People v. Cruz CA1/5 ( 2021 )

Filed 8/13/21 P. v. Cruz CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A157823
v.
GERARDO VALLE CRUZ, (Contra Costa County
Super. Ct. No. 5-172099-4)
Defendant and Appellant.
Defendant Gerardo Valle Cruz was convicted after a jury
trial of numerous sexual offenses against two victims, including
multiple counts of forcible lewd and lascivious conduct with a
child under 14 years of age, in violation of Penal Code section
288, subdivision (b)(1).1 He challenges an order that he pay a
total of $450,000 in direct victim restitution for noneconomic
damages under section 1202.4, subdivision (f)(3)(F) as well as a
restitution fine under section 1202.4, subdivision (b)(1). We order
the judgment modified in certain respects but otherwise affirm.
I. BACKGROUND
Further statutory references are to the Penal Code unless
1
otherwise indicated.
1
Appellant was married to Jane Doe II’s mother and began
molesting Jane Doe II in 2010, when she was in the third or
fourth grade. The first act of abuse occurred when he exposed
“his privates” to her; he then started putting his penis “on” her
vagina and in her “bottom” on multiple occasions. At about the
same time, appellant began hitting Jane Doe II with his hands
and with his shoes. He told her not to tell anybody about the
sexual abuse because he would go to jail and lose everything.
Jane Doe II was very afraid and believed that if she disclosed the
abuse she and her siblings would not be able to live with their
mother.2
Appellant lived with Jane Doe I’s mother beginning in
2014. When Jane Doe I was in the sixth grade, appellant began
molesting her. He raped her on five occasions and threatened to
harm Jane Doe I’s mother if Jane Doe I disclosed the rapes. Jane
Doe I had seen appellant hit her mother several times. She did
not initially tell her mother about the rapes because she believed
her mother preferred appellant to her, but at some point after the
third rape her mother asked her if she was having anything to do
with appellant. Jane Doe I disclosed the sexual abuse and her
mother had her take a pregnancy test. Jane Doe I’s mother
argued with appellant and he left the apartment, but he returned
later that day.
2Jane Doe II eventually disclosed the abuse to a teacher,
and charges were brought but dismissed before trial. Those
charges were refiled by the prosecution in this case after Jane
Doe I came forward.
2
The last time appellant raped Jane Doe I was in a bedroom
of the family home after he and her mother came home from a
party. Afterwards, appellant went to the bathroom, and Jane
Doe I’s mother entered the bedroom and asked what Jane Doe I
was doing with appellant. When Jane Doe I did not answer, her
mother hit her. Appellant returned to the bedroom and hit the
mother’s head against the wall. Jane Doe I called an aunt who
called the police.
Appellant was tried before a jury and was convicted of five
counts of aggravated sexual assault on a child by rape under
section 269, subdivision (a)(1) (counts 1, 4, 6, 9 & 11), two counts
of aggravated sexual assault on a child by sexual penetration
under section 269, subdivision (a)(5) (counts 13 & 15), two counts
of aggravated sexual assault on a child by oral copulation under
section 269, subdivision (a)(4) (counts 17 & 19), and eleven counts
of forcible lewd conduct with a child under 14 under section 288,
subdivision (b)(1) (counts 2, 3, 5, 7, 8, 10, 12, 14, 16, 18 & 20).
Counts 1 through 8 involved Jane Doe I; counts 9 through 20
involved Jane Doe II. The jury also found One Strike multiple
victim allegations true under section 661.61, subdivisions (e) and
(j)(2).
The court sentenced appellant to prison for an aggregate
term of 215 years to life, consisting of consecutive 25-year-to-life
terms under the One Strike law for the forcible lewd conduct
convictions in counts 2, 7, 10, 12, 14, 16, 18 and 20, and a
consecutive 15-year-to-life term for the aggravated sexual assault
3
conviction in count 4, with sentence stayed under section 654 on
the remaining counts.
The court imposed a restitution fine of $64,500 under
section 1202.4, subdivision (b)(1) and a parole revocation fine of
$300 under section 1202.45, along with certain fees. The fines
and fees were stayed because the court found appellant had an
“inability to pay and lack of resources.” Restitution in the
amount of $4,815 was ordered to be paid to the Restitution Fund
to compensate it for amounts paid to Jane Doe II. The court
awarded $200,000 in direct victim restitution to Jane Doe I and
$250,000 to Jane Doe II under section 1202.4, subdivision
(f)(3)(F).3
II. DISCUSSION
A. Restitution for Noneconomic Damages
1. Section 1202.4, subd. (f)(3)(F)
Section 1202.4, subdivision (f), provides in pertinent part
that “the court shall require that the defendant make restitution
to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or
any other showing to the court.” A defendant is entitled to a
hearing to “dispute the determination of the amount of
restitution,” with the standard of proof at a restitution hearing
being preponderance of the evidence, not beyond a reasonable
A victim’s entitlement to direct restitution is not affected
3
by a defendant’s inability to pay. (People v. Evans (2019) 39
Cal.App.5th 771, 777.)
