People v. Recalde CA2/3 ( 2024 )

Filed 10/21/24 P. v. Recalde CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B328368
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA091814)
v.
FRED RECALDE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael Terrell, Judge. Affirmed with
directions.
Richard D. Miggins, 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 Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
A jury convicted defendant Fred Recalde of two counts of
committing a lewd act upon a child and one count of oral
copulation or sexual penetration of a child 10 years old or
younger. On appeal, Recalde contends the trial court erred in
denying his motion to dismiss based on the government’s failure
to collect and timely disclose certain evidence, which Recalde
claims violated his constitutional rights. He also contends the
court erred in allowing the People to amend the information on
the eve of trial and in excluding him from testimony readback in
the jury room. In addition, Recalde argues, and the People
concede, that the trial court miscalculated his sentencing credits.
Recalde also claims the court abused its discretion in its
restitution award. We affirm the judgment and the restitution
order, with directions to amend the abstract of judgment to
properly calculate Recalde’s sentencing credits.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Elena H. used to live next door to Recalde. She was friends
with his daughter, Tiffany, and played at the Recalde home about
three times per week. Elena testified that when she was nine or
10, she walked into the guest bathroom while Recalde was in the
shower. She left and went to the garage. Recalde got dressed
and spoke to Elena in the garage about the incident. Recalde
said something like, “ ‘You saw me, let me see you.’ ” According
to Elena, she then pulled down her pants, and Recalde either
touched or licked her vagina.
Elena also testified that she and Recalde once hid in a shed
during a game of hide and seek at Recalde’s house. Recalde
touched Elena’s breasts under her shirt while they were in the
shed, and also touched her vagina.
2
Elena estimated that Recalde either touched or licked her
private areas nearly half the times she went to his house.
Recalde instructed her to not tell anyone about his conduct.
Recalde’s neighbor Madison P. was also friends with
Tiffany. When Madison was 10, 11, or 12, Tiffany and Madison
were tickling each other or wrestling at Recalde’s house.
Madison testified that Recalde joined in and rubbed her vagina
outside of her clothes.
When Madison was 16 or 17, she went to Disneyland with
Recalde and Tiffany. They stayed overnight in a hotel. Madison
and Tiffany began wrestling or tickling each other in the hotel
room, and Recalde joined in and touched Madison’s stomach and
“breast area.”
Madison also said that she would often drive places with
Recalde and Tiffany, and Madison would typically sit in the front
passenger seat. While they were driving, Recalde would rub her
thigh with his hand.
Defense Evidence
Recalde testified that Elena walked in on him in the
shower once, and he asked her to leave and close the door. About
a month later, she walked in on him changing clothes in a
different bathroom. On both occasions, Recalde instructed Elena
to not walk in on people in the bathroom. When he discussed the
second incident with Elena, she responded, “ ‘Oh, do you want to
see me naked, too?’ ” and pulled down her pants. Recalde told
her, “ ‘No, you cannot do this,’ ” and then Elena pulled up her
pants and ran away.
Recalde also recalled a hide and seek game during which he
hid in a shed with Elena. However, they were only in the shed
for less than a minute, and he did not touch her. He further
3
testified that the door to the shed would swing open unless it was
latched from the outside.
Recalde denied touching or licking Elena’s vagina. He told
Elena that he was not going to tell her parents about the times
she walked in on him in the bathroom, because Elena and Tiffany
“got along really well” and he “didn’t want to take it out on them
because that would be wrong . . . .”
Recalde testified that he poked Madison around “the top
portion of the ribcage” one time when she and Tiffany were
tickling each other. He further testified that Tiffany and
Madison did not wrestle or tickle one another during the
Disneyland trip, and that he did not touch Madison
inappropriately. According to Recalde, Madison sat in the back
seat of the car on the trip.
Tiffany testified that she never saw or heard about Recalde
acting inappropriately. She said Elena misbehaved, had anger
issues, and was not a truthful person. According to Tiffany, she
did not wrestle or tickle with Madison during the Disneyland
trip, and Recalde did not touch Madison inappropriately on that
trip. Tiffany said Madison sat in the back seat on the way to and
from Disneyland. She also testified that Madison was a
dishonest person.
Three of Recalde’s friends testified that he was trustworthy
and honest, and that they did not believe he is the type who
would sexually assault a child.
Now-retired Los Angeles County Sheriff’s Department (the
Department) Detective Sarah Gillis investigated the case. Gillis
testified that she had discretion whether or not to electronically
record witness interviews. She had the power and ability to
secretly record interviews in person and on the phone, and she
4
also could use recording equipment in Department interview
rooms and at forensic interview centers.
Gillis interviewed both Elena and Madison multiple times,
but she did not record the interviews. She did not record these
interviews because “they’re actually under obligation of the
power of subpoena to come before the court to share their story;
whereas, suspects are not.” Gillis also interviewed Elena’s
parents, Elena’s sister Jenna, Madison’s parents, Madison’s
sister Mackenna, Mackenna’s friend Kobe, and Kobe’s mother.
She also did not record these interviews. Instead, Gillis prepared
reports summarizing the interviews she conducted during her
investigation.
Gillis recorded her interviews with Tiffany and with
Recalde’s son, Ryan. To make Ryan feel at ease, Gillis told Ryan
that she records “everything because no one believes the police.”
Gillis recorded the interviews with Recalde’s children because she
believes a suspect’s close family members are more likely to
recant inculpatory statements, particularly if they reside with
the suspect.
Defense expert Dr. Bradley Mcauliff, an expert in child
sexual abuse and suggestibility in interviewing, opined that it
was unusual that there were no recordings of the victim and
witness interviews in this case. He noted that children may be
susceptible to suggestion in certain circumstances. For example,
children who are asked leading questions are more likely to
provide inaccurate responses as compared to children who are
asked neutral questions. Similarly, when a child is asked the
same or similar questions repeatedly, the child may think they
gave the wrong answer, leading them to provide a different or
inaccurate answer. A child’s responses may also be affected by
5
the interviewer’s nonverbal behavior, such as a smile or a frown.
According to Mcauliff, the interviewer’s behavior may sometimes
contaminate a child’s report of a situation. He opined that audio
or video recordings of interviews are therefore useful to help
assess whether the interviewer’s questions or demeanor affected
the child’s answers.
Trial and Sentencing
Elena eventually told her sister and her parents about
Recalde’s conduct, and her parents called the police. Though
Madison also eventually told her parents about what had
occurred with Recalde, her mother initially opted not to report it
to law enforcement after speaking with friends and
acquaintances knowledgeable about what Madison might
experience if she made a police report. In the course of the
investigation into the allegations involving Elena, Gillis learned
that Madison would also frequent Recalde’s home. Gillis
subsequently contacted Madison’s mother who arranged for Gillis
to interview Madison. Recalde was arrested on November 2,
2018.
The People filed a five-count information charging Recalde
with four counts of committing a lewd act upon a child (Pen.
Code, § 288, subd. (a))1 (counts 1, 2, 4, and 5), and one count of
oral copulation or sexual penetration of a child 10 years old or
younger (§ 288.7, subd. (b)) (count 3). Counts 1 through 4 alleged
misconduct relating to Elena, and count 5 related to Madison.
The information included a multiple victim allegation on all
counts. (§ 667.61, subds. (b) & (e).)
1 All further undesignated statutory references are to the
Penal Code.
