People v. Allen CA4/1

Filed 3/30/22 P. v. Allen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078439, D078884
Plaintiff and Respondent,
v. (Super. Ct. No. JCF002650)
NOEL ALLEN,
Defendant and Appellant.
CONSOLIDATED APPEAL from a judgment and postjudgment order
of the Superior Court of Imperial County, William D. Quan, Judge. Affirmed
in part; reversed in part; remanded with directions.
Charles M. Sevilla for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal, Randall D. Einhorn, and Juliet W. Park, Deputy Attorneys General,
for Plaintiff and Respondent.
Noel Allen was charged with committing a forcible lewd act upon a
child under 14 years of age (Pen. Code,1 § 288, subd. (b)(1); count 1) and a
lewd act upon a child under 14 years of age (§ 288, subd. (a); count 2). Allen
pled no contest to count 2. In exchange for the plea, the superior court
dismissed count 1 and sentenced Allen to prison for eight years but
suspended imposition of that sentence. The court then placed Allen on
probation for five years subject to certain terms and conditions. In addition,
the court imposed fines and fees. Allen timely filed a notice of appeal (case
No. D078439).
On May 4, 2021, the court ordered Allen to pay restitution damages to
the victim and the victim’s mother. Allen timely filed a notice of appeal of the
order awarding restitution damages (case No. D078884).
On its own motion, this court consolidated case Nos. D078439 and
D078884.
In this consolidated appeal, among other things, Allen challenges
certain probation conditions. Although he forfeited most of his arguments
here by failing to object below (see People v. Welch (1993) 5 Cal.4th 228, 234-
235 (Welch)), we still will consider any constitutional facial challenges Allen
raises to the various conditions. (See In re Sheena K. (2007) 40 Cal.4th 875,
885 (Sheena K.).) To this end, we agree with Allen that conditions
prohibiting him from possessing sexually explicit material, frequenting
certain areas, imposing a Halloween curfew, and requiring him to report any
contact with law enforcement are unconstitutionally overbroad and/or vague.
Thus, as we discuss post, these conditions must be stricken.
1 Statutory references are to the Penal Code unless otherwise stated.
2
However, we conclude that Allen’s contention that both the economic
and noneconomic restitution awards are not supported by substantial
evidence lacks merit.
Finally, as Allen points out and the People concede, certain fees that
have been imposed upon him can no longer be collected because of a change
in the law. Thus, we will order those fees vacated.
Because we are striking some of the probation conditions and vacating
some of the fees, we remand this matter to the superior court for further
proceedings consistent with this opinion.
FACTUAL BACKGROUND2
During a forensic interview conducted on August 7, 2019, John Doe told
investigators that he had been molested by Allen. Allen had called Doe’s
father and asked to take Doe out on a hunting trip. During the trip, Doe told
Allen that he was worried about his mother’s surgery. At that moment, Allen
started kissing “all over” Doe’s body. He then placed his hands down Doe’s
pants and groped his anus and genitals. Allen told Doe that he loved him,
and he made Doe lay on his stomach while he fondled Doe’s buttocks. Allen
had offered Doe a beer earlier in the day.
After the assault, Doe asked Allen to take him home, but Allen tried to
convince Doe to stay. Doe felt uncomfortable during the interaction, and
Allen became upset with him. Allen eventually took Doe back to Doe’s home.
When Doe’s father confronted Allen about the allegations, Allen denied
molesting Doe and stated, “Well, I guess that ends that relationship.” Allen
then tried to intimidate the father by stating that “the paperwork and trials
will be too much” and “you don’t wanna go through that.”
2 Because Allen pled no contest, we take the background facts from the
probation report.
3
DISCUSSION
I
THE CHALLENGED PROBATION CONDITIONS
A. Background
At Allen’s sentencing hearing, the superior court indicated that it read
and considered the probation officer’s sentencing report. Allen’s counsel
objected to drug and alcohol conditions contained in that report, noting that
they required a “total abstention from the use and possession of alcoholic
beverages” and that they were not relevant to this case. In addition, defense
counsel objected to another condition prohibiting Allen “from use or
possession of any equipment, including cellular phones, which have the
capacity for taking or viewing photographs, whether in still or video form.”
Counsel again argued that the probation condition was not “sufficiently
related to this case” and asked for it to be stricken.
Then, after conferring with Allen, Allen’s counsel made a “special
request” that Allen not be prohibited from going to Phil Swing Park because
he had “been going there many, many years and ha[d] planted trees and done
a number of things that give him a special interest in the park.” Counsel did
not object to any other conditions proposed in the probation report.
The prosecution did not respond to any of the objections raised by
Allen’s counsel. The court later stated that it would “follow the
recommendations and the agreement that was reached.” The court did not
impose the drug, alcohol, or the photograph/video viewing conditions.
However, the court did impose a variety of other conditions, many of which
are typical in cases involving a violation of section 288. Allen did not object
to any of the imposed conditions, and we will discuss post those that he
challenges in this appeal.
4
B. Applicable Law
Challenges to probation conditions ordinarily must be raised in the
trial court; if they are not, appellate review of those conditions will be deemed
forfeited. (Welch, supra, 5 Cal.4th at pp. 234-235 [extending the forfeiture
rule to a claim that probation conditions are unreasonable when the
probationer fails to object on that ground in the trial court].) However, a
defendant who did not object to a probation condition at sentencing may raise
a challenge to that condition on appeal if the defendant’s appellate claim
“amount[s] to a ‘facial challenge,’ ” i.e., a challenge that the “phrasing or
language . . . is unconstitutionally vague and overbroad,” and the
determination whether the condition is constitutionally defective “does not
require scrutiny of individual facts and circumstances but instead requires
the review of abstract and generalized legal concepts—a task that is well
suited to the role of an appellate court.” (Sheena K., supra, 40 Cal.4th at
p. 885.)
Because Allen did not object in the superior court to any of the
probation conditions he now challenges on appeal, he has forfeited any as-
applied constitutional objections on appeal to the remaining conditions. We
therefore address Allen’s constitutional challenges to the subject conditions
only to the extent that they “ ‘present “pure questions of law that can be
resolved without reference to the particular sentencing record developed in
the trial court.” ’ ” (Sheena K., supra, 40 Cal.4th at p. 889.)
1. Probation Conditions Affecting Allen’s use of Computers and the Internet
The court imposed conditions relating to Allen’s use of computers and
the internet. To this end, Allen was subject to two conditions. The first
limited his use of computers as follows (Computer Use Condition):
“[Allen] will not use or possess a desktop, laptop, or any
other type of computer or other device capable of accessing
5
the Internet or storage media for personal use, except at
[Allen]’s place of employment, volunteer service, or school
of current enrollment. Possession of any of these items
must have prior written approval by the probation officer.”
The second involved limitations of his use of the internet (Internet Use
Condition):
“[Allen] will not subscribe or have access to any form of
online Internet service, including social networking sites,
without the written permission of his probation officer.
Any approved subscription or access will be subject to all
restrictions as determined necessary by his probation
officer.”
Allen’s primary argument challenging the Computer Use and Internet
Use Conditions is that “there is nothing at all in this case having to do with
the internet or laptop computers.” To this end, Allen asks us to consider the
circumstances of his offense and the fact that he did not use his computer or
the internet to commit his crime. This is not a facial challenge that requires
us to only review the challenged probation conditions themselves, but
instead, Allen raises an as-applied challenge to both these conditions. Yet,
because Allen did not object to either the Computer Use Condition or Internet
Use Condition below, he has forfeited his as-applied challenge here. (Welch,
supra, 5 Cal.4th at pp. 234-235.)
Nevertheless, Allen points out that his attorney objected to a different
probation condition prohibiting Allen from using or possessing any
equipment, including cell phones, which have the capacity for taking or
viewing photographs or videos. In making this objection below, Allen’s
attorney noted there was no evidence that Allen inappropriately used any
media in this matter. The court ultimately did not impose that condition.
Allen claims his objection “alert[ed] the court that conditions involving use of
6
electronic media were completely unrelated to the case. That was enough to
preserve the points raised for review here.” We disagree.