4
doubt. (§ 1202.4, subd. (f)(1); People v. Holmberg (2011) 195
Cal.App.4th 1310, 1319.)
Section 1202.4, which implements a victim’s state
constitutional right to direct restitution (Cal. Const., art. I, § 28),
is with one exception limited to the victim’s economic damages.
(People v. Smith (2011) 198 Cal.App.4th 415, 431 (Smith).) That
exception is contained in section 1202.4, subdivision (f)(3)(F),
which allows direct victim restitution 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); see Smith at p. 431.)
2. Right to Jury Trial
Defendant contends he was entitled to a jury trial to
determine the amount of the victims’ noneconomic loss based on
proof beyond a reasonable doubt. To support this proposition,
defendant relies on Apprendi v. New Jersey (2000) 530 U.S. 466(Apprendi) and its progeny. We disagree.
In Apprendi, the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) “[T]he
‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
(Blakely v. Washington (2004) 542 U.S. 296, 303, italics omitted.)
5
The principle of Apprendi applies to criminal fines. (Southern
Union Company v. United States (2012) 567 U.S. 343, 346.)
Setting aside that section 1202.4 specifies no statutory
maximum for noneconomic restitution, the main premise of
appellant’s argument—that noneconomic restitution constitutes
increased punishment—is incorrect. Direct restitution is not a
“fine” and is not “punishment.” The primary purpose of direct
victim restitution under section 1202.4 is to compensate victims
of crime for their losses so that they do not need to file separate
civil suits. (§ 1202.4, subd. (a)(3)(B) [victim restitution “shall be
enforceable as if the order were a civil judgment”]; People v.
Pangan (2013) 213 Cal.App.4th 574, 585 (Pangan); People v.
Chappelone (2010) 183 Cal.App.4th 1159, 1183–1184
(Chappelone).) Thus, courts have repeatedly held that the rule of
Apprendi does not apply to direct victim restitution. (Pangan, at
p. 585; Chappelone, at pp. 1183–1184; People v. Millard (2009)
175 Cal.App.4th 7, 35–36.)
Appellant tries to distinguish the above cases by arguing
that they involved economic rather than noneconomic restitution.
The court in Smith, supra, 198 Cal.App.4th at page 415 rejected
this argument, squarely holding that “a restitution order for
noneconomic damages does not give rise to a jury trial right” and
that “ ‘the preponderance of the evidence standard satisfies due
process.’ ” (Smith, at p. 433.) As Smith reasoned, “there is no
basis for distinguishing jury trial rights, or lack thereof, for
restitution orders for economic damages and restitution orders
for noneconomic damages. In both cases, the trial court is
6
performing a task that, in a civil case, a jury would perform.”
(Ibid.) Appellant was not constitutionally entitled to a jury
determination based on proof beyond a reasonable doubt of the
amounts of noneconomic victim restitution.
3. Equal Protection
Appellant argues that section 1202.4, subdivision (f)(3)(F)
violates equal protection principles because it applies only to
defendants convicted under sections 288 (lewd conduct with a
child), 288.5 (continuous sexual conduct with a child), or 288.7
(rape or sodomy of a child under 10). Although the People argue
that appellant has forfeited this claim by failing to object below,
the argument presents a facial challenge to the statute, i.e., a
claim that presents a pure question of law that we can resolve on
appeal without reference to the particular sentencing record
developed in the trial court. (See In re Sheena K. (2007) 40
Cal.4th 875, 884–889.)
That said, the claim fails on the merits. “When an equal
protection case does not involve a suspect classification such as
race and does not infringe on a fundamental right, the legislative
classification will be upheld whenever it has a rational
relationship to a legitimate state interest.” (People v. Parker
(2006) 141 Cal.App.4th 1297, 1309.) As the court recognized in
Smith, supra, 198 Cal.App.4th at page 435, section 1202.4,
subdivision (f)(3)(F) is subject to the rational relationship
standard and there is no equal protection violation because it
satisfies that standard by serving a legitimate state interest:
“Differentiating between child victims and other victims is
7
rational based on the vulnerability of children in general and
society’s interest in protecting children.” The Legislature could
rationally determine that sexual offenses against children
routinely lead to noneconomic damages and that child victims
should be able to recover those damages without undergoing the
trauma of a civil trial, which would be uniquely stressful to
victims of sexual crimes.
