People v. Gomez

Filed 11/14/23
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
A164374
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. 4-200334-1)
ANTHONY SALVADOR GOMEZ,
Defendant and Appellant.

Anthony Salvador Gomez (appellant) appeals from the trial court’s
restitution order following his guilty plea to two counts of lewd acts upon a
child under the age of 14 (Pen. Code, § 288, subd. (a)).1 Among other
challenges, he contends the restitution order was an abuse of discretion. We
agree and reverse.
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

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this

opinion is certified for publication with the exception of part I.
1 All undesignated section references are to the Penal Code.

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“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. [¶]
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

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with many, many cases just like this or very much like this. And common
sense and experience and life tells you what kind of horrific damage is done
by these types of acts. These tears in the fabric of our society that are caused
by these crimes spread horrific ripples through generations of families.
People’s lives are disturbed for many years to come, perhaps for the rest of
their lives. And those disturbances affect the people they come in contact
with, their relationships coming forward. And so the lawmakers have
decided that there are other means by which we could address that type of
damage and at least give some sort of relief to the victims of this horrific tear
in the fabric of our society. It is not a mystery that this occurs. It is well-
known, even to lay people, that these types of crimes cause this kind of
damage. [¶] The People’s request is not unreasonable the way they
ask me to address it. It appears to be convictions for two crimes. There are
multiple offenses. Even though it has—I think that the victim is older now
than he was, but he was very young when these things occurred. I can only
imagine the torment he has gone through for the last ten years and what
he’s going to go through for the rest of his life.” The court ordered restitution
of $50,000 for each count, for a total of $100,000.
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.’ (Cal. Const., art. I, § 28,
subd. (b)(13)(B).) To effect this constitutional requirement, the Legislature
enacted section 1202.4, which requires the trial court to order a defendant to
pay victim restitution ‘in an amount established by court order, based on the
amount of loss claimed by the victim . . . or any other showing to the court.’

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(§ 1202.4, subd. (f).)” (People v. Lehman (2016) 247 Cal.App.4th 795, 800
(Lehman).)
“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.” (§ 1202.4, subd. (f)(3)(F).) “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).)” (Smith, at p. 431.)
I. Constitutional Challenges
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

2 We therefore need not decide whether appellant forfeited them, as the

People contend.

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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

3 Although appellant’s opening brief elsewhere discusses Smith, it fails

to acknowledge Smith’s rejection of the jury trial and equal protection
arguments. (See Rules Prof. Conduct, rule 3.3(a)(2) [lawyer shall not “fail to
disclose to the tribunal legal authority in the controlling jurisdiction known
to the lawyer to be directly adverse to the position of the client” (asterisks
omitted)].)

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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—$50,000 per year for 15 years of
molestation—was 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

4 Smith and Lehman also applied the standard of review from the civil

damages context that “ ‘An appellate court can interfere on the ground that
the judgment is excessive only on the ground that the verdict is so large that,
at first blush, it shocks the conscience and suggests passion, prejudice or
corruption on the part of the jury.’ ” (Smith, supra, 198 Cal.App.4th at
p. 436; accord, Lehman, supra, 247 Cal.App.4th at p. 801.) Because
appellant’s challenge is not that the award is excessive, but rather that it
lacks an adequate factual basis, this standard is not applicable.

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until the end of high school, and rubbed Jane Doe 2’s back underneath her
clothes multiple times despite her asking him to stop. (Id. at pp. 797–798.)
The trial court awarded noneconomic victim restitution of $900,000 to Jane
Doe 1, explaining, “ ‘In her testimony at trial and her statements at
sentencing, Jane Doe 1 described the emotional pain she suffered at the
hands of the Defendant and its impact on her life through the present. The
pain she endured in reliving these events was palpable.’ ” (Id. at pp. 800,
802.) The court awarded $100,000 for Jane Doe 2, explaining, “ ‘In her
testimony, Jane Doe [2] was visibly distraught. She attributed her emotional
breakdown to the fact that the Defendant had abused her sister in the same
way and that she had to discuss the harm her family had suffered as a result
of the Defendant’s conduct.’ ” (Id. at pp. 800, 803.) The Court of Appeal
found no abuse of discretion: “We agree that more evidence could have been
provided concerning the victims’ noneconomic losses. Nevertheless, we
cannot conclude the trial court abused its discretion or that the noneconomic
restitution awarded in this case shocks the conscience. . . . Here, the trial
court’s restitution award was evidently based on Jane Doe 1’s and Jane Doe
2’s testimony at trial, Jane Doe 1’s statements at the sentencing hearing, and
a probation report. This evidence constituted sufficient support for the
restitution award, and there is no indication the trial court considered
restitution awards from other cases in reaching its decision.” (Id. at pp. 803–
804.)
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

