Filed 9/1/22 P. v. Robles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315789
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA119775)
v.
JOSE LUIS ROBLES,
Defendant and Appellant.
APPEAL from a judgment of the Los Angeles County
Superior Court, Juan Carlos Dominguez, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Jose Luis Robles (defendant) appeals his convictions for
several child sex crimes against his stepdaughters as well as the
restitution award to compensate them for the pain and suffering
his crimes inflicted. We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Defendant becomes a stepfather to two
daughters
Julieta M. (mother) has several children, including I. (born
April 2004) and Natalie (born May 2005). In September 2013,
mother married defendant. Although I. and Natalie were still in
touch with their biological father, defendant soon occupied a
“parental” role as their stepfather.
B. Defendant repeatedly molests I. in 2014
1. Vaginal penetration
One day prior to August 27, 2014, and when I. was nine or
ten years old, defendant went into I.’s bedroom, pulled down her
underwear, rubbed his fingertip along I.’s vaginal labia, and for
30 seconds inserted his finger approximately one-quarter to one-
half inch between her labia in order to rub her clitoris. I. was
“very uncomfortable,” but did not resist and did not report the
incident because she was “scared” of defendant due to his
tendency to “lash out” by “screaming” and hitting her if he was
upset.
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2. Forced masturbation
On two or three occasions prior to August 27, 2014, while I.
was nine or ten years old, defendant lay next to I., wrapped her
hand around his naked and erect penis, and with his hand above
hers, forced her to stroke his penis until he ejaculated on her
hand. Although defendant told I. he would not do it again after
the first time, he engaged in the same behavior one or two more
times. Defendant told her not to tell others about it.
3. Grinding against I.’s buttocks
On another day prior to August 27, 2014, defendant
entered I.’s room, laid down beside her, pulled down her pajamas
and underwear, pushed his erect penis against her buttocks, and
held her tightly while rubbing his penis to and fro.
C. Defendant repeatedly molests Natalie in 2014
A few months before August 27, 2014, defendant lay next to
Natalie in her bed after he had a fight with mother. Natalie was
“around nine” years old at the time. Natalie woke to find that
defendant had wrapped the fingers of her right hand around his
naked and erect penis, and was moving her hand up and down.
When she asked him what he was doing, defendant said,
“Nothing.” Natalie fell back asleep, and awakened again to find
that defendant had resumed moving her hand on his penis until
he ejaculated. He then told her to go wash her hands. Defendant
told her not to tell anyone what had happened. Natalie did not
stop defendant or tell anyone about defendant’s conduct because
she was afraid of him because he “gets mad for everything.”
D. Natalie reports abuse, as does I., and defendant
is kicked out of the family home
Natalie did not immediately report what defendant did to
her. It was not until a few months later—on August 27, 2014—
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that she told an usher at her church, who then told the pastor,
who then confronted defendant. When the family returned home
from church that day, mother asked I. if defendant had molested
her as well. That is when I. admitted the abuse she had suffered
at defendant’s hands.
Because the pastor had reported the abuse to the police,
officers showed up at the family’s apartment the next day. By
then, however, mother had moved herself and the girls out of the
apartment and instructed the girls to lie and deny any abuse by
defendant. After all leads on the family’s whereabouts hit dead
ends, the police halted their investigation.
E. Mother reconciles with defendant, who moves
back in and resumes his molestation of Natalie
Although mother insisted upon divorcing defendant once
his sexual abuse came to light, within a year she reconciled with
him and he moved back in with the family. In 2018, they
remarried.
In 2018, when Natalie was 13 years old, defendant grabbed
Natalie’s breasts through her clothing, squeezing and massaging
them in a circular motion. He told her to “keep it a secret” and
not say anything. Defendant did the same thing on another
seven or eight occasions.
F. Natalie reports abuse when calling a suicide
hotline
Already feeling that mother had chosen defendant over
protecting her, Natalie started feeling suicidal after defendant
started groping her breasts in 2018. She started using razor
blades to cut herself. She eventually called a suicide hotline.
During that call, she reported defendant’s sexual abuse. The
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hotline referred the matter to the police, who reopened the
dormant case from 2014.
G. Defendant’s changing story
To the pastor and mother at the church (and before mother
asked defendant if he had molested I.), defendant admitted to
molesting Natalie.
To the police when they first approached him to arrest him
in 2018, defendant spontaneously said, “I know why you’re here,”
and “I am ready to face whatever needs to be done.”