In claiming that section 1202.4, subdivision (f)(3)(F) serves
no rational purpose, appellant argues it does not treat all child
victims of sexual abuse the same because the noneconomic loss
provision of section 1202.4 does not apply to all sex crimes
involving child victims. Appellant submits there is no rational
basis for allowing victims of lewd conduct to recover noneconomic
damages as restitution while a child victim of rape, sexual
penetration or sodomy would not be able to recover noneconomic
restitution for that crime. We disagree with the premise that
child victims of such crimes are not entitled to noneconomic
restitution.
Courts have concluded that the noneconomic restitution
provision applies to acts that violate section 288, even if the
defendant is convicted of a different offense. (People v. Lee (2018)
24 Cal.App.5th 50, 58–59; People v. McCarthy (2016) 244
Cal.App.4th 1096, 1103–1108; People v. Martinez (2017) 8
Cal.App.5th 298, 305–306; but see People v. Valenti (2016) 243
8
Cal.App.4th 1140, 1179–1180 (Valenti).)4 Section 288 prohibits
committing “any lewd or lascivious act, including any of the acts
constituting other crimes provided for in Part 1, upon or with the
body, or any part or member thereof, of a child” “with the intent
of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child.” (§ 288, subds. (a); see
id., subds. (b)(1), (b)(2), (c)(1), (c)(2).)
It will be an unusual case in which a defendant convicted of
sexual offenses such as rape, sodomy or sexual penetration
against a child will not also, as factual matter, “violate” section
288 within the meaning of section 1202.4, subdivision (f)(3)(F).
(See People v. Gonzalez (2012) 211 Cal.App.4th 132, 137.) Thus,
even when a defendant convicted of such offenses is not also
charged with and convicted of section 288 (see, e.g., People v.
Mejia (2007) 155 Cal.App.4th 86, 99–100 [defendant convicted of
both rape and lewd conduct against the same victim]), the victim
would be entitled to noneconomic restitution in the vast majority
of cases. The Legislature could reasonably conclude that section
1202.4, subdivision (f)(3)(F) would allow most child victims of
sexual offenses against their person to recover noneconomic
4Courts have reached this conclusion in the context of
holding that a conviction of continuous abuse of a child under
section 288.5 could support a claim for noneconomic restitution
under a former version of section 1202.4, subdivision (f)(3)(F) that
referred only to violations of section 288 and did not specifically
refer to section 288.5. Section 1202.4, subdivision (f)(3)(F) has
since been amended to expressly make noneconomic damages
available as restitution for violations of section 288.5 and 288.7 in
addition to section 288. (Senate Bill 756 (2017–2018 Reg. Sess.).)
9
damages as restitution. For this reason, we are unpersuaded by
appellant’s reliance on People v. Hofsheier (2006) 37 Cal.4th 1185,
1199–1207, which in any event has been overruled in Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 888.
Even if there are some cases in which a defendant
convicted of a sexual offense against a child is not subject to
noneconomic damages as a component of restitution, that does
not render section 1202.4, subdivision (f)(3)(F) arbitrary or
irrational. “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.) And although appellant notes in his reply brief that child
victims of violent nonsexual offenses are not entitled to
noneconomic damages as restitution, such victims are not
similarly situated to victims of sexual offenses. (See People v.
Reynolds (1984) 154 Cal.App.3d 796, 815.)
The noneconomic loss provision of section 1202.4 passes the
rational basis test and does not violate equal protection. (Smith,
supra, 198 Cal.App.4th at p. 435.)
4. Abuse of Discretion
Appellant alternatively contends the trial court abused its
discretion in awarding $200,000 to Jane Doe 1 and $250,000 to
Jane Doe II because the court did not indicate what methodology
it was using to calculate the award and the record was devoid of
any victim impact information. We reject the claim.
10
We review the amount of restitution ordered for abuse of
discretion. (Smith, supra, 198 Cal.App.4th at p. 435; People v.
Lehman (2016) 247 Cal.App.4th 795, 801 (Lehman).) Like the
calculation of noneconomic damages in civil cases, and unlike the
calculation of economic losses in direct restitution hearings, such
damage cannot be readily quantified. (Ibid.; see Civ. Code,
§ 1431.2, subd. (b)(2); CACI No. 3905A.) Accordingly, courts
apply a standard similar to that employed when reviewing jury
verdicts awarding noneconomic damages, under which no abuse
of discretion will be found where there is a rational basis for the
award and the amount does not “shock the conscience” or
demonstrate passion, prejudice, or corruption. (Smith at p. 436;
Lehman at p. 803.)
