THE PEOPLE,
A164374
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 11/14/23
CERTIFIED FOR PARTIAL PUBLICATION* (Contra Costa County Super. Ct. No. 4-200334-1)
BACKGROUND
At the preliminary hearing, a police officer testified he had observed a forensic interview with a 14-year-old minor (John Doe). Doe told police that when Doe was six years old, appellant, his father, “sucked [Doe‘s] penis” and “then his father had him suck his penis” while appellant‘s hands were “on the back of [Doe‘s] head.” The testifying officer observed Doe call appellant and recount the incident. After a long pause, appellant apologized and said he wanted to kill himself. Doe told police he remembered multiple incidents of inappropriate touching between the ages of five and ten. Doe said he had recently watched a TV show that made him realize these acts were wrong. The testifying officer did not describe Doe‘s demeanor during the interview or pretext call, or any emotional reaction from Doe. No other witnesses testified at the preliminary hearing.
The skeletal probation report did not include any information about Doe. At the sentencing hearing, the following victim impact statement from Doe was read by the prosecutor: “I am many things, but a victim I am not. I am a survivor. Realizing this was a spontaneous reaction to my realization that my father was not the leading, loving, supportive father that I deserved, but the piece of shit that he is today. As you all see him sitting in court today realize that he will not feel devastated to be sentenced to prison. He landed in the best place possible. He will be fed daily, given vaccines, sleep peacefully and be surrounded by many other pedophiles like himself. [\u00b6] Know that while you‘re in prison I will continue to strive in my life reaching my goals faster than ever as all you ever were to me was a setback.”
No additional evidence was presented in advance of or at the restitution hearing. Instead, the People argued noneconomic damages could be inferred from the nature of the crime; discussed child molestation cases awarding $50,000 and $100,000 per year of abuse; and requested a total of $100,000, or $50,000 per count. Appellant argued there was insufficient evidence to support the requested award.
The trial court stated, “The Court . . . has unfortunately experience with many, many cases just like this or very much like this. And common sense
DISCUSSION
“Pursuant to the California Constitution, victims of crime have a right to restitution from criminal defendants: ‘Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.’ (
“With one exception, restitution orders are limited to the victim‘s economic damages.” (People v. Smith (2011) 198 Cal.App.4th 415, 431 (Smith).) The exception is restitution may be ordered for “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7.” (
Appellant first argues the restitution order violated his constitutional right to a jury trial and equal protection. We reject the challenges.2
Appellant acknowledges the ample authority that a defendant is not entitled to a jury trial on victim restitution. (E.g., People v. Foalima (2015) 239 Cal.App.4th 1376, 1398 [“neither Apprendi v. New Jersey (2000) 530 U.S. 466 nor Southern Union Co. v. U.S. (2012) 567 U.S. 343 applies to direct victim restitution because direct victim restitution is not a criminal penalty“].) Appellant argues these cases are distinguishable because victim restitution for noneconomic losses is different. The same contention was rejected in Smith, supra, 198 Cal.App.4th at page 433, which reasoned, “there is no basis for distinguishing jury trial rights, or lack thereof, for restitution orders for economic damages and restitution orders for noneconomic damages. In both cases, the trial court is performing a task that, in a civil case, a jury would perform.” We agree with Smith.
Smith also rejected the equal protection argument, advanced by appellant here, that there is no rational reason to authorize noneconomic restitution only for certain child molestation crimes. Smith reasoned, “Differentiating between child victims and other victims is rational based on the vulnerability of children in general and society‘s interest in protecting children.” (Smith, supra, 198 Cal.App.4th at p. 435.) We again agree with Smith. Even assuming, as appellant argues, there are some cases in which a defendant convicted of a sexual offense against a child is not subject to noneconomic restitution, our conclusion is unchanged. “When conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made. A classification is not arbitrary or irrational simply because there is an ‘imperfect fit between means and ends.‘” (People v. Turnage (2012) 55 Cal.4th 62, 77.)3
II. Abuse of Discretion
“‘A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered.‘” (Lehman, supra, 247 Cal.App.4th at p. 801.) “The court ‘must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.‘” (People v. Valenti (2016) 243 Cal.App.4th 1140, 1182 (Valenti).) Appellant argues the restitution order is not supported by an adequate factual basis because there is no evidence of the impact of appellant‘s crimes on Doe. We agree.4
The parties discuss three published cases reviewing noneconomic restitution orders. In Smith, supra, 198 Cal.App.4th 415, evidence at trial established the defendant molested his stepdaughter for years. (Id. at pp. 420-421.) “The evidence presented at the restitution hearing established that defendant not only molested Doe, as established by defendant‘s convictions, but also isolated her and took advantage of a position of trust from the time she was eight years old until she left the home as an adult. She was still having nightmares and flashbacks concerning the abuse. And she had been in therapy to deal with the problems caused by the abuse. She was having difficulty keeping jobs, and, at age 30 at the time of the hearing, had not finished her education, still attending Folsom Lake College. She twice attempted suicide by overdosing on ibuprofen.” (Id. at p. 432.) The Court of Appeal held an award of $750,000\u2014$50,000 per year for 15 years of molestation\u2014was not an abuse of discretion. (Id. at pp. 433, 436-437.)
