P.v. Giammarco CA2/1 ( 2024 )

Filed 10/11/24 P.v. Giammarco CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B330474
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA092714)
v.
MARINO DANIELE
GIAMMARCO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Hilleri G. Merritt, Judge. Affirmed.
Kravis, Graham, & Zucker, Thomas Ian Graham and
Bruce Zucker for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
A jury convicted defendant Marino Daniele Giammarco of
one count of continuous sexual abuse on T.B., a child under 14,
and one count of lewd act upon T.B. The jury also found all
alleged aggravating factors true, and the trial court sentenced
defendant to 16 years, the high term for the continuous sexual
abuse count, and a consecutive term of two years, one-third the
middle term, on the lewd act count. On appeal, defendant argues
the trial court committed evidentiary and instructional errors
and abused its discretion in the amount of noneconomic damages
awarded as restitution to T.B. and his parents. We disagree and
affirm.
Defendant asserts the trial court erred in admitting
portions of defendant’s Instagram account in which he “liked”
pictures of minor boys, including a picture of T.B. The court gave
a limiting instruction as to the relevance of the Instagram
pictures and testimony concerning defendant’s Instagram
account. We conclude defendant has failed to demonstrate
prejudice from the admission of this evidence.
Defendant also argues the trial court’s instructions on the
aggravating factors were incomplete. Even assuming the court’s
instructions were incomplete, he demonstrates no prejudice
entitling him to resentencing.
As restitution, the trial court awarded T.B. and his parents
collectively $850,000 in noneconomic damages. Defendant argues
that the amount was an abuse of discretion. We disagree. Once
all the evidence is considered, we conclude the trial court acted
within its discretion. T.B. suffered extensively from defendant’s
repeated abuse so much so that his entire family moved out of
state to keep T.B. safe. T.B.’s parents also testified to their
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personal suffering from what defendant had inflicted on their son
and his betrayal of the family.
FACTUAL BACKGROUND
Defendant was born April 11, 1990. T.B., who was born in
2006, testified he was nine years old when he met defendant.
Defendant bought T.B. gifts including phones, x-box controllers,
and haircuts. Defendant attended T.B.’s sixth grade graduation,
went to the hospital when T.B. had surgery, and accompanied the
family on a trip to Los Vegas. T.B. watched movies with
defendant and went to the zoo with him. Defendant invited T.B.
on a trip to San Francisco in approximately 2019. T.B. told
defendant he did not want to go.
T.B. testified that defendant touched his penis 20 to 25
times. Defendant either squeezed T.B.’s penis or placed his hand
on top of it. T.B. testified he was between 10 and 12 years old
when these incidents occurred. T.B. further testified defendant
tried to touch T.B.’s penis “[a]ny time that nobody else was
around.” T.B. recounted that defendant would touch himself at
the same time he touched T.B. According to T.B., defendant
“would always reach underneath himself . . . underneath his
boxers and would leave his hands there . . . .” T.B. did not tell his
family or anyone else about defendant’s conduct.
Defendant told T.B. that he loved T.B. approximately 15 to
20 times. In a text message exchange, defendant told T.B.
defendant loved him. In another text, defendant told T.B.,
“Night, Bubba. Love you.” Defendant tried to kiss T.B. about
10 times.
T.B. did not recall each time defendant touched his penis
and did not remember exact dates or times, but he described the
following specific incidents. T.B. testified that defendant
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accompanied the family on a trip to Washington. During that
trip, defendant asked T.B. to lie down next to him and cuddle.
T.B. refused. During the same trip, defendant put his hand
underneath T.B.’s underwear and touched T.B.’s penis.1
T.B. remembered another occasion when defendant was at
his house. Defendant put a blanket over T.B. and then rubbed
T.B.’s penis under the blanket. Defendant touched T.B.’s penis
while T.B. was seated on the couch in his home approximately
10 times.
Once, when T.B. was showering, defendant walked into the
bathroom. T.B. covered his penis and defendant kissed T.B.’s
forehead.
