People v. Wong CA2/6 ( 2023 )

Filed 4/3/23 P. v. Wong CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B318239
(Super. Ct. No. 17CR07379)
Plaintiff and Respondent, (Santa Barbara County)
v.
HOWARD ROGER WONG,
Defendant and Appellant.
Howard Roger Wong appeals from the judgment entered
after a jury found him guilty of seven counts of committing a lewd
or lascivious act upon his daughters, M. and A. As to M., the jury
found appellant had committed four lewd acts while she was
under the age of 14 years. (Counts 1-4; Pen. Code, § 288, subd.
(a).)1 As to A., the jury found he had committed one lewd act
while she was under the age of 14 years (count 5) and two lewd
1 All undesignated statutory references are to the Penal
Code.
acts while she was 14 or 15 years old. (Counts 6-7; § 288, subd.
(c)(1).)
The jury found true an allegation that in the present case
appellant had been convicted of committing a violation of section
288, subdivision (a) against more than one victim. (§ 667.61,
subds. (b), (c)(8), (e)(4).) A person who has been so convicted
“shall be punished by imprisonment in the state prison for 15
years to life.” (Id., subd. (b).) This is “known as the ‘One Strike’
law.” (People v. Mancebo (2002) 27 Cal.4th 735, 738; see People v.
Perez (2015) 240 Cal.App.4th 1218, 1223 [“Since its adoption in
1994, California's One Strike law (§ 667.61) has set forth an
‘alternative and harsher sentencing scheme for certain sex
crimes’”].) The trial court sentenced appellant to prison for a
determinate term of three years, eight months on counts 6 and 7,
followed by an aggregate indeterminate term of 75 years to life on
counts 1-5 (five consecutive terms of 15 years to life for the five
one-strike convictions). The court ordered appellant to pay
noneconomic damages of $500,000 to each daughter.
Appellant contends: (1) he was denied effective assistance
of counsel because counsel failed to exclude polygraph evidence;
(2) the matter must be remanded for resentencing because the
trial court was not aware it had discretion to impose concurrent
terms for the five one-strike convictions; (3) the three-year upper
term sentence on count 6 must be reversed because the jury did
not find any aggravating circumstances that would warrant
imposition of the upper term; (4) the trial court erroneously failed
to award him conduct credits for presentence custody; (5) the
sentencing minute order and abstract of judgment must be
amended to conform to the court’s oral pronouncement of
judgment; and (6) the award of noneconomic damages to M. must
2
be reversed because the record does not contain a factual basis
for the award.
We vacate the 75-year-to-life aggregate prison sentence for
the five one-strike convictions (counts 1-5). We remand the
matter for resentencing on these convictions so that the trial
court may exercise its discretion whether to impose concurrent or
consecutive terms. We order the trial court to amend the
sentencing minute order and abstract of judgment to conform to
its oral pronouncement of judgment. We reverse the award of
noneconomic damages to M. and direct the trial court to conduct
a new restitution hearing to determine the amount of
noneconomic damages, if any, to which she is entitled. In all
other respects, we affirm.
Facts
Incidents Involving M.
At the time of trial, M. was 15 years old. She testified that
when she was three to five years old, appellant would come into
her bedroom at night and would “rub [her] bum.” When she was
in second grade, appellant “pulled on [her] crotch.” “It was near
[her] private parts.”
On many occasions appellant “rub[bed her] butt.” “He
would . . . go under [her]underwear and start rubbing there . . . .”
M. estimated that appellant had touched her
inappropriately more than 50 times. “[S]ometimes it would
happen . . . multiple times a week. And . . . sometimes it would
happen . . . once a week maybe.”
Diane Ozolins, a “child forensic interviewer,” interviewed
M. when she was 12 years old. M. said that, when she was eight
or nine years old, appellant would “slide his hand into [her]
underwear and start[] []rubbing [her] butt.” Sometimes he would
3
also rub her “private area and press down.” “It hurt” when he
“pressed down.” Appellant touched M. under her underwear “[a]
lot.” She “just thought it was normal because he’s my dad.”
Incidents Involving A.