We observe that Allen provides no authority supporting his argument
that an objection to one probation condition puts the court on notice that he is
challenging other conditions as well. Indeed, case law supports the People’s
contention that a specific objection must be made to preserve the issue for
appeal. (See People v. Seijas (2005) 36 Cal.4th 291, 302 [failure to make a
specific and timely objection on the ground asserted on appeal makes that
ground not cognizable]; People v. Kendrick (2014) 226 Cal.App.4th 769, 777-
778 [failure to object to the condition forfeits any as applied constitutional
challenge].) Here, Allen’s attorney objected to a condition involving cell
phones as well as a condition involving alcohol. However, when the court
imposed the Computer Use and the Internet Use Conditions, he remained
silent. As such, his as-applied challenge was not preserved for appeal.3
Although Allen forfeited his as-applied challenge to the Computer Use
and Internet Use Conditions, he nonetheless maintains that the condition
stating that Allen “will not subscribe or have access to any form of online
Internet service, including social networking sites, without the written
permission of his probation officer” is unconstitutionally overbroad and
violates the First Amendment. Yet, other than making this assertion, Allen
does little to explain how this condition is facially unconstitutional. Rather,
he incorporates his arguments that the condition is not related to his offense
and asks us to consider that he is an 88 year old, retired man and does not
attend school. Again, such arguments are not consistent with a facial
3 Allen points out that appellate courts may address a forfeited issue to
foreclose a later ineffective assistance of counsel claim. However, Allen has
not argued his attorney was constitutionally ineffective, and we decline to
address a forfeited claim on the record before us.
7
challenge as they require us to consider more than merely the condition itself.
(See People v. Patton (2019) 41 Cal.App.5th 934, 946 (Patton) [noting a facial
constitutional challenge presents pure questions of law that can be resolved
without referring to the particular sentencing record developed below].)
Nonetheless, we will consider Allen’s assertion that the Internet Use
Condition is unconstitutionally overbroad on its face. “A probation condition
that imposes limitations on a person’s constitutional rights must closely
tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th
at p. 890.) “ ‘ “The essential question in an overbreadth challenge is the
closeness of the fit between the legitimate purpose of the restriction and the
burden it imposes on the defendant’s constitutional rights—bearing in mind,
of course, that perfection in such matters is impossible, and that practical
necessity will justify some infringement.” ’ ” (Patton, supra, 41 Cal.App.5th
at p. 946.)
In considering the challenged condition, we do not find it
constitutionally overbroad on its face. In People v. Pirali (2013) 217
Cal.App.4th 1341 (Pirali), the appellate court rejected an overbreadth
challenge to a probation condition restricting internet access. The subject
probation condition provided: “ ‘You are not to have access to the Internet or
any other on-line service through use of your computer or other electronic
device at any location without prior approval of the probation officer.’ ” (Id.
at p. 1345.) The court concluded that the probation condition at issue was
not a “blanket prohibition” on internet access because it “grants defendant
the ability to access the Internet on his computer and other electronic devices
so long as he obtains prior permission from his [probation] officer.” (Id. at
pp. 1349-1350; see United States v. Rearden (9th Cir. 2003) 349 F.3d 608, 621
8
[“The condition does not plainly involve a greater deprivation of liberty than
is reasonably necessary for the purpose because it is not absolute; rather, it
allows for approval of appropriate online access by the Probation Office”].)
In the instant case, as in Pirali, the probation condition limiting Allen’s
internet access permits Allen to access the internet after having obtained
permission from the probation officer. Thus, the Internet Use Condition
imposed here is not a “blanket prohibition” on internet access (Pirali, supra,
217 Cal.App.4th at p. 1349), and it is not unconstitutionally overbroad.
Allen also contends the clause subjecting his internet access to his
probation officer’s approval renders the condition “totally vague as to what
the standards the officer is to use in granting permission.” Alternatively
stated, Allen claims the probation condition allows his probation officer to act
in an arbitrary and capricious manner in exercising his or her discretion to
prohibit Allen from accessing the internet. However, this is mere conjecture.
There is nothing in the record that leads us to believe the probation officer
will act unreasonably in approving Allen’s use of the internet for legitimate
purposes. Further, we must presume that a probation officer will reasonably
exercise the discretion afforded him or her by a probation condition and will
not arbitrarily restrict a probationer’s freedoms in a manner not tailored to
rehabilitative or safety purposes. (See People v. Olguin (2008) 45 Cal.4th
375, 383 [noting the challenge probation term did not “ ‘authorize a probation
officer to irrationally or capriciously exclude a pet’ ”]; In re Hudson (2006) 143
Cal.App.4th 1, 11 [“we will not assume that [probation officer] will
unreasonably withhold permission for legitimate computer and Internet
usage”].) In addition, we are not persuaded by Allen’s argument that the
Internet Use Condition “eliminates his ability to own a laptop or [iPad] or use
9
a smart phone (which is a computer) in order to use email to communicate
with anyone.” He simply must ask his probation officer for approval.
2. Search Prohibition Conditions
The court also imposed conditions relating to Allen’s Fourth
Amendment rights as follows:
“[Allen] will also need to submit his person and property,
including vehicles and place of abode, to warrantless search
and seizure at any time of the day or night, with or without
probable cause, by the probation officer or by any law
enforcement officer. [¶] . . . [¶]
“ . . . [T]he Fourth Amendment waiver conditions will
include . . . any electronic devices, meaning any device that
stores, generates, or transmits information in electronic
form.
“[Allen] will need to supply any password or pass phrase to
unlock or remove encryption from any file, system,
computer, or any type of electronic device he may have
access to.
“The Fourth [Amendment] waiver will also include any
location where this data may be stored, including networks
and off-site servers.”
10
Allen challenges certain portions of these search conditions.4
Specifically, he argues that he should not be subject to an electronic search
condition5 because it is overbroad, violates his privacy rights, and was not
related to his offense. To the extent Allen has not forfeited these challenges,
we disagree.
Again, Allen appears to be making an as-applied challenge to a
probation condition that he did not object to below. For example, he supports
his argument by citing In re Ricardo P. (2019) 7 Cal.5th 1113 and other cases
concerning the application of the reasonableness analysis in People v. Lent
4 The People argue that Allen’s challenge to the Fourth Amendment
Condition that he submit his person and property to a warrantless search at
any time is without merit. However, except for listing this condition and
claiming he would challenge it, Allen advances no argument as to why it is
constitutionally infirm. It is an appellant’s burden to affirmatively
demonstrate error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
Thus, an appellant bears the burden to support any claim of error with
reasoned argument, analysis, and citation to pertinent legal authorities, and
the failure to do so forfeits this issue on appeal. (People v. Clayburg (2012)
211 Cal.App.4th 86, 93; People v. Sorden (2021) 65 Cal.App.5th 582, 603.) As
such, to the extent Allen is challenging the condition allowing the
warrantless search of his person and property, we find such argument
forfeited.
5 As part of his probation, the court imposed and Allen agreed that his
Fourth Amendment waiver extended to any electronic devices and that he
would have to supply any password or pass phrase to unlock or remove
encryption from any file, system, computer, or any type of electronic device he
may have access to.
11
(1975) 15 Cal.3d 481 (Lent).6 However, none of the cases on which Allen
relies address a facial constitutional challenge to an electronics search
condition. (See, e.g., Ricardo P., at pp. 1119-1120 [invalidating the
electronics search condition because it violated the third prong of Lent].)
Consequently, to the extent Allen raises an as-applied claim or a challenge
based on reasonableness under Lent, these arguments are forfeited due to his
failure to object below. (Welch, supra, 5 Cal.4th at pp. 233-235; Sheena K.,
supra, 40 Cal.4th at pp. 880-881, 889.)
Yet, even if we considered a facial challenge to the electronics search
condition that it was unconstitutionally overbroad, we would reject such a
claim. As we discussed ante, the essential question in a facial overbreadth
challenge is whether the probation condition, in the abstract, and not as
applied to a particular probationer, is narrowly tailored to a compelling state
interest. (Sheena K., supra, 40 Cal.4th at p. 885.) In light of a probationer’s
diminished expectation of privacy and the probationer’s offense, there are
cases where an electronics search condition is sufficiently tailored to the
state’s legitimate interest in effectively supervising the probationer and
promoting his rehabilitation and public safety. (See Patton, supra, 41
Cal.App.5th at pp. 946-947 [rejecting a facial constitutional challenge to an
electronics search condition because it is not invalid in all its applications];
People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175-1176 [rejecting
overbreadth challenge to a probation condition requiring defendant to provide
passwords to his electronic devices and social media websites].) Because
6 A condition of probation or supervision will not be held invalid as
unreasonable unless it “ ‘(1) has no relationship to the crime of which the
offender was convicted, (2) relates to conduct which is not itself criminal, and
(3) requires or forbids conduct which is not reasonably related to future
criminality.’ ” (Lent, at p. 486.)
