Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC827430
Mihara, J.
In a negotiated disposition of two cases, defendant Kevin Glenn Millard pleaded no contest to unlawful sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c)) and felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). He also admitted that his conviction violated probation in another case. The trial court suspended imposition of sentence and placed him on five years’ probation on condition, among others, that he pay $29,976.24 in restitution to the victim for future medical expenses. The court also imposed various fines and fees, including $300 in attorney’s fees.
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends that (1) the restitution order is “unlawful to the extent it orders payment for speculative medical expenses not yet incurred, ” (2) his counsel provided ineffective assistance by failing to object to the amount of restitution ordered, and (3) the attorney’s fees order must be stricken because the trial court made no finding of present ability to pay, and there was insufficient evidence to support an implied finding. We reject defendant’s first two contentions but find merit in the third. Accordingly, we remand the matter for the sole purpose of conducting a section 987.8 hearing to determine defendant’s present ability to pay attorney’s fees.
I. Factual and Procedural Background
The details of defendant’s crimes are irrelevant to the issues he raises on appeal, so we need not recount them. In August 2008, when defendant was 30 years old, he twice engaged in unprotected sexual intercourse with his 16-year-old victim. The victim contracted venereal herpes and HPV from defendant. The parties stipulated that the investigation reports provided a factual basis for defendant’s pleas and admission.
The probation report explained that “[a]s a result of... contracting Herpes, [the victim] will need to remain on medication for the rest of her life, and continue with regular doctor visits and lab work. The financial impact will minimally be $630 per year.... Should the victim cho[o]se to have children in the future, due to having Herpes, she would not be able to give birth naturally, but rather, have to have a cesarean section.” A supplemental probation report provided updated and corrected financial loss information from the victim’s mother. Those calculations listed $2,070.76 in medical costs already incurred: $521 for medication, a $150 deductible and $1,263 in co-pays for doctor visits and lab work, and $136.76 for mileage and parking.
“Using the same calculations” and “[b]ased on a life span of 65 years, ” the victim’s mother “estimate[d] future expenses (insurance deductible, co-payments, medications, gas and parking) as a result of the... offense will be $611.76 per year, ” for a total future loss of $29,976.24.
At sentencing, the trial court accepted these calculations and imposed a total of $32,047 in victim restitution-$2,070.76 for medical expenses already incurred and $29,976.24 for future medical expenses. The court calculated future expenses by multiplying the estimated cost of $611.76 per year by 49 years, assuming a life expectancy of 65 years. As the court explained, “I’ll make an order in the amount of initially [$2,070.76] to the victim. And then I’ll order the amount of [$611.76] per year. [¶] I will order the full restitution, based on the life expectancy, of [$29,976.24]. [¶] Counsel, that’s subject to modification subject to any change that might occur.”
Defendant filed a timely notice of appeal.
II. Discussion
A. Future Medical Expenses
Defendant contends the trial court abused its discretion in ordering victim restitution “based on speculation concerning possible future expenses, rather than on losses actually incurred.” He acknowledges that one purpose of restitution is to fully reimburse and make the victim whole, but argues the amount awarded here gives the victim a windfall. We disagree.
In 1982, California voters passed Proposition 8, also known as the Victims’ Bill of Rights. (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) “The initiative added article I, section 28, subdivision (b) to the California Constitution: ‘It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.’ ” (Giordano, at p. 652.)
On November 4, 2008, the electorate passed Proposition 9, which rewrote article I, section 28 in ways not relevant to our analysis. (See Historical Notes, West’s Ann. Cal. Const., (2010 pocket supp.) art. I, § 28.)
Section 1202.4 implements Proposition 8’s constitutional mandate. Section 1202.4 requires that “[t]o the extent possible, the restitution order... shall be of a dollar amount that is sufficient to fully reimburse the victim... for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, ... [¶]... [m]edical expenses.” (§ 1202.4, subd. (f)(3)(B).)
Defendant committed his crimes on August 3, 2008. Section 1202.4 has been amended twice since then. (Stats. 2008, ch. 468, § 1; Stats. 2009, ch. 454, § 1.) We apply the statute in effect at the time of defendant’s crimes (People v. Birkett (1999) 21 Cal.4th 226, 230 & fn. 2), but cite the current statute where the relevant language remains unchanged.
