Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. J1285730, James E. Herman, Judge
Lisa M. Bassis, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Shira B. Seigle, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Zachary F. appeals from an order denying deferred entry of judgment after pleading no contest to sexual battery in juvenile court. (Pen. Code, § 243.4, subd. (a).) The trial court declared appellant a ward of the court, granted formal probation, and ordered appellant to pay $2,407 restitution. (Welf. & Inst. Code, §§ 602, 730.6.) We modify the judgment to reflect that $2,467.50 victim restitution was awarded and affirm the judgment as modified.
Facts
Construing the evidence in the light most favorable to the judgment, the probation report shows the following:
On or about August 13, 2008, appellant (age 14) text-messaged Emma S. to meet him at the Worldmark Timeshare and Hotel in Solvang. Emma, age 13, knew appellant from school. When Emma arrived at the hotel, appellant "French kissed" her. Emma was scared and tried to push him away but appellant cornered her and kissed her again. Exposing his penis, appellant begged for oral sex. Emma said "No" and "No" again when appellant asked Emma to give him a "hand job." Appellant pinned Emma against the wall and, in an angry voice, threatened to spread "horrible rumors about her being a slut" if Emma did not perform oral sex.
Fearing retaliation, Emma bent down and let appellant put his penis in her mouth. Emma tried to remove his penis from her mouth but appellant would not stop. He finally let Emma leave because her mother was waiting outside. Emma ran to the car with a shocked look and said that appellant tried to get her to give him a "blow job." When Emma got home, she threw up and cried the rest of the day.
Emma attended a birthday party in October and was teased about being a slut and giving appellant oral sex. On October 11, 2008, she reported the sexual assault to the Santa Barbara County Sheriff. Emma told Detective Jenny Stetson that she and appellant used to attend the same school. In December 2007, appellant forcibly kissed her and put his tongue in her mouth. The next day, classmates teased Emma about "forcing herself" on appellant and sent text messages calling her a slut. Emma had never been kissed by a boy before and was embarrassed. Because of all the rumors and teasing, Emma had to transfer to another school. The sexual battery occurred six months later.
Appellant agreed to talk to Detective Stetson and said that Emma took him to a room, unzipped his pants, and put his penis in her mouth. Appellant denied coercing Emma or spreading rumors about her.
On December 1, 2008, a petition was filed charging appellant with lewd act upon a child (Pen. Code, § 288, subd. (a)) and forcible lewd act upon a child (Pen. Code, § 288, subd. (b)(1)). Appellant submitted to HIV testing as ordered by the court. (Pen. Code, § 1524.1.)
A first amended petition was filed in March 2009, alleging two counts of lewd act on a child (counts 1 & 3; Pen. Code, § 288, subd. (a)), forcible lewd act on a child (count 2; Pen. Code, § 288, subd. (b)(1)), and sexual battery (count 4; Pen. Code, § 243.4, subd. (a)). Pursuant to a negotiated plea, appellant pled no contest to sexual battery and the remaining counts were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). Although the probation report recommended deferred entry of judgment (Welf. & Inst. Code, § 790 et seq.), the trial court ordered formal probation and restitution.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Deferred Entry of Judgment
Appellant argues that the trial court abused its discretion in denying deferred entry of judgment (DEJ) which requires separate findings of eligibility and suitability. (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10.) In order to receive DEJ, the defendant must waive time for pronouncement of judgment and admit all the allegations in the petition. (§ 791, subds. (a)(3) & (b).) Appellant, in essence, rejected DEJ when he pled no contest to sexual battery in exchange for a dismissal of the remaining counts. (See In re Kenneth J. (2008) 158 Cal.App.4th 973, 979-980; accord In re Usef S. (2008) 160 Cal.App.4th 276, 285-286.)
Assuming that appellant was eligible for DEJ after the plea was entered, the trial court did not err in denying DEJ. The trial court found that appellant was quite young to be engaging in forcible sexual behavior and lacked insight concerning the severity of his conduct. "I just don't think you get the damage that you have created towards this family and their daughter and their other daughter, I just don't think you get it, both by the original conduct itself and, apparently, the whispering campaign that went on about this girl...."
In deciding to grant or deny DEJ, the trial court must consider certain suitability factors including the minor's age, maturity, educational background, family relationships, motivation, treatment history, and any other factors relevant to the determination of whether the minor is a person who would benefit from education, treatment, or rehabilitation. (In re Sergio, supra, 106 Cal.App.4th at p. 607, fn. 9; see Cal. Rules of Ct., rule 5.800(d)(3)(A)(i).)