12
Allen cannot establish that the electronics search condition imposed here
does not “have any valid application,” his constitutional overbreadth
challenge is without merit. (Patton, supra, 41 Cal.App.5th at p. 946.)
3. Probation Conditions Involving Sexually Explicit Material
The court also imposed conditions regarding Allen’s possession of
sexually explicit materials and frequenting establishments that contain such
materials as follows:
“[Allen] will not own, use, or possess any form of sexually
explicit movies, videos, material, or devices unless
recommended by the therapist and approved in writing by
his probation officer.
“[Allen] will not frequent any establishment where he
knows or reasonably should know [sexually explicit movies,
videos, material, or devices] are viewed or sold, and cannot
utilize a telephone service he knows or should know to be
sexually oriented.”
Allen challenges the first condition, prohibiting his possession of
sexually explicit material, on the ground it is unconstitutionally overbroad.
He notes that this condition would prohibit him from owning or watching any
movie that includes “nude or semi-nude scenes suggestive of sexual conduct,
a staple of many movies.” In this sense, it appears Allen interprets the term
“sexually explicit” to apply to any movie in which suggestive nudity appears.
For their part, the People seem to agree with such an expansive view of what
is forbidden, arguing “[t]o the extent [Allen] also complains that mainstream
movies, famous paintings and statutes may fall within the prohibited
category of sexually explicit materials . . . such limitations were part of the
bargain he struck in accepting probation over incarceration.” Yet, simply
pointing out that a defendant agreed to a probation condition does not cure
the condition’s constitutional ills. In other words, the People do not defend
13
the constitutionality of this probation condition. Rather, they simply assert
little more than Allen is stuck with it because he did not object to it. Such an
argument does not carry the day.
In the instant action, Allen emphasizes that a similar probation
condition was found unconstitutionally overbroad in In re Carlos C. (2018) 19
Cal.App.5th 997 (Carlos C.). There, the court held that a condition
prohibiting possession of material depicting partial or complete nudity
similar to the condition at issue in the present case was overbroad. (Id. at
p. 1002.) The court observed that several federal circuit decisions had “struck
down as unconstitutionally overbroad conditions prohibiting adult offenders
from possessing depictions of nudity. [Citations.] The overbreadth of this
type of condition is both sweeping and obvious: ‘By its terms, it would
prohibit [defendant] from viewing a biology textbook or purchasing an art
book that contained pictures of the Venus de Milo, Michelangelo’s David, or
Botticelli’s Birth of Venus, all of which depict nudity.’ ” (Ibid.) The court
struck the prohibition, reasoning that “[r]estricting a minor’s access to such a
wide range of materials with potential artistic, cultural and/or educational
value imposes a significant burden on the minor’s constitutional rights with
little, if any, discernible impact on the minor’s reformation and
rehabilitation, even a minor adjudged to have committed a sex offense.” (Id.
at p. 1004.)
The same can be said of the prohibition on material that is “sexually
explicit.” The phrase would encompass, for example, many lauded works of
literature, art, and movies. (See United States v. Simons (8th Cir. 2010) 614
F.3d 475, 483.) Moreover, as we discussed ante, the People do not attempt to
justify the subject probation condition as constitutional. They do not address
14
the holding of Carlos C., supra, 19 Cal.App.5th 997. They simply claim the
condition should remain because Allen agreed to it.
We agree with Carlos C. that the prohibition on possessing material
depicting nudity is unconstitutionally overbroad, as we conclude is the
prohibition on possessing sexually explicit material, and we agree that the
overbreadth is most appropriately rectified by striking the unconstitutional
condition.7
Allen also notes that the condition prohibiting him from “frequent[ing]
any establishment where he knows or reasonably should know such items
[sexually explicit movies, videos, material, or devices] are viewed or sold and
cannot utilize a telephone service he knows or should know to be sexually
oriented” is also overbroad because the phrase “such items” encompasses
“sexually explicit” material like the previous condition. For the reasons we
discussed ante, we agree that this condition, too, is unconstitutionally
overbroad.
In addition, Allen argues use of the word “frequent” renders the
probation condition unconstitutionally vague. “A probation condition ‘must
be sufficiently precise for the probationer to know what is required of him,
and for the court to determine whether the condition has been violated,’ if it
is to withstand a challenge on the ground of vagueness.” (Sheena K., supra,7 As part of his challenge against the prohibition against possessing
sexually explicit materials, Allen attempts to include, with a single sentence,
a challenge to the following condition: “[Allen] will not own, use or possess
any child erotica, pedophilic paraphernalia or any illustrated materials that
he should reasonably know depicts or purports to depict unclothed persons
under the age of 18.” He, however, does not explain how this condition is
unconstitutionally overbroad. Further, we see no constitutional infirmity in
this condition and do not strike it.
15
40 Cal.4th at p. 890.) A restriction failing the test does not give adequate
notice—“fair warning”—of the conduct proscribed. (Ibid.)
Here, Allen relies on In re H.C. (2009) 175 Cal.App.4th 1067 (H.C.),
arguing the term “frequent” is obscure and susceptible to multiple meanings.
(See id. at p. 1072 [noting the obscurity of the term “frequent” and the
difficulty of proving the minor violated a condition ordering him “ ‘not [to]
frequent any areas of gang related activity’ ”].) The People counter that the
term “frequent” as used in the challenged condition is a verb and “a
reasonable person would understand the term to mean ‘to associate with, be
in, or resort to often or habitually.’ ” Consequently, the People maintain that
the term “frequent” is used in this probation condition to prohibit Allen from
habitually visiting places where sexually explicit materials are viewed or
sold.
However, substituting the phrase “habitually visiting” for the term
“frequent” does not make the challenged condition less vague. As the court in
H.C. noted, “How the District Attorney would prove that someone ‘habitually’
visited an area of gang activity, challenges the imagination.” (H.C., supra,
175 Cal.App.4th at p. 1072.) We have similar misgivings about use of
“frequent” in the challenged condition here. Even if we agree with the People
that frequenting a place is the same as habitually visiting it, we are not clear
as to what habitually visiting would entail. Would it be once a week? Twice
a week? Once a month? Although we acknowledge that a vagueness inquiry
requires only “reasonable specificity,” not “mathematical certainty”
(Sheena K., supra, 40 Cal.4th at p. 890), here we conclude that the phrase
“frequent” does not provide the type of reasonable specificity necessary to
inform Allen what is required of him (see ibid). As such, this condition must
be struck as well.
16
4. Condition Prohibiting Allen from Congregating with Minors
Allen also is prohibited from interacting with minors as follows:
“[Allen] will not associate or communicate with anyone he
knows or reasonably should know to be under the age of 18
or frequent places where he knows or reasonably should
know that persons under the age of 18 congregate,
including, but not limited to, schoolyards, parks,
amusement parks, concerts, playgrounds, swimming pools,
and arcades.”
Allen maintains this condition is unconstitutionally vague because “[i]t
is foreseeable that young people might congregate at many common locations
not especially designated for use by minors,” and that he “would be in
violation of this probation condition if he unwittingly visits such a locale.”
However, Allen’s concerns are adequately addressed because the condition
contains a knowledge requirement that protects Allen against any
inadvertent violations of probation. (People v. Hall (2017) 2 Cal.5th 494, 498;
People v. Patel (2011) 196 Cal.App.4th 956, 960 [noting the well-settled rule
that a probationer cannot be punished for presence, possession, or association
without proof of knowledge].) Moreover, the condition contains a constructive
knowledge requirement (“reasonably should know”) that also protects Allen
in situations where he had no reason to know minors would congregate at a
certain place. Because a probationer may reasonably not know whether he is
visiting a place where minors typically congregate, a constructive knowledge
requirement provides additional fair notice and helps avoids vagueness
problems. (See People v. Turner (2007) 155 Cal.App.4th 1432, 1436 (Turner).)