To the police during a subsequent, video-recorded
interview, defendant admitted to touching I.’s vagina and forcing
I. to masturbate him on multiple occasions. He denied that he
did anything to Natalie, declaring that Natalie “lies all the time.”
Defendant told the police that he had told the pastor he had
molested Natalie only because he was just “[going] along with
what was being said at the time.”
II. Procedural Background
A. Charges
In the operative first amended information, the People
charged defendant with (1) four counts of committing a lewd act
upon a child 14 years or younger (Pen. Code, § 288, subd (a))1 for
(a) forcing I. to masturbate him in 2014 (count 4), (b) putting his
erect penis against I.’s buttocks in 2014 (count 8), (c) forcing
Natalie to masturbate him in 2014 (count 1), and (d) groping
Natalie’s breasts in 2018 (count 2), and (2) one count of sexual
penetration with a child 10 years or younger (§ 288.7, subd. (a))
for inserting his fingertip between I.’s labia in 2014 (count 3).
The People further alleged that defendant had committed his
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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crimes against multiple victims within the meaning of our State’s
One Strike Law (§ 667.61, subds. (b) & (e)).
B. Preliminary hearing
Both I. and Natalie testified at defendant’s preliminary
hearing. During her testimony, Natalie denied that defendant
touched her breasts in 2018.
C. Trial
The matter proceeded to a jury trial.
I. and Natalie testified to the various incidents of sexual
molestation set forth above. Natalie explained that the reason
she had denied that defendant touched her breasts during her
preliminary hearing testimony was that she did not want her
mother “to get the same consequences.” (Mother had been
charged with being an accessory after the fact (§ 32), but
ultimately pled no contest to a misdemeanor count of child
endangerment.)
The People called a clinical psychologist as an expert to
testify about child sexual abuse accommodation syndrome, as a
means of explaining why Natalie and I. had quietly submitted to
defendant’s sexual abuse, had delayed in reporting that abuse,
and why Natalie’s disclosures were partial.
Defendant took the stand in his defense. He flatly denied
ever touching I. or Natalie. He asserted that he had falsely
confessed to the pastor because mother had “nag[ged]” him into
confessing. He asserted that the police were lying about the
spontaneous statements he made at the time of his arrest. And
he asserted that he falsely confessed to molesting I. during his
videotaped interview because the interviewing officer had
promised to “help [him]” and that everything would “be over” if
defendant specifically admitted to "touch[ing I.] two or three
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times and [that I.] masturbated [him].” Defendant testified that
I. and Natalie had fabricated the charges because they wanted to
be with their biological father.
The jury found defendant guilty of all charges and found
true the special allegation.
D. Sentencing and restitution
The trial court sentenced defendant to prison for 45 years
to life. Specifically, the court imposed three consecutive
sentences of 15 years to life for two of the lewd act convictions
(the ones involving defendant forcing I. and Natalie to
masturbate him) and the sexual penetration conviction, and ran
the remaining two 15 year to life sentences concurrently.
The People asked the trial court to award I. and Natalie
restitution for the pain and suffering defendant inflicted upon
them by virtue of his sexual abuse. Through testimony during
the trial and at the sentencing hearing, both girls testified to the
impact of defendant’s sexual abuse: Natalie testified that she
continues to have emotional problems “almost every day,” still
cries and has trouble sleeping because of the incidents, has
engaged in self-cutting behavior, has considered suicide multiple
times, and is still in mental health counseling; I. testified that
she suffered depression “for a little bit,” continues to suffer from
weekly anxiety attacks, still thinks about the abuse and gets
emotional thinking about it, still has trouble sleeping, and is still
in mental health counseling. Both girls are also now in the foster
care system because defendant’s sexual abuse and mother’s
willingness to subject them to it placed the girls in the juvenile
dependency system; now they live apart and in foster homes,
from which Natalie has run away several times. The trial court
recognized the difficulty of fixing an amount of noneconomic
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damages, and invited supplemental briefing from both parties.
The People filed a supplemental brief. The court subsequently
issued a written order finding that defendant had “severely
traumatized” I. and Natalie “on a number of occasions,” that this
severe trauma has “detrimentally affected their everyday life,”
and that the girls “will continue to endure psychological pain and
distress caused by the acts of the defendant” “for possibly the rest
of their lives.” As its “best estimation of the amount of money
which will minimally compensate these victims for what they
have and will continue to endure,” the court awarded each girl
$332,500 in restitution for their pain and suffering—calculated as
$350,000 minus five percent to account for mother’s conduct in
“allowing the defendant to return to live at the home” with
knowledge of his molestation and in having the girls lie to the
police about his abuse.