A. is six years older than her sister, M. At the time of trial,
A. was 21 years old. When she was about 13 years old, appellant
came into her bedroom at night, pulled down her tank top and
bra, and “actually sucked on [her] nipple.” A. was in bed and
“pretended” to be “asleep.”
A few months later, appellant walked into A.’s bedroom and
“briefly started to rub [her] stomach up and down.” A. was awake
and lying in bed. She assumed appellant “thought [she] was
asleep.” A. noted that she is “a heavy sleeper” and will “sleep
through the fire alarm that’s right by [her] room.” Appellant ran
“his hand under [her] pajama shorts and did not penetrate [her]
vagina but . . . rubbed up against it for a brief second and pulled
his hand out.”
A third, final incident occurred when A. was in bed after
9:00 p.m. She was awake, but appellant “was under the
impression that [she] was asleep.” A. testified: appellant
“reach[ed] into my waistband of my pants. And instead of just
rubbing his hand up against my vagina, he actually penetrated it
with his finger.” “[I]t was mildly painful.” “So in my head, going
to sleep meant that my dad was going to hurt me as a kid.”
As to the third incident, appellant told Detective Matt
Banks that he was sitting on the bed next to A. He was “tryin’ to
help her go to sleep.” While rubbing the back of her leg, his hand
accidentally “slipped into her shorts” and may have penetrated
her vagina. When he removed his hand from her shorts, it was
wet. Appellant later said that, although he did not know where
4
his hand had gone, because it was wet he was “assuming” it had
penetrated A.’s vagina.
Appellant’s Testimony
Appellant was 58 years old at the time of trial in
September 2021. He testified that at his daughters’ request, he
would give them back rubs at night if they had difficulty falling
asleep. “[R]ubbing their backs calmed them down and they went
to sleep.” He never rubbed M.’s “butt” or touched her “in the
vaginal area.” He did not touch A.’s vagina, suck on her nipple,
or “penetrate her.” A. “has a history of lying.”
Appellant continued: “I had this dream, . . . nightmare that
I . . . potentially could have touched [A.] And I was shocked.”
“[Detective] Banks asked me if my fingers were wet . . . . [Y]eah,
they were wet in the dream. Not in reality. In reality I never,
ever would have done that.”
Polygraph Evidence
During his interrogation of appellant, Detective Banks
repeatedly asked appellant to take a polygraph examination.
Appellant was familiar with such examinations. He had taken
them in connection with his employment.
Appellant was reluctant to take a polygraph examination.
He explained to Detective Banks: “I would think I would pass it.
But in all honesty right now with all . . . that’s been going on and
how upset I am I don’t know. I actually fear that I won’t pass it.
Not because I’ve done anything. It's because . . . this is
upsetting.” “I’m so upset about this I – I really am afraid I’m
gonna fail it.”
Toward the end of the interrogation, appellant agreed to
take a polygraph examination and asked Banks to “[s]et it up.”
5
Banks replied that he would schedule the examination for the
following day.
A video of the interrogation was played for the jury, which
was provided with a transcript of the interrogation. Both the
video and transcript were redacted to delete all references to the
term “polygraph.” Despite the redaction, it was obvious that
Detective Banks and appellant were discussing a polygraph
examination. The trial court stated, “Detective Banks was
suggesting . . . that [appellant] agree to take a polygraph. I can’t
imagine [how] even the most naive of our jurors could have
missed that.”
Appellant’s Motion for a Mistrial and
Trial Court’s Curative Instruction
Pursuant to Evidence Code section 351.1, “polygraph
evidence . . . is categorically inadmissible” in criminal trials
unless the parties stipulate to its admission. (People v. Wilkinson
(2004) 33 Cal.4th 821, 845.) Inadmissible polygraph evidence
includes “any reference to an offer to take” or “failure to take . . .
a polygraph examination.” (Evid. Code, § 351.1, subd. (a).)
“Polygraph evidence is inadmissible because of the lack of
scientific certainty about the results and also because lay persons
tend to invest such evidence with an inordinately high degree of
authority.” (People v. Lee (2002) 95 Cal.App.4th 772, 792.)