Yet, Allen contends that the constructive knowledge requirement
should be stricken from the condition because it is inconsistent with the
holding in Sheena K., supra, 40 Cal.4th 875 and the “constitutional
requirements of actual notice to the probationer.” However, our high court in
17
Sheena K. “did not discuss whether the required knowledge must be actual or
could be constructive.” (People v. Mendez (2013) 221 Cal.App.4th 1167, 1174
(Mendez) [declining to “interpret the court’s implicit approval of adding actual
knowledge as precluding probation conditions which reference constructive
knowledge”].) Sheena K. only addressed and affirmatively answered two
questions: whether a knowledge requirement to a probation condition was
necessary and whether that knowledge element should be explicit. (Ibid.)
Consequently, the post-Sheena K. cases that added a constructive knowledge
element to avoid a vagueness challenge are not inconsistent with that
opinion. (See Turner, supra, 155 Cal.App.4th at p. 1436 [modifying a
probation condition “to require that defendant must either know or
reasonably should know that persons are under 18 before he is prohibited
from associating with them”]; People v. Moses (2011) 199 Cal.App.4th 374,
377, 381-382 [modifying probation terms to add both actual and constructive
knowledge requirements such that defendant is prohibited from
“associat[ing] with any persons you know or reasonably should know to be
minors, or frequent[ing] places where you know or reasonably should know
minors congregate”].)
Moreover, the constructive knowledge requirement is not
unconstitutionally vague because it is “sufficiently precise for the probationer
to know what is required of him or her, and for the court to determine
whether the condition has been violated.” (Mendez, supra, 221 Cal.App.4th
at p. 1177.) Indeed, “[i]t may in fact be easier [for a trial court] to establish
what a probationer reasonably should know than to delve into the
epistemological depths of what the probationer actually knows.” (Id. at
p. 1178.) Additionally, “[h]olding a probationer to the standard of a
reasonable person should promote his or her rehabilitation, not subvert it. A
18
probationer should be encouraged to be aware of the status of acquaintances
and to actively avoid potentially dangerous companions. Willful ignorance of
warning signs should not be rewarded by the conclusion that a probation
condition was not violated because the probationer did not actually,
subjectively recognize [a prohibited condition].” (Id. at p. 1177; cf. People v.
Mathews (1994) 25 Cal.App.4th 89, 98 [“Culpability based on
the . . . constructive knowledge standard is not vague or overbroad”].) Thus,
the constructive knowledge language does not render the condition
unconstitutional.
We also are not persuaded by Allen’s overbreadth challenge to this
probation condition. Probationers do not enjoy the absolute liberty to which
other citizens are entitled. (Griffin v. Wisconsin (1987) 483 U.S. 868, 874; see
People v. Mills (1978) 81 Cal.App.3d 171, 181 [any person who commits
sexual offense has waived any right to privacy].) Moreover, the state has a
compelling interest in ensuring the safety of children, and this compelling
interest justifies restrictions on a probationer’s constitutional rights.
(People v. Delvalle (1994) 26 Cal.App.4th 869, 879 [rejecting overbreadth and
vagueness challenge to a probation condition requiring defendant from
staying away from places where minor children congregate]; People v.
Robinson (1988) 199 Cal.App.3d 816, 818 [the “restriction of the right of
association is part of the nature of the criminal process”].)
Although we neither find the prohibition against congregating with
minors unconstitutionally vague because of its inclusion of constructive
knowledge nor overbroad, we are troubled by the condition stating that Allen
cannot “frequent” certain places. As we discussed ante, “frequent” does not
sufficiently provide Allen with notice about what is prohibited. (See H.C.,
supra, 175 Cal.App.4th at p. 1072.) Again, we do not know how many times
19
visiting the subject locations would constitute frequent.8 Consequently, the
subject condition is unconstitutionally vague and must be struck.
5. The Halloween Condition
The court imposed a condition enacting certain restrictions on Allen
during the evening of Halloween until the following morning. That condition
provides:
“[Allen] will also comply with all Halloween probation
conditions, which include a 5:00 p.m. to 5:00 a.m. curfew in
which [he] shall remain inside his residence on Halloween.
“[Allen] on Halloween will have no exterior lights of the
residence turned on, or as to appear as if anyone is home.
Such would discourage children from approaching.
“[Allen] will not offer any Halloween candy, and no
Halloween decorations will be allowed.
“During the curfew, [Allen] will only open the door for law
enforcement or probation officers.”
Allen challenges this condition, claiming it is vague and overbroad. He
points out that it is unclear what interior lights, if any, he can turn on during
the curfew period on Halloween. He questions whether the use of a flashlight
8 Allen proposes to substitute the word “visit” for “frequent” to cure the
condition’s vagueness problem. However, the word “visit” and “frequent” are
not interchangeable. Frequent involves habitually visiting while visit
consists of an act of going or coming to see a person or place. In other words,
frequent would involve multiple trips to the forbidden area (implying that a
single trip would not be prohibited) where a single instance of going to the
forbidden area would constitute a visit. Moreover, in the respondents’ brief,
the People do not agree with such a change. That said, at oral argument, the
People implied they might be amenable to substituting the word “visit” for
“frequent.” Nonetheless, because we are remanding this matter to the
superior court, we leave it to the parties to address this issue below.
20
in his own home (necessitated because he might be prohibited from turning
on interior lights) would be a probation violation under this condition as
written.
In addition, he claims the restriction that he cannot open the door for
anyone except for law enforcement during the curfew period is overbroad and
should be narrowed to only prohibit him from opening the door to greet trick
or treaters.
The People argue this condition is not unconstitutionally vague because
(1) it explicitly prohibits Allen from turning on the exterior lights of his home
and (2) can be reasonably construed as prohibiting Allen from turning on any
interior lights that can make it appear, from the outside of the home, that
someone is inside. The People point out that Allen is in the best position to
know which lights inside his home, if turned on, are capable of reflecting light
to the outside and are reasonably likely to encourage children to approach.
The People also argue that the condition is already narrowly tailored in
that it is limited to a 12-hour period beginning on the evening of Halloween
and ending early the following morning. Moreover, the People emphasize
that if Allen were permitted to open his door for any innocuous reason, like
taking out the trash, during a time in which children are trick or treating, it
would signal to the children that Allen was home and encourage them to
knock on his door in pursuit of candy. Therefore, according to the People,
narrowing the door opening restriction further would undermine the
situation the condition is meant to avoid—children trick or treating at Allen’s
home.
We agree with the People that the portion of this Halloween condition
prohibiting Allen from opening the door only for law enforcement during the
21
curfew period is not overbroad. The condition already prohibits Allen from
leaving his home from 5:00 p.m. to 5:00 a.m. beginning on Halloween, and
Allen does not challenge that provision here. Thus, the requirement that he
only open his door during that period is narrowly tailored to achieve the
objective that Allen do nothing to attract trick or treaters to his home on
Halloween.
Nonetheless, the prohibition that may prohibit Allen from turning on
certain interior lights at his home during the curfew gives us pause. Again,
that prohibition states that Allen “will have no exterior lights of the residence
turned on, or as to appear as if anyone is home.” It is the second clause of the
sentence that is concerning. Allen insists that clause is vague because it
might prohibit him from having any lights on inside his house or even
prevent from using a flashlight for fear that someone walking by might see
the light and then, believing someone was home, trick or treat at Allen’s
home. The People argue that a probation is not unconstitutionally vague
simply because there may be some “ ‘ “ ‘difficulty in determining whether
some marginal or hypothetical act is covered by its language.’ ” ’ ” (In re I.V.
(2017) 11 Cal.App.5th 249, 261 (I.V.).) To this end, the People acknowledge
the condition could apply to interior lights and note that Allen is in the best
position of knowing which lights inside his home are capable of reflecting
light to the outside and reasonably likely to encourage children to approach.
Alternatively stated, the People contend the clause “as to appear as if anyone
is home” is not unconstitutionally vague because it informs Allen that he may
not have any interior lights on in his house during the Halloween curfew that
make it appear as if someone is home.
This condition does not clearly forbid Allen from turning on any interior
light in his home. Nevertheless, Allen worries that it might and is concerned
22
that any interior light he might turn on during the curfew period could be a
violation of this probation condition. In this sense, he contends he does not
know what is forbidden by the condition.
The People’s response does not make the condition any less vague.
