People v. Ewell CA1/1 ( 2024 )

Filed 10/22/24 P. v. Ewell CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A168326
v.
GEREMY DELEON EWELL, (Contra Costa County
Super. Ct. No. 04-22-00443)
Defendant and Appellant.
Defendant Geremy Ewell pled guilty to three child-molestation
offenses, two against his stepdaughter (stepdaughter) and one against his
niece (niece). He was sentenced to 30 years in prison. He now appeals from a
trial court order awarding $200,000 in restitution to stepdaughter for
noneconomic losses, claiming that insufficient evidence supports the award.
We disagree and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In June 2021, a few days after stepdaughter turned 13 years old, Ewell
went into her bedroom early in the morning and led her to another room.1
1 The underlying facts are drawn from the preliminary hearing
transcript. Because the reporter’s transcript of the plea hearing is not in our
record, it is unclear what the stipulated factual basis for the plea was.
Ewell removed his pants and stepdaughter’s pants and underwear before
forcing her to the ground. He then “rubbed his penis against [her] vagina,”
got on top of her, and “started trying to put his penis in [her] mouth.”
Stepdaughter tried to keep her mouth closed, but Ewell pinched her nostrils
shut so she had to open her mouth to breathe.
Ewell then “put his penis so far into [stepdaughter’s] mouth that it hurt
and it hit the back of her throat.” After about 10 minutes, he ejaculated in
her mouth. Around the same time, stepdaughter’s mother forced her way
into the room and saw her daughter and Ewell with their clothing off. He
fled the home, and the incident was reported to the Contra Costa County
Sheriff’s Department.
A sheriff’s detective testified about a forensic interview of stepdaughter
that occurred a few days later. In addition to the incident described above,
stepdaughter disclosed several other instances of sexual abuse. The earliest
one was in September 2020, when Ewell rubbed his penis against her vagina
through her clothing while she was playing with her toddler brother. She
also described incidents of oral copulation, sodomy, and other sexual
touching. She estimated that Ewell forced her to orally copulate him “at least
[thirteen] times,” orally copulated her seven or eight times, and “sodomized
her about ten times.” Ewell told stepdaughter “not to tell anyone because
they would both get in trouble and he would go to jail.”
In November 2022, Ewell was charged by information with 20 felony
counts, 16 against stepdaughter between September 2020 and June 2021 in
Contra Costa County and the rest against niece between January 2017 and
January 2020 in Riverside County.2 As to stepdaughter, he was charged with
2 Because Ewell does not challenge the award of noneconomic
restitution to niece, we do not discuss the underlying facts pertaining to her.
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eight counts of forcible lewd acts against a child under age 14, five counts of
aggravated sexual assault (oral copulation) of a child under 14, and three
counts of aggravated sexual assault (sodomy) of a child under 14. As to niece,
he was charged with three counts of forcible lewd acts against a child under
14 and one count of aggravated sexual assault (sexual penetration) of a child
under 14.3 The information also alleged that all 11 counts of forcible lewd
acts were committed against more than one victim under the One Strike law
and that Ewell had a prior strike.4 Finally, several aggravated circumstances
were alleged under California Rules of Court, rule 4.421.
In March 2023, under a plea agreement, Ewell pled guilty to three
counts of forcible lewd acts, two against stepdaughter (including one based on
the June 2021 incident) and one against niece. At the sentencing hearing
later that month, Ewell admitted the aggravating circumstances that the
victims were particularly vulnerable and he took advantage of a position of
trust to commit the crimes. The trial court then sentenced him to the agreed-
upon term of 30 years in prison, composed of three consecutive upper terms of
10 years. The remaining counts and enhancements were dismissed.
Before the sentence was pronounced, the prosecutor read the following
victim impact statement from stepdaughter’s mother into the record: “I
really don’t have anything to say, but I hate you. You ruined my life; my
3 The charges were brought under Penal Code sections 288,
subdivision (b)(1) (forcible lewd acts), and 269, subdivisions (a)(3) (oral
copulation), (a)(4) (sodomy), and (a)(5) (sexual penetration). All further
statutory references are to the Penal Code unless otherwise noted.