E. Appeal
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant raises three arguments on appeal—two aimed at
his convictions and one at the restitution order. First, he argues
that the trial court erred in admitting evidence that he, on one
occasion, threatened to use a belt to punish Natalie. Second, he
argues that the pattern jury instruction used to limit the jury’s
use of the expert’s opinion on child sexual abuse accommodation
syndrome (CALCRIM No. 1193) injected error into his trial.
Lastly, he argues that the amount of restitution awarded was
arbitrary and excessive.
I. Evidentiary Issue
At trial, Natalie testified to one incident where defendant
had threatened to beat her with a braided belt after he got upset
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with her for wanting to shower instead of fold laundry; mother
intervened and “block[ed] him” before he touched Natalie. Prior
to trial, the trial court—over defendant’s Evidence Code section
352 objection—had held that this incident was admissible
because it was “highly” “probative” to explain Natalie’s fear of
defendant (and thus why Natalie did not immediately report
defendant’s sexual abuse), and that this probative value
outweighed the prejudicial impact of the incident. Defendant
argues that this ruling was error. We review such rulings for an
abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718,
743.)
Section 352 grants trial courts the “discretion” to “exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
(Evid. Code, § 352.)
The trial court did not abuse its discretion in admitting
Natalie’s testimony about the belt incident. Both Natalie and I.
testified that they were “scared” of defendant, and that their fear
of him is partly why they did not stop or immediately report his
abuse. (Natalie also testified that she did not report the 2018
abuse partly because she also feared mother would not support
her.) The belt incident is a concrete example of how defendant
would “lash out” and “get mad at everything,” which the girls
otherwise testified to without objection. Thus, the belt incident is
highly probative in explaining the victims’ delayed disclosure of
the sexual abuse, and hence probative to rebut the inference of
lack of credibility that might arise from their delayed disclosure.
Contrary to what defendant suggests, this probative value is not
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speculative. (Cf. People v. Brady (2005) 129 Cal.App.4th 1314,
1337-1338.) The evidence was certainly prejudicial to the extent
it was not flattering to defendant. But “‘undue prejudice’” for
purposes of section 352 means that the evidence is likely to evoke
an “emotional reaction” from the “jurors.” (People v. Valdez
(2012) 55 Cal.4th 82, 145.) And compared to the far more
egregious charges at issue, evidence that defendant made an
unfulfilled threat to physically harm Natalie was not likely to
evoke an emotional reaction that substantially outweighs the
probative value of this evidence.
Defendant resists this conclusion with what boil down to
two further arguments. First, he argues that the belt incident
has minimal or no probative value because it involved only
Natalie and occurred in 2018, and because Natalie did not delay
in disclosing his postincident groping of her breasts in 2018. We
reject this argument. To begin, there was delayed disclosure in
2018 because defendant subjected her to eight or nine incidents
before she reported it. Further, the belt incident is evidence of
defendant’s overall hot-headedness, which both Natalie and I.
testified was part of the reason they were “scared” of him and
complied with his sexual advances without objecting or reporting
them. Second, defendant argues that the belt incident undercut
his credibility, which was critical in a case where it was his word
against the girls’. This argument ignores that the prejudice from
this evidence arises because it tends to show his tendency toward
violence, which is wholly separate from his truthfulness. (People
v. Beagle (1972) 6 Cal.3d 441, 453 [“Acts of violence . . . generally
have little or no direct bearing on honesty and veracity.”],
superseded by constitutional amendment on other grounds as
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stated in People v. Castro (1985) 38 Cal.3d 301, 307-308; People v.
Holt (1984) 37 Cal.3d 436, 457 [same].)
II. Instructional Issue
Expert testimony on child sexual abuse accommodation
syndrome is admissible if (1) the testimony is “tailored to address
the specific myth[s] or misconception[s] suggested by the
evidence” in terms of how children react to sexual abuse, and (2)
the jury is instructed that “the expert’s testimony is not intended
and should not be used to determine whether the victim’s
molestation claim is true.” (People v. Bowker (1988) 203
Cal.App.3d 385, 391-394; People v. Wells (2004) 118 Cal.App.4th
179, 188; People v. McAlpin (1991) 53 Cal.3d 1289, 1301; People v.