5 An additional conviction for lewd acts was reversed on appeal.

(Valenti, supra, 243 Cal.App.4th at pp. 1173–1174.) The defendant was also

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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, 1153–1154.) The trial court awarded
$50,000 in victim restitution to each of these victims, without explanation.
(Id. at pp. 1180–1181.) With respect to the restitution awards to the victims
of lewd acts,6 “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

convicted of misdemeanor offenses against other victims. (Id. at pp. 1150–
1151.)
6 The court reversed the awards to the victims of continuous sexual

abuse on the ground that the restitution statute at the time did not authorize
noneconomic restitution to such victims. (Valenti, supra, 243 Cal.App.4th at
pp. 1181–1182; but see People v. Martinez (2017) 8 Cal.App.5th 298, 300
(Martinez).) The statute was subsequently amended. (Stats. 2017, ch. 101,
§ 1.)

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‘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—that appellant “was a setback” for Doe—
had 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 Martinez, supra, 8 Cal.App.5th at p. 305 [“ ‘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 Cal.
Const., art. I, § 28, subd. (b)(13)(A) [“all persons who suffer losses as a result
of criminal activity shall have the right to seek and secure restitution from

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the persons convicted of the crimes causing the losses they suffer” (italics
added)].) In other words, it is insufficient that the average victim would
suffer injury from a particular type of crime, or that generally victims of such
crimes suffer injury.
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.
“ ‘ “One of the most difficult tasks imposed upon a jury in deciding a case
involving personal injuries is to determine the amount of money the plaintiff
is to be awarded as compensation for pain and suffering. . . . In a very real
sense, the jury is asked to evaluate in terms of money a determent for which
monetary compensation cannot be ascertained with any demonstrable
accuracy.” ’ ” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300.)
Thus, in considering a challenge to the amount of noneconomic restitution
awarded, Smith reasoned, “By their nature, economic damages are
quantifiable and thus awards of economic damages are readily reviewed for
whether they are ‘rationally designed to determine the . . . victim’s economic
loss.’ [Citation.] Noneconomic damages, however, require more subjective
considerations. Thus, the different standard is justified.” (Smith, supra, 198
Cal.App.4th at p. 436.) But the intrinsic difficulty in quantifying
noneconomic injury does not impact the fundamental principle that
restitution be awarded for injury incurred by the victim.7

7 This conclusion is not inconsistent with authority in the civil damages

context providing that, “even in the absence of any explicit evidence showing
pain, the jury may infer such pain, if the injury is such that the jury in its
common experience knows it is normally accompanied by pain.” (Capelouto v.
Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 896.) Courts have relied on
this proposition to refute arguments that expert testimony or direct
testimony of pain and suffering is required, not to hold a plaintiff need not

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 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
minor. The trial court’s observation of the victim’s trial testimony may be
sufficient, as may testimony about or a video of the victim’s statements to
investigators. Statements and testimony may be presented to the court or
probation officer by the victim’s parents, a treating physician or therapist, or
others with personal knowledge of the impact on the victim. This list is not

present any evidence of the impact of the defendant’s acts. (E.g., Capelouto,
at p. 896 [jury could infer pain and suffering from evidence that the infant,
who was negligently infected with salmonella, “experienced severe diarrhea
and vomiting of a projectile nature, that she suffered shock and dehydration,
and that she became listless and lethargic during these attacks” despite the
absence of expert medical evidence and the infant’s inability to testify];
Mendoza v. Rudolf (1956) 140 Cal.App.2d 633, 636–637 [trial testimony of
plaintiffs that one “was still suffering from a loss of memory; that he had
shooting pains in his back; that he was unable to hold any position because
his kidney bothered him and that he had dizzy spells,” and the other “was
suffering from headaches and dizzy spells and was having trouble with his
vision,” was sufficient to support an award for future pain and suffering
despite absence of “medical testimony”]; Hilliard v. A. H. Robins Co. (1983)
148 Cal.App.3d 374, 388, 413 [evidence that defective medical device caused
the plaintiff to have seven “major abdominal surgeries to correct adhesions
between her vagina and rectum, to repair a rectovaginal fistula and to
remove the remaining portion of her right ovary,” was “substantial evidence
permitting the jury to infer pain even if she had not testified to her pain. Her
calamitous experiences to the date of the trial were such that the jury could
infer great mental anguish, pain, and suffering”].)

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exhaustive, but is illustrative of the wide range of evidence a trial court may
rely on. “[S]ection 1202.4 does not require any particular kind of proof to
establish the victim’s losses.” (Lehman, supra, 247 Cal.App.4th at p. 803.)
However, there must be some evidence of the impact of the crime on the
particular victim. Because no such evidence is in the record here, we reverse
and remand for further restitution proceedings.
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)

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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.

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