While it is true Justice Poche concludes the imposition of a sizeable award on remand when no award was imposed at the initial sentencing is so punitive in purpose or effect as to transform a civil remedy into a criminal penalty (id., at pp. 655-657), a dissenting opinion is not binding precedent. (People v. Lopez (2012) 55 Cal.4th 569, 585.)

Nor do we find Justice Poche’s transformation theory persuasive. A victim restitution order is not tethered to the offense defendant committed but is instead determined strictly by the economic consequences suffered by the victim. (Welf. & Inst. Code, § 730.6, subd. (h); Pen. Code, § 1202.4, subd. (f)(3).) The statutes authorizing victim restitution make clear the orders must be made without regard to the defendant’s ability to pay or the hardship the restitution order may cause a defendant or a defendant’s family. (Welf. & Inst. Code, § 730.6, subd. (h); Pen. Code, § 1202.4, subd. (g); Evans, supra, 39 Cal.App.5th at p. 777.) And, unlike fines and fees imposed during sentencing that can result in additional punishment for those unable to pay them (see, e.g., People v. Duenas (2019) 30 Cal.App.5th 1157, 1166-1168), a victim restitution order is enforced as a civil judgment. (Welf. & Inst. Code, § 730.6, subd. (i); Pen. Code, § 1202.4, subd. (a)(1)(3)(B).) That the amount due the victim is recalculated based upon an adequate factual basis demonstrated on remand following reversal of earlier order does not change the character or purpose of the award from compensatory to punitive.

Minor’s claim of no substantial evidence to support the order

Minor posits reversal of the restitution order is called for because it is not supported by substantial evidence.

As we explained in Gemelli, supra, and again in T.R. I, supra, once a victim makes a prima facie showing of economic losses by a preponderance of the evidence, the burden shifts to the defendant to disprove the amounts claimed by the victim. (Gemelli, supra, 161 Cal.App.4th at p. 1543; T.R. I, supra, p. 4.) The resulting “restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious.” (Gemelli, supra, 161 Cal.App.4th at p. 1542.) A court abuses its discretion if it finds a victim has made a prima facie showing of loss based upon a statement that lacks an adequate factual basis for the restitution claim. (In re Cristian S. (2017) 9 Cal.App.5th 510, 520 [no court has discretion to find facts for which there is not substantial evidence]; T.R. I, supra, p. 4.)

Here, minor claims the court’s order is not supported by substantial evidence because it is based upon the father’s unsworn statement set forth in the probation officer’s memorandum. He posits the loss must instead be established by testimony or a written signed, sworn, certified statement. And, because the father never testified and his statement is unsigned, unsworn, and uncertified, minor concludes there is no adequate factual basis for the court’s order.

Left unaddressed by minor (and the People) is our rejection of the identical contention in minor’s first appeal. (T.R. I, supra, pp. 3-5, fn. 2.) As noted ante, we there held a statement to the probation office is sufficient prima facie evidence to establish a victim’s losses so long as it contains enough detail to provide a factual basis for the court’s order. (T.R. I, supra, pp. 3, 4, citing our opinion Gemelli, supra, 161 Cal.App.4th at p. 1543.) Accordingly, the doctrine of the law of the case applies to minor’s claim and we will not reconsider the issue here. (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127 [an appellate court’s decision on a principle or rule of law is controlling on the parities in any subsequent retrial or appeal in the same case].)

In connection with his argument that the victim’s statement in the probation officer’s report is insufficient to support the restitution order, minor complains there is “inadequate specificity as to how the [award] was determined.” The contention lacks merit. In T.R. I, we suggested a sufficient factual basis for an order could be provided by including in the probation report the total spent by the father in each category of claimed loss and setting forth, for example, how much was charged per session of tutoring and counseling, and how often the sessions took place. (T.R. I, supra, at p. 5.) The father’s statement in the probation report submitted for the hearing on remand recited the necessary information. The court used that information to arrive at the total for each category and recited its calculations on the record.

In his effort to bolster his insufficiency of evidence argument, minor claims the court’s assumption that services were provided in summer and during the pandemic is faulty, and it was improper to assume the cost of the services remained unchanged over the 24-month period. A party’s claim of error that is essentially factual, such as an error in the trial court’s exercise of its sentencing discretion, is forfeited if no objection was made. (People v. Trujillo (2015) 60 Cal.4th 850, 856 (Trujillo).)

Here, the father’s statements in the probation report established a prima facie showing of his expenses incurred as a result of minor’s offenses. The burden then shifted to minor to disprove any of the father’s claimed losses. (Gemelli, supra, 161 Cal.App.4th at p. 1543.) Minor did voice a general objection to the tutoring category of loss, stating “it’s absolutely ridiculous that the victims want tutoring,” and remarked counseling should have not been provided during school hours. He did not, however, make an effort to disprove those expenses or even suggest the amount claimed for tutoring sessions was incorrect or that those services were not in fact received.[2] He has, therefore, forfeited his right to raise those issues on appeal. (Trujillo, supra, 60 Cal.4th at p. 856.)

Minor recognizes one of the purposes of the forfeiture doctrine is for parties to identify errors so the trial court will have the opportunity to correct them, but argues the doctrine does not apply to an appellant’s second appeal involving the same subject. His novel theory is bottomed on two notions. First, he posits an objection is not required because the People, the probation officer, and the juvenile court were all well-aware the restitution order was being challenged at his second contested restitution hearing after a successful appeal. Second, he claims our reversal of the first restitution order with instructions to fashion a new one in keeping with the opinion in in T.R. I obviated any need for further objection by him because the juvenile court knew what it was being called on to decide. Minor fails to explain, and we do not fathom, how either the court’s knowledge of the issue before it or the court’s and parties’ awareness of the purpose of the hearing permits him to question for the first time on appeal whether tutoring sessions were actually provided and, if so, if the father paid the amount claimed for each session.

Also without merit are minor’s claims that forfeiture does not apply because the order is not supported by substantial evidence and does not comport with our opinion in T.R. I. As explained ante, the order is properly supported by an adequate factual basis in keeping with the suggestions in and the holding of T.R. I.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

SLOUGH

J.

[1] All statutory references herein are to the Welfare and Institutions Code unless otherwise noted.

[2] In T.R. I, we found tutoring to be a proper category of economic loss for which the father was entitled to restitution. (T.R. I, supra, at p. 5.)