The People v. Balestra

• Decision Date: 04 November 1999
• Citation: 76 Cal.App.4th 57,90 Cal.Rptr.2d 77
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 4 Dist. 1999) THE PEOPLE, Plaintiff and Respondent, v. DESIREE LU BALESTRA, Defendant and Appellant. D031953 Filed

Page 77

90 Cal.Rptr.2d 77 (Cal.App. 4 Dist. 1999)

THE PEOPLE, Plaintiff and Respondent, v. DESIREE LU BALESTRA, Defendant and Appellant.

D031953

STATE OF CALIFORNIA COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE

Filed 11/4/99

APPEAL from an order of the Superior Court of San Diego County, Richard J. Hanscom, Judge. (Judge of the Municipal Court for the San Diego Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed.

(Super. Ct. No. SCD134034)

Laurel Nelson Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle M. Boustany and Richard S. Armstrong, Deputy Attorneys General, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

BENKE, Acting P.J.

By information filed January 15, 1998, the District Attorney of San Diego County accused Desiree Lu Balestra (Balestra) in one count with inflicting willful cruelty on an elder, in violation of Penal Code section 368, subdivision (a)¹; in a second count with false imprisonment by violence, in violation of section 237; in a third count with assault by means likely to produce great bodily injury, in violation of section 245, subdivision (a)(1); and in a fourth count with having made a terrorist threat, in violation of section 422.

On February 11, 1998, Balestra entered a plea of guilty to the count one charge of elder abuse (the victim was Balestra's 69-year-old mother, Dolores Holden) on condition the remaining charges be dismissed and the current plea would not be considered a "strike" for future purposes. On March 13, 1998, Balestra was granted probation on condition she serve 210 days in custody, submit her person and property to search with or without probable cause, undergo drug and alcohol testing if so directed, and repay probation and legal representation costs. Restitution to the victim was deferred to a future hearing.

Five victim restitution hearings were conducted over the next seven months, culminating in an order of September 2, 1998, requiring Balestra to pay her mother the sum of $7,198 as victim restitution. On September 9, 1998, Balestra filed her notice of appeal from the sentence imposed.

FACTS²

On the evening of January 7, 1998, Balestra came home about 8 p.m. Her mother smelled alcohol on her, and the two of them continued an argument they had begun over the telephone earlier. (Balestra's mother described her as acting "weird" that evening.)

At about 10:20 p.m., Balestra went into her mother's room, shut the door behind her and told her mother that she was not free to leave. Balestra told her mother she had never liked her, and said: "This is bye-bye . . . you won't be here tomorrow . . . I'm going to have some fun with you." Balestra also told her mother about two other people she had assaulted; a roommate whom Balestra claimed to have "bloodied from head to toe," and a boyfriend to whose head Balestra had held a knife.

Balestra then beat and otherwise terrorized her mother for the next two hours, pushing Dolores's head into her chest, pulling her hair, beating her on the arms, shoulder, back and legs, and tearing up personal letters and other sentimental objects that belonged to Dolores, while professing her hatred of her mother.

Dolores could not escape until she hit Balestra, and the two of them fell to the floor. Dolores then seized the opportunity to run out of the house, go next door, and call 911.

PROCEDURE

Guilty Plea

On February 11, 1998, Balestra appeared and entered a plea of guilty to the charged elder abuse, on condition that (1) the People dismiss the rest of the charges and (2) that this felony not count as a strike against her for future purposes. At this time, the judge commented to Balestra that "you need treatment for what everybody appears to agree is an alcohol problem which you have . . . ."

Grant of Probation

The probation report recommended Balestra receive probation on condition she spend 210 days in local custody. The report also recommended alcohol treatment in a residential program, submission to a search condition, drug/alcohol testing at the discretion of the probation officer, and repayment of costs of probation. The report also noted Balestra (despite her plea of guilty) was now asserting that her mother unfairly accused her of drinking when she only had a couple of glasses of wine that night, that she had not abused her mother, and that her mother had perhaps injured herself "trying to get out the window and by bumping against the wall."

On March 13, 1998, Balestra appeared for sentencing. Among other things, Balestra's counsel objected to the search condition and the condition for drug/alcohol testing, but had no objection if the court would delete references to drugs. The court found the search condition to be "appropriate in view of the circumstances in this case," and declined to modify the drug or alcohol testing requirements, observing that it was unlikely the probation department, with limited resources, would insist on routine drug screening of Balestra. The hearing on the amount of victim restitution was set for a future date.

The Victim Restitution Hearings

Eventually, Dolores testified as to the damages inflicted on her by Balestra and her orthodontist testified the estimated cost of repairing the damages inflicted on her by Balestra was $8,350. The court found the testimony of the orthodontist "very reasonable," and later ordered that restitution in the amount of $7,198 be made, at the previously ordered rate of $75 monthly.

STANDARD OF REVIEW

Balestra urges that the restitution order was not supported by substantial evidence, that improper search and drug-testing probation conditions were imposed, and that other terms of her probation violated her plea agreement in this case.

As to Balestra's assertion of abuse of discretion in setting the amount of restitution, Division Two of this district has set out the applicable standard:

"The terms and conditions set by the trial court for victim restitution will not be overturned unless the trial court abused its discretion. 'Restitution as a condition of probation is favored by public policy both as a means of doing justice to the victim [citation], and for rehabilitation of the offender [citations]. . . . Where there is a factual and rational basis for the amount of restitution set, no abuse of discretion will be found by the reviewing court.' [Citation.]" (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1391.)

The assertion improper conditions of probation were imposed is reviewed under a similar, highly deferential standard: "'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

DISCUSSION I

Restitution Order

Balestra argues that the trial court abused its discretion when it set the restitution amount. As noted above, however, all that is required on appellate review of a restitution order is that a rational basis for the order appear in the record. Here, that rational basis is clear.

As appellate courts have frequently observed, "[T]he trial court is vested with broad discretion in setting the amount of restitution; it may '"use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole . . . . "' [Citations.]" (People v. Tucker (1995) 37 Cal.App.4th 1, 6.)

We highlighted in the standard of review the rule that "the court is not limited to the transaction or amounts of which the defendant is actually convicted." (People v. Whisenand, supra, 37 Cal.App.4th at p. 1391.) Our Supreme Court also held that "[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; see also People v. Ortiz (1997) 53 Cal.App.4th 791, 800.)

In this case, the trial court heard and weighed all of the conflicting evidence, and determined that the sum of $7,198 was proper. There being a rational basis for the trial court's determination, and in view of the broad discretion that is afforded the trial court and the lack of any requirement that a restitution order be limited only to exactly provable losses, we may not now overturn the order.

II Probation Conditions

Balestra also argues the imposition of consent to search condition of her probation, as well as a drug-testing condition, were abuses of discretion. We do not agree.

A. The Statute

Probation is governed by statute. That statute, section 1203.1, provides in pertinent part: "The court or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence . . . . [] . . . The court may impose and require . . . reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach and generally and specifically for the reformation and rehabilitation of the probationer, and that should the probationer violate any of the terms or conditions...