Humphrey (1996) 13 Cal.4th 1073, 1095-1096 (conc. opn. of
Brown, J.).)
The first of these requirements was met. The expert’s
testimony in this case was “tailored to address specific myth[s]
and misconception[s]” about how child abuse victims react: The
expert testified about how child sexual abuse victims—contrary
to how “the public” might “expect [child-victims to] react[]”—
typically “accommodate[]” the abuse by “pretend[ing] to be
asleep,” and how child-victims tend to make a “delayed” or
“partial disclosure” of the abuse they suffer. This testimony
countered defendant’s videotaped confession, defendant’s trial
testimony and the defense attorney’s argument—all of which
portrayed Natalie and I. as lying about the abuse.
Defendant disputes whether the second requirement was
satisfied by the trial court’s reading of the pattern CALCRIM No.
1193 instruction. We evaluate this challenge to the jury
instructions de novo. (People v. Mitchell (2019) 7 Cal.5th 561,
579.)
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We conclude that the CALCRIM No. 1193 instruction
sufficiently instructed the jury that the expert’s testimony was
not to be used to evaluate whether Natalie and I. were, in fact,
abused. As given in this case, the instruction provides:
“You have heard testimony from Dr. Jayme Jones
regarding child sexual abuse accommodation syndrome.
“Dr. [Jones’s] testimony about child sexual abuse
accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against him.
“You may consider this evidence only in deciding whether
or not Natalie[’s] and/or [I.’s] conduct was not inconsistent with
the conduct of someone who has been molested, and in evaluating
the believability of their testimony.”
Every court to have considered this instruction has found it
to be sufficient to satisfy the requirements for admitting child
sexual abuse accommodation syndrome expert testimony. (See
People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504; People v.
Lapenias (2017) 67 Cal.App.5th 162, 175-176; People v. Munch
(2020) 52 Cal.App.5th 464, 473-474.) We agree with the
reasoning and holdings of these cases.
Defendant nevertheless proffers five bases upon which to
disregard or distinguish this solid wall of precedent.
First, defendant argues that CALCRIM No. 1193, by
allowing a jury to treat inconsistencies in a child witness’s
reporting of the abuse as “not inconsistent with the conduct of
someone who has been molested,” “in essence” allowed Natalie to
use the inconsistencies in her reporting of abuse as proof that she
was a credible witness, thereby “improperly bolstering her
credibility.” We disagree. “A reasonable juror would understand
CALCRIM No. 1193 to mean that the jury can use” the expert’s
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testimony as a basis for concluding that Natalie was not
unbelievable merely because she engaged in the seemingly “self-
impeaching behavior” of delaying and inconsistently reporting
the abuse she suffered. (Gonzales, supra, 16 Cal.App.5th at p.
504.) If this particular use of the expert’s testimony were
enough, as defendant asserts, to render it inadmissible, then
expert testimony on child sexual abuse accommodation syndrome
would never be admissible—a holding that would require us to
disregard our Supreme Court’s decision in McAlpin. (Accord,
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455 [appellate courts may not disregard Supreme Court
precedent].)
Second, and relatedly, defendant argues that CALCRIM
No. 1193 is confusing because it provides that a jury may
consider the expert’s testimony about child sexual abuse
accommodation syndrome “only in deciding whether [the victim’s]
conduct was not inconsistent with the conduct of someone who
has been molested, in evaluating the believability of [her]
testimony.” (Italics added.) Defendant urges that the double
negative is confusing and misleading. We disagree. By using the
phrase “not inconsistent,” CALCRIM No. 1193 conveys that the
syndrome may be used to explain how a child-victim’s
counterintuitive conduct is not inconsistent with the victim telling
the truth, effectively negating the weight of the victim’s
counterintuitive conduct. That dovetails perfectly with the legal
mandate that evidence of this syndrome may only be admitted to
dispel the common myths and misconceptions about how child
sex abuse victims typically react. (Bowker, supra, 203 Cal.App.3d
at pp. 391-394.) Were CALCRIM No. 1193 to substitute the word
“consistent” for the phrase “not inconsistent,” the instruction
13
would allow the child victim’s seemingly counterintuitive conduct
to be used as affirmative evidence of the alleged molestation,
thereby putting a thumb on the scale of the victim’s credibility
and ostensibly transgressing the limitation that evidence of this
syndrome not “be used to determine whether the victim’s
molestation claim is true.” (Ibid.) Thus, defendant’s argument is
wrong to equate the phrase “not consistent” with the word
“consistent” in the context of this instruction, and his argument
based on this false equivalency necessarily crumbles.