Defendant also touched T.B.’s penis when T.B. and
defendant were at T.B.’s father’s business. T.B. remembered
becoming upset and “slamm[ing]” defendant “into the concrete
wall behind” them.
On April 9, 2019, T.B., his family, and defendant were at a
restaurant for dinner. While the group was seated for dinner,
defendant put his hand on T.B.’s thigh and rubbed T.B.’s inner
thigh. T.B. told defendant not to touch him.
T.B.’s father (father) testified he met defendant in 2016 and
defendant volunteered at the family business and accompanied
the family on vacations. T.B.’s family treated defendant as a
family member. Defendant visited the family home four or five
times weekly.
Father observed defendant touch T.B.’s thigh on April 9,
2019 when the family and defendant were at a restaurant for
1 By instruction, the court limited the jury’s consideration
of this evidence because it occurred in Washington state.
4
dinner. When father learned of defendant’s molestation of T.B.,
father “[b]roke down and felt like [he] had [himself] turned inside
out.” Father felt “like [he] had [his] heart and soul torn out of”
him. Father testified, “My entire family was turned upside-down
by what had went on. There was a lot of grief and distress going
on . . . .”
T.B.’s mother (mother) testified that defendant frequently
went to the family home, regularly visited at the family business,
and accompanied the family on trips. Defendant donated blood
when T.B. needed it and bought him gifts including phones and
an x-box video console. The family referred to defendant as
“uncle.” T.B.’s family celebrated birthdays with defendant’s
family. Mother testified she did not allow T.B. travel to San
Francisco with defendant.
A cousin, who was at the April 9, 2019 dinner, testified that
he saw defendant place his hand on T.B.’s “upper inner thigh or
groin area” three or four times during the dinner. “Defendant’s
hand was close enough to the groin to be inappropriate.” Each
time defendant touched T.B., T.B. would stiffen up and at least
once said, “ ‘No, don’t,’ or, ‘Stop.’ ”
PROCEDURAL BACKGROUND
In an amended information, the People alleged one count of
continuous sexual abuse of T.B., a minor under 14 years of age
(count 1 occurring between August 1, 2016 and April 8, 2019) and
in count 2, lewd or lascivious conduct on T.B., a minor under
14 years of age occurring on April 9, 2019. The People alleged
multiple aggravating circumstances: (1) the victim was
particularly vulnerable; (2) the manner defendant carried out the
offenses indicated planning, sophistication, or professionalism;
(3) defendant took advantage of a position of trust and confidence
5
to commit the offense; and (4) defendant groomed his victim and
repeatedly molested him. The People alleged the crimes and
objectives were predominately independent of each other. The
People also alleged defendant committed the crimes at different
times and separate places as opposed to so close in time and place
as to constitute a single period of aberrant behavior.
The trial court denied defendant’s motion in limine to
exclude photographs defendant “liked” in his Instagram account.
As to the evidence from defendant’s Instagram account, the court
instructed the jury it could consider the evidence for the “limited
purpose to determine if the defendant had the specific intent to
commit the offenses charged in Counts 1 & 2. The court further
instructed the jury, “Do not conclude from this evidence that the
defendant has a bad character or is disposed to commit crime.”
With respect to the continuous sexual abuse, the court instructed
the jury on the following element of that crime: “[D]efendant
engaged in three or more acts of substantial sexual conduct or
lewd or lascivious conduct with the child.”
Relevant to this appeal, the court also instructed the jury
that the People must prove defendant acted with a “particular
intent.” The court further instructed the jury to find defendant
guilty of “Continuous Sexual Abuse, as charged in count 1 and
Lewd Act Upon a Child Under Age 14, as charged in count 2, that
person must not only intentionally commit the prohibited act, but
must do so with a specific intent.” The court instructed the jury
that each crime required the specific intent to arouse the
perpetrator or the child.
The trial occurred in 2023. At trial, no witness testified for
the defense.
