Opinion
A dеfendant is convicted of sexually molesting a child. The victim’s brother receives psychological counseling because of emotional damage he suffered as a result of the crime. Here we conclude the brother is a victim under Penal Code section 1202.4, subdivision (k), and the trial court properly may order defendant to pay restitution to the аgency that provided counseling to the brother. 1
Kevin Patrick O’Neal appeals his sentence after he pled guilty to two counts of committing a lewd act upon a child under the age of 14. (§ 288, subd. (a).) The court sentenced him to an eight-year prison term. It ordered victim restitution and imposed fines and penalty assessments. (§ 290.3.) We conclude, among other things, thаt the trial court did not err by ordering O’Neal to pay restitution for the psychological counseling expenses incurred by the brother of the victim. It also properly imposed twо fines and penalty assessments. We order that an error in the abstract of judgment be corrected to conform to the trial court’s ruling. The judgment is otherwise affirmed.
FACTS
O’Neal lived with his girlfriend Audrey L. and her two children Shayna L., age
Audrey submitted claims to the Victims Compensation Program for reimbursement of psychological counseling expenses for herself and the children. The California Victim Compensation Board and Government Claims (Victim Compensation Board) paid the clаims.
The probation report attached a letter from David in which he expressed his feelings about O’Neal. He said, “I never would have guessed that he could be that disgusting. I couldn’t believe it when it first came up, but it all fit together. The way he played me and Shayna against each other and made us fight—expanding our sibling rivalry—and treating us totally different. . . . That[’]s sick. I chose nоt to feel anything up until this point and since I had a chance to let it all out it[’]s coming like waves.”
At the January 21, 2003, sentencing hearing, the court ordered O’Neal to pay restitution to the Victim Compensation Board: $6,000 for Shayna, $4,950 for Audrey, $2,384 for David “and a further amount to be determined by the Court.” It ordered O’Neal to pay a fine of $1,350, including penalty assessments pursuant tо section 290.3.
O’Neal’s trial counsel said she needed “a chance to review” the restitution issues and requested another hearing on that issue. The court said, “What I would propоse is make these orders subject to your having the matter recalendared once you have had the chance to review those particular items.” But she did not file another motion on the restitution issue. On March 6, 2003, O’Neal filed this appeal.
On July 8, 2003, O’Neal’s appellate counsel filed a “Motion to Correct Restitution Order” in the trial court. Counsel said in his declaration that, “During my review of the record, I noticed that this Court ordered my client to pay restitution. I do not, in this motion, dispute the amount of restitution ordered, instead, I dispute the lеgality of one of the restitution orders [involving David].” The trial court denied the motion. It said, “[T]he case is presently on appeal and this court is without jurisdiction to make such orders аt this time.”
The abstract of judgment states, “Restitution to Shayna L. in sum of $6,000; to Audrey L. in sum of $4[,]950; and to David L. in sum of $2[,]384 and in an amount to be determined.”
DISCUSSION
I. Restitution
O’Neal contends the court erred by ordering him to pay restitutiоn of $2,384 for psychological counseling for David. The Attorney General claims O’Neal waived this issue by not challenging the restitution order in the trial court prior to filing this appeal. Wе agree.
(People
v.
Le
(1995)
O’Neal contends that David was not a crime victim. The California Constitution guarantees that crime victims will receive restitution. (Cal. Const., art. I, § 28, subd. (b);
People v. Broussard
(1993)
But we need not define the term “surviving,” because even if O’Neal’s interpretation is correct, the result is the same. He concedes that if
David were an actual victim of the offense, he would be entitled to restitution. O’Neal assumes that because he did not physiсally molest him, David cannot be a victim. But compensation is not restricted to physical injuries.
(People
v.
Broussard, supra,
Moreover, O’Neal concedes that restitution for derivative victims is apрropriate. A “derivative victim” is “an individual who sustains pecuniary loss as a result of injury or death to a victim.” (Gov. Code, § 13951, subd. (c).) A pecuniary loss is “an economic loss or expensе . . . .”
(Id.,
subd. (e).) O’Neal argues “[n]othing in the record suggests that David L. lost income or personally paid any expenses as a result of appellant’s actions.” He claims a restitution order was therefore unauthorized. But compensation for those who suffer injuries or incur expenses as a result of an offense is proper, “regardless of the nature of thеir loss.”
(People
v.
Broussard, supra,
A court may properly order restitution for mental health counseling expenses. (§ 1202.4, subd. (f)(3)(C).) Section 1202.4, subdivision (f)(4)(A), states, “If, as a result of the defendant’s conduct, the Restitution Fund has provided аssistance
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.”
(Italics added.) Consequently, the Victim Compensation Board, which paid for David’s counseling, is entitled to reimbursement.
(People v. Crow, supra,
6 Cal.4th at pp. 958-960;
People v. Ortiz
(1997)
O’Neal and the Attorney General agree that the abstract of judgment is incorrect. They note thаt the court mled that restitution for services must be paid to the Victim Compensation Board. But the abstract states it is paid to Shayna, Audrey and David. We order the abstract corrected to conform to the trial court’s ruling.
(People
v.
Mitchell
(2001)
II. The Fine and Penalty Assessments
O’Neal contends the court erred by imposing two fines and penalty assessments totaling $1,350. He claims it should have imposed a single $200 fine and penalty assessments of $340 and that multiple fines for multiple convictions in the same case are prohibited. We disagree.
“In construing a statute, our principle task is to ascertain the intent of the Legislature. [Citation.] We do so by first
O’Neal argues nothing permits the imposition of multiple section 290.3 fines in the same proceedings. But thе statute refers to fines for convictions, not fines for proceedings. O’Neal’s argument is based on the theory that his plea agreement must be treated as if it involved only one сonviction. But he pled guilty to two counts of committing a lewd act upon a child. Each count involved a separate conviction. Because there were two counts, O’Neal had a second or subsequent conviction under section 290.3.
The statute does not limit the number of fines that may be imposed for multiple convictions in the same case. If thе Legislature wanted to impose such a limitation, it would have done so.
(People
v.
Allison
(1995)
The Attorney General notes that adopting O’Neal’s position would mean there would be different fines for dеfendants who had the same number of convictions. If the prosecutor joined multiple counts in one case there would be a single fine, but there would be multiple fines if each сount was filed in a separate action. The Legislature did not intend such a result because it would be basing fines on the prosecutor’s procedural choice, not the numbеr of convictions. The court did not err by imposing the two fines and penalty assessments for the two convictions in this case.
We order the trial court to correct the abstract of judgment to reflect that restitution in the amount of $13,334 be paid to the Victim Compensation Board. In all other respects the judgment is affirmed.
Coffee, J., and Perren, J., concurred.
Appellant’s petition for review by the Supreme Court was denied January 12, 2005.
Notes
All statutory references are to the Penal Code unless otherwise stated.