Third, defendant argues that CALCRIM No. 1193 does not
sufficiently advise jurors that they may not use the syndrome
evidence for any purpose other than the one specified—namely,
“only in deciding whether or not Natalie[’s] and/or [I.’s] conduct
was not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of her testimony.”
(Italics added.) The “Related Instructions” for CALCRIM No.
1193, defendant notes, recommends that trial courts also instruct
with CALCRIM No. 303—which reminds jurors that evidence
“admitted for a limited purpose” may be “consider[ed] . . . only for
that purpose and for no other”—whenever they instruct with
CALCRIM No. 1193. The absence of an affirmative declaration of
what is prohibited, defendant concludes, creates too great a risk
of misuse of the syndrome evidence. We disagree. CALCRIM No.
1193 explicitly limits the use of the syndrome evidence by stating
the “only” purpose for which it may be considered. A further
instruction to effectively add “only and for no other [purpose]” is
duplicative and, at bottom, an unnecessary set of “suspenders” for
the proverbial “belt” of CALCRIM No. 1193.
Fourth, defendant argues that CALCRIM No. 1193 left the
door open for the prosecutor to impermissibly argue that the
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inconsistencies in Natalie’s and I.’s testimony constituted
affirmative evidence in favor of their credibility. Yet the
prosecutor’s allegedly offending argument is no more than the
legitimate argument that “how [the girls] disclosed” and “the
method of their disclosure” were “consistent exactly with what
[the expert] talked about” regarding the syndrome that explains
the “unusual” “behavior” of “children” in reporting sexual abuse
crimes.
Lastly, defendant argues that other jurisdictions either
prohibit or place greater limitations on the admission of child
sexual abuse accommodation syndrome evidence. We must follow
California law.
III. Restitution
Defendant argues that the trial court erred in awarding
$332,500 in noneconomic, pain and suffering damages each to
Natalie and I. Consistent with the constitutional imperative of
Marsy’s Law, section 1202.4 obligates a trial court to “order full
restitution” to crime victims. (§ 1202.4, subds. (a)(1) & (f).)
Restitution is usually confined to “economic loss incurred as the
result of the defendant’s criminal conduct” (id., subd. (f)(3)), but
can include “[n]oneconomic loss, including, but not limited to,
psychological harm” for certain child sex crimes, including for the
violations of sections 288 and 288.7 at issue in this case (id.,
subd. (f)(3)(F)). Because noneconomic damages are “subjective,
non-monetary losses including, but not limited to, pain, suffering,
inconvenience, mental suffering, emotional distress, loss of
society and companionship, loss of consortium, injury to
reputation and humiliation” (Civ. Code, § 1431.2, subd. (b)(2)),
“noneconomic loss is subjectively quantified” (People v. Smith
(2011) 198 Cal.App.4th 415, 436 (Smith)). Thus, and because we
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generally review restitution orders for an abuse of discretion
(People v. Giordano (2007) 42 Cal.4th 644, 663-664), we must
affirm a trial court’s order awarding a specific amount of
noneconomic damages as long as there is substantial evidence in
the record to support such an award (People v. Lehman (2016)
247 Cal.App.4th 795, 804-805 (Lehman)), and as long as the
amount “does not, at first blush, shock the conscience or suggest
passion, prejudice or corruption on the part of the trial court.”
(Smith, at p. 436; Lehman, at pp. 801-802.)
The trial court did not abuse its discretion in awarding
Natalie and I. each $332,500 in restitution because that amount
does not “shock the conscience.” Based on their testimony at trial
and at the sentencing hearing, substantial evidence supports the
court’s findings that defendant’s criminal acts had “severely
traumatized” them in a way that still caused them to “endure
psychological pain and distress” at the time of the restitution
hearing and that would continue to do so for “possibly the rest of
their lives.” (Cf. People v. Valenti (2016) 243 Cal.App.4th 1140,
1182-1183 [restitution award for noneconomic damages is not
supported by substantial evidence where “[t]here was no
evidence, either through direct testimony or victim-impact
statements, that the children suffered” adverse effects from the
defendant’s conduct], superseded by statute on other grounds as
stated in People v. Brooks (2018) 23 Cal.App.5th 932, 946 & fn.