Appellant’s counsel did not object to the video before it was
played or while it was being played for the jury. After it had been
played, he moved for a mistrial. The prosecutor protested: “[L]ast
year . . . we gave [counsel] transcripts with proposed redactions.
He . . . had those for over a year and a half . . . .” Counsel “never
made any objection until the day after the interview was
6
played . . . .” He “watched two hours of a recorded interview, with
transcript in hand, and did not object as he listened to the faulty
redactions.”
The trial court denied the motion for a mistrial. It gave the
following admonition to the jury:
“Ladies and gentlemen of the jury, the Court is
concerned regarding some possible misinformation that
you, the jury, may be under the impression of. On the
videotapes of the defendant's interviews with Detective
Banks, you have heard statements that implied or
suggested that there had been discussions regarding the
possibility of polygraph examinations.
This Court wants you to know that the United States
Supreme Court as well as the California State Supreme
Court have both ruled that polygraph tests are not
admissible in Court because they are not accepted
scientifically as being accurate.
This is a subject that under no circumstance should
enter into your considerations in this case. Evidence of
polygraph examinations are simply investigative tools.
They are not, therefore, admissible in criminal cases by
law.
The defendant, Mr. Wong, at no time refused to take
any such examination, and no polygraph examinations were
ever conducted in this matter. [Italics added.] You may not
consider these statements to suggest as true any results of
any polygraph examination, the opinion of any polygraph
examiner, or any reference to any offer to take, or any
failure to take, a polygraph examination.
The Court is telling you, as jurors, you must not
discuss these issues nor allow them to enter into your
deliberations, nor affect your verdict in a[ny] way
whatsoever. You must not speculate nor consider any such
suggestions for any purpose.
7
If any one of you is concerned in even the slightest
way that you may have some difficulty following the
Court's admonition, it is extremely important for the Court,
for the attorneys, and for Mr. Wong to be informed of your
concerns immediately. We would appreciate it, if that is
the case with you, that you would write a note to [the]
Bailiff . . . telling him that you wish to speak with us
outside the presence of the other jurors, and I will make
that happen at the next recess.”
Defense Counsel’s Failure to Exclude Polygraph Evidence Did
Not Deny Appellant His Right to Effective Assistance of Counsel
Appellant maintains, “The judgment must be reversed
because trial counsel provided ineffective assistance when he
failed to ask the trial court to exclude all references and
discussions . . . stemming from Banks’ requests that appellant
submit to a polygraph.” (Bold and capitalization omitted.)
“Establishing a claim of ineffective assistance of counsel
requires the defendant to demonstrate (1) counsel’s performance
was deficient in that it fell below an objective standard of
reasonableness under prevailing professional norms, and (2)
counsel’s deficient representation prejudiced the defendant, i.e.,
there is a ‘reasonable probability’ that, but for counsel's failings,
defendant would have obtained a more favorable result.
[Citations.] A ‘reasonable probability’ is one that is enough to
undermine confidence in the outcome.” (People v. Dennis (1998)
17 Cal.4th 468, 540-541.) “If a claim of ineffective assistance of
counsel can be determined on the ground of lack of prejudice, a
court need not decide whether counsel's performance was
deficient.” (In re Crew (2011) 52 Cal.4th 126, 150.)
Appellant “‘must establish “prejudice as a ‘demonstrable
reality,’ not simply speculation as to the effect of the errors or
omissions of counsel. . . .”’” (In re Cox (2003) 30 Cal.4th 974,
8
1016.) Appellant failed to carry his burden of showing that
counsel’s allegedly deficient performance prejudiced him. The
trial court’s admonition to the jury cured any prejudice arising
from the polygraph evidence. The court instructed the jury that
appellant had not refused to take a polygraph examination and
that no such examination had been conducted. Based on this
instruction, there was no danger that the jury would infer that
appellant had refused to take the examination or had taken it
and failed. “Where polygraph evidence has been erroneously
introduced, [our Supreme] [C]ourt has held that ‘a trial court's
timely admonition, which the jury is presumed to have followed,
cures prejudice resulting from the admission of such evidence.’”
(People v. Thompson (2016) 1 Cal.5th 1043, 1121.)