The trial court denied DEJ even though appellant had no juvenile record. "I think there are enough question marks despite the good school conduct of [appellant] and despite the fact that he has not come to the court's attention before, that we – and just given the nature of the offense which I found to be true, that we need more here for the protection of the community than simply a deferred entry of judgment."
Appellant claims that public safety was not a factor because those involved in the investigation opined the incident was probably a consensual sexual encounter. This misstates the record. Detective Stetson was unable to determine "who was the aggressor" in the sexual assault. The probation officer reported that "it is unclear if the sexual act was a forcible one or an act of a thirteen- and fourteen-year old, engaging in a risky sexual encounter."
A psychologist, Don Rubinstein, Ph.D., reported that appellant suffered an "Adjustment Disorder with Anxiety." Appellant was attracted to excitement and "[h]is profile resembles that of other adolescents who are impulsive, and short-sighted and not always concerned with the consequences of their behavior." The psychological evaluation stated that individuals with similar profiles had a tendency to be exploitive within family and school settings.
In Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, a juvenile court denied DEJ in order to deter other minors from committing similar crimes (drug trafficking). The Court of Appeal reversed on the ground that deterrence of others does not comport with DEF guidelines. (Id., at p. 562.) "While a court might find that the circumstances of a crime indicate a minor is not amenable to rehabilitation [citation], and on that basis deny DEJ, it may not do so as a means of deterring criminal activity by others." (Ibid.)
Unlike Martha C., the trial court articulated sound reasons for denying DEJ based on the serious nature of the offense, appellant's lack of insight and remorse, the harm to the victim and the victim's family, and the danger to the community. (See e.g., In re Damian M. (2010) 185 Cal.App.4th 1, 6.) Substantial evidence supported the finding that appellant would benefit more from formal probation than from DEJ. (In re Sergio R., supra, 106 Cal.App.4th at p. 607.) Appellant makes no showing that the disposition order is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Restitution Hearing
Appellant argues that he was denied the right to present a defense and to confront and cross-examine adverse witnesses at the restitution hearing. Before the hearing, the prosecution filed a motion to preclude appellant from subpoenaing Emma's medical and school records or calling Emma as a witness. Appellant opposed the motion on the ground that he had a due process right to cross-examine witnesses and review the records to determine whether the restitution expenses were causally related to the sexual battery.
Citing the Victim's Bill of Rights (Cal. Const., art. I, § 28(e)) and general case law, the trial court found that there is "really no Sixth Amendment right to cross-examination and confrontation at a sentencing, disposition or restitution hearing." Appellant, however, was permitted to subpoena Emma's school and psychological records which were reviewed in camera for information relevant to restitution.
Evidence was received that Emma was traumatized by appellant, ostracized at school, and had to be home schooled. Emma's mother testified that Emma's grades plummeted after the sexual battery, requiring therapy and tutoring in language arts and math.
The trial court reviewed the school and medical records and found a "fairly direct connection" between the sexual battery and psychological testing and counseling, Appellant was ordered to pay the medical bills in full. The trial court stated that the tutoring costs were "a little murkier" because Emma was struggling in math and science before the incident. The court found "a connection" between the sexual battery and language arts tutoring ($265) but no "clear nexus" between the sexual battery and math tutoring ($560).
Appellant claims that he was denied the right to confront and cross-examine adverse witnesses. "California courts have repeatedly held that [a] defendant does not have a Sixth Amendment right of confrontation at the sentencing stage of a criminal prosecution. [Citations.]" (People v. Cain (2000) 82 Cal.App.4th 81, 86, citing People v. Arbuckle (1978) 22 Cal.3d 749, 754.) A hearing to determine the amount of restitution is part and parcel of sentencing. (Id., at p. 87.) Appellant cites no authority that he has a Sixth Amendment right to confront and cross-examine the victim at a restitution hearing. (Ibid.)
Nor were appellant's due process rights violated. A trial court may consider multiple hearsay and unsworn statements in awarding restitution. (People v. Cain, supra, 82 Cal.App.4th at pp. 87-88.) The same rule applies to juvenile proceedings. (See In re I. M. (2005) 125 Cal.App.4th 1191, 1210-1211.) Although the United States Supreme Court extended a due process right of cross-examination to minors in the adjudicative stage of juvenile delinquency proceedings, it did not extend that requirement to the disposition stage. (In re Gault (1967) 387 U.S. 1, 26, 56-57 [18 L.Ed.2d 527, 545, 562-563].)