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The jury convicted defendant of both counts. After the
verdict, the court instructed the jury on each aggravating factor.
With respect to the aggravating factors, the court instructed the
jury that the People were required to prove each allegation
beyond a reasonable doubt and defined beyond a reasonable
doubt. The court also told the jury that the “People must prove
beyond a reasonable doubt that the victim [T.B.], was
particularly vulnerable during the commission of these crimes.”
The court further instructed the jury the “People must prove
beyond a reasonable doubt that the defendant committed these
crimes utilizing planning, sophistication or professionalism.” The
court instructed the jury that the “People must prove beyond a
reasonable doubt that the defendant had a position of trust or
confidence with the victim, [T.B.], that he took advantage of that
in the commission of these crimes.”
The court instructed the jury that the “People must prove
beyond a reasonable doubt that the defendant’s objective in each
crime—each crime was independent of the objective in the other
crime.” The court told the jury that the “People must prove
beyond a reasonable doubt that the commission of these crimes
were committed at different times or in separate places, thus
indicating more than a single period of aberrant behavior.” As
for the “grooming” and repeated molestations aggravating
factors, the court also instructed the jury the “People must prove
beyond a reasonable doubt that in the crimes committed in this
case, the defendant groomed [T.B.] and repeatedly molested” him.
The court instructed the jury “[e]ach of these allegations is a
separate charge. You must consider each allegation separately
and return a separate finding for each one.” Finally, the court
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also instructed the jury that their verdict must be unanimous.
The jury found all aggravating factors true.
As previously noted, the court sentenced defendant to the
high term of 16 years for count 1 and a consecutive two-year term
for count 2, representing one-third the midterm on that count.
After a restitution hearing, the court awarded a total of $850,000
in restitution to T.B., his mother, and father.
DISCUSSION
A. Assuming the Trial Court Abused its Discretion In
Admitting Evidence of Defendant’s Instagram
Account, Defendant Demonstrates No Prejudice
Over objection, the trial court allowed Instagram
photographs to be admitted in evidence under Evidence Code
section 1101, subdivision (b). Section (a) of that statute precludes
the admissions of character evidence to prove conduct on a
specific occasion. (Evid. Code, § 1101, subd. (a).) Section (b),
however, provides: “Nothing in this section prohibits the
admission of evidence that a person committed a crime, civil
wrong, or other act when relevant to prove some fact” such as
intent. (Id., subd. (b.).)
When considering defendant’s motion in limine to exclude
the Instagram evidence, the trial court stated, “This does not rise
to . . . child pornography” but it helps a “jury understand the
intent when if they believe that [T.B.] was touched, what the
intent is with the touching.” The court found defendant’s
“interest in boys” the same age as T.B. was relevant. The court
reasoned that the only way to prove a specific intent crime
without an admission was to look at circumstantial evidence.
The court stated, “I must let in under [Evidence Code section] 352
8
relevant and not unduly prejudicial evidence that will help the
jury decide whether or not the People have met their burden on
counts one and two . . . .”
On appeal, defendant argues the trial court erred in
admitting the Instagram photographs to establish defendant’s
intent. According to him, the fact he looked at the photographs
“is not probative of his sexual intent towards children and thus is
irrelevant” but was extremely prejudicial. Defendant explains,
“[T]here was little, if any, evidence to support a conviction for
each count of the Information other than the testimony of T.B.”
and the photographs “portrayed him as a child molester, even
though he merely pressed the ‘like’ button on the Instagram cite
for photographs of the teenage boys.”
We begin with additional background and then turn to
defendant’s arguments.
1. Additional background
T.B.’s cousin testified defendant followed 4,000 accounts on
Instagram and approximately one third of them was of “little
boys roughly aged . . . five to twelve” years of age. T.B.’s cousin
also testified several of the pictures defendant “liked” on
Instagram showed young boys in swimsuits or underwear. One
picture was of defendant with T.B. Another was of an infant in a
diaper. T.B.’s cousin provided screen shots of defendant’s
Instagram account to police.