Appellant expressed fear that he would not pass a
polygraph examination. However, appellant made clear that this
fear arose not out of concern that he would be caught lying, but
out of concern that the reliability of the polygraph would be
compromised by his emotionally distraught condition caused by
his daughters’ accusations. In any event, the court gave a strong
instruction directing the jury to disregard all evidence relating to
discussions about taking a polygraph examination. “‘“‘“[W]e must
assume that jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are
given.” . . .’”’” (People v. Landry (2016) 2 Cal.5th 52, 95.) “[W]e
and others have described the presumption that jurors
understand and follow instructions as ‘[t]he crucial assumption
underlying our constitutional system of trial by jury.’ [Citations.]
We see no reason to abandon the presumption in this case, where
the relevant instructional language seems clear and easy to
understand.” (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
9
The Matter Must be Remanded for Resentencing Because
The Trial Court Apparently Was Not Aware It Had Discretion
To Impose Concurrent Terms for the One Strike Convictions
In counts 1 through 5, appellant was convicted of violating
section 288, subdivision (a). Under the one strike law, each of the
five convictions was punishable by imprisonment for 15 years to
life. (§ 667.61, subds. (b), (c)(8), (e)(4).) The information alleged
that “a full, separate and consecutive term shall be imposed [on
each one-strike conviction] pursuant to Penal Code section
667.6.” (Italics added, bold omitted.)
During the sentencing hearing, the prosecutor informed the
trial court that it was required to impose a consecutive 15-year-
to-life prison term for each one strike conviction, totaling 75
years to life for all five convictions. The prosecutor said: “[T]he
sex crime sentencing which is under [section] 667.6(d) mandates
fully consecutive sentences. . . . Each are 15 to life and are fully
consecutive to one another.” Neither defense counsel nor the trial
court disputed the prosecutor’s interpretation of section 667.6,
subdivision (d).2 The trial court said it was “going to follow the
recommendation” as “outlined in the probation report.” The
probation report recommended “a determinate term of 3 years, 8
months [on counts 6-7] followed by an indeterminate term of 75
years to life [on counts 1-5].”
In its appellate brief the People insist that the prosecutor
correctly interpreted section 667.6, subdivision (d). The People
are mistaken. Section 667.6, subdivision (d) is inapplicable. It
provides, “A full, separate, and consecutive term shall be imposed
for each violation of an offense specified in subdivision (e) if the
2 The People do not claim that defense counsel’s failure to
object constituted a forfeiture of the issue.
10
crimes involve separate victims or involve the same victim on
separate occasions.” (Italics added.) A violation of section 288,
subdivision (a) is not among the offenses specified in subdivision
(e).
The People allege, “[Section 667.6,] subdivision (e) provides
that ‘[t]his section shall apply to the following offenses: . . . (8)
‘Lewd or lascivious act, in violation of subdivision (a) of Section
288.’” Section 667.6, subdivision (e)(8) does not so provide.
Subdivision (e)(8) applies to “[s]exual penetration, in violation of
subdivision (a) or (g) of Section 289.” (Ibid.) The People
apparently meant to refer to section 667.6, subdivision (e)(5),
which provides, “Lewd or lascivious act, in violation of
subdivision (b) of Section 288.” (Italics added.) But appellant
was not convicted of violating section 288, subdivision (b), which
applies to “[a] person who commits an act described in
subdivision (a) by use of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim . . . .” (Id.,
subd. (b)(1).) Appellant was convicted of violating section 288,
subdivision (a).
The People refer to section 667.6, subdivision (e)(6), but
this subdivision is also inapplicable. It applies to a conviction of
“[c]ontinuous sexual abuse of a child, in violation of Section
288.5.” (Ibid.) Appellant was not convicted of this offense.