They maintain it is a reasonable interpretation that some interior lights may
not be turned on during the curfew period, and Allen is in the best position to
determine which lights would most likely give the impression that he is
home. In other words, under the condition as interpreted by the People,
Allen must determine which interior lights make it appear that he is home to
hypothetical trick or treaters and then not turn on those lights during the
curfew period.
Although we appreciate the goal of this condition is to prevent Allen
coming into contact with children who are trick or treating, we nonetheless
find the portion of the condition “or as to appear as if anyone is home”
needlessly vague. Indeed, both Allen’s and the People’s respective arguments
only underscore our conclusion. As written, the condition leaves Allen to
ascertain what interior light, if turned on, might attract a trick or treater to
his home. The People argue that we need not be concerned with “some
marginal or hypothetical act” that might be covered by this condition (see
I.V., supra, 11 Cal.App.5th at p. 261), but the scenario we posit is neither
marginal nor hypothetical. Per the condition, Allen must remain at his house
beginning at 5:00 p.m. Halloween evening until 5:00 a.m. the next day. He
cannot open his door for anyone, except law enforcement. No exterior light
may be turned on during this time. He may not display any Halloween
decorations or offer any candy. Allen is confined to his home, and, as such,
must be able to move about his own home while it is dark outside. Logically,
he will need to turn on some interior lights. This condition requires him to
23
guess at what interior light might violate this probation condition if turned
on during the curfew. This portion of the condition cannot stand.
The objective of this Halloween condition might be sufficiently achieved
simply by requiring Allen to remain in his house during the curfew, only
answer the door for law enforcement, refrain from displaying Halloween
decorations or offering candy, and keep all exterior lights turned off. Or,
perhaps, considering the layout of Allen’s house, the superior court could find
it necessary that a certain interior light (e.g., a living room light with a
window to the street in front of the home) should not be turned on during the
curfew period. If that is the case, then the condition could be rewritten to
address that situation. However, as the condition reads now, it is
unconstitutionally vague, and it must be stricken.
6. The Law Enforcement Contact Condition
Allen’s final challenge to his probation condition concerns a condition
whereby: “[Allen] will need to report any arrests and/or police contacts
within 48 hours to his probation officer. To this end, Allen relies on People v.
Relkin (2016) 6 Cal.App.5th 1188 (Relkin). There, the court considered a
probation condition that required the defendant “to ‘report to the probation
officer, no later than the next working day, any arrests or any contacts with
or incidents involving any peace officer.’ ” (Id. at p. 1196.) The court
concluded that “the portion of the condition requiring that defendant report
‘any contacts with . . . any peace officer’ ” was vague because it left him to
guess what events or interactions would qualify as reportable. (Id. at
p. 1197.) According to the court, it was not certain that the condition would
not be triggered “when defendant says ‘hello’ to a police officer or attends an
event at which police officers are present, but would be triggered if defendant
were interviewed as a witness to a crime or if his ‘lifestyle were such that he
24
is present when criminal activity occurs.’ ” (Ibid.) “The language does not
delineate between such occurrences and thus casts an excessively broad net
over what would otherwise be activity not worthy of reporting.” (Ibid.)
Allen contends that the term “police contacts,” as in Relkin, “leave[s]
one to guess what sorts of events and interactions qualify as reportable,” and
“casts an excessively broad net over what would otherwise be activity not
worthy of reporting.” The People agree that the requirement Allen report
and identify himself in “any police contacts” is vague. Moreover, they concede
it is unclear to a reasonable reader whether Allen is required to identify
himself only when he is asked to provide “identifying information,” or during
any “casual, random interactions with law enforcement officers.” (See
People v. Brand (2021) 59 Cal.App.5th 861, 870-871 [upholding police contact
probation condition against vagueness and overbreadth challenges because it
is objectively clear it refers only to those police contacts where the defendant
“is questioned by law enforcement officers and is required to give identifying
information, such as when he has been a witness to a crime or is suspected of
possible involvement in a crime”].) Accordingly, this condition must be struck
as well. However, as the People point out and the court approved in Brand,
this condition would pass constitutional muster if rewritten as follows: Allen
shall provide his true name, address, and date of birth if contacted by police.
He shall report such a contact or arrest to the probation officer within 48
hours, including the date of contact/arrest, charges, if any, and the name of
the law enforcement agency. During any such police contact, Allen shall
identify himself to any peace officer and advise that officer during the police
contact that he is on probation and subject to warrantless search. (See id. at
p. 870.) The rewritten condition makes clear that Allen would only have to
25
report a contact with law enforcement if he was asked to provide his name
and contact information.
7. Revision of the Constitutionally Flawed Conditions
In summary, we conclude the probations conditions: (1) relating to
Allen’s possession of sexually explicit material, (2) limiting his presence at
establishments selling or containing sexually explicit material, (3) prohibiting
him from congregating with minors, (4) imposing a curfew on Halloween, and
(5) requiring him to report contacts with law enforcement must be stricken
because they are facially unconstitutional. Although we have proposed some
potential language that could make some of the challenged probation
conditions facially constitutional, and we possess the authority to modify an
unconstitutional probation condition on appeal (see Sheena K., supra, 40
Cal.4th at p. 892), here, we believe the more prudent approach would be to
remand the matter to the superior court and allow it to fashion constitutional
probation conditions consistent with this opinion and the needs of the public
as well as Allen. On remand, we encourage the superior court to consider the
scope of the probation conditions and what purpose these conditions are
intended to serve. (See, e.g., In re D.H. (2016) 4 Cal.App.5th 722, 729.)
II
THE RESTITUTION AWARD
A. Allen’s Contentions
Allen contends the trial court’s restitution order must be reversed
because the economic and noneconomic restitution awards were not
supported by sufficient evidence. Specifically, he argues that the evidence
supporting the restitution claims is unreliable and fails to show causation.
We disagree.
26
B. Background
On February 23, 2021, the probation department filed a memorandum
regarding economic and noneconomic damages sustained by Doe and Doe’s
mother. According to Doe’s mother, Doe was no longer the same “happy go
lucky kid,” and now suffers from panic attacks, anger issues, nightmares, and
anxiety. She stated that Doe suffered from panic attacks after every court
appearance, which required her to take the following day off from work to
take care of him. As such, she no longer involved him in the court process.
Doe was a “mild mannered boy before this incident” but “is now
confrontational, he will fight,” and he “hates everyone.”
Doe’s mother also reported that her son had attended counseling once
per week but was advised by the counselor that he will need to attend twice a
week. The probation department contacted a local licensed clinical social
worker, who stated that “the sessions must be Trauma Focused Cognitive
Behavioral Therapy.” The social worker estimated that each session costs
$120 and that Doe would receive two sessions per week until he turned 21
years old. The probation officer noted that the actual amount could vary
because the estimate was based on numbers from a local counselor.
At the restitution hearing, the court heard testimony from Doe’s
mother regarding the psychological harm that Doe sustained. She testified
that Doe suffered from nightmares once or twice per week ever since the
incident. Before the incident, he “very rarely” had any nightmares. Doe also
developed trust issues and fear toward male family members as a result of
the incident, and he no longer felt safe at home unless his mother was
present. Doe was no longer making friends. He became angry easily, and his
behavior would get worse whenever she took him to court. He also developed
27
panic attacks that occurred three to four times a week. During the panic
attacks, Doe experienced chest pain and problems breathing. Each panic
attack lasted anywhere from a few minutes to about 15 or 20 minutes.
Doe’s mother testified that she first placed Doe in counseling six
months after the incident, in February 2020. He initially saw a school
counselor twice a week but made little progress. Doe then saw a different
counselor for several sessions before ultimately seeing a specialist for intense
counseling once a week. According to Doe’s mother, Doe seemed to be making
progress with this specialist, and his panic attacks reduced to once or twice
per week around November 2020. Doe’s mother mentioned that she had
brought Doe in for counseling several years before the incident involving
Allen because there was a lot “going on with our family,” and she wanted to
address “some behavior issues [she] was concerned about.” However, after
about three sessions, the counselor indicated that Doe “was just a normal
kid,” so she discontinued counseling for Doe until he was molested by Allen.
She emphasized that the current counseling sessions were “absolutely 100
percent related to the [criminal] action.”