T.B.’s mother also testified that defendant’s Instagram
account showed he “liked or showed interest in” young boys.
T.B.’s mother testified the persons in the photographs were boys
“some of them resembling” T.B. One of the photographs
defendant “liked” was a picture of T.B. without a shirt. T.B.’s
mother further testified that after the family notified the police
9
about defendant’s conduct towards T.B., defendant’s Instagram
account was deleted.
The prosecutor argued the fact defendant “liked”
photographs on Instagram of “young boys who are shirtless”
demonstrated he was “after” T.B. because of a “sexual intent.”
The prosecutor also argued the jury could infer sexual intent
from defendant’s touching his own penis while touching T.B. In
response, defense trial counsel argued, “[W]hen you look at the
photos, they’re trying to show you the photos to take a logical
leap. One of the things you cannot do in jury deliberations is
speculate. They’re asking you to speculate because he ‘liked’
some photos, . . . some of them are boys with no shirts on, and
they’re trying to say that’s a sexual intent, gratification. They
have not proved that correlation. It’s speculation . . . .”
2. Even assuming the trial court should have
excluded the Instagram photographs, defendant
demonstrates no prejudice
The parties agree that that reversal for improperly
admitted evidence requires a showing of prejudice. (People v.
Carter (2005) 36 Cal.4th 1114, 1152.) Assuming arguendo it was
error to admit the evidence regarding defendant’s Instagram
photographs, there was no prejudice because it is not reasonably
probable defendant would have obtained a more favorable result
absent this assumed error.
The jury found T.B.’s detailed testimony credible after
extensive cross examination.2 T.B. testified defendant repeatedly
2 The court instructed the jury: “Conviction of a sexual
assault crime may be based on the testimony of a complaining
witness alone.”
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touched T.B.’s penis when they were alone and that defendant
touched himself while touching T.B. There was also testimony
demonstrating opportunity and defendant’s unusual interest in
being with T.B., for example, traveling out of town with T.B.’s
family, defendant’s frequent presence in the boy’s home and at
his father’s business, defendant’s intimate text messages to T.B
(“Night, Bubba. Love you,”), gifts provided to T.B., and
defendant’s attempt to take T.B. on an overnight trip to San
Franciso a few months prior to the revelation of the molestation.
In addition, there was the testimony of T.B.’s father and,
even more graphically, the testimony of the cousin, both of whom
observed defendant touching T.B.’s thigh in a sexual manner at
the restaurant the family attended. This evidence demonstrates
that it is not reasonably probable defendant would have obtained
a more favorable result had the trial court excluded the evidence
from defendant’s Instagram account.
Finally, defendant argues the evidence from defendant’s
Instagram account allowed the jury to view him as a “child
molester.” The instructions, however, told the jury not to
consider the evidence for that purpose. The instructions
prohibited the jury from concluding that “defendant has a bad
character” based on the evidence of defendant’s Instagram
account.
B. Even Assuming Defendant Has Not Forfeited His
Claims of Instructional Error Concerning the
Aggravating Factors, and Even Further Assuming
Error, Defendant Fails To Show Prejudice
Senate Bill No. 567 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 731, § 1.3) became effective on January 1, 2022. Senate Bill
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No. 567 amended Penal Code3 section 1170 to require that trial
courts may only impose the upper term where factors in
aggravation have been stipulated to by the defendant or found
true beyond a reasonable doubt at a jury or court trial. (§ 1170,
subd. (b)(1) & (2).) Here, the factors in aggravation were
submitted to the jury but defendant argues the court’s
instructions on the aggravating factors were incomplete.
Defendant contends the trial court should have explained the
phrases “particularly vulnerable,” “position of trust or
confidence,” and “planning, sophistication, or professionalism”
when the court instructed the jury on the aggravating factors.
3 Undesignated statutory citations are to the Penal Code.
Section 1170, subdivision (b)(1) provides: “When a
judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2).”