When awarding restitution, the court noted that it was
considering the trial testimony of both victims as well as their
demeanor, observing that it had “viewed firsthand the emotional
distress that each of the girls was suffering at the time of this
trial. . . which I know . . . was some almost 2 years after the most
recent incident [as to Jane Doe I], and as to Jane Doe II, some 8
years after her most recent incident.” It stated that Jane Doe II
had participated in ongoing therapy and that Jane Doe I had
been the subject of a dependency proceeding and her relationship
with her mother had been “vastly affected.” The court noted that
the acts against Jane Doe I had occurred over a
six-to-seven-month period of time and the acts against Jane Doe
II had been committed over a three-year period. It acknowledged
the Smith case, in which the court affirmed an award of $750,000
11
in noneconomic restitution based on a formula of $50,000 per
year (Smith, supra, 198 Cal.App.4th 436), and further
acknowledged that another published decision had disapproved a
similar formula based on different facts. (See Valenti, supra, 243
Cal.App.4th at pp. 1181–1184 [People agreed that Smith formula
of $50,000 per year not adequate basis for restitution where acts
of abuse were much milder and victims were reported to be doing
well].)
Considering all of these factors, and given the severity of
the conduct in this case, the awards of $200,000 and $250,000 do
not shock the conscience. Appellant was a father figure who
violated the trust of both victims by forcibly raping them
repeatedly, sometimes becoming violent. The violation of trust
experienced by Jane Doe I as a result of the sexual assaults
extended to her mother, who knew about appellant’s conduct but
allowed him to continue living in their home. Appellant
threatened both victims and hit Jane Doe II many times.
Appellant notes the prosecutor did not present any
testimony, other evidence, or statements by the victims at the
sentencing hearing at which restitution was ordered. “[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.)
The court did not abuse its discretion in setting direct
noneconomic restitution.
B. Restitution Fine
Appellant argues the court erred by imposing and then
staying a $64,500 restitution fine, which exceeded the $10,000
12
maximum that may be imposed in any case. (§ 1202.4, subd.
(b)(1).) He also notes the court erred by imposing a $300 parole
revocation fine because it did not match the amount of the
restitution fine. (§ 1202.45, subd. (a).) The People agree.
Appellant argues the case must be remanded because the
record does not reflect the amount the court would have imposed
if it had been aware of the maximum amount of the fine. Again
the People agree. However, we do not accept the concession that
remand is the appropriate remedy. The court here decided to
stay any fine imposed based on appellant’s inability to pay. The
People concede that any error in imposing the stay has been
forfeited on appeal by their failure to object, so we have no
occasion to consider whether it was appropriate. Given all of the
circumstances, it would be judicially uneconomical to remand the
case. (People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316
[imposing minimum fine in case where remand was
uneconomical].) We will therefore order that the judgment be
modified to impose and stay the minimum fine of $300. This is
the same amount as the parole revocation fine under section
1202.45 and will obviate the problem of the parole revocation fine
being for a different amount than the restitution fine.
C. Abstract of Judgment
Appellant was convicted in counts 1, 4, 6, 9, 11, 13, 15, 17
and 19 of aggravated sexual assault of a child under section 269.
The abstract cites to both section 269 and the code sections
defining the elements of rape, oral copulation, and sexual
penetration, the offenses which underlie the section 269
13
violations. Appellant contends the abstract is inaccurate because
it gives the impression that he was convicted of “two or three
statutes” in each count, rather than a single violation of section
269. The People concede that this is erroneous and must be
corrected.
Although we question whether the abstract is actually
erroneous, a new abstract of judgment must be prepared when
the court modifies the restitution fine. To avoid any confusion on
this point, when the court modifies the abstract it should refer
only to section 269 and its appropriate subdivision on the
disputed counts.
III. DISPOSITION
The restitution fine under section 1202.4, subdivision (b)(1)
is modified to $300 and stayed. The abstract of judgment shall be
modified to refer exclusively to section 269, subdivision (a)(1) on
counts 1, 4, 6, 9 and 11; to section 269, subdivision (a)(5) on
counts 13 and 15, and to section 269, subdivision (a)(4) on counts
17 and 19, and to delete the references to the underlying statutes.
The judgment, including the order awarding direct victim
restitution, is otherwise affirmed.
14
NEEDHAM, Acting P.J.
We concur.
BURNS, J.
RODRIGUEZ, J. *
* Judge of the Superior Court of Alameda County, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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People v. Cruz / 157823
16