6
Just before trial, the People amended the information to
add several allegations of aggravating circumstances: That the
victims were particularly vulnerable (Cal. Rules of Court, rule
4.421(a)(3)), that Recalde held a position of trust (id., rule
4.421(a)(11)), that the crimes involved separate acts of violence
(id., rule 4.425(a)(2)), and that the crimes occurred at different
times and separate places (id., rule 4.425(a)(3)).
A jury convicted Recalde on counts 2, 3, and 4, and
acquitted him on counts 1 and 5 (the sole count involving
Madison). It found not true the multiple victim allegation and
the aggravating circumstance that count 3 involved crimes
committed at different times and separate places. The jury found
true the remaining allegations.
On January 24, 2023, the court imposed an aggregate
sentence of eight years plus 15 years to life, consisting of (1) the
midterm of six years for count 2; (2) one-third the midterm, or
two years, on count 4, to run consecutively; and (3) 15 years to
life for count 3, to run consecutively.
After hearing argument and evidence regarding restitution,
the court ordered Recalde to pay Elena’s parents $7,200 plus
interest for her future counseling, and $55,250 plus interest for
moving expenses.
Recalde timely and separately appealed his conviction and
the restitution order. This court consolidated the two appeals.
7
DISCUSSION2
I. Recalde Has Not Established Any Fourteenth
Amendment Due Process Violation
Recalde raises several related arguments under the due
process clause of the Fourteenth Amendment, based on the
government’s failure to properly record, preserve, and disclose
evidence. He contends the trial court should have dismissed the
case, and that the verdict must be reversed. We disagree.
a. Additional factual background
In November 2020, Recalde filed a motion to compel
discovery. The motion argued that Gillis interviewed the victims
and several family members, but claimed she did not record those
interviews or prepare “rough notes” or “verbatim accounts” of her
interviews. The motion requested any and all materials relating
to Gillis’s victim and witness interviews.3
2 The parties submitted nearly 250 pages of briefing on
appeal. However, “[a]n appellate court is not required to address
all of the parties’ respective arguments, discuss every case or fact
relied upon by the parties, distinguish an opinion just because a
party claims it is apposite, or express every ground for rejecting
every contention advanced by every party.” (People v. Garcia
(2002) 97 Cal.App.4th 847, 853.) We therefore address the most
pertinent arguments and authorities in our analysis of all
substantive issues raised on appeal.
3 The motion also sought records relating to Deputy Inzalaco,
who administered a polygraph exam to Recalde shortly after his
arrest. Gillis watched from another room, but she testified that
the recording function on the device she used was not working at
the time. The polygraph device itself was also capable of
recording, but Inzalaco asserted that it too was not working at
the time and no recording was created. Recalde mentions these
8
During a hearing on the discovery motion, Gillis testified
that the Department did not have any policy about recording
interviews with children.4 Gillis interviewed Madison and Elena,
facts in his appellate briefing, but he does not expressly cite them
in support of his contentions. Though we by no means condone
the Department’s investigative methods, we would conclude they
do not reflect any due process violation. The trial court found
there was no evidence any recordings of the polygraph were ever
made, and this finding is supported by substantial evidence. As
we discuss post, “due process does not require the police to collect
particular items of evidence.” (People v. Montes (2014) 58 Cal.4th
809, 837 (Montes).) Nor is there any evidence of any bad faith.
(People v. Flores (2020) 9 Cal.5th 371, 397 (Flores) [“negligence
does not establish constitutional bad faith”].) Moreover, by
default the results of the polygraph exam would have been
inadmissible at trial. (Evid. Code, § 351.1.)
4 During a recess in Gillis’s trial testimony almost three
years later, the prosecution produced a recently obtained
screenshot from the Department’s internal intranet website
(hereinafter, the “document”), entitled “victim interviews.” The
document indicated that recording victim interviews was not
recommended in sexual assault cases, though it was unclear if
the document reflected current Department policy. The court
denied Recalde’s motion for a mistrial based on allegations of late
discovery. Recalde also argued the document was “Brady
material” (Brady v. Maryland (1963) 373 U.S. 83 (Brady)), but
after Gillis testified outside the presence of the jury that though
she remembered being told there was no policy requiring her to
record witness interviews, she had been unaware of the document
until that day, the court found the document was not Brady
material and granted Recalde’s request that the parties not refer
to it during trial. Recalde’s appellate briefing notes that his trial
counsel described this document as “possible Brady material” and
9
but she did not record those interviews.5 Gillis kept a case
journal during her investigation, which roughly outlined
interviews and other investigatory activities. She did not recall if
she took notes during the interviews in this case, but any notes
would be in the original case file. When Gillis left the
Department, she turned in her recording device and all data
stored on it was deleted so another employee could use it. The
“[w]hile the defense believed the paper constituted Brady
material as potentially exculpatory, the trial court said it was not
and believed it had no relevance.” It is unclear whether Recalde
argues on appeal that the delayed production of the document
constituted a Brady violation, and, as such, the court erred in
denying Recalde’s motion for a mistrial. If Recalde is making
such a claim, we would reject it. Although the delay in
identifying the document is troubling, the document
recommended against recording interviews, consistent with
Gillis’s practice. As the trial court correctly noted, this is “the
opposite of exculpatory” and, as such, does not satisfy the Brady
test of “evidence favorable to” Recalde. (Id. at p. 87.)
5 Gillis also interviewed Tiffany. She recorded the
interviews, but the recordings were misplaced. The court ordered
the prosecution to take additional steps to locate them, and two
recordings were eventually located and produced to the defense.
Recalde’s appellate briefing describes these facts, but he does not
argue that the delay contributed to the government’s outrageous
conduct, nor that it caused any specific prejudice. However, even
if Recalde raised such an argument, we would reject it. The
record does not establish that these recordings included any
exculpatory evidence. (Brady, supra, 373 U.S. at p. 87.) The
record also does not reflect that the delay was caused by anything
more than negligence, and “negligence does not establish
constitutional bad faith.” (Flores, supra, 9 Cal.5th at p. 394.)
10
prosecutor represented to the court that she had requested files
from the Department, but offered to “call over to the sheriff’s
department . . . and see what exists” and request the
Department’s file on the investigation.
After further discovery efforts, the court held a pretrial
hearing at which the parties presented limited testimony about
Gillis’s and the Department’s “custody and control of computer
digital files.” Department Sergeant Brian Hudson testified that
he supervised Gillis when she worked as a special victims bureau
detective. Hudson testified Department employees would save
reports and other materials in a folder dedicated to the case. Due
to their large size, detectives were expected to upload audio
recordings into a system called “Prelims.” Hudson and another
employee were able to access and search the folders and drives to
which Gillis had access when she worked for the Department, but
they did not find any materials relevant to this case.
Department Detective Richard Simmons shared an office
with Gillis. Simmons gave Gillis an external hard drive and
taught her to save items in folders on the hard drive using a
shortcut. However, this shortcut did not save the files on the
computer itself.
Gillis testified that she did not realize Simmons’s storage
method saved her data only to the external hard drive, and not to
her computer. She did not store any interviews of any witness in
this case to Prelims or any other Department storage system,
because she assumed they were saved on the “database” on her
hard drive. Gillis retained the hard drive, which she had
personally purchased, when she retired. At some point before
August 2022, the hard drive was provided to the defense.
11
In July 2022, Recalde filed a motion to dismiss based on the
government’s outrageous conduct and Brady violations. The
motion argued that Gillis and the Department engaged in
outrageous conduct by not recording witness interviews, allowing
data to be deleted by circumventing Department data storage
procedures, and allowing Gillis to retain the external hard drive
she had used while working as a detective.