4 The One Strike allegations were made under section 667.61,
subdivisions (e) and (j)(2), and the prior strike was alleged under
sections 667, subdivisions (a)(1), (d), and (e), and 1170.12, subdivisions (b)
and (c), based on a 2014 conviction of criminal threats under section 422,
subdivision (a). A One Strike allegation that Ewell kidnapped stepdaughter
during the June 2021 incident was dismissed before he entered the plea.
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child’s life. I wish I never met you, and I hope you rot in prison and hell
after. Our life is screwed up because of you. My daughter is all messed up,
can’t even be a normal happy teen, because of what you took her through. I
hate you, Geremy, you pedophile.”
The People sought noneconomic restitution from Ewell of $200,0000 to
stepdaughter and $100,000 to niece. In support of the motion, the
prosecution relied on studies showing that sexually abused children as a
group experience negative psychological effects. Ewell objected that the
prosecution had failed to submit any evidence “that the complaining
witnesses have suffered from particularized trauma as a result of [his]
conduct, as opposed to generalized claims about child victims of sexual
abuse.” Ewell noted that neither stepdaughter nor niece testified at the
preliminary hearing and “[n]o documentation has been submitted from
[them], their families, or any professional evaluators regarding emotional or
other harm.”
Before the July 2023 restitution hearing, the People submitted a victim
impact statement from niece in which she described the emotional harm
Ewell’s acts caused her. In a supplemental brief, the prosecution stated it
“intend[ed] to ask the court to take notice of the victims’ statements during
the course of their interviews that were admitted into evidence . . . at the
preliminary hearing” and might “provide additional impact statements . . . in
writing.”
At the restitution hearing, the trial court stated it had niece’s
statement and was “familiar with the underlying conduct” from presiding
over the preliminary hearing. The court disagreed with Ewell’s position “that
there’s no indication there was a significant impact on these two [victims]
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. . . . I think there has been presented to the Court significant evidence of
how [his conduct] has impacted these victims.”
When asked for any further argument, Ewell’s trial counsel rested on
the defense’s written objection, noting that stepdaughter had not submitted
“anything . . . about her personal feelings on restitution.” The prosecutor
responded that “the conduct in the case was particularly heinous, involving
very forceful acts of [an] extremely violent nature against very young girls. It
is clear, just on the face of the facts of the case alone, that those victims
suffered significant lifelong harm.” He also explained that “the reason that
the case resolved for a determinate term” was “because [stepdaughter’s]
mother expressed concern that her daughter would run[]away, or even take
more drastic action” if called to testify. He had “attempted to gain impact
statements from [stepdaughter’s] family, but they have been so overwhelmed
by this and are struggling so much to cope with the effects on [her], that even
the thought of submitting an impact statement is overwhelming to them, so
they do wish restitution.”
The prosecutor also offered to produce “a number of juvenile reports . . .
pertaining to [stepdaughter], if the Court feels it needs more documentation
of the pain that she had suffered.” The court responded, “No, I don’t feel like
I need more of a record.” It then ordered the requested amount of
noneconomic restitution to each victim.
II.
DISCUSSION
Ewell argues that the trial court abused its discretion by awarding
noneconomic restitution to stepdaughter because there was insufficient
“evidence of the actual harm [she] suffered.” We are not persuaded.
Trial courts are required to award full restitution “ ‘ “in every case . . .
in which a crime victim suffers a loss.” ’ ” (People v. Giordano (2007)
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42 Cal.4th 644, 655 (Giordano); § 1202.4, subd. (f).) Usually, a restitution
award “ ‘reimburses [a crime victim] only for economic losses.’ ” (People v.
Valenti (2016) 243 Cal.App.4th 1140, 1181.) Under section 1202.4,
subdivision (f)(3)(F), however, courts must order restitution to reimburse
victims for “[n]oneconomic losses, including, but not limited to, psychological
harm, for felony violations of Section 288, 288.5, or 288.7.” It is undisputed
that this statute applies here because Ewell was convicted under section 288.