Subdivision (b)(2) provides: “The court may impose a sentence
exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term and the facts
underlying those circumstances have been stipulated to by the
defendant or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial. Except where
evidence supporting an aggravating circumstance is admissible to
prove or defend against the charged offense or enhancement at
trial, or it is otherwise authorized by law, upon request of a
defendant, trial on the circumstances in aggravation alleged in
the indictment or information shall be bifurcated from the trial of
charges and enhancements. The jury shall not be informed of the
bifurcated allegations until there has been a conviction of a felony
offense.”
12
Defendant did not request clarification of any of these phrases in
the trial court and the People argue defendant’s challenges to the
jury instructions on appeal are forfeited. In his reply brief,
defendant argues that any objection would have been futile and
therefore his challenges are not forfeited.
“In criminal cases, even in the absence of a request, a trial
court must instruct on general principles of law relevant to the
issues raised by the evidence and necessary for the jury’s
understanding of the case.” (People v. Martinez (2010) 47 Cal.4th
911, 953.) “ ‘ “A party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested appropriate
clarifying or amplifying language.” ’ [Citation.]” (People v. Hill
(1992) 3 Cal.4th 959, 997, overruled on other grounds in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Here,
defense counsel did not request any clarifying language in the
trial court and such a request would not have been futile because
the trial court repeatedly asked for counsel’s assistance in
drafting instructions on the aggravating factors based on the
then recent change in the law requiring submitting the
aggravating factors to a jury.4
We recognize the trial court did not have the benefit of the
instructions promulgated by the Judicial Council of California,
which described the aggravating factors in more detail than the
4 The court told counsel that it would like counsel to “look
at” the instructions on the aggravating factors. The court
indicated it would show counsel the instructions and then they
could “talk about it.” The court asked counsel to “take a look” at
the court’s proposed instructions. The court indicated that it
wanted to make sure the instructions were “acceptable” to
counsel.
13
instructions the trial court gave. (See CALCRIM Nos. 3223
[defining position of trust or confidence], 3226 [defining
particularly vulnerable victim], 3230 [defining planning,
sophistication, or professionalism].) Assuming arguendo the
court erred in its instructions on the aggravating factors,
defendant demonstrates no prejudice from these purported
instructional errors. We thus must affirm a jury verdict if the
instructional error was harmless. (See People v. Hendrix (2022)
13 Cal.5th 933, 941.)
In asserting that he suffered prejudice from the assumed
instructional error, defendant cites only to cases in which the
trial court was faulted for deciding the aggravating factors
without submitting them to a jury trial. (See People v. Flores
(2022) 75 Cal.App.5th 495, 500 [considering the consequence of
the denial of a jury trial on aggravating circumstances]; People v.
Lopez (2022) 78 Cal.App.5th 459, 465–466 [same]; People v. Dunn
(2022) 81 Cal.App.5th 394 [same]; People v. Lewis (2023)
88 Cal.App.5th 1125, 1139 [same].) Our Supreme Court recently
disapproved of these cases. (People v. Lynch (2024) 16 Cal.5th
730, 760–763.) In any event, they do not apply here because in
contrast to the legal authority defendant cites, defendant’s jury
made a finding beyond a reasonable doubt with respect to each
aggravating factor.5
Defendant also provides no argument the alleged
instructional error in failing to define the phrases “particularly
vulnerable,” “position of trust or confidence,” and “planning,
5 The Supreme Court decided that when a court, rather
than a jury, makes a finding on the aggravating factors, the
appellate court considers prejudice under the Chapman standard.
(People v. Lynch, supra, 16 Cal.5th at pp. 760–763.)
14
sophistication, or professionalism,” prejudiced him under either
the Chapman v. California (1967) 386 U.S. 18 or People v. Watson
(1956) 46 Cal.2d 818 standards. Under the Chapman standard,
an error is prejudicial and requires reversal of the conviction
unless it appears “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.”