At the hearing on Recalde’s motion to dismiss, the court
recognized that the Department’s conduct was “far from perfect.”
However, the court found that the victim and witness interviews
were not recorded either because of faulty equipment (i.e., the
equipment malfunctioned during the polygraph exam), or because
recording was not required and Gillis decided a written report
would suffice. The court expressly found Gillis’s explanation
credible. Although Gillis conceded she did not comply with
Department data storage practices, the court found no indication
of “malfeasance” nor any “deliberate attempt to undermine the
defense.” The court also noted that the hard drive was provided
to the defense and there was no evidence the drive had been
compromised. The court therefore denied the motion to dismiss.
b. Law enforcement did not engage in outrageous
government conduct
Recalde argues the trial court erred in denying his motion
to dismiss based on the government’s supposedly outrageous
conduct. We disagree.
The United States Supreme Court has held that a trial
court may dismiss a criminal case based on outrageous
government conduct, defined broadly as “conduct that shocks the
conscience.” (Rochin v. California (1952) 342 U.S. 165, 172.) Our
high court has “left open the possibility that we might accept the
12
outrageous conduct defense,” but has not formally adopted it.
(People v. Smith (2003) 31 Cal.4th 1207, 1224–1227.)
Nonetheless, several Courts of Appeal have recognized the
defense as potentially applying where the police manufactured a
crime, engaged in criminal activity, or were motivated solely by
the desire to convict the defendant. (People v. Wesley (1990) 224
Cal.App.3d 1130, 1144.) Outrageous conduct may also occur
where the government interfered with “the attorney-client
relationship, and prevented [the defendant] from receiving a fair
trial.” (People v. Guillen (2014) 227 Cal.App.4th 934, 1007
(Guillen).)
Several courts have held that any ruling on a motion to
dismiss based on outrageous conduct is reviewed for abuse of
discretion. (People v. Velasco-Palacios (2015) 235 Cal.App.4th
439, 445; People v. Shrier (2010) 190 Cal.App.4th 400, 418.)
Others have reasoned that the analysis is a mixed question of
fact and law. (Guillen, supra, 227 Cal.App.4th at p. 1006; People
v. Uribe (2011) 199 Cal.App.4th 836, 856 (Uribe).) Under the
latter approach, the appellate court first assesses the facts.
“ ‘ “[T]he power to judge the credibility of the witnesses, resolve
any conflicts in the testimony, weigh the evidence and draw
factual inferences, is vested in the trial court. On appeal all
presumptions favor the exercise of that power, and the trial
court’s findings on such matters, whether express or implied,
must be upheld if they are supported by substantial evidence.” ’ ”
(Uribe, at p. 856.) The court then applies the law to those
established facts de novo, to determine whether the government’s
actions constitute outrageous conduct. (Id. at p. 858.) We need
not weigh in on this split of authority, because even under the
latter standard, we affirm.
13
Here, Gillis prepared written reports instead of recording
several victim and witness interviews. She explained there was
no Department policy requiring her to record these interviews,
and the trial court found her credible. Gillis also failed to comply
with Department data retention practices by saving files to an
external hard drive and bypassing Department storage systems.
She took the hard drive she had used at work with her when she
retired. However, she believed any files transferred to the hard
drive were also stored on her work computer. The court appeared
to implicitly find Gillis’s explanation credible, noting there was
no evidence that she was “trying to undermine [Recalde’s] . . .
rights to discovery” or his right to a fair trial. We defer to the
court’s credibility findings, as they are supported by substantial
evidence. (Uribe, supra, 199 Cal.App.4th at p. 856.)
Applying the law to these facts (Guillen, supra, 227
Cal.App.4th at p. 1006), we conclude that Gillis’s decision to not
record witness interviews and her mismanagement of certain
data was not outrageous government conduct. For example, in
People v. Erwin (1993) 20 Cal.App.4th 1542 (Erwin), an
investigator chose not to record pretrial interviews with a child
victim. At the preliminary hearing, the investigator admitted
that he had a practice of not recording such interviews because
the recordings “might memorialize for exploitation by the defense
inconsistencies in a child witness’s account of an alleged offense.”
(Id. at p. 1551.) The trial court found this practice troubling, but
recognized that the law does not “impos[e] a duty on the police to
use electronic recording devices to collect and preserve all
witnesses’ statements.” (Id. at p. 1552.) The court therefore
rejected the defendant’s due process claims and denied his motion
to dismiss. (Ibid.)
14
Similarly, here, the trial court described the Department’s
conduct as “far from perfect,” an assessment we share. Gillis was
either ignorant of or disregarded Department data storage
policies. Although there is no evidence that Gillis had a practice
of not recording interviews to avoid witnesses being impeached
with prior inconsistent statements, her decision to not preserve
this evidence was arguably negligent or reckless. But Recalde
has not identified any authority supporting that this sort of
behavior, with no evidence of malicious intent, constitutes
outrageous government conduct that could warrant dismissal. As
the Erwin court reasoned, the defendant’s remedy in such a
scenario is “to impeach the prosecution’s witnesses by exposing
the practice to the jury at trial.” (Erwin, supra, 20 Cal.App.4th
at p. 1552.) Indeed, Recalde’s trial counsel questioned Gillis in
front of the jury about her investigatory decisions and motives at
length, and presented expert testimony opining that failure to
record interviews with child victims may cast doubt on the
veracity of their accusations. Therefore, dismissal “would have
been out of proportion to the detective’s offense, given that
respondent clearly had other means available to challenge the
consistency, accuracy and veracity of the victim’s account of the
crime.” (Id. at p. 1553.)
Recalde cites several cases in which courts determined that
law enforcement’s conduct was outrageous and contends Gillis’s
behavior was similar. Yet, in each example cited, the state
proactively and egregiously interfered with the defendant’s right
to counsel. For example, in Morrow v. Superior Court (1994) 30
Cal.App.4th 1252, 1260, dismissal was required where the
prosecution hired an investigator to eavesdrop on confidential
attorney-client communications. In Boulas v. Superior Court
15
(1986) 188 Cal.App.3d 422, 429, the prosecution offered a plea
deal contingent on the defendant firing his chosen counsel, and
then withdrew the deal after the defendant did so, thus
warranting dismissal with prejudice. And in People v. Moore
(1976) 57 Cal.App.3d 437, 440–442, dismissal was required where
the prosecution instructed the defendant to not tell his attorney
about undercover work the defendant was performing for the
prosecution, and falsely told the defendant that his attorney had
been disbarred. In contrast, here, there is no evidence that
anyone interfered with Recalde’s relationship with his counsel.
Indeed, the trial court expressly found no evidence of any
“deliberate attempt to undermine the defense.”
Recalde also contends the prosecution behaved
outrageously by coaching Elena to provide false testimony.6 The
evidence contradicts this claim. During the preliminary hearing,
Recalde’s counsel asked Elena if anyone instructed her to say she
did not remember if she was unsure of the answer to a particular
question. Elena responded, “No, it’s just – I just say that so I do
not say the wrong answer.” To the extent this testimony
6 Recalde claims this supposed coaching also violated his due
process rights because it was prosecutorial misconduct. (See, e.g.,
People v. Samayoa (1997) 15 Cal.4th 795, 841.) Recalde failed to
raise this argument below. “As a general rule a defendant may
not complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.” (Ibid.) In any case,
we would reject this claim for the reasons discussed above: The
evidence does not support that the prosecution instructed Elena
to lie in her trial testimony.
