Filed 8/10/26 P. v. Fleming CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
THE PEOPLE, C103140
Plaintiff and Respondent,
(Super. Ct. No. 18CF04578)
v.
KEVIN ANDREW FLEMING,
Defendant and Appellant.
Defendant Kevin Andrew Fleming was charged with sexual penetration of an
unconscious victim, assault with intent to commit a sexual offense, and poisoning or
adulterating food or drink. He eventually pleaded guilty to the adulterating food or drink
charge. The trial court placed him on two years’ probation and ordered him to pay more
than $38,000 in restitution to the victim. On appeal, Fleming challenges the victim
restitution award as unsupported by the evidence. We reject this contention and affirm.
BACKGROUND
I.
Fleming worked with the victim’s husband, and the two socialized regularly with
their wives and other work friends. The victim described Fleming and his wife as her
“very close” friends.
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Fleming often flirted with the victim and once contacted her via video call while
he was masturbating. The victim brushed off his advances and tried to make sure she
was never alone with him.
On July 15, 2017, the victim, Fleming, and Fleming’s wife attended a progressive
party where guests drank alcoholic beverages, ate food, and swam at different houses.
The victim suddenly felt extremely intoxicated, vomited, and fell asleep in a bedroom.
She woke up to Fleming stroking the back of her thighs and buttocks. Fleming then
moved her swimsuit aside and inserted his fingers into her vagina. Although she was still
“ ‘very groggy,’ ” the victim was able to push Fleming’s hand away. They both left the
room, and the victim tried to find a ride home. Reluctantly, she agreed to share a
rideshare vehicle with Fleming and his wife. Fleming sat in the back next to the victim,
while his wife sat in the front. During the ride, the victim tried to rest but was repeatedly
disturbed by the feeling of a hand on her leg; each time, she pushed the hand away.
The next day, Fleming sent sexually suggestive text messages to the victim as well
as a message saying, “ ‘Ha, I fingered you last night and you loved it.’ ” Over the next
few months, Fleming continued to send her inappropriate texts. The victim later learned
that he had behaved inappropriately with other women in their friend group. The victim
contacted law enforcement.
Fleming was charged with sexual penetration of an unconscious victim (Pen.
Code, § 289, subd. (d); count 1), assault with intent to commit rape, sodomy, or oral
copulation (§ 220, subd. (a)(1); count 2), and poisoning or adulterating food or drink
(§ 347, subd. (a)(1); count 3).1 A jury trial in January and February 2023 ended in a
mistrial; a second jury trial was held in July 2024. Fleming pleaded no contest to count 3
in September 2024. The victim testified during both trials. The parties’ plea agreement
1 Undesignated statutory references are to the Penal Code.
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provided for counts 1 and 2 to be dismissed with a waiver under People v. Harvey (1979)
25 Cal.3d 754 and for Fleming to be placed on probation.
II.
In October 2024, ahead of the sentencing hearing, the victim sent a letter to the
trial court describing how the crime had affected her life. The victim explained that
“[w]aking up to [Fleming] violating me, touching me in a place only my husband is
welcomed, standing over me as I lay helpless, drugged, and unable to fight back or
protect myself has to be one of the scariest and traumatizing events a woman could ever
go through.” Following the incident, she developed anxiety, depression, agoraphobia,
panic attacks, post-traumatic stress disorder (PTSD), fear and distrust of men, severe
attention deficits, an inability to look strangers in the eye, a lack of motivation, and
“decreased overall joy in life.” She feared that these issues “will never fully resolve.”
Her stress was so severe that she suffered hair loss, heart palpitations, and irregular heart
rhythms. She had to strive daily to control her stress levels to prevent these physical
symptoms from recurring. Her personality had also changed, leading her to become
“more quiet” and “afraid to speak [her] mind and be humorous.” She had difficulty
caring for her two young children. For three and a half years after the incident, she
regularly woke up with a racing heart and her body “seiz[ing] as if [she] was trying to get
away from something.” If her husband tried to kiss her goodbye early in the morning
before she woke up, she would push him away. She was only able to wake up normally
after spending several years in intensive therapy.
The victim’s letter also described her difficulty continuing in her previously
successful job in the medical field because she could no longer handle the workload of
her patients. She was particularly triggered by patients with PTSD, and she eventually
had to leave her role in primary care. Soon after the incident, she had to take a long leave
of absence to engage in intensive therapy.
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The letter stated that she lost over $35,000 in income during the first year
following the July 2017 incident. Between 2019 and 2024, she took a total of 24 weeks
off to address her stress and PTSD, which worsened when court proceedings were
delayed. She estimated that she lost $12,000 a month in wages during these leaves of
absence. Her professional reputation was “destr[oyed]” because of her long absences,
and she eventually lost her job in January 2024. She had been unable to work since then.
She explained: “I will never return to the person I was before the assault. I will never
regain the loss of time due to being mentally and emotionally incapacitated by stress,
depression and anxiety, which continue to hinder my relationships today and always
will.” The letter included W-2 earnings statements showing that her income decreased by
$38,416.80 between 2017 and 2018.