“[W]e review the trial court’s restitution order for abuse of discretion. [Citations.] The abuse of discretion standard is ‘deferential’ but it ‘is not empty.’ [Citation.] ‘[I]t asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts....’ [Citation.]” (Giordano, supra, 42 Cal.4th at p. 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.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 499.) “ ‘[S]entencing judges are given virtually unlimited discretion as to the kind of information that they can consider and the source from whence it comes.’ [Citation.] Probation reports are among the permissible sentencing data the court may consider.” (People v. Baumann (1985) 176 Cal.App.3d 67, 81.)
The probation report here included a letter from the victim’s mother, a nurse. The letter explained, “We have been to our family practice doctor and received pain medicine to decrease the nerve pain and given [V]altrex to decrease the amounts of outbreaks. [The victim] had to endure a vaginal exam at this age... and needs to have pap smears every 6 months to check for [HPV] and perhaps go thru scraping of the cervix in the near future.... She will have to take medicine for the rest of her life, she will have to be cautious with sexual relations for the rest of her life, even with her future husband, and she will never be able to have a birthing experience naturally, always by cesarean section.” The probation report contained a detailed calculation of medical expenses already incurred. Defendant does not challenge the amount of those expenses or the manner in which they were calculated.
The victim’s projected future expenses were calculated using the same methodology. They are not adjusted for inflation. They do not include the cost of procedures the victim may have to undergo (e.g., scraping of the cervix) but only those her family doctor has told her she must routinely undergo for the rest of her life (e.g., doctor visits, lab work).
Defendant argues that these projected costs are “wholly speculative.” He asserts that herpes symptoms generally diminish over time and argues that “there is no way to predict whether cheaper treatments will be discovered in the future.” “Ordering restitution for medical expenses which might possibly be incurred over the next 49 years, ” he contends, “was an abuse of discretion.” We are not persuaded.
To the extent defendant argues that restitution for future medical expenses can never properly be ordered, we reject his contention. “In order to restore the economic status quo, to the extent that it is possible when a criminal act has injured a victim, restitution orders must not be limited to the amount of money that has been paid or lost prior to the restitution hearing.” (Giordano, supra, 42 Cal.4th at p. 658.) The word “loss” in the Victims’ Bill of Rights “refers to a victim’s injuries, requiring restitution for all expenses necessary to treat those injuries, regardless of when they arise.” (People v. Phelps (1996) 41 Cal.App.4th 946, 950 (Phelps), italics added.)
In Phelps, the court affirmed a judgment requiring a hit-and-run defendant to pay his paralyzed seven-year-old victim restitution for past ($29,000) and future ($121,000) medical expenses. (Phelps, supra, 41 Cal.App.4th at p. 951.) The court explained that “ ‘[i]n the case of a constitutional provision adopted by the voters, their intent governs.’ ” (Id. at pp. 949-950, citation omitted.) “The intent of the voters is plain: every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss. Nothing in the language of the Constitution suggests an intent to limit the right to restitution for financial losses occurring within a particular time frame, or restitution to expenses incurred before sentencing. In fact, the language manifests a contrary intent. The Constitution speaks of ‘comprehensive provisions and laws, ’ ‘restitution... for financial losses, ’ and ‘[r]estitution... from the convicted persons in every case.’ (Cal. Const., art. I, § 28, subd. (b).) The only qualification is that the loss must be ‘the result of criminal activity.’ (Ibid.)” (Phelps, at p. 950.) The voters’ use of the word “restitution, ” the court reasoned, further supported a broad construction. “Restitution is defined as ‘the making good or giving an equivalent for some injury.’ [Citation]... Restitution is also defined as ‘restoration of a person to a former position or status.’ [Citation.] Although Phelps’s... victim... may never be restored to his former physical condition, his family can be returned to its preaccident financial status by [requiring the defendant to pay the victim’s] past and future medical expenses.” (Ibid.)
Phelps was cited with approval by the California Supreme Court in Giordano. (Giordano, supra, 42 Cal.4th at p. 658.) In Giordano, the court affirmed a judgment requiring a defendant convicted of vehicular manslaughter to pay the decedent’s widow $167,711.65 to compensate her for the loss of her husband’s future financial support. (Giordano, at pp. 665-667; see also People v. Harvest (2000) 84 Cal.App.4th 641, 653 [defendant ordered to pay murder victim’s former wife $23,160 for child support].) Based on these cases, we reject any suggestion that restitution for future medical expenses can never properly be ordered.