16
suggested that Elena had testified that she did not recall
something when, in fact, she was uncertain, the testimony makes
clear this was Elena’s choice, and not based on any direction from
Gillis or the prosecutor. Moreover, at trial, Recalde’s counsel
asked Elena if she was coached to say she did not remember so as
not to say the wrong answer, and she responded clearly: “No.”
Elena also testified that Gillis and the prosecutor told her to tell
the truth, and said that she did, in fact, tell the truth at trial.
The evidence does not support that Gillis or the prosecutor
improperly coached Elena, and therefore this point does not
support Recalde’s claim of outrageous government conduct.
c. Recalde has not established any Brady violation
Recalde next argues Gillis violated Brady by not
electronically recording several victim and witness interviews.
We disagree.
The due process clause of the Fourteenth Amendment
prohibits suppression of “evidence favorable to an accused” which
is “material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” (Brady, supra, 373
U.S. at p. 87.) “There are three components of a true Brady
violation: The evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.” (Strickler v.
Greene (1999) 527 U.S. 263, 281–282.) “Conclusions of law or of
mixed questions of law and fact, such as the elements of a Brady
claim [citation], are subject to independent review.” (People v.
Salazar (2005) 35 Cal.4th 1031, 1042.) However, the trial court’s
factual findings are entitled to great weight if supported by
substantial evidence. (Ibid.)
17
Recalde has not established that Gillis’s failure to create
recordings of witness interviews amounts to suppression of
evidence. Indeed, “Brady merely serves ‘ “to restrict the
prosecution’s ability to suppress evidence rather than to provide
the accused a right to criminal discovery.” ’ ” (People v. Mena
(2012) 54 Cal.4th 146, 160; Montes, supra, 58 Cal.4th at p. 837
[“due process does not require the police to collect particular
items of evidence”]; Erwin, supra, 20 Cal.App.4th at p. 1552 [“The
law falls short of imposing on law enforcement officers a duty to
‘ “gather up everything which might eventually prove useful to
the defense” ’ ”].) Gillis did not record the interviews in question,
and therefore no recordings were suppressed.7 Recalde has not
identified any case holding that law enforcement’s decision to not
record an interview constitutes suppression of evidence under
Brady, nor has he articulated any reasoned argument as to why
we should expand the law under the facts of this case.
Moreover, even if Gillis’s decision not to record the
statements could qualify as suppression of evidence, Recalde has
not established that the interviews yielded any exculpatory or
impeaching information. Recalde claims there would be
“inevitable” discrepancies that would allow for impeachment. He
also argues that a recording might have revealed that “Gillis
coached, or persuaded, or influenced what the girls said.” Yet,
7 Recalde argues that Elena testified that she “may have
heard a recording device” during one interview with Gillis, and
he therefore contends Gillis made a recording and suppressed or
destroyed it. In fact, Elena’s testimony was that she may have
later heard a recording of her interview with Gillis, but she did
not remember. The evidence otherwise overwhelmingly supports
that Gillis did not record any interview with Elena.
18
this is entirely speculative, and “ ‘Brady . . . does not require the
disclosure of information that is of mere speculative value . . . .’ ”
(People v. Williams (2013) 58 Cal.4th 197, 259.) “Because
defendant has not shown that the prosecution withheld evidence
that was both ‘favorable and material’ to the defense [citation],
his claim is without merit.” (Ibid.)
d. Recalde has not established any
Trombetta/Youngblood violation
Recalde next argues that his due process rights were
violated under the standards set out in California v. Trombetta
(1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood
(1988) 488 U.S. 51 (Youngblood); or, in the alternative, that his
trial counsel was ineffective for failing to raise this specific
argument below. We again disagree.8
Under Trombetta, the state violates a defendant’s due
process rights by failing to preserve evidence whose exculpatory
value “was apparent before the evidence was destroyed, and
[was] of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available
8 Recalde’s trial counsel did not cite Trombetta or
Youngblood in his motion to dismiss or at any hearing. However,
the People concede this argument was not forfeited, because it
does not “ ‘invoke facts or legal standards different from those the
trial court was asked to apply,’ ” and merely adds a
Constitutional gloss to the arguments raised below. (People v.
Gutierrez (2009) 45 Cal.4th 789, 809.)
Moreover, even if counsel’s failure could constitute a
forfeiture, as discussed ante, the record does not reflect the lack
of a satisfactory rationale for such omission nor has Recalde
demonstrated a reasonable probability of a different result had
his counsel raised an argument under Trombetta or Youngblood.
19
means.” (Trombetta, supra, 467 U.S. at p. 489.) “As an
alternative to establishing the apparent exculpatory value of the
lost evidence, Youngblood provides that a defendant may show
that ‘ “ ‘potentially useful’ ” ’evidence was destroyed as a result of
bad faith.” (People v. Fultz (2021) 69 Cal.App.5th 395, 424–425
(Fultz), citing Youngblood, supra, 488 U.S. at p. 58.)
We review a trial court’s decision under Trombetta/
Youngblood for substantial evidence. (People v. Duff (2014) 58
Cal.4th 527, 549 (Duff).) We defer to the trial court’s credibility
findings. (People v. Woods (1999) 21 Cal.4th 668, 673; Fultz,
supra, 69 Cal.App.5th at p. 429.)
Substantial evidence supports the trial court’s denial of
Recalde’s motion to dismiss under the standards articulated in
Trombetta and Youngblood. Recalde’s challenge is based solely
on Gillis’s decision to not record several interviews. Stated
otherwise, he claims Gillis’s failure to create recordings is akin to
destruction of evidence. Yet, Recalde fails to articulate how the
government could have destroyed nonexistent recordings in
violation of Trombetta. (People v. Thomas (2012) 54 Cal.4th 908,
929 [rejecting Trombetta claim as to unrecorded portion of
interview].) Even assuming Gillis’s decision not to record the
interviews constitutes “destruction” of evidence, Recalde fails to
explain what exculpatory information was “apparent” from the
interviews. (Trombetta, supra, 467 U.S. at p. 489.) He merely
claims there would be “inevitable discrepancies” between the
pretrial interviews and trial testimony, which Recalde’s counsel
could have exploited during cross-examination. However,
speculation is insufficient to establish that an unrecorded
interview would have yielded any exculpatory or impeaching
evidence. (Thomas, at p. 929.)
20
Recalde also contends Gillis destroyed “potentially useful”
evidence in bad faith. (Youngblood, supra, 488 U.S. at p. 58.) He
notes that our reviewing courts, citing Youngblood, have
“suggested that there may be an appropriate case where the
failure to collect evidence might warrant due process
considerations.” (Citing Montes, supra, 58 Cal.4th at p. 838;
Miller v. Vasquez (9th Cir. 1989) 868 F.2d 1116, 1119, 1121
[allegations that officer used extremely derogatory expletive to
describe petitioner, tried to dissuade witnesses from testifying,
and may have harbored animosity toward petitioner due to his
perceived gang membership established colorable claim of bad
faith motivating officer’s failure to obtain victim’s bloody jacket or
photograph petitioner’s injuries].) Yet, both Montes and Miller
imposed qualifiers absent here—that law enforcement’s failure to
collect potentially exculpatory evidence was motivated by bad
faith. (Montes, at p. 810 [rejecting Youngblood claim where
appellant failed to establish bad faith]; Miller at p. 1120 [citing
Youngblood to conclude that “bad faith failure to collect
potentially exculpatory evidence would violate the due process
clause”].)
Here, even if the unrecorded interviews could qualify as
destroyed evidence, the record does not reflect any bad faith.