We review a restitution order for an abuse of discretion. (Giordano,
supra, 42 Cal.4th at p. 663; People v. Gomez (2023) 97 Cal.App.5th 111, 116
(Gomez).) Under this standard, “ ‘ “[n]o abuse of discretion will be found
where there is a rational and factual basis for the amount of restitution
ordered.” ’ ” (Gomez, at p. 116.) But there must be “ ‘ “ ‘substantial evidence,
contradicted or uncontradicted,’ to support the trial court’s findings.” ’ ”
(People v. Keichler (2005) 129 Cal.App.4th 1039, 1045; see People v. Lehman
(2016) 247 Cal.App.4th 795, 804.)
“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, [and] emotional distress . . . .’ (Civ. Code,
§ 1431.2, subd. (b)(2).)” (People v. Valenti, supra, 243 Cal.App.4th at p. 1182;
Gomez, supra, 97 Cal.App.5th at p. 115.) The party seeking restitution has
the burden of proof by a preponderance of the evidence, but “the evidentiary
bar is a low one.” (Gomez, at p. 119; People v. Lehman, supra,247 Cal.App.4th at p. 803.) “[S]ection 1202.4 does not require any particular
kind of proof to establish a victim’s losses,” and a victim need not “present
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testimony or a statement about the impact, something prosecutors and trial
courts may be reluctant to require, particularly when the victim is still a
minor.” (Gomez, at pp. 119–120; Lehman, at p. 803.)
Nonetheless, “some evidence of the harm incurred by the particular
victim of the crime is required to support a victim restitution award. . . . [I]t
is insufficient that the average victim would suffer injury from a particular
type of crime, or that generally victims of such crimes suffer injury.” (Gomez,
supra, 97 Cal.App.5th at p. 118.) In Gomez, Division Five of this court
reversed an award of noneconomic restitution where there was “no evidence
of the impact of [the] appellant’s crimes on [the victim], and the trial court
relied exclusively on its experience and common sense regarding similar
incidents in awarding restitution.” (Id. at p. 119.)
Relying on Gomez, Ewell argues there was insufficient evidence of
harm and the trial court thus improperly relied on “the nature of [his] crimes
and not the effect of those crimes on [stepdaughter].” Although he
acknowledges stepdaughter’s mother’s statement at the sentencing hearing,
he claims it was insufficient because it did not address the “specific impact”
his acts had on stepdaughter. But her mother stated that Ewell had “ruined”
and “screwed up” stepdaughter’s life and that stepdaughter was “all messed
up” and could not “even be a normal happy teen . . . because of what [he] took
her through.” Statements “by the victim’s parents” are acceptable evidence of
noneconomic damages (Gomez, supra, 97 Cal.App.5th at p. 119), and Ewell
does not cite any authority suggesting this description of harm was too vague
to prove noneconomic damages. Also, the prosecutor represented that the
plea bargain was prompted in significant part by the worry that stepdaughter
would run away “or even take more drastic action” if she had to testify,
supporting a reasonable inference that the crimes traumatized her.
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Ewell also objects that the trial court did not actually rely on
stepdaughter’s mother’s statement in ruling. But in performing our review,
“we presume that a judgment or order of the trial court is correct, ‘ “[a]ll
intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown.” ’ ”
(Giordano, supra, 42 Cal.4th at p. 666.) Thus, the court’s failure to mention
the mother’s statement is not determinative. Nor do we find it significant
that the court stated it was “familiar with the underlying conduct” from
presiding over the preliminary hearing. Although Ewell is correct that no
evidence of the effect of the crimes on stepdaughter was presented during
that proceeding, the court’s brief reference hardly conveyed exclusive reliance
on the preliminary hearing to conclude that noneconomic restitution was
warranted.
In short, the record contains sufficient evidence that Ewell’s actions
emotionally traumatized stepdaughter to meet the low bar of proving
noneconomic damages. As a result, Ewell fails to demonstrate that the trial
court abused its discretion by awarding restitution to her.
III.
DISPOSITION
The July 14, 2024 awarding noneconomic restitution to stepdaughter
and niece is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Hill, J.*
*Judge of the Superior Court of the County of San Mateo, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
People v. Ewell A168326
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