Defendant challenges the trial court’s method of calculating future medical expenses, labeling it “arbitrary and unreasonable.” We disagree.
In Giordano, the trial court multiplied the decedent’s approximate average earnings by five years to arrive at an amount for future support. (Giordano, supra, 42 Cal.4th at p. 665.) The California Supreme Court described that method of calculation as “not carefully designed to establish [the widow’s] loss of support, ” in part because the “decedent was relatively young when he was killed and the court could have calculated loss of support using a longer period of time.” (Id. at p. 666.) The high court nevertheless affirmed the order: “[S]ection 1202.4, subdivision (f) requires that restitution be ‘based on the amount of loss claimed by the victim or victims or any other showing to the court, ’ and here [the widow] requested restitution only ‘in the amount of a very modest life insurance policy in the amount of $25,000 to $50,000.’ The trial court ordered restitution in an amount that more than satisfied [her] claim, and defendant has not shown that this amount exceeds that which she was eligible to receive. Accordingly, we have not been persuaded that the trial court abused its discretion.” (Giordano, at p. 667.)
Defendant attempts to distinguish Phelps and Giordano, arguing that in Phelps, the defendant stipulated that it would cost $150,000 to treat the paralyzed boy, and in Giordano, “the trial court only calculated losses five years into the future.” A five-year projection, defendant argues, may be reasonable, but a 48-year projection is “purely speculative.” We disagree. Here, the victim requested a modest $611.76 per year to cover medication, twice-yearly doctor visits, and lab work she has been advised she must undergo. She did not include the costs of procedures she has been told she may have to undergo (e.g., scraping of the cervix), nor did she include an amount to cover additional expenses in the event her symptoms worsen. We note that the cost of health care increases every year. Here, the trial court could reasonably have concluded that even if the victim’s symptoms diminish over time, the total cost of her medications, doctor visits, and lab work is likely to be more than the modest amount she requested. (See People v. Hove (1999) 76 Cal.App.4th 1266, 1274-1275 (Hove) [affirming $210,488.44 in restitution although some of that was paid by Med-Cal, noting that “[o]bviously, if Mr. Prieto remains in a vegetative state the rest of his life, as expected, the costs caused by defendant’s conduct will far exceed the amount of the restitution actually ordered.”].) We do not think the trial court’s method of calculating future expenses “ ‘ “falls outside the bounds of reason, ” ’ ” particularly since the trial court here did not factor inflation into its calculation and expressly made the order “subject to modification subject to any change that might occur.” (Giordano, supra, 42 Cal.4th at p. 663.)
We note, moreover, that victim compensation is not the only purpose restitution is designed to serve. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121-1122.) When restitution is made a condition of probation, its purposes include deterring future criminal conduct and rehabilitating the defendant. (Id. at pp. 1123-1125; Hove, supra, 76 Cal.App.4th at p. 1273.) As the court explained in People v. Rugamas (2001) 93 Cal.App.4th 518 (Rugamas): “ ‘While restitution serves the obvious function of compensating crime victims, its primary goal is the rehabilitation of the criminal.’ [Citation.] ‘Implicit in the concept of rehabilitation is the need to first deter criminal activity. Courts have generally found an order requiring the defendant to compensate the victim to be a deterrent to future criminal activity.’ [Citation.] ‘Restitution “is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.” [Citations.]’ [Citation.]” (Rugamas, at p. 522.)
Former section 1203.04 required restitution when a defendant was granted probation. (Giordano, supra, 42 Cal.4th at p. 652.) “In the mid-1990’s, the Legislature consolidated much of the state’s victim restitution scheme into Penal Code section 1202.4.” (Id. at p. 653.) “In 1995, the Legislature repealed... section 1203.04... and incorporated its requirements into... section 1202.4. (Stats. 1995, ch. 313, §§ 5, 8, pp. 1755-1758, 1762, eff. Aug. 3, 1995.) Penal Code section 1202.4 now requires restitution in every case, without respect to whether probation is granted.” (Giordano, at p. 653.)
We conclude that the trial court did not abuse its discretion by including $29,976.24 for future medical expenses in the amount of victim restitution it ordered defendant to pay.
B. Ineffective Assistance of Counsel
Defendant argues that his trial counsel provided ineffective assistance by failing to object that the amount of restitution for future medical expenses was speculative. We disagree.