Gillis testified that the Department had no policy on recording
witness interviews. (Cf. Duff, supra, 58 Cal.4th at p. 550 [“A
showing that evidence was disposed of in accordance with
standard procedures in the ordinary course of business suggests
police acted in good faith”]; People v. Tafoya (2007) 42 Cal.4th
147, 187 [same].) She explained that she simply chose not to
record the interviews in question. The trial court found Gillis
credible, and we defer to this finding. (Fultz, supra, 69
21
Cal.App.5th at p. 429.) The court further found no evidence of
“malfeasance” nor any “deliberate attempt to undermine the
defense.” These findings are supported by substantial evidence.
Gillis’s practices “may have been negligent, but negligence does
not establish constitutional bad faith.” (Flores, supra, 9 Cal.5th
at p. 397 [no bad faith where detective had no reason to believe
that wiping down handgun might destroy potentially exculpatory
evidence].)
Recalde argues that Gillis’s explanation for her decision to
record some interviews, but not others, supports his claim that
she acted in bad faith. We disagree. Gillis testified that she
chose not to record her interviews with the victims because they
are subject to subpoena. (See, e.g., §§ 1326, 1328.) Recalde
asserts this explanation does not “hold water” because “not all
victims are subpoenaed to testify” and there is no evidence that
Elena was subpoenaed in this case. However, that the victim in
this case ultimately chose to testify of her own volition does not
contradict the rationale Gillis articulated. Gillis also provided a
reasoned explanation for her decision to record her interviews
with Recalde’s children. She testified that close family members
who live with a defendant are more likely to recant inculpatory
pretrial statements, particularly if their safety is at risk,
suggesting it is particularly important to preserve their pretrial
statements. Recalde argues this belief was unfounded because
Recalde’s children did not provide any inculpatory evidence and
did not face any safety risk. But the fact that the family
members in this specific case did not ultimately recant or face a
safety risk does not contradict Gillis’s belief that close family
members are more likely to do so in general. Overall, Gillis’s
explanations are reasonable. Indeed, even if they were not
22
perfectly logical, Recalde fails to provide any legal authority or
reasoned argument supporting that mere irrationality equates to
bad faith.9
Even assuming Recalde could meet the first prong of
Trombetta/Youngblood, the absence of pretrial interview
recordings did not deny Recalde the opportunity “to obtain
comparable evidence by other reasonably available means.”
(Trombetta, supra, 467 U.S. at p. 489.) Recalde cross-examined
both victims and several of their immediate family members
whose pretrial interviews were not recorded. He also impeached
both victims with their testimony from the preliminary hearing.
Indeed, Recalde was acquitted on the charge relating to Madison,
suggesting his trial counsel was able to effectively discredit her
even without a pretrial interview.
Finally, Recalde’s reliance on Fultz, supra, 69 Cal.App.5th
395 for the proposition that failure to record a witness interview
constitutes a Trombetta/Youngblood violation is misplaced. In
Fultz, the prosecution interviewed two codefendants who had
accepted plea deals. (Fultz, at p. 405.) The interviews were
conducted in a room in which video recording equipment
“continuously records.” (Ibid.) However, “somebody had altered
the recording equipment and muted the audio recording feature.”
(Id. at p. 406.) The trial court found that the equipment was
9 The speculative exculpatory nature of the unrecorded
statements further undermines any claim of bad faith by Gillis.
(See Montes, supra, 58 Cal.4th at 838 [“Because ‘[t]he presence or
absence of bad faith by the police . . . must necessarily turn on
the police’s knowledge of the exculpatory value of the evidence at
the time it was lost or destroyed’ [(Youngblood, supra, 488 U.S. at
p. 57)], defendant has failed to establish bad faith in this case.”].)
23
altered in bad faith, thus violating the defendant’s due process
rights. This violation, when combined with eight other
constitutional and discovery violations, warranted dismissal. (Id.
at pp. 413–414.) The Court of Appeal concluded that substantial
evidence supported the trial court’s finding that the government
unconstitutionally muted the interviews. (Id. at p. 429.)
The facts of the instant case are distinguishable from those
in Fultz. Unlike in Fultz, none of the unrecorded witness
interviews in this case were conducted in rooms set up to
automatically record, and there was no evidence that Gillis or
anyone else ever bypassed any default recording function.10
Gillis explained that she simply chose not to record the
interviews, and the court found her credible. Moreover, in Fultz,
the trial court found that someone had muted the recording
equipment in bad faith. (Fultz, supra, 69 Cal.App.5th at pp. 429–
430.) In contrast, the trial court found Gillis credible and found
no evidence of “malfeasance.” As we have discussed, we defer to
these findings, as they are based on substantial evidence, and
there is no evidence that Gillis or anyone else acted in bad faith.
We therefore reject Recalde’s arguments under Trombetta and
Youngblood.
In the alternative, Recalde claims his counsel was
ineffective for failing to specifically cite Trombetta and
Youngblood in the trial court. To establish this claim, Recalde
10 The two devices that could have recorded Recalde’s
polygraph examination failed to do so, but the only evidence on
that issue indicated these failures were the result of technical
malfunctions, not bad faith. In any case, Recalde’s
Trombetta/Youngblood argument is based solely on the
unrecorded witness interviews, not Recalde’s unrecorded
polygraph examination.
24
must show (1) his counsel’s representation fell below the
standard of reasonableness “under prevailing professional
norms,” and (2) that deficient performance caused him prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland);
People v. Tilley (2023) 92 Cal.App.5th 772, 778 (Tilley).) Recalde
has failed to make either showing.
Recalde has not demonstrated the absence of any
“ ‘satisfactory explanation’ ” for counsel’s failure to raise an
argument under Trombetta or Youngblood. (People v. Ledesma
(2006) 39 Cal.4th 641, 746.) For example, his counsel may have
concluded that the due process arguments raised in his motion to
dismiss would be the most persuasive theories under the facts of
the case. “[W]e have no basis upon which to conclude that
defense counsel failed to pursue a reasonable tactical choice” by
focusing on certain due process arguments instead of barraging
the trial court with every conceivable claim. (Id. at p. 747.)
Even if we could conclude that defense counsel’s approach
fell below applicable professional standards, Recalde has
nonetheless failed to establish prejudice. “It is not enough to
establish prejudice for defendant to propose that counsel’s
performance had some ‘conceivable effect’ on the outcome; rather,
defendant must show a reasonable probability of a different
result but for counsel’s errors. [(Strickland, supra, 466 U.S. at
pp. 693–694.)] Prejudice must be a demonstrable reality
established based on facts in the record, not simply speculation
as to the effect of the errors or omissions of counsel. [Citations.]”
(Tilley, supra, 92 Cal.App.5th at p. 778.)
Recalde’s appellate briefing fails to identify any prejudice
that resulted from his counsel’s failure. In any case, as we have
discussed, Recalde’s counsel raised several arguments relating to
25
the People’s treatment of evidence, including a motion to dismiss
based on a due process violation. The trial court denied that
motion, found Gillis credible, and generally found that law
enforcement did not engage in any “malfeasance.” Thus, even if
Recalde’s counsel had explicitly raised a Trombetta/Youngblood
argument below, there is no reasonable probability that the court
would have concluded Gillis’s decision to not record the
interviews violated either standard.
The record does not “ ‘ “affirmatively disclose the lack of a
rational tactical purpose” ’ ” for counsel’s conduct (People v.
Majors (1998) 18 Cal.4th 385, 403), and even it had, Recalde
cannot establish prejudice. We therefore reject Recalde’s claim of
ineffective assistance of counsel.