On March 18, 2021, the probation department filed a memorandum
containing information related to expenses incurred by Doe’s mother. Per the
report, she requested the following: $1,609.74 in lost wages (due to missing
99 hours of work at a rate of $16.26 per hour); $91.50 in mileage expenses
(due to attending two court hearings calculated at 163.4 miles x .56 per mile);
$95,160 in tutoring expenses for Doe for the next five years; $4,092 in
medical expenses for Doe; $171,600 in counseling expenses; and $25,168 in
mileage expenses for the counseling sessions. The counseling expenses were
calculated as follows: the psychologist recommended amount of two sessions
28
per week ($150 per session, for a total of $300 per week) until Doe turned 21
years old (11 years, or 572 weeks). The counseling mileage expenses were
calculated as follows: $22 in mileage per session, for a total of $44 per week,
for a total of 11 years (572 weeks). The memorandum included the contact
information for both Doe’s current and previous counselors. A spreadsheet
for reimbursement also was attached to the memorandum.
Allen’s counsel filed a memorandum opposing the restitution
recommendation that included the grand total of $297,721.24. He objected
that the figures were based on hearsay, unidentified sources, and “involve[d]
speculative assessments without foundation.” He continued, “No expert
counseling reports have been produced or referenced to discern the minor’s
issues, or to provide a basis to find that he would benefit from, or will need
more than, a decade of counseling at double the frequency of his current
sessions.” Defense counsel also objected on the grounds that there was “no
way of knowing whether [Doe]’s treatment needs arise from a preexisting
condition or are properly attributed to the incident herein.” He also claimed
that there was not substantial evidence of the expenses because “the source
of the restitution figures comes from [Doe’s mother], and the needed therapy
projections are from an unknown source which [appellant] has no means to
test.” Further, he claimed, “If [Allen] was provided a written counseling
report concerning the basis for the enormous amounts sought, there would
presumably be some factual representation for the court to examine. Here,
we have only unsupported hearsay statements by the parent.”
The court informed Doe’s mother that it needed additional information
as to the counselor’s experience, the average length of recovery, and length of
counseling required: “[T]hese are the things that, you know, I think the court
needs in order to give an amount of restitution in this, especially for the
29
economic side.” Doe’s mother told the court that the counselor “said it’s going
to be a lifetime event” and that the counselor “doesn’t know” because “no two
cases are the same.”
Allen’s counsel objected that it was “not proper foundation for this stuff
to base any decision on the statements of the mother without support of
corroborating information” and the court took note of the objection. The
defense did not provide any evidence, and counsel submitted on the authority
that was presented in the memorandum.
On April 20, 2021, the probation officer filed a supplemental report,
which included a letter from Doe’s counselor dated April 8, 2021, that read in
part:
“I have been [Doe’s] counselor since 10/29/2020 and have
provided a total of 10 counseling sessions. The purpose of
therapy has been for [Doe] to learn healthy ways to manage
his emotions and to provide him a place to potentially
address past trauma. As of the most recent therapy session
it was agreed to change frequency of treatment to once
every 4 weeks due to progress and stability.
“At this time it is not possible to determine length of future
treatment. Frequency and length of treatment is typically
re-evaluated every 6-12 months or sooner depending on
need.”
On June 7, 2021, the court prepared an amended restitution order
summarizing its findings. The court indicated that it read and considered the
probation officer’s reports, the court file, the evidence presented at the
hearings, arguments by both counsel, and the testimony of Doe’s mother.
The court imposed $109,800 in noneconomic restitution damages to Doe
under section 1202.4, subdivision (f)(3)(F), and $20,301.24 in economic
damages to Doe’s mother.
30
As to the noneconomic restitution damages, the court noted that Doe
was 11 years old at the time of the assault, and that, “based on its review of
the facts and its own experience, . . . [Doe] has suffered over a year and a half
[of] psychological trauma, physical harm, anxiety and emotional distress
since the date of the incident and court concludes [Doe] will likely continue to
be traumatized by [Allen’s] acts against [him] in some form or another for the
remainder of his life. However, court concludes this suffering will certainly
cause serious traumatic effects for at least 10 years from date of incident for
[Doe].”
The court made the following findings:
“The evidence presented at the restitution hearings
establishes that [Allen] not only molested [Doe], but also
befriended, took advantage of a position of trust, and
isolated [Doe] from others in order to molest him.
“[Doe] suffered and still suffers from frequent nightmares,
that was and is uncharacteristic for him and these frequent
nightmares only came about after the alleged incident of
molestation. The nightmares consist[ ] of the mother
hearing whimpering at night or where [Doe] wakes her up
because of a bad dream. [Doe] also wakes up after
nightmares crying and upset. The intensity of these
nightmares increased around any dates in which [Doe]
knew that the criminal case involving [Allen] was going to
be in court. Nightmares after the incident occurred at a
frequency of about two times per week, continue to this
date, and will likely continue after. [Doe] experienced
nightmares in the previous 10 years of his life of no more
than 4 to 5 as noted by the mother, which shows a dramatic
increase post molestation.
“[Doe] suffered from panic attacks and will continue to
suffer from panic attacks based on the act of molestation
committed by [Allen]. Up until November 2020, [Doe] was
suffering panic attacks approximately four times per week
which started with chest pains and hyperventilation[;]
31
these lasted anywhere from 3 to 20 minutes per attack.
After November 2020, these panic attacks reduced to
approximately 1 to 2 times per week due to more successful
counseling. It is reasonable to conclude[,] however, that
these panic attacks will continue for a substantial period of
time up to and including in some form or another the
remainder of his life and at least through the minor[’]s 21st
birthday.
“[Doe] has also had to undergo counseling because of the
act of molestation committed by [Allen]. Counseling began
approximately six months after the date of incident or
February 2020. [Doe] beg[a]n counseling first by seeing his
school counselor two times a week[;] however that was
unsuccessful, [and] he was moved to a private counselor
who also saw him approximately two times per week but
according to the mother no improvement was being noted.
This prompted an additional change of counselor on or
about November 2020 that the mother has indicated seems
to be benefitting and is more successful for the minor.
However, counseling sessions are expected to continue for
the foreseeable future as noted by [Doe’s mother] and by
the letter received from [Doe]’s counselor, dated April 8,
2021[;] court will note that such counseling on a
conservative estimate would be expected to continue up
through and including his 21st birthday.
“[Doe] has developed after the incident of molestation trust
issues with male individuals. This includes his father and
brothers. He has indicated he is fearful and afraid around
anyone but his mother.”
The court noted “the difficult and unenviable position of quantifying
[Doe]’s psychological harm in the loss of his normal childhood in dollars.” It
then calculated “restitution for psychological harm for non-economic damages
due to the criminal conduct of [Allen] from the date of incident up to [Doe]’s
twenty first birthday (8/3/2019 to 8/9/2029; 3660 days) at $30.00 per day
totaling $109,800.”
32
As for the economic damages owed to Doe’s mother, the court
concluded:
“[Doe’s mother] has incurred substantial economic damages
as a result of the actions of [Allen] in having to seek out
and pay for her son’s needs stemming from the actions of
[Allen] in this case.
“[She] has missed a total of 99 hours from work at a rate of
$16.26 per hour for a total of $1609.74 in lost wages. Costs
incurred for physically attending hearings . . . for mileage
totals $91.50. A claim was made for tutoring expenses;
however, court was unable to find by a preponderance of
evidence that such expenses were caused by the act of
molestation and as such are not awarded herein.
“[Doe] has been attending counseling because of [Allen]’s
actions and will continue. Court finds that such counseling
is expected to last at least until the minor is 21 years of
age, such sessions have cost and will cost [the mother] $150
per session. As noted from the letter dated 4/8/2021 from
the therapist, [Doe] is attending counseling currently as of
date of letter 1 session every 4 weeks, which is
approximately 1 session a month. One (1) session a month
April 2021 up to [Doe]’s 21st birthday totals $10,200.00.
[Doe] attended 2 sessions of counseling per month starting
6 months after date of molestation (February 2020) through
end of March 2021 which total 14 months. Two (2) sessions
per week, with 4 weeks on average in a month, comes to 56
sessions at $150 per session totals $8,400.00 in counseling
costs through March 2021.”
C. Standard of Review and Applicable Law
The California Constitution gives trial courts broad power to impose
restitution on offenders. (Cal. Const., art. I, § 28, subd. (b)(13).) “[A]ll
persons who suffer losses” due to crime have the right to restitution. (Ibid.)