In any event, “section 667.61, subdivision (i), not section
667.6, subdivision (d), applies to sentencing under the one strike
law.” (People v. Lopez (2022) 76 Cal.App.5th 287, 292.) Section
667.61, subdivision (i) provides: “For any offense specified in
paragraphs (1) to (7), inclusive, of subdivision (c), or in
paragraphs (1) to (6), inclusive, of subdivision (n), the court shall
impose a consecutive sentence for each offense that results in a
11
conviction under this section if the crimes involve separate
victims or involve the same victim on separate occasions as
defined in subdivision (d) of Section 667.6.” A violation of section
288, subdivision (a) is not specified in paragraphs (1) to (7) of
subdivision (c) of section 667.61. It is specified in paragraph (8)
of subdivision (c). Such a violation is also not specified in
subdivision (n) of section 667.61. Thus, “the trial court had
discretion to impose concurrent sentences on [appellant’s one
strike] convictions.” (Lopez, supra, at p. 291; see also People v.
Woodworth (2016) 245 Cal.App.4th 1473, 1479 (Woodworth)
[“‘Absent an express statutory provision to the contrary, section
669 provides that a trial court shall impose either concurrent or
consecutive terms for multiple convictions’”].)
It appears that the prosecutor, together with the probation
report, mis-advised the trial court to believe it lacked discretion
to impose concurrent terms for the one strike convictions. The
probation report erroneously stated that section 667.61,
subdivisions (b) and (e)(4) applied to these convictions.
Subdivision (e)(4) applies to a violation of section 288, subdivision
(b), not subdivision (a). Pursuant to section 667.61, subdivision
(i), consecutive sentencing is mandatory for a violation of section
288, subdivision (b). It is not mandatory for a violation of section
288, subdivision (a).
The probation report did not state reasons for imposing
consecutive sentences for the one strike convictions. On the other
hand, it stated reasons for imposing consecutive sentences on
counts 6 and 7, which did not involve the one strike law. The
absence of reasons in the probation report for imposing
consecutive sentences for the one strike convictions may have
12
misled the trial court to believe that reasons were unnecessary
because consecutive sentences were mandatory.
If the court believed it had discretion to impose concurrent
sentences for the one strike convictions on counts 1-5, it should
have stated its reasons for exercising discretion to impose
consecutive sentences. (Cal. Rules of Court, rule 4.406(b)(5)
[“Sentence choices that generally require a statement of a reason
include . . . [i]mposing . . . consecutive sentences”].)3 “As a
general rule, the selection between consecutive or concurrent
sentences constitutes a discretionary sentence choice for which
the trial court must state reasons on the record.” (People v.
Gulbrandsen (1989) 209 Cal.App.3d 1547, 1552.) “When a
consecutive sentence . . . is mandatory there is no choice to be
made and hence a statement of reasons justifying the selection of
the compelled sentence is not required.” (Id. at p. 1553.) We
presume the court was aware of the rule that reasons must be
stated for imposing consecutive sentences unless consecutive
sentences are mandatory. (People v. Mosley (1997) 53
Cal.App.4th 489, 496 [“The general rule is that a trial court is
presumed to have been aware of and followed the applicable
law”].)
“‘Generally, when the record shows that the trial court
proceeded with sentencing on the erroneous assumption it lacked
discretion, remand is necessary so that the trial court may have
the opportunity to exercise its sentencing discretion at a new
sentencing hearing. [ Citations.] Defendants are entitled to
“sentencing decisions made in the exercise of the ‘informed
discretion’ of the sentencing court,” and a court that is unaware
of its discretionary authority cannot exercise its informed
3 All references to rules are to the California Rules of Court.
13
discretion.’” (Woodworth, supra, 245 Cal.App.4th at p. 1480.)
Accordingly, we “will remand the matter to the trial court for
resentencing so it can exercise its sentencing discretion” whether
to impose concurrent or consecutive sentences for the one strike
convictions. (Ibid.)
Sentence Imposed on Count 6: Effect of Senate Bill No. 567
On count 6 appellant was convicted of committing a lewd
act upon A. while she was 14 or 15 years old in violation of
section 288, subdivision (c)(1). Count 6 was based on the second
incident when appellant rubbed A.’s vagina but did not penetrate
it. The trial court sentenced appellant to prison for the upper
term of three years. Count 7 alleged another violation of section
288, subdivision (c)(1). The violation was based on the last
incident when appellant penetrated A.’s vagina. On count 7 the
trial court sentenced appellant to prison for a consecutive term of
eight months – one-third the two-year middle term.
