People v. Mearns

• Decision Date: 05 April 2002
• Docket Number: No. B150613.,B150613.
• Citation: 118 Cal.Rptr.2d 511,97 Cal.App.4th 493
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Sterling MEARNS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

118 Cal.Rptr.2d 511

97 Cal.App.4th 493

The PEOPLE, Plaintiff and Respondent, v. Charles Sterling MEARNS, Defendant and Appellant.

No. B150613.

Court of Appeal, Second District, Division 5.

April 5, 2002.

Review Denied June 19, 2002.^*

Jeffrey A. Schafer, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Michael R. Johnsen, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Charles Sterling Mearns, appeals from his conviction, based upon guilty pleas, for rape by force (Pen.Code,¹ § 261, subd. (a)(2)) and first degree burglary. (§ 459.) Defendant also admitted he was personally armed with a knife in the commission of the rape. (§ 12022.3, subd. (a).) Defendant's sole contention on appeal is the trial court improperly ordered direct restitution to the victim for the difference between the cost of purchasing a new trailer and the sale price of her former mobilehome. Based on the provisions of section 1202.4, subdivisions (f) and (f)(3)(I), we conclude the trial court did not abuse its discretion in awarding restitution to Susan F. for the costs of relocating to another residence after she was violently sexually assaulted in her mobilehome.

II. FACTUAL BACKGROUND RELEVANT TO THE ATTACK ON SUSAN F.

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) According the probation report, on May 24, 2000, defendant entered the mobilehome of Susan F. in her absence. When Susan F. returned home, she noticed the drapes to her bedroom had been closed. Susan F. entered her bedroom. As Susan F. bent to pick up a bra on the floor that had not been there earlier, defendant shut the bedroom door. Defendant had been waiting for her in the corner of the bedroom. Defendant threw Susan F. on the bed. Defendant was holding a three-inch serrated knife. Defendant bound and gagged Susan F. After licking her breasts, defendant placed his fingers in her vagina moving them in and out for three or four minutes. Defendant then forcefully raped Susan F. with the knife held close to her face. As he was raping her, defendant said, "I am going to fuck you so hard, harder than you have ever been in your life." Before leaving her residence, according to the probation report, "[T]he defendant told the victim, that if she did not be quiet, he knows w[h]ere her son goes to school and he would hurt her son." Defendant pushed Susan F. back on the bed. Defendant then once again threatened to hurt the son of Susan F. Defendant took several items of Susan F.'s jewelry from her home.

Defendant was arrested on July 17, 2000, in Martin County, Florida. Defendant was apprehended by Martin County sheriffs deputies while attempting to flee by bus to Buffalo, New York. When deputies approached the trailer where defendant was hiding, he fled. He was arrested after he "fled out the back door." A bag defendant had packed for the trip to Buffalo, New York contained a "12 gauge shotgun".

III. DISCUSSION

Defendant argues the trial court improperly imposed a restitution fine that included reimbursement to Susan F. for the relocation costs she incurred in purchasing a new mobilehome.

A. Procedural Background

At the time defendant entered his guilty pleas on January 29, 2001, the trial court, continued sentencing and ordered the probation department to prepare a report, including the amount of restitution due Susan F. On March 9, 2001, the trial court requested documentation detailing the economic damages suffered by Susan F. and continued the sentencing hearing. At the April 19, 2001, sentencing hearing, counsel stipulated to the fact that Susan F. sold her mobilehome for $13,000 and purchased a new mobilehome for $26,575. However, defense counsel objected to an award to Susan F. of the difference between the sale and purchase prices of the two residences as part of the restitution order. Susan F. testified she sold her mobilehome to the first available buyer because she wanted to leave the residence where she had been raped and her son threatened. Susan F. stated: "There's a ton of bad memories. I mean, I just can't live like that." Susan F. acknowledged that she might have been able to sell her mobilehome for more money if she had waited and utilized the services of an agent. She further stated she bought a mobilehome of the same size in a gated community because that was all she could afford. A letter prepared by a Los Angeles County sheriffs detective identified only as L. Valentine revealed Susan F.'s original mobilehome was incapable of being secured from intruders because of its shoddy construction. Detective Valentine described the flimsy construction of the trailer where Susan F. was sexually assailed as follows, "[E]ven if you secured the doors and windows, it would not take much effort to punch your way through the walls or shimmy the louver windows and gain access to the home." Detective Valentine further reported: "The victim is suffering emotional stress as a result of the assault. She is in constant fear of being assaulted again. She has made statements to the effect that she is unable to live a normal life and that she is in fear of her son's safety. It is my opinion that the victim and her son would benefit from long term psychological therapy." The sexual assault occurred on May 24, 2000. Defendant was not arrested until July 17, 2000. Susan F. completed the purchase of her residence after defendant's arrest.

B. Restitution

In 1982, California voters amended the state Constitution by way of initiative which established a new constitutional right for crime victims to obtain restitution for losses suffered as a result of a criminal act and directed the Legislature to enact laws empowering the trial courts to issue such orders. Article I, section 28, of the California Constitution provides, "(b) Restitution. It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer." (See also People v. Broussard (1993) 5 Cal.4th 1067, 1070-1074, 22 Cal.Rptr.2d 278, 856 P.2d 1134 [victim restitution is mandated by the California Constitution]; People v. Young (1995) 38 Cal.App.4th 560, 564-567, 45 Cal.Rptr.2d 177 [same].) Section 1202.4, which implements the constitutional mandate, provides in pertinent part: "(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. [¶] ... [¶] (f) 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. ... [¶] ... [¶] (3) ... [¶] (I) Expenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim." This language controls the outcome of the present appeal.

1. Standard of review

We review a restitution order for abuse of discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992, 81 Cal. Rptr.2d 886; People v. Ortiz (1997) 53 Cal.App.4th 791, 800, 62 Cal.Rptr.2d 66.) Our colleagues in Division Two of this appellate district noted, "Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious." (People v. Thygesen, supra, 69 Cal.App.4th at p. 992, 81 Cal.Rptr.2d 886; see also People v Carbajal (1995) 10 Cal.4th 1114, 1121, 43 Cal.Rptr.2d 681, 899 P.2d 67; People v. Draut (1999) 73 Cal.App.4th 577, 581-582, 86 Cal.Rptr.2d 469; People v. Tucker (1995) 37 Cal.App.4th 1, 6, 44 Cal.Rptr.2d 1.) As our colleagues in the Court of Appeal for the Fourth Appellate District, Division Two, recently held, "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." (People v. Dalvito (1997) 56 Cal.App.4th 557, 562, 65 Cal. Rptr.2d 679; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1390, 44 Cal.Rptr.2d 501.) Moreover, in People v. Rowland (1997) 51 Cal.App.4th 1745, 1754, 60 Cal. Rptr.2d 351, our colleague, Presiding Justice J. Anthony Kline, noted, "The statute [§ 1202.4] requires the award be set in an amount which will fully reimburse the victim for his or her losses unless there are clear and compelling reasons not to do so...."

2. Legislative intent

While recognizing the mandate of the constitution and section 1202.4 to provide such restitution, we have found no authority discussing a restitution award similar to that made in this case. We must, therefore, interpret the statute to determine if the relocation losses are...