P. v. Passineau
Filed 9/16/13 P. v. Passineau CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
BRETT ANTHONY PASSINEAU,
Defendant and
Appellant.
H038397
(Monterey
County
Super. Ct.
No. SS052209)
INTRODUCTION
A jury
convicted defendant Brett Anthony Passineau of three counts of lewd conduct
with a minor under the age of 14. (Pen.
Code, § 288, subd. (a).
With respect to two counts, the jury found true a “multiple victim†special
allegation. (§ 667.61, former subd. (e)(5),
see Stats. 1998, ch. 936, § 9.) Defendant
was sentenced to 36 years to life in state prison. Following sentencing, the trial court held a
in restitution for four victims.
On appeal, defendant
contends that the trial court abused its discretion in setting the restitution
at the amount determined by the California Victim Compensation and Government
Claims Board (Board). Specifically, he
argues that the court: (1) misapplied
the statutory presumption under section 1202.4, subdivision (f)(4)(A); (2) failed
to find defendant rebutted the presumption; (3) failed to disclose the Board’s
records to defendant; (4) deprived defendant of due process by basing its
decision on ex parte evidence; (5) violated the separation of powers
doctrine; and (6) abused its discretion by failing to weigh and consider
alternative causes of the victims’ therapy. We will affirm the judgment.
Victims K.P. and D.P. are brothers
who were born to the same mother and different fathers in July 1998 and June
2000. They were removed from their birth
mother and placed with their aunt in May 2002. The aunt had difficulty caring for the
brothers as she is a double amputee with a legal prescription for marijuana to
ease her pain and her glaucoma. She also
had two teenage boys living at her home. She decided that the best option for the
brothers was for them to be placed in a two-parent home.
In May 2003, defendant and his wife
adopted the brothers. The couple had already
been caring for a seven-year old female relative and had adopted a newborn girl
in 2002. They met the brothers two times
at the aunt’s residence in Santa Rosa
before taking them home. The aunt remained
in contact with the brothers after their adoption. She occasionally visited them at the Passineaus’
home and drove them to her house for visits.
Prior to their adoption, it was
disclosed to the aunt and the Passineaus that both brothers had a history of
individuals.
title="">[3]
These
prior molests involved acts of sodomy and oral copulation. The brothers had already been in counseling
for these incidents when they were initially placed with the aunt.
In July 2005, the aunt brought the
brothers to her home for a visit. The
younger brother told the aunt about a recent camping trip he had taken with defendant. When she asked what types of games they
played, he responded “tickle the penis†and “hide the penis in the butt.†He also told her “yellow slime†would shoot
out after he tickled for a while. The
aunt also spoke to the older brother who also recounted that he and defendant
would engage in acts such as tickling each other’s backs, hugging without
clothes on, and playing “the tickle game.â€
The boys were subsequently removed from defendant’s home on July 5, 2005.
The brothers were interviewed about
the sexual encounters that occurred on their last camping trip. Both brothers described to the interviewer the
types of sexual acts defendant had made them perform on him. Through the course of the investigation and
trial, the brothers revealed that defendant had engaged in sexual acts with
them on numerous occasions on their camping trips.
A jury convicted defendant of three
counts of lewd acts with a minor under the age of 14. (§ 288, subd. (a).) In addition, special allegations that the acts
were committed on multiple victims were found true as to two counts. (§ 667.61.) The
trial court sentenced defendant to state prison for 36 years to life. We
affirmed the conviction on appeal. (
opn.].)
After a restitution hearing,
defendant was ordered to pay a total of $21,982 to the Board to reimburse
payments it made for therapy services provided to four victims: the brothers (D.P. and K.P), the aunt (V.C.),
and the adopted step-sister (C.P.).
Statutory Background
Section 1202.4, subdivision (a)(1)
states: “It is the intent of the
Legislature that a victim of crime who incurs an economic loss as a result of
the commission of a crime shall receive restitution directly from a defendant
convicted of that crime.†Thus, “in 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.†(§ 1202.4, subd. (f).)
The amount
of restitution should be “sufficient to fully reimburse the victim or victims
for every determined economic loss incurred as the result of the defendant’s
criminal conduct, including . . . ¶ . . . ¶.
Mental health counseling expenses.â€
(§ 1202.4, subd. (f)(3)(C).)
The court must order “full restitution unless it finds compelling and
extraordinary reasons for not doing so and states them on the record.†(§ 1202.4, subd. (f).) Therefore, “[r]estitution to the victim is
mandatory, although the court retains discretion as to the amount. [Citation.]â€
(People v. Akins (2005) 128
Cal.App.4th 1376, 1382.)