Appellant was sentenced in February 2022. Senate Bill No.
567 (2021-2022 Reg. Sess.) became effective on January 1, 2022.
(Stats. 2021, ch. 731, § 1.3.) “‘Senate Bill No. 567 . . .
amended section 1170, subdivision (b), making the middle term of
imprisonment the presumptive sentence.’ [Citation.] ‘A trial
court may impose an upper term sentence only where there are
aggravating circumstances in the crime and the defendant has
either stipulated to the facts underlying those circumstances or
they have been found true beyond a reasonable doubt.’” (People
v. Berdoll (2022) 85 Cal.App.5th 159, 163 (Berdoll).)
At the sentencing hearing appellant’s counsel stated,
“[T]here’s been an amendment to [section] 1170[, subdivision (b)].
. . . We cannot do the upper term because that is now an issue for
the jury to find aggravating factors to justify the upper term.
14
And the jury never found any aggravating factors. So you are
limited . . . to the mid or low terms. That’s the new law that went
into effect.” The prosecutor replied that the new law does not
apply because the jury rendered its verdict before the new law
became effective. The court imposed the upper term on count 6
as recommended by the probation report. The court said,
“Without repeating so much that is outlined in the probation
report and recommendation, . . . the Court is going to follow the
recommendation . . . .”
Appellant contends the upper term sentence on count 6
must be reversed because the jury did not find any aggravating
circumstances. The People concede that the amendment of
section 1170, subdivision (b) applies to appellant. But they argue
that any error in imposing the upper term was harmless “because
it is [certain] beyond a reasonable doubt that the jury would have
found all the aggravating circumstances true beyond a
reasonable doubt.”
The only mitigating circumstance mentioned in the
probation report is that “[t]he defendant has no prior [criminal]
record.” The probation report listed the following four
aggravating circumstances, which it said “are applicable to both
counts 6 and 7”: “1. The victim [A.] was particularly vulnerable
[Rule 4.421(a)(3)]. [¶] The victim was vulnerable at the time of
the offenses due to her age, naivete, inexperience, relative size and
strength and the defendant's position of authority over her. [¶] 2.
The manner in which the crime was carried out indicates
planning, sophistication or professionalism [Rule 4.421 (a)(8)].
[¶] The defendant waited until the victim was presumably asleep
15
to commit the crimes.[4] . . . [¶] 3. The defendant took advantage
of a position of trust or confidence to commit the offense [Rule
4.421(a)(11)]. [¶] The defendant took advantage [of] his role as
the victim’s father whom the victim trusted. [¶] 4. The defendant
has engaged in violent conduct that indicates a serious danger to
society [Rule 4.421(b)(1)].” (Bracketed references to rules in
original; other bracketed material added.) Appellant maintains
“there is no evidence supporting” the fourth aggravating
circumstance.
“‘“[I]f a reviewing court concludes, beyond a reasonable
doubt, that the jury, applying the beyond-a-reasonable-doubt
standard, unquestionably would have found true at least a single
aggravating circumstance had it been submitted to the jury,” the
error is harmless. . . .’” (Berdoll, supra, 85 Cal.App.5th at p. 163,
quoting from People v. Flores (2022) 75 Cal.App.5th 495, 500.)
“On this record we are satisfied, beyond a reasonable doubt, the
jury would have found true [the first three] aggravating
circumstance[s] [listed in the probation report]. . . . Thus,
remand for resentencing on this issue is unnecessary.” (Flores,
supra, at p. 501.) “To remand [on this issue] would achieve the
same sentencing result and would be a waste of judicial
resources.” (Berdoll, supra, at p. 165.)5
4 At the sentencing hearing, A. said: “[M]y father molested
me when he thought I was asleep. I was an extremely good
sleeper, so I will never know if there are more incidents of
molestation when I truly was asleep. And that is a question . . .
[that] eats at me daily.”