In Lehman, supra, 247 Cal.App.4th 795, evidence at trial established the defendant molested Jane Doe 1 from the time she was in grade school until the end of high school, and rubbed Jane Doe 2‘s back underneath her clothes
In Valenti, supra, 243 Cal.App.4th 1140, evidence at trial established the defendant committed felony continuous sexual abuse or felony lewd acts against eight children.5 (Id. at pp. 1149-1150.) For the victims of continuous sexual abuse, the abuse included oral copulation and sodomy. (Id. at pp. 1150, 1152-1153.) For the victims of lewd acts, the abuse involved cuddling, inappropriately long hugs, and having the victims sit on the defendant‘s lap. (Id. at pp. 1150, 1153-1154Id. at pp. 1180-1181 “The record contains no victim declarations, independent documentation, or professional evaluations. The only current information about [the lewd acts victims] was filtered through their parents and conveyed in the probation report or in a statement at sentencing,” and the parents reported their belief that these children “‘did not sustain actual child abuse‘” and were “doing fine” or “‘excellent.‘” (Id. at pp. 1182-1182, 1183.) The Court of Appeal reversed the restitution awards to these victims: “[T]he court in this case did not find facts, cite reliable evidence, or even explain how it arrived at the amount of restitution awarded to each victim. There was no evidence, either through direct testimony or victim-impact statements, that the children suffered nightmares or flashbacks, that they were having trouble in school or problems making friends, that they had considered harming themselves or others, or that they had sought or received counseling in any form. In fact, all three families were relieved that their sons had not ‘actually’ been abused. Because the court did not ‘demonstrate a rational basis for its award’ or ‘ensure that the record is sufficient to permit meaningful review,’ we reverse the awards . . . .” (Id. at pp. 1183-1184.)
We agree with appellant that this case is more akin to Valenti than to Smith or Lehman. To be sure, appellant‘s crimes are far more egregious than the lewd acts in Valenti. But the record reveals no evidence of the impact of the crimes on Doe. Doe did not testify at the preliminary hearing, sentencing, or restitution hearing; nor did his mother or any other person with knowledge of the impact of appellant‘s crimes. The brief statement read by the prosecutor at sentencing primarily expressed Doe‘s anger at appellant, and the lone statement of impact\u2014that appellant “was a setback” for Doe\u2014had no elaboration or even connection to the underlying crimes. This bare record is reflected in the trial court‘s explanation for its restitution award, which relies entirely on the court‘s experience with similar cases and its “common sense” understanding of the impact of “these types of acts.”
We do not dispute, as the People contend, that the nature of egregious crimes such as appellant‘s renders it very likely that the victim will be harmed. (See People v. Martinez (2017) 8 Cal.App.5th 298, 305 (Martinez) [“‘It is well recognized that “child sexual abuse results in long-term emotional and psychological damage to the child victim if left untreated.” [Citation.] And such abuse “is not the kind of act that results in emotional and psychological harm only occasionally.” ‘“].) Nonetheless, some evidence of the harm incurred by the particular victim of the crime is required to support a victim restitution award. “[A] crime victim may recover only for losses personally incurred by that victim.” (People v. Runyan (2012) 54 Cal.4th 849, 859-860; see also
We see no reason why this fundamental principle of victim restitution should not apply to noneconomic restitution. The distinguishing feature of noneconomic restitution is that such injuries are very difficult to quantify.
In sum, because there is no evidence of the impact of appellant‘s crimes on John Doe, and the trial court relied exclusively on its experience and common sense regarding similar incidents in awarding restitution, the trial court‘s restitution award was an abuse of discretion. We emphasize that the evidentiary bar is a low one, as demonstrated in the cases discussed above. Notably, our conclusion does not necessarily obligate the victim to present testimony or a statement about the impact, something prosecutors and trial courts may be reluctant to require, particularly when the victim is still a
DISPOSITION
The order is reversed and the matter is remanded for further restitution proceedings to determine a noneconomic restitution award, if any.
SIMONS, J.
WE CONCUR:
JACKSON, P. J.
CHOU, J.
People v. Gomez (A164374)
People v. Gomez (A164374)
Trial Court: Contra Costa County
Trial Judge: Hon. John Cope
Attorneys:
Meredith Fahn, under appointment by the Court of Appeal, by First District‘s Appellate Project‘s Independent Case System for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Katie L. Stowe, Deputy Attorney General for Plaintiff and Respondent.