Relevant to
this case, section 1202.4, subdivision (f)(4) provides special provisions that
apply when state funds are used to provide assistance to a victim. “If, as a
result of the defendant’s conduct, the Restitution Fund has provided assistance
to or on behalf of a victim or derivative victim . . . , the amount of
assistance provided shall be presumed
to be a direct result of the defendant’s criminal conduct and shall be included
in the amount of the restitution ordered.â€
(§ 1202.4, subd. (f)(4)(A), italics added.) “The amount of assistance provided by the
Restitution Fund shall be established by copies of bills submitted to the
California Victim Compensation and Government Claims Board reflecting the
amount paid by the board and whether the services for which payment was made
were for . . . mental health counseling . . . .
Certified copies of these bills provided by the board and redacted to
protect the privacy and safety of the victim or any legal privilege, together
with a statement made under penalty of perjury by the custodian of records that
those bills were submitted to and were paid by the board, shall be sufficient
to meet this requirement.†(§ 1202.4,
subd. (f)(4)(B).) “If the defendant
offers evidence to rebut the presumption . . . , the court may
release additional information contained in the records of the board to the
defendant only after reviewing that information in camera and finding that the
information is necessary for the
defendant to dispute the amount of the restitution order.†(§ 1202.4, subd. (f)(4)(C), italics added.)
Hearing
On
September 28, 2010, the custodian of records for the Board filed a
certification of records with the trial court. Attached to the certification was a
compilation of the bills that related to the four victims. The certification included the custodian of
records’ declaration under penalty of perjury, which stated: “the records are accurate reproductions of
bills that were submitted to and paid by the Board in the amounts indicated, by
or on behalf of the above victims.†The
compilation of bills reflected the total amount of $21,982 was paid for mental
health services as follows:
K.P.
Dates of Service:
11/2/05-11/3/08
$8,410.00
D.P.
Dates of
Service:11/02/05-5/12/09
$10,120.00
V.C.
Dates of
Service:1/12/06-2/5/09
$2,640.00
C.P.
Dates of Service:
3/24/06-7/28/06
$812.00
The certification also explained in a footnote: “The treating therapists provided
certification to the Program that the treatment rendered to the above victims
is necessary as a direct result of the crime and 100% related to the crime committed
by the above defendant.â€
On February
2, 2011, defendant filed a motion in opposition to an order of restitution. The prosecutor subsequently filed a
memorandum of points and authorities in support of his request that the trial
court order restitution in the amount of $21,982, payable to the Board. Defendant then filed supplemental points and
authorities arguing there was no initial showing of causation for the
reimbursement amount.
The
restitution hearing was held on March 3, 2011.
At the hearing, defendant argued there was no showing that his crime was
a direct cause of the claimed therapy for the four victims. Defendant argued that the nature of the
therapy sessions was unknown, and that all four victims had preexisting
conditions that could have been the cause of the therapy. As to the direct victims, defendant suggested the
therapy sessions could have been related to the brothers’ prior sexual
molestation, physical problems, bipolar issues, or other issues. He suggested that the aunt’s therapy could
have been related to her double amputation or her marijuana use and that the
step-sister’s therapy may have also been related to issues in her past.
After
argument, the court disagreed with defendant’s contention that there had to be
evidence of the nature of the therapy to establish that the crime was a direct
cause of that therapy. The court
stated: “Although these children have
serious issues, had serious issues, their molestation by the defendant which
was found to be true by 12 people, certainly would warrant continued
counseling. Whether or not they were in
counseling before is immaterial to this court.â€
The court,
however, continued the hearing and requested additional information showing
that the counseling “somehow involved the issues resulting from the
molestations.†The restitution officer
suggested that the court could do an in camera review of the Board’s records,
and defendant agreed with that suggestion.
At the next
hearing on June 10, 2011, the restitution officer transmitted confidential
documents to the court for an in camera review. Defendant requested that the court release the
documents to him with a protective order. The prosecutor stated that he, too, had not
been allowed to see the sealed documents because of confidentiality issues, and
he questioned whether the court could release documents without the custodian
of records present. The trial court
ordered further briefing as to the confidentiality issue and continued the
restitution hearing.
The parties
reconvened on September 23, 2011. At the
beginning of the hearing, the trial court indicated it had done an in camera
review of sealed documents sent by the Board.
The documents included health insurance claim forms listing the dates of
service and the amount charged per service.