17.) Based on this evidence, the trial court thoughtfully
explained the type and degree of psychological harm each victim
had suffered as well as its likely duration, discounted the full
amount of harm by five percent to account for mother’s
contribution to that harm, and came up with the amount it did.
(Accord, Smith, supra, 198 Cal.App.4th at p. 437 [noting
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propriety of awarding restitution for future pain and suffering—
that is, for pain and suffering that would continue after the
restitution hearing].)
Defendant lodges three objections against the award in this
case.
First, defendant argues our Supreme Court has decreed
that restitution awards cannot be “be based merely upon the trial
court’s subjective belief regarding the appropriate compensation”
(People v. Carbajal (1995) 10 Cal.4th 1114, 1125), and that the
trial court in this case violated that decree by effectively pulling
the restitution amounts out of thin air. This argument compares
apples and oranges. Carbajal and its progeny deal with economic
damages, not the noneconomic damages at issue here and which
are, by definition, inherently subjective. (Smith, supra, 198
Cal.App.4th at p. 436.) To apply the standards for the former to
the latter would be to prohibit any award of noneconomic
damages. Because that is contrary to section 1202.4, it is
contrary to the law.
Second, defendant argues that the trial court was obligated
to engage in an intercase comparison of the noneconomic
restitution awards in this case to the awards in other cases, and
to assess them for proportionality vis-à-vis the degree of sexual
abuse involved in all the cases. We reject this argument. It is
unsupported by precedent: If there is no right to the “intercase
proportionality review” of sentences (People v. Lenart (2004) 32
Cal.4th 1107, 1130, italics in original; People v. Lewis (2001) 25
Cal.4th 610, 677), there is certainly no right to such review of
noneconomic restitution awards. Our refusal to engage in
intercase proportionality review is also supported by policy:
Undertaking such review would likely require us to reduce
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awards on the grounds that the abuse in one case involved one
type of sexual contact rather than another, that the abuse was
continuous rather than intermittent, or that the child in one case
was more resilient to the psychological damage from sexual abuse
than another. These entail judgments that may be contrary to
law (accord, People v. Taylor (2011) 197 Cal.App.4th 757, 764
[“‘[A] wrongdoer in criminal cases as in civil tort takes his victim
as he finds [her].’”]), and are in any event based on nothing more
than our subjective judgments. In the end, our Legislature
decided to award restitution for the pain and suffering of the
victims of specified child sex crimes, notwithstanding that those
awards would be inherently subjective. And even if we were to
engage in this exercise, the awards here are less than half of the
$750,000 award upheld in Smith and the $900,000 award upheld
in Lehman; by this absolute metric, the $332,500 awards in this
case are not conscience shocking.
Lastly, defendant argues that the trial court in this case
did not sufficiently explain why it attributed only five percent of
fault to mother and why it elected not to use the worksheet the
People provided as a method for calculating noneconomic
damages (which asks the court to multiply the number of hours of
harm in four different categories (“anguish, embarrassment,
grief, etc.”; “counseling”; “sleeplessness”; and “separation from
siblings and other additional damages”) suffered by each victim
an hourly estimate of the compensation warranted for each
category of psychological harm). Ignoring that precise calculation
is not required for noneconomic damages, defendant’s arguments
are not well taken. The court did explain why it attributed only
five percent of the girls’ trauma to mother—namely, mother
eventually allowed defendant to have access again to the girls but
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that her culpability was mitigated somewhat by the fact that
defendant was manipulating her. As the court put it, defendant
was at all times “driv[ing the] vehicle.” And we cannot ignore
that defendant was the one who was actually molesting the girls;
mother’s failure to prevent defendant from engaging in these acts
does not appreciably reduce his core responsibility for the damage
wrought by his own conduct. The court’s failure to use the
People’s worksheet is also of no moment: The worksheet itself is
wholly subjective in terms of the categories it creates (as many
seem to overlap) and in terms of the notion that a court can
assign a different hourly amount of harm for “sleeplessness” and
for “anguish, embarrassment, grief, etc.” The court’s refusal to
use an arbitrary mechanism for fixing damages does not cause
the award in this case to shock the conscience.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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