During the December 2024 sentencing hearing, the trial court placed Fleming on
probation for two years and ordered him to serve 180 days with credit for time served.
The court reserved the issue of victim restitution and set a restitution hearing for
February 2025.
In January 2025, the prosecution filed a brief asking the trial court to award a total
of $38,626.80 in victim restitution, representing $38,416.80 in lost wages between 2017
and 2018 plus $210 in travel costs for both trials.
At the February 2025 restitution hearing, Fleming argued that the victim had failed
to show that his conduct had caused her losses in income, emphasizing the absence of a
statement from a therapist or physician corroborating that she was unable to work. The
prosecution responded that the victim’s October 2024 letter and accompanying W-2
statements, her trial testimony, and the fact that the restitution sought was limited to lost
wages during the “most egregious” period of her PTSD all supported the requested
award.
The trial court granted the request. Relying on its recollection of the victim’s trial
testimony and her October 2024 letter, the court found that the prosecution had met its
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burden of showing that Fleming’s conduct was a “substantial factor” in causing the
victim’s injury. The court awarded restitution in the amount of $38,626.80, with interest
accruing from the date of sentencing.
Fleming timely appealed.
DISCUSSION
When the victim of a crime has suffered economic loss as a result of a defendant’s
actions, courts generally are required to order the defendant to pay full restitution to the
victim. (§ 1202.4, subd. (f).) A court “ ‘ “must use a rational method that could
reasonably be said to make the victim whole.” ’ ” (People v. Valle (2023) 93 Cal.App.5th
1329, 1332.) Where, as here, a defendant is ordered to pay restitution as a condition of
probation under section 1203.1, the court has broader discretion to impose restitution, so
long as it is “reasonably related either to the crime of which the defendant is convicted or
to the goal of deterring future criminality.” (People v. Carbajal (1995) 10 Cal.4th 1114,
1123; see also People v. Martinez (2017) 2 Cal.5th 1093, 1101-1102 [“A trial court’s
power to order restitution in probation cases is thus broader than its power to order direct
victim restitution under section 1202.4”].) Restitution ordered as a condition of probation
“may not be based merely upon the trial court’s subjective belief regarding the
appropriate compensation; there must be a factual and rational basis for the amount
ordered and the defendant must be permitted to dispute the amount or manner in which
restitution is to be made.” (Carbajal, at p. 1125.) A victim’s right to restitution is to be
“ ‘broadly and liberally construed.’ ” (People v. Stanley (2012) 54 Cal.4th 734, 737.)
We review a trial court’s restitution order for abuse of discretion. (People v.
Gemelli (2008) 161 Cal.App.4th 1539, 1542.) We will reverse only where the order is
arbitrary or capricious or where the amount of restitution lacks a “rational and factual
basis.” (Ibid.)
The restitution ordered in this case was well within the trial court’s discretion.
The victim testified at trial that she experienced significant psychological harm as a result
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of Fleming’s actions. Her October 2024 letter detailed that she suffered anxiety,
depression, agoraphobia, panic attacks, PTSD, stress, and severe attention deficits. Her
letter explained that, as a result of Fleming’s conduct, she was unable to handle the
workload of her previously successful medical job and also needed time off for intensive
mental health treatment. This was more than sufficient to support an award of restitution
for lost wages. (E.g., People v. Shelly (2022) 81 Cal.App.5th 181, 199 [victim’s
testimony may be prima facie evidence of loss].)
We find no merit in Fleming’s assertion that the victim’s evidence of loss was “not
sufficiently itemized.” Although the victim did not specify exactly how much time she
took off in the first year after the incident, her letter stated that she lost over $35,000 in
income. That figure was further supported and clarified by the accompanying W-2
statements from 2017 and 2018, which showed the drop in her earnings between those
two years.
These facts make this case different from In re Travis J. (2013) 222 Cal.App.4th
187, on which Fleming relies. In that case, a minor fired a gun at the victim’s rear tire,
causing it to go flat. (Id. at p. 191.) The victim did not provide a receipt for the
replacement tire or evidence of how much she earned; the juvenile court awarded the
victim $850 in restitution “based on its own ‘reasonable estimate’ of the damages.” (Id.
at p. 203.) The juvenile court reasoned that it would “ ‘probably’ ” cost $800 to replace
one tire and that $50 in lost wages was appropriate because there was “ ‘some trouble’ ”
involved in completing that task. (Ibid.) The appellate court reversed the order and
remanded for recalculation of the award, explaining that there was “no evidence” in the
record that the victim paid $800 to replace the tire or that she lost $50 in wages as a
result. (Id. at p. 204.) Because the juvenile court based its calculation “on nothing more
than speculation,” its restitution award reflected an abuse of discretion. (Ibid.) Here, in
contrast, the victim testified at trial, submitted a detailed letter describing her injuries, and
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provided W-2 statements showing her wages. As we have said, that was sufficient to
support the trial court’s restitution award.
DISPOSITION
The judgment is affirmed.
/s/
FEINBERG, J.
We concur:
/s/
HULL, Acting P. J.
/s/
MAURO, J.
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