Consistent with section 730.6, appellant was afforded the right to contest the restitution amount and to challenge the accuracy and validity of the victim's economic losses. (See e.g, People v. Cain, supra, 82 Cal.App.4th at pp. 86-87; People v. Resendez (1993) 12 Cal.App.4th 98, 113; People v. Foster (1993) 14 Cal.App.4th 939, 946-947; In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391, fn. 21.) Appellant subpoenaed school and medical records and cross-examined Emma's mother. No crucial evidence was excluded. Appellant received a fair hearing. "He was entitled to no more." (In re I.M., supra, 125 Cal.App.4th p. 1211.)
Repeating the due process arguments, appellant claims that he was denied effective assistance of counsel at the restitution hearing. Appellant makes no showing that counsel's performance was deficient and that, but for counsel's alleged errors, there is a reasonable probability appellant would have obtained a more favorable result. (In re Merrick V. (2004) 122 Cal.App.4th 235, 254-255.) "The Sixth Amendment does not require counsel ' "to waste the court's time with futile or frivolous motions." ' [Citations.]" (People v. Memro (1995) 11 Cal.4th 786, 834.)
Restitution Amount
Appellant asserts that the $2,407 restitution order is not authorized by law because it awards restitution for economic loses not attributable to the sexual battery. Appellant did not object to the restitution amount and forfeited the claim. (People v. O'Neal (2004) 122 Cal.App.4th 817, 820.)
On the merits, the evidence shows that Emma suffered psychological and academic problems as a result of the sexual assault. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132 [victim's right to restitution is broadly and liberally construed].) The medical bills for testing and counseling total $2,147.50 and are clearly related to the sexual battery.
With respect to the tutoring bills, the trial court ordered restitution for language arts tutoring ($320). Appellant claims that Emma had academic problems before the sexual assault, but those problems where in math and science. Emma's mother testified that Emma was a "B" student before the incident and that Emma "was really having a tough time staying focused" after the assault. Emma's grades dropped to D's and F's and "continued to dip" to almost straight F's. Emma had to be home schooled and received therapy and special tutoring. Where, as here, there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found. (People v. Cain, supra, 82 Cal.App.4th at p. 88.)
Respondent argues that the trial court erred in calculating the total restitution amount. We concur. Appellant was ordered to pay $320 for language arts tutoring, $1,972.50 for psychological testing, $35 for a neurological assessment, and $140 for counseling. The total restitution award is $2,467.50 rather than $2,407. We accordingly modify the judgment to reflect that appellant was ordered to pay $2,467.50 victim restitution.
Pre-Plea HIV Testing
Appellant argues that his due process rights were violated because HIV testing was ordered without a probable cause hearing. Pursuant to Penal Code section 1524.1, HIV testing may be ordered where "the [juvenile] court finds probable cause to believe (1) the defendant committed the offense charged, and (2) a bodily fluid capable of transmitting the virus has been transferred to the victim." (Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 572.)
Although the trial court failed to conduct a probable cause hearing, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Probable cause to order HIV testing means "a fair probability of a transfer of fluids, not... truth beyond a reasonable doubt. [Citation.]" (Humphrey v. Appellate Division, supra, 29 Cal.4th at p. 575.)
Appellant admitted putting his penis in Emma's mouth and was aroused and not wearing a condom. There was a fair probability of a transfer of semen to warrant an HIV testing order. (Pen. Code, § 1524.1, subd. (b)(1); tit. 22 Cal. Code Regs. § 41102(a)(3) [semen a bodily fluid capable of transmitting HIV].) Although some sexual offenses can be committed without transferring bodily fluids, oral copulation is not one of those offenses. (See Pen. Code § 1202.1, subds. (d)(1) & (e)(5) [conviction for oral copulation requires mandatory HIV testing].)
Appellant did not object to the HIV testing order and submitted to two HIV tests before entering the no contest plea. He is precluded from arguing, for the first time on appeal, that the trial court erred in not conducting a probable cause hearing. (See e.g., People v. Stowell (2003) 31 Cal.4th 1107, 1116.) A remand to conduct a probable cause hearing, which is moot at this point, would serve no useful purpose. (See e.g., People v. Travis (2006) 139 Cal.App.4th 1271, 1279-1280.)
The judgment is modified to reflect that appellant was ordered to pay $2,467.50 victim restitution. As modified, the judgment is affirmed.
We concur: COFFEE, J.; PERREN, J.