MELISSA J. v. Superior Court

California Court of Appeal Mar 20, 1987 No. A036221Published

Before: White

AI Brief

AI-generated · verify before citing

Holding. The court held that the notice and hearing requirements of Penal Code section 1191.1 are mandatory regarding restitution, and that a trial court errs by terminating a victim's restitution without providing the victim notice and an opportunity to be heard.

Issues

Whether a trial court may terminate a victim's restitution without providing the victim notice and an opportunity to be heard under Penal Code section 1191.1.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“Proper determination of restitution rights cannot take place without notice and an opportunity for the victim to be heard. Thus, as to restitution, the notice and right to appear requirements are mandatory.”

“We conclude that the court erred in terminating restitution without first satisfying itself that petitioner had been properly notified of the hearing.”

Opinion

WHITE, P. J.

Petition for Writ of Mandate/Prohibition

This petition, brought by the victim of criminal conduct and by her mother, challenges a ruling terminating restitution to the victim. The ruling was made without notice to the victim or an opportunity to object to the defendant’s motion to terminate restitution. We conclude that the court violated Penal Code section 1191.1, a provision added as part of Proposition 8, “The Victims’ Bill of Rights,” adopted June 8,1982. We set aside the order terminating restitution.

Carl Edward Williams was convicted of molesting Melissa J., who is now nine years old. As part of his probation order, he was ordered to pay the victim $400 per month for psychological counseling with her chosen therapist. Melissa J. entered a therapeutic relationship with a counselor and was said to be progressing well when, on August 12, 1986, she was first notified

[478]

that a week earlier the court had ordered termination of the restitution requirement. Notice came in a letter from a probation officer, with a copy of the order attached. The letter advised her that she would be responsible for the cost of any treatment received after July 30, 1986. Fearing that the trial court might not consider her a party to the proceeding to terminate restitution and therefore might not consider a motion for relief from that order, petitioner filed a petition for extraordinary relief in this court.

Penal Code section 1191.1 provides, in pertinent part: “The victim of any crime, or his or her parent or guardian if the victim is a minor ... has the right to attend all sentencing proceedings under this chapter and shall be given adequate notice by the probation officer of all sentencing proceedings concerning the person who committed the crime. [1Í] The victim, or his or her parent or guardian if the victim is a minor ... has the right to appear, personally or by counsel, at the sentencing proceeding and to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution. The court in imposing sentence shall consider the statements of victims, parents, or guardians... made pursuant to this section

MELISSA J. v. Superior Court

AI Brief

WHITE, P. J.

More from California Court of Appeal

Related research

AI Brief