II. Recalde Has Not Established That His Absence From
The Trial Testimony Readback Caused Prejudice
After the jury began deliberating, it requested readback of
the testimony of Recalde, Elena, and Madison. The court
indicated it would instruct the court reporter to read back that
testimony in the jury room. Defense counsel objected, and
asserted Recalde had a constitutional right to be present during
the readback. The court rejected this request, citing People v.
Covarrubias (2016) 1 Cal.5th 838 (Covarrubias), in which our
high court concluded that “ ‘the rereading of testimony is not
considered a critical stage of trial in which the defendant has a
constitutional right to personal presence.’ ” (Id. at p. 917.)
On appeal, Recalde attempts to revive this constitutional
argument, but he fails to address Covarrubias. To the extent
Recalde means to argue that Covarrubias was wrongly decided,
such an argument “is not productive in a trial court. Or here.”
(Olson v. Lyft, Inc. (2020) 56 Cal.App.5th 862, 866, fn. 1.) Indeed,
26
“ ‘[o]n federal questions, intermediate appellate courts in
California must follow the decisions of the California Supreme
Court, unless the United States Supreme Court has decided
the same question differently.’ ” (Id. at p. 870.) Recalde has not
identified any authority from the California or United States
Supreme Court that supersedes or contradicts Covarrubias. “In
any event, ‘[a]bsent a showing of prejudice, a defendant’s
“absence from a rereading of testimony does not raise due process
concerns.” ’ ” (Covarrubias, supra, 1 Cal.5th at p. 918.) Recalde
argues that the court reporter might have read the transcripts
back incorrectly or unfairly emphasized certain testimony, but
these contentions are speculative and must be rejected. (Ibid.
[“Defendant’s suggestion that the reporter may have given undue
emphasis to certain portions of the transcript (e.g., by emphasis
of voice) or read from the wrong transcript, or that a portion of
the testimony may have been inadvertently omitted is entirely
speculative.”].)
Recalde also argues, and the People concede, that the court
committed statutory error by allowing the jury to hear certain
testimony read back outside of Recalde’s presence and over his
counsel’s objection. Recalde cites section 977, subdivision (b)(1),
which requires that a defendant in a felony proceeding “shall be
physically present . . . during those portions of the trial when
evidence is taken before the trier of fact,” and “shall be physically
or remotely present at all other proceedings unless they waive
their right to be physically or remotely present, with leave of
court and with approval by defendant’s counsel.” However, such
error “ ‘ “is reversible only if it is reasonably probable the result
would have been more favorable to defendant absent the
error.” ’ ” (People v. Avila (2006) 38 Cal.4th 491, 598.) Recalde’s
27
speculative arguments are again insufficient to establish
prejudice. “Because defendant provides no basis on which we
could conclude the result of his trial would have been different
had he been present at the readback (citation), we find the
violation of section 977 was harmless.” (Ibid.)
III. Recalde Has Not Identified Any Prejudice Based on
The Amended Information
Recalde claims the trial court erred by allowing the
prosecution to amend the information just before jury selection to
add four allegations of factors in aggravation, over his counsel’s
objection. We disagree.
An information may be amended “without leave of court at
any time before the defendant pleads or a demurrer to the
original pleading is sustained.” (§ 1009.) “If there is no
prejudice, an amendment may be granted ‘up to and including
the close of the trial.’ ” (People v. Goolsby (2015) 62 Cal.4th 360,
367–368.)
Here, the amendment added allegations that the victims
were particularly vulnerable (Cal. Rules of Court, rule
4.421(a)(3)), that Recalde took advantage of a position of trust
(id., rule 4.421(a)(11)), and that the crimes alleged involved
separate acts of violence and were committed at different times
and separate places (id., rule 4.425(a)(2) & (3)). The first two
allegations arise from the same facts underlying the crimes
alleged in the original information, i.e., that Recalde molested
two young girls who were friends with his daughter. The latter
two allegations are consistent with the original information,
which alleged that Recalde committed multiple lewd acts during
different timeframes. The new allegations did not constitute a
“ ‘significant variance’ ” in the case against Recalde, and
28
therefore the amendment was permissible. (People v. Mora-
Duran (2020) 45 Cal.App.5th 589, 599; People v. Murphy (1973)
35 Cal.App.3d 905, 923 [amendment “arising out of the same
transactions as those originally charged” was not prejudicial].)
Recalde claims the amendment caused prejudice because it
“cannot be known” whether his counsel would have prepared his
defense differently if the new allegations were included in the
original information. We reject this facially speculative
argument as insufficient to establish prejudice, and therefore we
find no error.
IV. Recalde is Entitled to Three Days of Additional
Custody Credits
The parties agree that the trial court erroneously found
that Recalde was entitled to 1,542 days of presentence credits for
actual time served. Recalde claims he served three additional
days, while the People argue he is entitled to two more days.
Recalde was arrested on November 2, 2018, and remained
in custody until his sentencing on January 24, 2023. “ ‘A
defendant is entitled to actual custody credit for ‘all days in
custody’ in county jail and residential treatment facilities,
including partial days.’ ” (People v. Valdes (2020) 53 Cal.App.5th
953, 955.) Recalde was in custody for 60 days in 2018, including
the day of his arrest; 365 days in 2019; 366 days in 2020, a leap
year; 365 days in 2021; 365 days in 2022; and 24 days in 2023,
including the day on which he was sentenced. He was therefore
in custody for a total of 1,545 days. The court found Recalde was
entitled to an additional 231 days for worktime credits, resulting
in a total of 1,776 days of presentence credits. We remand and
instruct the trial court to correct the abstract of judgment
accordingly.
29
V. The Trial Court Did Not Abuse Its Discretion in
Awarding Restitution
Finally, Recalde argues the trial court abused its discretion
in ordering restitution for Elena’s future mental health
treatments and her family’s moving costs. We find no abuse of
discretion.
a. Additional factual background
After Recalde was convicted, Elena’s family sought
restitution for 10 years of future bimonthly counseling for Elena
at $150 per session. The family also requested $55,250 in
economic losses incurred when they moved away from Recalde’s
house.
At the restitution hearing, Elena’s father, Richard H.,
testified that Elena participated in counseling for two years
before trial, but ultimately grew “tired of going to it.” She started
attending counseling again sometime after trial and was
continuing to participate as of the restitution hearing. Her
counseling program cost $150 per hour. Richard testified that
10 years of future counseling was needed, but conceded this was
speculative. The court reasoned it would be inappropriate to
award restitution based on pure speculation. However, the court
found Elena’s successful participation in two years of counseling
before trial was “a bench-mark” for her future needs, and the
court therefore awarded $7,200 to cover bimonthly counseling for
two years at $150 per session.
As for the moving costs, Richard testified that the family
decided to move because “Elena had to see the room where she
was molested in every time we drove up to the driveway.”
Elena’s therapist told the family that they needed to move
because “it’s not healthy for her to see that house every day . . . .”
30
Elena’s parents’ therapist also told the family that they needed to
move. The family submitted a letter from Debora Rocha, the
executive director of Elena’s therapy program, in support of their
need to move. The court reasoned the letter was important to
fulfill the requirements in section 1202.4, subdivision (f)(3)(I),
which provides that restitution for expenses incurred for
“relocating away from the defendant” must be “verified . . . by a
mental health treatment provider to be necessary for the
emotional well-being of the victim.”
Recalde objected to the letter as lacking adequate
foundation.11 The court recognized that the letter may have
“foundational issues” insofar as it was written by the executive
director, who may not have had direct contact with Elena.