5 The parties observe that appellate courts are divided on
the standard for assessing prejudice when determining whether a
case should be remanded for resentencing in light of Senate Bill
16
Conduct Credits
Appellant maintains that the trial court erroneously failed
to award him conduct credits for his 127 days of presentence
custody. The court accepted the probation officer’s determination
that appellant “is not entitled to conduct credits pursuant to”
People v. Dearborne (2019) 34 Cal.App.5th 250. There, the court
held that defendants sentenced to indeterminate terms under the
one strike law of section 667.61 are not entitled to presentence
conduct credit. (Dearborne, at pp. 267-268.) The same holding
was reached in People v. Adams (2018) 28 Cal.App.5th 170, 182-
183.
There is no reason to depart from the holdings of Dearborne
and Adams. We recognize that the determinate sentence of three
years, eight months on counts 6 and 7 was not imposed pursuant
to the one strike law. But appellant is not entitled to conduct
credit as to the determinate sentence. “A period of presentence
confinement is indivisibly attributable to all of the offenses with
which the prisoner is charged and of which he is eventually
convicted.” (In re Reeves (2005) 35 Cal.4th 765, 775.) The trial
court is not required “to parse such a single, unitary period of
No. 567. (See, e.g., People v. Lopez (2022) 78 Cal.App.5th 459,
465-466 [“In order to conclude that the trial court's reliance on
improper factors that were not found true by a jury or admitted
by Lopez was not prejudicial, we would have to conclude beyond a
reasonable doubt that a jury would have found true beyond a
reasonable doubt every factor on which the court relied”].) The
issue is pending before our Supreme Court in People v.
Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted
Aug. 10, 2022, S274942.
17
presentence confinement into hypothetical, overlapping terms
eligible to earn credit at different rates.” (Ibid.)
Amendment of Minute Order and Abstract of Judgment
The minute order for the sentencing proceedings conducted
on February 3, 2022, shows that appellant was ordered to pay to
his former spouse, E.S., restitution of “$1,171,206 . . . and amount
to be determined.” The abstract of judgment incorporates the
alleged order.
Appellant claims, and the People concede, that in its oral
pronouncement of judgment the trial court made no such
restitution order. We accept the concession. Accordingly, we will
direct the trial court to strike from the minute order and abstract
of judgment the reference to restitution payable to E.S. (People v.
Farell (2002) 28 Cal.4th 381, 384, fn. 2 [“The record of the oral
pronouncement of the court controls over the clerk's minute
order”].)
Award of Noneconomic Restitution to M.
“[V]ictims may . . . recover ‘[n]oneconomic losses, including,
but not limited to, psychological harm, for felony violations
of Section 288.’ (§ 1202.4, subd. (f)(3)(F).)” (People v. Lehman
(2016) 247 Cal.App.4th 795, 801.) There is a constitutional right
to restitution. (Cal. Const., art. 1, § 28(b)(13).) The trial court
awarded M. “non-economic damages” of $500,000. Appellant
contends “the award of non-economic restitution to M[.] must be
reversed because the record contains no evidence providing a
factual basis supporting the amount the court awarded her.”
The trial court also awarded A. noneconomic damages of
$500,000. Appellant does not contest the validity of this award
because A. appeared in person at the sentencing hearing and
described in detail the harmful psychological impact of her
18
father’s molestation. She also wrote a three-page letter to the
court. M. did not appear at the sentencing hearing and did not
provide any statement, written or oral, concerning the
psychological impact of appellant’s molestation.
The People’s response to appellant’s contention is
perfunctory and conclusionary: “Here, the trial court ordered
appellant to pay $500,000 in victim restitution to M.[] for the
noneconomic losses that she sustained as a result of appellant’s
multiple violations of section 288, subdivision (a). Nothing more
was required.” The People cite no authority in support of their
assertion that “[n]othing more was required.”
We disagree with the People. More was required.
“Section 1202.4 does not provide guidelines for evaluating a child
victim's noneconomic damages for sexual abuse. Unlike economic
damages, which encompass ‘objectively verifiable monetary
losses’ (Civ. Code, § 1431.2, subd. (b)(1)), noneconomic damages
compensate the victim for ‘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) . . . .) The trial
court has broad discretion to choose a method for calculating the
amount of restitution, but it must employ a procedure that is
rationally designed to determine the victim's losses. [Citation.]
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).)