As to these records, the court remarked: “The documents I did receive were just lists
of dates where counseling was provided, with no indication of the content or
anything as to that matter.†The court questioned
whether it could defer to the Board’s findings that the counseling was related
to defendant’s crime. The court allowed
the prosecution to try to get additional records from the Board establishing
the relationship between the counseling and the victimization in this
case. The court agreed to provide copies
of the Board’s certification to the parties but withheld the documents attached
to the certification as privileged. The
court assured the parties that those documents “would have absolutely no value
to anyone. They list dates and times and
that is it.â€
Prior to
the final restitution hearing the Board transmitted additional sealed records,
which included the “Treatment Plan (Form) (Confidential)†prepared by the
treating therapist for each of the four victims. The treatment plans included information about
the therapist’s understanding of the details of the crime for which she was
providing treatment, her general evaluation of each victim’s condition, and a
proposed plan for treatment. The
brothers’ therapist was also asked if she was aware of “any pre-existing
condition or prior mental health treatment that may impact the current
treatment.†She responded that she was
aware of the brothers’ “[p]revious neglect [and] alleged sexual abuse,†and as
to K.P., she noted that she “treated [K.P.] for [these incidents] prior to
placement with adoptive family.†A
declaration of the therapist was submitted with each treatment plan form. In the declaration, the treating therapist was
asked: “[i]n your opinion, what
percentage of your treatment is necessary as a direct result of the qualifying
crime?†In each instance, the treating
therapist checked the box indicating “100%.â€
At the
restitution hearing on April 27, 2012, the trial court stated that it had
reviewed the additional documents. Defendant
argued that he had rebutted the presumption that the amount paid by the Board
for the victims’ therapy was directly related to defendant’s crime. Specifically, defendant reemphasized that the
brothers and the aunt had preexisting conditions. As to the stepsister, defendant argued there
was insufficient evidence to prove his conduct was a direct result of her
therapy as she had no involvement at the trial and she never saw or heard of
the brothers’ molests. She was also
abandoned as a child and adopted as an infant, which defendant suggested could
be the cause of the therapy. Defendant additionally
argued he was entitled to look at documents pertaining to the therapy sessions
in order to determine if they were applicable to his crime.
The
prosecutor argued that the step-sister was a victim as specified in section
1202.4 because she was a member of the household in which the crimes took
place. (§ 1202.4, subd.
(k)(3).) Furthermore, he argued that the
court could impose the entire cost of counseling because even if there were other
factors, defendant was aware of the brothers’ history of abuse and chose to
commit his crime regardless.
After
argument, the court awarded restitution in the amount of $21,982 to be paid as
reimbursement to the Board. The court
based the award on the legal presumption under section 1202.4, subdivision (f)(4)(A)
that the amount of assistance provided by the Board was a direct result of
defendant’s criminal conduct. As to
defendant’s argument that the presumption had been rebutted, the court compared
the present case to “[t]he old eggshell victim theory where in this case, yes,
Mr. Passineau knew of the victims’ prior molestation, was fully aware of that
when he accepted them into his home.
Even if he had not been fully aware of that, he would still be
responsible for their therapy because you take your victim as you find your
victim.†The court then described the sealed
records, explaining that the forms had been submitted by the treating physicians,
who were required to identify the person receiving care, identify whether that
person was a direct or a derivative victim, and provide other information
regarding her understanding of the details of the crime. With respect to the two derivative victims, the
court determined that the records made clear that the counseling was provided
for defendant’s present crime.
Defendant
contends that the trial court erred in setting restitution based on the legal
presumption under section 1202.4, subdivision (f)(4)(A). We review a restitution order for abuse of
discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The abuse of discretion standard “ ‘asks in
substance whether the ruling in question “falls outside the bounds of reasonâ€
under the applicable law and the relevant facts [citations].’ [Citation.]â€
(Ibid.) “[A]n order resting upon a ‘ “demonstrable
error of law†’ constitutes an abuse of the court’s discretion. [Citation.]â€
(People v. Jennings (2005) 128
Cal.App.4th 42, 49.) Further, the trial
court must have a factual and rational basis for the amount of restitution it
orders. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
A. The Presumption Under Section 1202.4,
subdivision (f)(4)(A)
Defendant
first contends that the trial court abused its discretion by applying the legal
presumption under section 1202.4, subdivision (f)(4), claiming that the Board
submitted insufficient evidence that its payments were directly related to defendant’s
crime. We determine there was no such error.