However, the court allowed the People to establish a foundation
at a future hearing. The People later submitted a letter from
Elena’s parents’ therapist, which, according to defense counsel,
indicated the parents “felt scared and uncomfortable” but did not
indicate that the therapist recommended moving. The
prosecution urged the court to consider the evidence as a whole,
and the court found that the two letters, together, were sufficient
to meet the requirements of section 1202.4, subdivision (f)(3)(I).
The court therefore determined Elena’s family was entitled to
restitution for relocation costs.
After Elena’s family listed their house for sale, someone
told them that they were required to fill out a “Megan’s Law
Database Disclosure” informing potential buyers that their
neighbor was in jail awaiting trial for molestation. Richard knew
11 The court overruled the defense’s hearsay objection.
Recalde does not argue on appeal that this was error.
31
that Megan’s Law applies to convicted sex offenders and that
Recalde was not yet convicted when they listed the house for sale.
However, he nonetheless believed “everyone has to fill one out.”
The family also disclosed that there was a crack in the foundation
of the house. Two families made offers to purchase the house but
ultimately backed out because they did not want to live next to a
potential child molester. The difference between the highest offer
on the house and the eventual sale price was $24,000. The family
also incurred $31,250 in closing costs. The court found that
Elena’s family incurred an economic loss of $55,250 resulting
from Recalde’s crimes.
Elena’s family purchased their former home for $418,000.
They purchased a new home for $825,000, which was worth
around $900,000 or $1 million at the time of the restitution
hearing. The trial court rejected Recalde’s argument that these
facts indicated that restitution for moving expenses would result
in an unfair windfall.
b. Legal framework and standard of review
“It is the intent of the Legislature that a victim of crime
who incurs an economic loss as a result of the commission of a
crime shall receive restitution directly from a defendant convicted
of that crime.” (§ 1202.4, subd. (a)(1).) Therefore, “in every case
in which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant
make restitution to the victim or victims in an amount
established by court order . . . .” (Id., subd. (f).) This amount
shall be “sufficient to fully reimburse the victim or victims for
every determined economic loss incurred as the result of the
defendant’s criminal conduct . . . .” (Id., subd. (f)(3).) Such losses
include, but are not limited to, mental health counseling
32
expenses and “[e]xpenses incurred by an adult victim in
relocating away from the defendant” which are “verified by law
enforcement to be necessary for the personal safety of the victim
or by a mental health treatment provider to be necessary for the
emotional well-being of the victim.” (Id., subd. (f)(3)(C) & (I).)
Restitution may include expenses for future mental health
counseling. (People v. Giordano (2007) 42 Cal.4th 644, 657–658
(Giordano).)
“For purposes of [section 1202.4], ‘victim’ shall include . . .
[¶] (1) The immediate surviving family of the actual victim” and
any “person who has sustained economic loss as the result of a
crime and who . . . [¶] (A) At the time of the crime was the parent
. . . of the victim.” (§ 1202.4, subd. (k); Cal. Const. art. I, § 28 [the
term “ ‘victim’ ” includes the person who suffered harm as well as
their parents].) Thus, Elena and her parents were victims.
“The standard of proof at a restitution hearing is
preponderance of the evidence. [Citation.] A victim’s statement
of economic loss is prima facie evidence of loss. [Citation.] To
rebut a prima facie case, the defendant has the burden to
disprove the amount of losses the victim claimed.” (People v.
Grandpierre (2021) 66 Cal.App.5th 111, 115 (Grandpierre).)
We review the court’s restitution order for abuse of
discretion. (Giordano, supra, 42 Cal.4th at p. 663.) “ ‘If the
circumstances reasonably justify the [trial court’s] findings,’ the
judgment may not be overturned when the circumstances might
also reasonably support a contrary finding. [Citation.] We do not
reweigh or reinterpret the evidence; rather, we determine
whether there is sufficient evidence to support the inference
drawn by the trier of fact.” (People v. Baker (2005) 126
Cal.App.4th 463, 469 (Baker).) “No abuse of discretion will be
33
found where there is a rational and factual basis for the amount
of restitution ordered.” (People v. Gemelli (2008) 161 Cal.App.4th
1539, 1542 (Gemelli).)
c. The court did not abuse its discretion in awarding
restitution for future mental health treatment
Recalde does not dispute that the trial court may order
restitution to compensate for future mental health counseling
expenses. (§ 1202.4, subd. (f)(3)(C); Giordano, supra, 42 Cal.4th
at pp. 657–658.) However, he argues the trial court abused its
discretion by awarding restitution for such expenses because
Elena’s need for future counseling is speculative. We disagree.
The trial court recognized that Elena had completed two
years of counseling before trial, and found that this represented
“a bench-mark for the post-trial counseling.” The court therefore
awarded restitution for two years of future counseling costs. This
decision was supported by substantial evidence—specifically,
Richard’s testimony that Elena had completed two years of
counseling initially before growing tired of it, which the court
viewed as representative of her expected future needs and
abilities. The court’s ruling has “a rational and factual basis,”
and therefore the court did not abuse its discretion. (Gemelli,
supra, 161 Cal.App.4th at p. 1542.)
Recalde repeatedly argues that the evidence showed Elena
“did not want further therapy” or “was burnt out on therapy.”
This claim mischaracterizes the record. Although Elena chose to
stop using counseling services sometime before trial, Richard
testified that she was actively attending counseling at the time of
the restitution hearing. Recalde also observes that the
prosecution “offered no mental health expert evidence”
supporting Elena’s need for future counseling. Recalde cites a
34
single opinion which stated, in dicta, that a jury may consider
expert evidence in determining what restitution to award for
future medical expenses. (People v. Phelps (1996) 41 Cal.App.4th
946, 952.) To the extent Recalde means to argue that the
evidence here was legally insufficient for lack of an expert, he has
not identified any legal authority supporting this contention, and
therefore we reject it.
d. The court did not abuse its discretion in ordering
restitution for relocation costs
Recalde also claims the court erred in finding section
1202.4, subdivision (f)(3)(I) was satisfied. We find no abuse of
discretion.
Section 1202.4, subdivision (f)(3)(I) requires that relocation
expenses must be “verified by . . . a mental health treatment
provider to be necessary for the emotional well-being of the
victim.” To meet this requirement, Elena’s family submitted a
letter from the executive director of Elena’s therapy program
supporting the need to move. Recalde objected to the letter as
lacking foundation but did not dispute that the letter otherwise
satisfied the verification requirement.12 The trial court
12 Recalde’s trial counsel specifically argued that the letter
did not clarify the author’s “qualifications” or “credentials.” On
appeal, Recalde does not appear to raise any such argument. In
any case, the statute merely requires verification from a “mental
health treatment provider.” (§ 1202.4, subd. (f)(3)(I).) It does not
require the provider to have any specific degree or certification.
The court ultimately found that the letter was “from the mental
health provider,” and there is no dispute that the letter was from
the executive director of Elena’s program. Thus, even if Recalde
had revived this particular argument on appeal, we would reject
it.
35
tentatively agreed the letter had “foundational issues” because it
was unclear whether the executive director interacted directly
with Elena. However, the court later admitted the letter into
evidence, and described it as being “from the mental health
provider.” We therefore assume the trial court’s initial concerns
about the letter’s foundation were ultimately ameliorated.
Indeed, even if the letter lacked foundation and was not
admissible at trial, the court has “ ‘ “ ‘virtually unlimited
discretion as to the kind of information they can consider and the
source . . . [from] whence it comes’ ” ’ ” in ordering restitution.