19
The probation report did not recommend that the court
award noneconomic damages of $500,000 to each of appellant’s
daughters. The award was based on the People’s motion. The
motion stated, “[T]he People will ask the Court to award non-
economic damages to the victims of the defendant’s repeated acts
of molestation in the amount of $500,000 per victim.” In support
of the motion, the People attached only an excerpt from “the
California Judges Benchguide: Restitution, Section 83.75.” “The
People did not submit any support for the figures, or attempt to
explain why the same formula should apply to each victim . . . .
The record contains no victim declarations [from M.],
independent documentation, or professional evaluations.”
(Valenti, supra, 243 Cal.App.4th at p. 1182.)
We understand why appellant decided not to contest A.’s
noneconomic damage award of $500,000. Based on her trial
testimony and oral statement at the sentencing hearing, the
court reasonably concluded that she was entitled to this amount.
At the sentencing hearing A. stated in part: “What my father did
to me has caused an amount of pain, trauma, and fear. Having to
relive it during the trial was a huge setback for me even after
years of counseling. Being sexually assaulted and molested . . . is
something that will follow me wherever I go, no matter how much
guidance I seek. . . . [¶] . . . I will never get full closure. . . .
[¶] . . . It’s hard to put into words the effects of his actions.
Besides flashbacks, nightmares, anxiety attacks, countless nights
of not being able to sleep. It is hard to describe the betrayal, the
hurt, anger, suffer[ing], and distress, and the heartache of losing
my father and yet longing to have my father at the same time.
[¶] . . . [¶] It’s something I battle with regularly. The PTSD
[Post-Traumatic Stress Disorder] I have been diagnosed with
20
that stems from the sexual assault is kind of like a double
punishment. Your body was violated in unimaginable ways but
then you[r] mind will never let you forget.”
During the trial, A. testified that at one point she was so
“overwhelmed with the situation” that she had attempted suicide
by taking “quite a few pills of my Wellbutrin prescription.” 6 She
“end[ed] up at Cottage Hospital.”
In contrast to A., we have nothing from M. describing the
impact on her of appellant’s molestation. “[T]he court in this case
did not find facts, cite reliable evidence, or even explain how it
arrived at the [same] amount of restitution [for] each victim. [As
to M.], [t]here was no evidence, either through direct testimony or
victim-impact statements, that [she] suffered nightmares or
flashbacks, that [she was] having trouble in school or problems
making friends, that [she] had considered harming [herself] or
others, or that [she] had sought or received counseling in any
form. . . . Because the court did not ‘demonstrate a rational basis
for its award’ [to M.] or ‘ensure that the record is sufficient to
permit meaningful review,’ we reverse the award[] [of restitution
to M.] . . . and remand with directions to hold a [new] restitution
hearing.” (Valenti, supra, 243 Cal.App.4th at pp. 1183-1184.)
Disposition
The 75-year-to-life aggregate prison sentence for the five
one-strike convictions (counts 1-5) is vacated. The matter is
remanded for resentencing on these five convictions. The trial
court shall exercise its discretion whether to impose concurrent
or consecutive sentences. If it imposes consecutive sentences, it
6 We take judicial notice that Wellbutrin is the brand name
for bupropion, an antidepressant medication. (Evid. Code,
§§ 452, subd. (h), 459.)
21
must state on the record its reasons for doing so. (Rules
4.406(b)(5), 4.425.) We express no opinion as to how the court
should exercise its discretion.
As to M. only, the order awarding noneconomic damages (§
1202.4, subd. (f)(3)(F)) is reversed. The matter is remanded with
directions to conduct a new restitution hearing to determine the
amount of noneconomic damages, if any, to which M. is entitled.
The court must assure that the record is sufficient to permit
meaningful review.
In all other respects, the judgment is affirmed. The trial
court is directed to strike from the sentencing minute order and
abstract of judgment the reference to restitution payable to E.S.
After appellant is resentenced and restitution is determined as to
M., the trial court shall prepare an amended abstract of judgment
and send a certified copy to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
22
Thomas R. Adams, Judge
Superior Court County of Santa Barbara
______________________________
George L. Schraer, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, Ryan M. Smith, Deputy Attorney General, for
Plaintiff and Respondent.