Accordingly, courts have held restitution statutes should be interpreted
broadly and liberally. (In re S.E. (2020) 46 Cal.App.5th 795, 808; In re
Johnny M. (2002) 100 Cal.App.4th 1128, 1132; accord, People v. Mearns
33
(2002) 97 Cal.App.4th 493, 500 [“A victim’s restitution right is to be broadly
and liberally construed”]; People v. Lyon (1996) 49 Cal.App.4th 1521, 1525
[“statutory provisions implementing the constitutional directive have been
broadly and liberally construed”].) “[A]ny interpretation that limits a victim’s
right to restitution would be contrary to the expressed intent and purpose of
article I, section 28 of the California Constitution.” (In re S.E., at p. 808.)
Generally, victim restitution is limited to “economic loss,” but there is
an exception for restitution orders “relating to felony convictions for lewd or
lascivious acts.” (See People v. Giordano (2007) 42 Cal.4th 644, 656
(Giordano); § 1202.4, subds. (a), (f).) For such convictions, the restitution
order may provide for noneconomic damages, including, but not limited to,
psychological harm. (§ 1202.4, subd. (f)(3)(F); Giordano, at p. 656.)
Specifically, with exceptions not applicable here, section 1202.4,
subdivision (f) provides in part:
“[I]n every case in which a victim has suffered economic
loss as a result of the defendant’s conduct, the court shall
require that the defendant make restitution to the victim or
victims in an amount established by court order, based on
the amount of loss claimed by the victim or victims or any
other showing to the court. . . . [¶] . . . [¶] (3) To the extent
possible, the restitution order shall be . . . of a dollar
amount that is sufficient to fully reimburse the victim or
victims for every determined economic loss incurred as the
result of the defendant’s criminal conduct, including, but
not limited to, all of the following: [¶] . . . [¶] (F)
Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288,
288.5, or 288.7.”
Section 1202.4, subdivision (k) states, in part, the term “victim” for
purposes of the section includes the following: “[t]he immediate surviving
family of the actual victim” and, a person who has sustained economic loss as
the result of a crime and, “at the time of the crime was the parent,
34
grandparent, sibling, spouse, child, or grandchild of the victim.” (§ 1202.4,
subds. (k)(1), (3)(A).) The statute makes no distinction between a
“ ‘derivative victim’ ” and an “ ‘actual victim.’ ” (Giordano, supra, 42 Cal.4th
at p. 656.)
We review the amount ordered for restitution using the abuse of
discretion standard. (Giordano, supra, 42 Cal.4th at p. 663.) We ask
whether the ruling “ ‘ “falls outside the bounds of reason” under the
applicable law and the relevant facts.’ ” (Ibid.) Discussing restitution for
economic loss, the court in Giordano noted, “[u]nder this standard, while a
trial court has broad discretion to choose a method for calculating the amount
of restitution, it must employ a method that is rationally designed to
determine the surviving victim’s economic loss. To facilitate appellate review
of the trial court’s restitution order, the trial court must take care to make a
record of the restitution hearing, analyze the evidence presented, and make a
clear statement of the calculation method used and how that method justifies
the amount ordered.” (Id. at pp. 663-664.)
Noneconomic damages are “ ‘subjective, non-monetary losses including,
but not limited to, pain, suffering, inconvenience, mental suffering, emotional
distress, loss of society and companionship, loss of consortium, injury to
reputation and humiliation.’ [Citation.]” (People v. Smith (2011) 198
Cal.App.4th 415, 431 (Smith).) “Unlike restitution for economic loss, . . . loss
for noneconomic [harm] is subjectively quantified.” (Id. at p. 436.) In light of
the difference between the two types of loss, the court in Smith held a
different standard of review must be applied to orders of noneconomic
restitution to allow for the subjective considerations of the trial court judge.
(Ibid.) The court concluded, “[w]e are guided in this matter by the civil jury
instruction concerning noneconomic loss: ‘No fixed standard exists for
35
deciding the amount of these damages. You must use your judgment to
decide a reasonable amount based on the evidence and your common sense.’
[Citation.]” (Ibid.) “ ‘As a result, all presumptions are in favor of the decision
of the trial court.’ ” (Ibid.) “We therefore affirm a restitution order for
noneconomic damages that does not, at first blush, shock the conscience or
suggest passion, prejudice or corruption on the part of the trial court.” (Ibid.)
D. Analysis
Here, Allen argues the $20,301.24 in economic restitution awarded
Doe’s mother as well as the $109,800 in noneconomic restitution awarded to
Doe under section 1202.4, subdivision (f)(3)(F) were not supported by
substantial evidence. We disagree.
Allen’s primary argument is that the court relied on evidence provided
by Doe’s mother, “which was inconsistent and biased—not the most reliable
source of information.” Yet, the fact that the superior court relied on the
testimony of Doe’s mother does not undermine the validity of the restitution
award. While restitution orders must be supported by substantial evidence,
there is no requirement that the evidence provided be from a particular
source. “Section 1202.4 does not, by its terms, require any particular kind of
proof. However, the trial court is entitled to consider the probation report,
and, as prima facie evidence of loss, may accept a property owner’s statement
made in the probation report about the value of stolen or damaged property.”
(People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli), citing
People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster).) The trial court
applies a standard of proof of preponderance of the evidence, not proof beyond
a reasonable doubt. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
The victim must make a prima facie showing of the loss, which the
defendant is entitled to rebut. “Once the victim makes a prima facie showing
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of economic losses incurred as a result of the defendant’s criminal acts, the
burden shifts to the defendant to disprove the amount of losses claimed by
the victim. [Citation.] The defendant has the burden of rebutting the
victim’s statement of losses, and to do so, may submit evidence to prove the
amount claimed exceeds the repair or replacement cost of damaged or stolen
property.” (Gemelli, supra, 161 Cal.App.4th at p. 1543; see Foster, supra, 14
Cal.App.4th at p. 947.)
Looking first to the award of economic damages, the March 18, 2021,
memorandum filed by the probation detailed the basis for Doe’s mother’s
economic damages. To this end, she claimed $1,609.74 in lost wages (99
missed hours of work multiplied by a pay rate of $16.26 per hour), $91.50 in
mileage expenses (for attending two court hearings calculated at 163.4
multiplied by .56 per mile); $95,160 in tutoring expenses for Doe for the next
five years; $4,092 in medical expenses for Doe; $171,600 in counseling
expenses; and $25,168 in mileage expenses for the counseling sessions. The
counseling expenses were calculated as follows: the psychologist
recommended amount of two sessions per week ($150 per session, for a total
of $300 per week) until Doe turned 21 years old (11 years, or 572 weeks). The
counseling mileage expenses were calculated as follows: $22 in mileage per
session, for a total of $44 per week, for a total of 11 years (572 weeks).
Yet, the court did not accept this evidence without question. Indeed,
the court requested additional information regarding Doe’s counselor’s
experience, the average length of recovery, and the length of counseling
required. In response to the court’s request, the probation officer filed a
supplemental report on April 20, 2021. This report included a letter from
Doe’s counselor indicating the purpose of Doe’s therapy, stating he was
changing Doe’s therapy to once every four weeks, and explaining that the
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frequency and length of treatment is reevaluated very six to 12 months or
sooner depending on need. The supplemental report indicated that Doe’s
mother “was very disappointed with the letter from the counselor” and
emphasized the Doe did not want to reduce his counseling sessions to once
every month. Additionally, Doe’s mother indicated that she would search for
online counseling for Doe as well.
Ultimately, the court did not award Doe’s mother the amount of
economic restitution she requested. Rather, the court awarded Doe’s mother
$1,609.74 in lost wages and $91.50 for mileage to attend the court hearings.
For the cost of counseling, the court found that Doe would need counseling
until he was at least 21 years old and then, based on the counselor’s letter,
concluded that Doe would go to counseling once a month. So, it calculated
one session at $150 per month from April 2021 until Doe’s 21st birthday,
which totaled $10,200. The court also noted that Doe attended two
counseling sessions per week from February 2020 through the end of March
2021 for a total of 56 sessions. Accordingly, the court awarded Doe’s mother
an additional $8,400 in previous counseling costs. In all, the court awarded
Doe’s mother $20,301.24 in economic restitution. In doing so, the court
rejected the mother’s testimony that such restitution should include $4,092 in
medical expenses, $25,168 in mileage expenses to take Doe to counseling
sessions, $95,160 in tutoring expenses for Doe, and an additional $153,000 for
counseling.