(People v. Prosser (2007) 157 Cal.App.4th 682, 692.)
The family also provided a second letter that independently
fulfills the verification requirement. This letter was from Elena’s
parents’ therapist, and it asserted the parents were scared and
uncomfortable about continuing to live next to Recalde’s house.
Recalde argues that the second letter was insufficient because it
did not expressly state that relocation was necessary for the
parents’ emotional well-being. Yet, the statute does not require
that a verification letter include any such magic words. Indeed,
in People v. Mearns (2002) 97 Cal.App.4th 493 (Mearns), the
court found that similarly vague language was adequate. There,
a detective provided a letter stating: “ ‘The victim is suffering
emotional stress as a result of the assault. She is in constant fear
of being assaulted again. She has made statements to the effect
that she is unable to live a normal life and that she is in fear of
her son’s safety.’ ” (Id. at p. 497.) The letter did not assert that
relocation was necessary for the victim’s personal safety.
(§ 1202.4, subd. (f)(3)(I).) Nonetheless, the trial court found the
verification sufficient. (Mearns, at pp. 501–503.)
36
Similarly, here, the letter from Elena’s parents’ therapist
stated the family felt scared and uncomfortable living next to
Recalde’s home. Another court may have found this insufficient
to convey that the family needed to move to preserve Elena’s
mental health or that of her parents, but we cannot find an abuse
of discretion merely because a different result could also be
supported by the evidence. (Baker, supra, 126 Cal.App.4th at p.
469.)
Finally, to the extent there was any ambiguity in either
letter, other evidence supported the family’s need to move.
Richard testified that both Elena’s counselor and the parents’
therapist said the family needed to move because it was
unhealthy for Elena to see Recalde’s house every day. This
testimony further supports the trial court ruling. (Grandpierre,
supra, 66 Cal.App.5th at p. 115.)
Overall, “ ‘the circumstances reasonably justify the [trial
court’s] findings,’ ” and therefore the court did not abuse its
discretion. (Baker, supra, 126 Cal.App.4th at p. 469.)
e. The court did not abuse its discretion in
calculating the proper amount of relocation costs
Recalde also argues that the court abused its discretion in
determining the amount of relocation costs incurred by Elena’s
family. We again find no abuse of discretion.
The trial court was required to award restitution for every
determined economic loss resulting from Recalde’s conduct.
(§ 1202.4, subd. (f)(3).) As we have discussed, the trial court
determined that the family needed to move as a result of
Recalde’s crimes. Richard testified that the family incurred
$31,250 in closing costs. He further testified that two potential
buyers withdrew their offers based solely on the disclosure that
37
the home was next to that of an accused sex offender. The
eventual sale price of the home was $24,000 lower than the
highest offer. The trial court determined that the closing costs
and the diminished price were economic losses resulting from
Recalde’s crime. This ruling is supported by the evidence, and it
is rationally and factually sound. (Gemelli, supra, 161
Cal.App.4th at p. 1542; cf. Mearns, supra, 97 Cal.App.4th at pp.
501–503 [no abuse of discretion in awarding restitution for
difference between sale price of sexual assault victim’s mobile
home and purchase price of new mobile home].)
Recalde argues the trial court only speculated that his
crime caused the diminished sale price. He notes that Elena’s
family also disclosed that there was a crack in the foundation,
which may have also caused the two potential buyers to
withdraw, and he claims there was “zero evidence” that the
buyers withdrew based on Recalde’s actions. Yet, Richard
expressly testified that two buyers backed out solely because of
the disclosure that a neighbor was an accused sex offender. This
testimony is prima facie evidence that the price reduction was
caused by the disclosure of Recalde’s actions. (Grandpierre,
supra, 66 Cal.App.5th at p. 115.)
Recalde also argues that Elena’s family was not required to
disclose to potential buyers that Recalde was an accused sex
offender.13 But even assuming this disclosure was not legally
13 Recalde cites section 290.46, which requires the California
Department of Justice to publicly disclose information about
certain categories of registered sex offenders, but has no apparent
bearing on disclosures in real estate transactions. While Civil
Code section 2079.10a, subdivision (a)(3) requires that contracts
for the sale of residential property disclose the existence of the
38
required, there can be no real dispute that the disclosure was
ultimately the “result of the defendant’s conduct . . . .” (§ 1202.4,
subd. (f).) But for Recalde’s crimes, Elena’s family certainly
would not have disclosed such obviously negative information to
potential buyers. Perhaps a different trial court might have
found that Richard’s misunderstanding contributed to the price
reduction, and thus reduced or excluded the reduction from the
restitution order. But we cannot say that the trial court abused
its discretion simply because the facts could support a different
result. (Baker, supra, 126 Cal.App.4th at p. 469.)
Finally, Recalde argues the restitution award provided
Elena’s family with an improper windfall. He notes that the
family purchased their former home for $418,000 and sold it for
$625,000; and that the value of their new home had increased by
between $75,000 and $175,000 at the time of the restitution
hearing. However, the fundamental question for the trial court
was what “economic loss incurred as the result of [Recalde’s]
criminal conduct . . . .” (§1202.4, subd. (f)(3).) The natural
economic appreciation of the family’s real estate was not an
economic loss, nor was it caused by Recalde’s crime. Recalde fails
to cite any legal authority or provide any reasoned argument
explaining why the court was required to consider this factor.
Recalde contends People v. Chappelone (2010) 183
Cal.App.4th 1159 (Chappelone) is “instructive” because it
website maintained pursuant to section 290.46, it does not
mandate other disclosures related to accused or convicted sex
offenders. Although sellers are subject to a variety of common
law and statutory duties to disclose information regarding a
property, the People have not argued Elena’s family was required
by law to make disclosures about Recalde.
39
cautions against restitution awards that constitute a windfall. In
Chappelone, the trial court ordered the defendant to return stolen
retail merchandise and compensate the retailer for its full retail
price. (Id. at p. 1180.) The appellate court reversed, concluding
the award was a windfall because it double-compensated the
retailer. (Id. at p. 1181.) Yet, here, nothing in the court’s
restitution award can be understood as double-compensating
Elena’s family. Recalde repeatedly claims that the family
received a windfall based on the increased value of their real
estate, but he otherwise fails to apply Chappelone to the facts of
this case.
However, one aspect of Chappelone is illuminating. There,
the court reasoned that one aspect of an appropriate restitution
award might require the defendant to compensate the retailer for
the “diminution in value” that resulted from the crime.
(Chappelone, supra, 183 Cal.App.4th at p. 1181.) That is
essentially what the trial court did here. The first potential
buyer offered Elena’s family $649,000, representing the initial
value of the house. That potential buyer and one other withdrew
offers because the home was next to that of an accused sex
offender. The eventual sale price, accounting for that negative
circumstance, was $625,000. In short, the home’s value
diminished by $24,000 because of Recalde’s crime, and the trial
court awarded restitution for that diminution. In this respect,
Chappelone supports, rather than contradicts, the restitution
order. The trial court did not abuse its discretion.
40
DISPOSITION
The judgment and the restitution order are affirmed. The
trial court is directed to amend the abstract of judgment to
correct the “actual” credits for time served for custody credits to
1,545 days, and to correct the “total credits” for time served to
1,776 days. The trial court is further directed to send certified
copies of the amended abstract of judgment to the Department of
Corrections and Rehabilitation and to appellate counsel.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BERSHON, J.*
We concur:
EDMON, P. J.
ADAMS, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
41