A defendant seeking reversal for ineffective assistance of counsel must prove both deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The first element “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, at p. 687.) “Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Ibid.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.) A court deciding an ineffective assistance claim does not need to address the elements in order, or even to address both elements if the defendant makes an insufficient showing on one. (Id. at p. 697.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” (Ibid.)
Defendant asserts that “[t]here is a reasonable probability the outcome would have been different had counsel objected and raised the [future medical costs] issue argued in this [appellate] brief.” We cannot agree. Failure to make a meritless claim is not ineffective assistance. (Strickland, supra, 466 U.S. at p. 676.) We have already determined (ante, at pp. 3-9) that the trial court properly included reimbursement for future medical expenses in its restitution order (Phelps, supra, 41 Cal.App.4th at p. 950; Giordano, supra, 42 Cal.4th at pp. 665-667), and that the method of calculating those expenses did not “ ‘ “fall[] outside the bounds of reason” under the applicable law and the relevant facts [citations].’ ” (Giordano, supra, 42 Cal.4th at p. 663.) We reject defendant’s ineffective assistance contention.
C. Attorney’s Fees
Defendant contends the attorney’s fees order must be stricken because the trial court made no express finding that he had the present ability to pay, and there was insufficient evidence to support an implied finding. We agree.
The Attorney General contends defendant forfeited his right to assert this issue by failing to raise it below. We reject that contention for two reasons. First, a challenge to the sufficiency of the evidence requires no predicate objection in the trial court. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217 (Viray), citing People v. Butler (2003) 31 Cal.4th 1119, 1126 (Butler).) Secondly, as this court held in Viray, “We do not believe that an appellate forfeiture can properly be predicated on the failure of a trial attorney to challenge an order concerning his own fees.” (Viray, at p. 1215.)
Section 987.8 provides in relevant part that “the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost” of legal assistance “provided... through the public defender or private counsel appointed by the court.” (§ 987.8, subd. (b).) “ ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her....” (§ 987.8, subd. (g)(2).) Factors to be considered include (1) the “defendant’s present financial position, ” (2) “reasonably discernible future financial position” in the six months following the ability-to-pay hearing, (3) likelihood of obtaining employment during that period, and (4) any other facts bearing upon the defendant’s “financial capability.” (§ 987.8, subd. (g)(2)(A)-(D).)
The determination that a defendant has the present ability to pay is a prerequisite to entry of an order requiring payment of attorney’s fees. (§ 987.8, subd. (e).) Only the trial court can make that determination. (See § 987.8, subd. (b).) However, “[t]he court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” (Ibid.)
A finding of present ability to pay may be explicit or implicit, provided it is supported by substantial evidence. (People v. Phillips (1994) 25 Cal.App.4th 62, 71; People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) “Under the substantial evidence rule, a reviewing court will defer to a trial court’s factual findings to the extent they are supported in the record, but must exercise its independent judgment in applying the particular legal standard to the facts as found.” (Butler, supra, 31 Cal.4th at p. 1127.)
Here, the trial court made no express finding that defendant had the present ability to pay attorney’s fees. At the sentencing hearing, the court told defendant, “You are... referred to the Department of Revenue for a determination of your ability to pay fines and fees.” The court then stated, “You are ordered to pay a criminal justice administrative fee -- actually, strike that. Probation supervision [fee] not to exceed Sixty-Four Dollars a month, and attorney fees of Three Hundred Dollars.” The attorney’s fees order was not made contingent on the Department of Revenue’s determination, and no provision was made for a subsequent court hearing. Since a finding of present ability to pay is a prerequisite to an attorney’s fees order, we must therefore consider whether there was sufficient evidence to support the trial court’s implied finding that defendant had the present ability to pay $300 in attorney’s fees.
Here, the only evidence of defendant’s financial position is contained in the probation report, which the trial court said it had “read and considered.” There is no suggestion that the court received any other evidence concerning defendant’s assets, income, employment, or financial status before ordering him to pay $300 in attorney’s fees. There is no evidence that defendant ever filled out a statement of assets form. The probation report does not analyze defendant’s ability to pay, nor does it recommend attorney fees. It simply notes, “Attorney fees if appropriate.”