Here, Allen repeats the same arguments he made during the
restitution hearing below. He argues that the only evidence in front of the
court was Doe’s mother’s testimony, and such evidence cannot constitute
substantial evidence. To this end, he relies on In re Travis J. (2013) 222
Cal.App.4th 187 (Travis J.). That case, however, is distinguishable from the
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instant matter. There, the appellate court conclude a restitution award was
not supported by substantial evidence when there was no evidence presented
to the court that the victim paid $800 to replace a single tire on her car or lost
$50 in wages. (Id. at p. 204.) Further, the appellate court observed that the
juvenile court specifically indicated that it did not find the victim’s
statements to the probation officer credible. The appellate court thus
determined the restitution award was based “on nothing more than
speculation.” (Ibid.)
Here, the superior court’s restitution award to Doe’s mother is not
plagued by the same problems that existed in Travis J. There is no
indication that the court found Doe’s mother unbelievable. Also, there was
other evidence, besides the mother’s testimony, presented to the court,
including a letter from the counselor treating Doe as well as the opinion of a
clinical social worker that Doe would receive two counseling sessions per
week until he turned 21 years old with a cost of $120 per session. The court
accepted some of the evidence offered to support restitution and rejected
other evidence. In other words, the court carefully weighed the evidence and
did not simply accept everything the mother provided without question.
Nevertheless, Allen argues the court should not have found Doe’s mother
reliable and points out other evidence (e.g., Doe had attended some
counseling before the subject incident) and argues that evidence undercuts
the court’s restitution award. In this sense, Allen is asking us to reweigh the
evidence. This we will not do. (See People v. Ochoa (1993) 6 Cal.4th 1199,
1206 [“ ‘we must accord due deference to the trier of fact and not substitute
our evaluation of a witness’s credibility for that of the fact finder’ ”]; People v.
Balestra (1999) 76 Cal.App.4th 57, 63.)
39
Against this backdrop, we find the economic restitution awarded to
Doe’s mother supported by substantial evidence. Allen’s arguments here go
to the weight of the evidence, not the lack of substantial evidence to support
the award.
Turning next to Allen’s challenge of the noneconomic restitution
awarded to Doe, we similarly conclude his contention is without merit. Allen
again finds fault with the trial court relying on the testimony of Doe’s
mother. For the reasons we discussed ante, we reject this argument.
Further, People v. Valenti (2016) 243 Cal.App.4th 1140 (Valenti), cited
by Allen, does not persuade us that the court’s award of noneconomic
restitution cannot stand. In Valenti, the appellate court reversed awards of
$50,000 in noneconomic damages to three victims. (Id. at p. 1182.) The court
noted the record contained “no victim declarations independent
documentation, or professional evaluations” in support of the court’s award of
$50,000 of noneconomic damages. (Ibid.) There, the People’s sentencing
memorandum cited to Smith and listed the requested sums but the People
“did not submit any support for the figures.” (Ibid.) The only information
about the victims was “filtered through their parents and conveyed in the
probation report or in a statement at sentencing” and did not support the
court’s award. (Ibid.) The mother of one victim reported to probation the
victim “ ‘did not sustain actual child abuse’ ” and “had not expressed his true
feelings or discussed them with his mother.” (Ibid.) The mother of a second
victim reported the victim was “ ‘doing fine’ ” and the mother had “ ‘not
noticed any emotional scars.’ ” (Ibid.) At the sentencing hearing, the third
victim’s mother reported the victim was “ ‘excellent.’ ” (Id. at p. 1183.) Based
on the record in that case, the appellate court concluded “the court’s only
apparent basis for awarding $50,000 [to each of the three victims] was the
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Third District’s opinion, Smith.” (Ibid.) The appellate court concluded the
trial court “did not find facts, cite reliable evidence, or even explain how it
arrived at the amount of restitution awarded to each victim. There was no
evidence, either through direct testimony or victim-impact statements, that
the children suffered nightmares or flashbacks, that they were having trouble
in school or problems making friends, that they had considered harming
themselves or others, or that they had sought or received counseling in any
form.” (Ibid.) Rather, the “three families were relieved that their sons had
not ‘actually’ been abused.” (Ibid.) The court concluded that, “[b]ecause the
court did not ‘demonstrate a rational basis for its award’ or ‘ensure that the
record is sufficient to permit meaningful review,’ ” the award of noneconomic
damages to those three victims had to be reversed and the matter remanded
for directions for the trial court to hold a restitution hearing. (Id. at pp. 1183-
1184, citing Giordano, supra, 42 Cal.4th at p. 664.)
Here, in contrast to Valenti, there was substantial evidence that Doe
had been sexually assaulted by Allen and that Doe suffered emotional
damage as a result. Additionally, unlike the victims in Valenti, Doe was in
counseling for the trauma experienced, and there was ample evidence that he
was suffering from panic attacks, nightmares, fear, anger management and
trust issues, and has difficulty making friends, all as a result of Allen’s
offense. While Doe’s mother presented evidence that he had received
counseling in the past for some behavioral issues, she made it clear that the
current counseling sessions were “100 percent” attributed to Allen’s offense,
and it was reasonable for the trial court to conclude that Doe’s current
behavior and need for counseling was not because of some preexisting
problem. Moreover, contrary to the trial court in Valenti, the court here
explained the factors considered in making its determination, and it
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independently considered the facts of the case when coming to the amount of
$109,800 in noneconomic damages. As such, there is no basis on the record
before us to conclude that this award shocks the conscience. (See Smith,
supra, 198 Cal.App.4th at p. 436; People v. Lehman (2016) 247 Cal.App.4th
795, 803.)
III
FINES AND FEES
At the sentencing hearing, the superior court ordered Allen to pay
various fines and fees, including a probation supervision fee of $25 per
month, an administrative fee of $200 for the preparation of the probation
report, and an administrative collection processing fee of $25. The imposition
of these fees was based on certain local county ordinances that relied on
section 1203.1b, subdivisions (a)(1) and (h) as those subdivisions existed at
that time.
Allen argues these fees are no longer collectable and must be stricken
from the probation order under Assembly Bill No. 1869 (2019-2020 Reg.
Sess.), which became operative on July 1, 2021. With passage of this bill,
among other things, the Legislature repealed the statute (§ 1203.1b)
authorizing the challenged fees. Section 1203.1b was not replaced.
The Legislature also enacted laws that rendered uncollectible imposed
but unpaid probation and booking fees as of July 1, 2021, and require the
court to vacate those fee orders as to any unpaid balances remaining on
July 1, 2021 (Pen. Code, § 1465.9, subd. (a); Gov. Code, § 6111). Under Penal
Code section 1465.9 and Government Code section 6111, any unpaid fees are
unenforceable and uncollectible on or after July 1, 2021. Therefore,
judgments imposing such fees must be vacated as to those uncollectable fees.
(Pen. Code, § 1465.9, subd. (a); Gov. Code, § 6111.)
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The People do not disagree that the law has changed, but they note
that the fees were collectible until June 20, 2021. Therefore, instead of
striking the fees in their entirety, they ask us to vacate any portion of the
fees remaining unpaid after July 1, 2021. We agree that the unpaid fees
must be vacated. (See People v. Clark (2021) 67 Cal.App.5th 248, 260;
People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 952.)
Per the recent fees legislation, Assembly Bill No. 1869, and Penal Code
section 1465.9 and Government Code section 6111, the probation supervision
fee, the preparation of the probation report fee, and an administrative
collection processing fee must be vacated to the extent they require payment
of uncollected fees remaining on or after July 1, 2021.
DISPOSTION
The postjudgment restitution order is affirmed. We strike the
probation conditions: (1) relating to Allen’s possession of sexually explicit
material, (2) limiting Allen’s presence at establishments selling or containing
sexually explicit material, (3) prohibiting Allen from congregating with
minors, (4) imposing a curfew on Halloween, and (5) requiring Allen to report
contacts with law enforcement. We remand this matter back to the superior
court to consider the need for revised probation conditions to address those
that we have stricken and ensure that the probation term complies with
Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2). Also, on remand, we
instruct the superior court to vacate the probation supervision fee, the
preparation of the probation report fee, and the administrative collection
processing fee to the extent that they remain unpaid after July 1, 2021. After
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conducting further proceedings, the superior court is directed to prepare an
amended abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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