Under section
1202.4, subdivision (f)(4)(A), if the Restitution Fund has provided assistance,
there is a rebuttable presumption that amount of assistance was the “direct
result of the defendant’s criminal conduct
and shall be included in the amount of the restitution ordered.†(§ 1202.4, subd. (f)(4)(A).) Subdivision (f)(4)(B) requires that the
amount of assistance be established by certified copies of bills submitted to
the Board reflecting the amount paid and whether the payment was made for services
such as mental health counseling. The
bills must be submitted together with a statement made under penalty of perjury
by the custodian of records. (§ 1202.4,
subd. (f)(4)(B).)
The Board provided
assistance to four victims in the total amount of $21,982 and submitted the documentation
required under section 1202.4, subdivision (f)(4)(B) to create the presumption
that the assistance provided was a “direct result of the defendant’s criminal
conduct.†(§ 1202.4, subd. (f)(4)(A).) Pursuant
to section 1202.4, subdivision (f)(4)(B), the certified records show that
each of the four victims received mental health counseling, the dates of
service, and the Board’s payment of all or a portion of the amount billed for
treatment. Additionally, the treating
therapists certified that the treatment for the four victims was “100% relatedâ€
to the crime committed by defendant. As
required by the statute, the custodian of records declared under penalty of
perjury that the records were an accurate compilation of the bills. Moreover, the trial court conducted an in
camera review of the documents submitted by the Board. These documents included health insurance
claim forms detailing the dates of service and total amount charged per service,
which corroborated the accounting of the certified records. Thus, the certified records adequately
support the application of the legal presumption under section 1202.4, subdivision
(f)(4)(A).
B. Defendant Failed to Rebut the Section
1202.4, subdivision (f)(4)(A) Presumption and the Board’s Records Were Not Necessary
to Dispute the Restitution Order
Next, defendant
contends that the court abused its discretion in failing to find he rebutted the
presumption. He argues he presented
evidence tending to rebut the presumption, and thus he was entitled to have the
sealed Board records disclosed to him. We
conclude that the trial court did not abuse its discretion when it found the
presumption was not rebutted and it refused to disclose the Board’s records.
The
presumption under section 1202.4, subdivision (f)(4)(A) is that the amount of
assistance provided is a “direct resultâ€
of defendant’s criminal conduct. “The statute’s use of the word ‘direct’ signifies that
the payment is presumed to have resulted directly, or in fact,
from the defendant’s criminal conduct. [Citation.] Stated differently, the defendant’s conduct
is presumed to be a cause in fact of the Board’s payment. [Citation.]†(People v. Lockwood (2013)
214 Cal.App.4th 91, 101 (Lockwood).)
To
rebut that presumption, a defendant has the burden to prove that his conduct is
not a cause in fact of the Board’s
payment. (Lockwood, supra, 214 Cal.App.4th at p. 101.) “[T]o overcome the subdivision (f)(4)(A) presumption
that the assistance given the victim was ‘a direct result of the defendant’s
criminal conduct,’ a defendant must prove that his criminal conduct played,
“theoretical†part in bringing about’ the injury. [Citations.]â€
(Id. at p. 103.)
Subdivision
(f)(4)(C) of section 1202.4 provides a defendant a way to obtain the Board’s
records in order to challenge the presumption.
Under that provision, the trial court may release the Board’s records if
(1) the defendant offers evidence to rebut the presumption and (2) the trial
court determines after an in camera review of the records that the records are “necessary
for the defendant to dispute the amount of the restitution order.†(§ 1202.4, subd. (f)(4)(C).)
“[T]he
defendant need not fully rebut the presumption to obtain the Board’s records.†(Lockwood,
supra, 214 Cal.App.4th at p. 101.) Instead,
the statute merely imposes a duty on a defendant of producing evidence. (Id. at
p. 102.) “After the defendant does so,
the trial court must examine the sealed records in camera to determine whether
the information is necessary for the defendant to dispute the amount of
restitution. If the court finds that the
sealed records are necessary, the defendant is entitled to use
rebut the subdivision (f)(4)(A) presumption.â€
(Ibid.)
In
restitution order, claiming that the victim’s hospitalization was not a direct
result of his assault against her. (
98.) The defendant offered evidence
tending to rebut the section 1202.4, subdivision (f)(4)(A)
presumption. Mainly, he suggested that the
medical treatment underlying the Board’s payment resulted from marital problems
and injuries inflicted by the victim’s husband.
(Ibid.) The trial court did not conduct an in camera
hearing of the Board’s records.