The probation report provides only the barest hint that defendant may have had the present ability to pay $300 in attorney’s fees. It also contains a number of facts to support a conclusion that he lacked any such ability. At the time of sentencing, defendant was 31 years old. He had been unemployed for three years and was living with his mother, who was supporting him financially. He has a serious drug and alcohol abuse problem that began when he was 15 years old. A five-year job in security ended when he was fired in 1998, and his most recent job, a one-year stint as a mover, ended when he was injured in 2006. Nothing in the record suggests he has any employment opportunities or plans beyond a generalized hope of “complet[ing] his recovery, get[ing] a job, and stay[ing] sober.”
Defendant’s near-term employment opportunities were further limited by a probation condition requiring him to “enter into and complete the Salvation Army [substance abuse] rehabilitation program.” (Italics added.) As the court explained, “Sir, it’s a six-month program but I’ve never met anybody who actually completed it in just six months. [¶] You are ordered to stay at Salvation Army, to complete that program. You are ordered to stay -- if you actually are able to complete it in six months, you are ordered to stay an additional six months for T-H-U or additional housing in the program.” We are unable to determine on the record before us whether the Salvation Army’s program includes a work furlough component.
While these facts suggest defendant lacked the present ability to pay $300 in attorney’s fees, other facts hint that an allowance from his mother was not his sole source of income. Defendant told the probation officer that until he was arrested, he “was using 4-5 grams of methamphetamine per day, except for every other weekend, when he had custody of his son.” “When asked how he supported his reported drug habit, the defendant stated he worked ‘side jobs and different things.’ ” The record sheds no light on what these “ ‘side jobs and different things’ ” might be.
On this record, we must conclude there was insufficient evidence of defendant’s present ability to pay attorney’s fees. The order cannot stand. (Viray, supra, 134 Cal.App.4th at p. 1217 [fee award entirely unsupported by evidence must be stricken].)
The Attorney General disputes this conclusion. He emphasizes that defendant “does not claim... he will be physically or mentally unable to find and maintain productive employment” but has instead professed the intent “to finish the Salvation Army program, get a job, stay sober, and be a good father.” Thus, the Attorney General urges, defendant “cannot show the court erred in determining that [he] had the ability to pay a $300 attorney’s fee.” We disagree.
A mere potential ability to pay is an insufficient basis for an attorney’s fees order. (People v. McDowell (1977) 74 Cal.App.3d 1, 5 [no “present ability to pay” where facts reflected mere “potential” that defendant would prevail in contest for proceeds of life insurance policy].) Here, there is no evidence that defendant had any job prospects, or that he would have been able to find employment quickly, if at all, during the relevant six-month period. Even if the Salvation Army’s rehabilitation program permits work furlough, we do not know when defendant was released to that program. He may have remained incarcerated during part of the relevant six-month period, given the trial court’s expressed intent to keep him in custody until a space in the program became available.
Although defendant had been accepted into the Salvation Army’s program a few months before the sentencing hearing, his counsel was not sure when space might become available. Upon learning that, the trial court told defendant’s trial counsel, “[W]hat I’d prefer to do is to have Mr. Millard transferred directly to Salvation Army. [¶] He’s credited out on the one year, but what I’d like to do is, on the other case, keep him in custody until Salvation Army is ready to pick him up.”
The question of an appropriate remedy remains. Defendant urges us to strike the attorney’s fee order, arguing that “a remand would be a waste of judicial resources.” The Attorney General contends that a remand is appropriate to permit the trial court to make the ability-to-pay determination. We agree with the Attorney General’s position. Here, the trial court properly referred defendant to the Department of Revenue at the time of sentencing. Having done so, the court should have set another hearing date at which it would, assisted by the Department’s findings and recommendations, make the ability-to-pay determination. We conclude that a remand is appropriate, to allow the court to take advantage of the Department’s report.
III. Disposition
The order is reversed, and the matter is remanded to the trial court for the sole purpose of conducting a section 987.8 hearing to determine defendant’s present ability to pay attorney’s fees. If the court determines defendant has the present ability to pay, it shall set an appropriate amount of attorney’s fees within his ability to pay and
reinstate the remainder of the order. If the court concludes defendant lacks the present ability to pay, it shall strike the attorney’s fees provision and reinstate the remainder of the order.
WE CONCUR: Bamattre-Manoukian, Acting P. J.Duffy, J.People v. Kevin Glenn MillardH034747