On appeal, the
Court of Appeal determined that the trial court erred in failing to conduct an
in camera review of the Board’s records as the defendant had offered evidence
tending to rebut the presumption. (
harmless. (Id. at p. 103.) After
conducting an independent review of the records, the court affirmed the
restitution order, stating that “the records established that defendant’s
criminal conduct played more than an infinitesimal or theoretical part in the
emotional or mental injuries for which the victim was treated . . . and defendant
could not have successfully used the Board’s records to rebut the presumption
that the amount of assistance provided by the Restitution Fund was a direct result
of his criminal conduct.†(
Here, defendant
offered evidence suggesting that all four victims had preexisting conditions
that may have been the cause of the therapy. Unlike in Lockwood,
an in camera review of the records. After
its review, the trial court determined that the documents did not provide
information that would be “necessary for the defendant to dispute the amount of
the restitution order.†(§ 1202.4,
subd. (f)(4)(C).) The court went a step
further by describing the general contents of the sealed records (i.e., the
treatment plan forms). The court
concluded that the presumption was not rebutted by evidence that the victims
had preexisting conditions.
At
defendant’s request, we have conducted a thorough review of the sealed clerk’s
transcript. Based on our review, we agree
with the trial court’s assessment that there was nothing in the sealed records
that was “necessary for the defendant to dispute the amount of the restitution
order†(§1202.4, subd. (f)(4)(C)) and that the presumption was not rebutted. The certified records accurately compiled the
bills for the mental health services that were provided, and they included the dates
of those services, which closely follow the victimization. The sealed records include “Treatment Planâ€
forms that were completed by each of the victims’ treating therapist. In each treatment plan, the therapist was
asked to describe the crime for which she had been providing treatment. In response, the therapists described
defendant’s crime against the brothers.
The records
further show that the brothers’ therapist was aware of their preexisting
conditions. Their therapist was asked if
she was “aware of this client having any pre-existing condition or prior mental
health treatment that may impact the current treatment.†In both instances, she responded she was
aware of “[p]revious neglect [and] alleged sexual abuse . . . .†On K.P.’s treatment plan, she added that she
“treated [K.P.] for [these incidents] prior to placement with adoptive family.â€
Despite this mention of the brothers’
prior molests, there is no indication in the sealed records that any of the
victims were treated for their preexisting conditions. In fact, in all four treatment plans, the
therapist checked a box indicating that the treatment was “100%†“necessary as
a direct result of the qualifying crime.†These statements corroborate the statement in
the certified records, which declares that the treating therapist verified that
the treatment was “necessary as a direct result of the crime and 100% related
to the crime . . . .â€
Upon
reviewing the Board’s records, we conclude the trial court did not abuse its
discretion because defendant did not meet his burden to rebut the section
1202.4, subdivision (f)(4)(A) presumption.
Similar to Lockwood, defendant
failed to prove his conduct was not “a cause in
fact†(i.e., his conduct played “more than an infinitesimal or
theoretical part†of the victims’ treatment). (Lockwood,
supra, 214 Cal.App.4th at pp. 101, 104.)
Thus, defendant did not rebut the presumption. Accordingly, the trial
court appropriately based the restitution order on the legal presumption under
section 1202.4, subdivision (f)(4)(A).
C. The Trial Court Did Not Deprive Defendant
of Due Process, Did Not Violate the Separation of Powers Doctrine, and Did Not
Abuse its Discretion
Defendant
argues that the trial court denied him due process by refusing to disclose the sealed
documents and thereby denied him a meaningful opportunity to dispute the restitution
amount. Defendant also contends that the
trial court violated the separation of powers doctrine by accepting the Board’s
request for restitution without question.
Lastly, defendant claims that the trial court abused its discretion by “arbitrarily
assessing the element of causation†and not weighing the victims’ preexisting
conditions.
As
explained above, the trial court did not abuse its discretion in basing the
restitution order on the statutory legal presumption. For the same reasons, the trial court did not
violate due process nor the separation of powers doctrine. Nor did the trial court err in assessing
causation. In fact, it appears the trial
court carefully considered the evidence supporting the restitution amount. The court asked for further briefing from the
parties, requested additional records from the Board twice, and reviewed the
sealed records in camera before ultimately deciding that the legal presumption
was not rebutted. Accordingly we conclude
there was no abuse of discretion and determine that defendant was properly
ordered to pay restitution in the amount of $21,982.
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
People v. Passineau
H038397
references are to the Penal Code unless otherwise indicated.
previous appeal from the judgment. (
H036276) [nonpub. opn.].) We granted
defendant’s request to take judicial notice of the opinion.