(Chapman, at p. 24.) “Under the Watson standard, prejudicial
error is shown where ‘ “ ‘after an examination of the entire cause,
including the evidence,’ [the reviewing court] is of the ‘opinion’
that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” [Citation.] . . . [Citation.]’ [Citation.]” (Richardson v.
Superior Court (2008) 43 Cal.4th 1040, 1050.)
Under either standard, defendant did not suffer prejudice.
The evidence establishing that T.B. was a particularly vulnerable
victim was undisputed and overwhelming. T.B. was many years
younger than defendant, and susceptible to defendant’s repeated
acts whenever defendant had the opportunity to touch T.B. The
undisputed evidence also showed defendant was in a position of
trust or confidence in that T.B.’s family referred to defendant as
uncle and treated him as a family member, allowing defendant
into the family home multiple times a week. Defendant had
regular access to T.B. in T.B.’s home, the family business, and on
family vacations. Defendant states, “Planning refers to conduct
before the crime and preparing for its commission,” and here it
was undisputed that defendant bought T.B. gifts and haircuts
and even requested to take him to San Francisco. Given the
substantial nature of the evidence in support of the aggravating
factors and defendant’s failure to identify any evidence
contradicting any aggravating factor, we conclude that any error
15
in failing to define the challenged phrases more specifically was
harmless beyond a reasonable doubt under the Chapman and
Watson standards.
C. Defendant Does Not Show the Trial Court Abused its
Discretion In Imposing the Upper Term Sentence on
the Continuous Sexual Molestation Conviction
Embedded in his claim of instructional error, defendant
also argues that the “ ‘the court generally cannot use a single fact
both to aggravate the base term and to impose an
enhancement . . . .’ [Citation.]” Defendant implies that several
aggravating factors were based on the same underlying fact.
Defendant further asserts the trial court improperly used the
aggravating factor of repeated sexual molestation when,
according to him, the offense of continuous sexual molestation
required repeated molestation. Defendant did not raise these
issues in the trial court and does not argue or show that they are
preserved for our review. In any event, assuming that they are
preserved, defendant demonstrates no reversible error.
1. Additional background
The court instructed the jury that continuous sexual abuse
required “three or more acts of substantial sexual conduct or lewd
or lascivious conduct with the child.” As set forth in our
Background, ante, the court instructed the jury with respect to
the aggravating factor that “defendant groomed” T.B. “and
repeatedly molested him.” As previously noted, the jury found
these aggravating factors true.
At the sentencing hearing, defense counsel requested the
court exercise its discretion to impose the lowest term possible for
defendant and emphasized that defendant had no prior
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convictions. The court stated, “The court has to see whether
factors in aggravation so outweigh any factor in mitigation as to
justify the high term.” The court stated that it was “trying to do
what is just and equitable based on the law as it is today.” With
respect to the aggravating factors, the trial court stated the jury
found T.B. was “particularly vulnerable,” “there was planning,
sophistication or professionalism, and defendant “took advantage
of a position of trust and confidence,” which the court described
as “the most damning of them.” The court further found, “In this
court’s estimation the factors in aggravation so vastly outweigh
the factor in mitigation which I do acknowledge he has no prior
criminal record of conviction, that I’m exercising my discretion
and choosing the high term of 16 years as to count one.” The
court imposed one-third the midterm for count 2 which totaled
two years. The court indicated that it was exercising its
discretion to impose consecutive sentences.
2. Analysis
We generally review criminal sentencing for abuse of
discretion. (People v. Panozo (2021) 59 Cal.App.5th 825, 837.)
We review legal questions de novo. (People v. Tirado (2022)
12 Cal.5th 688, 694).
Defendant’s first assertion—that the court cannot use a
single fact to aggravate a base term and impose an
enhancement6—is irrelevant because the court imposed no
enhancements. Second, although defendant asserts that several
6 Section 1170, subdivision (b)(5) provides in pertinent
part: “The court may not impose an upper term by using the fact
of any enhancement upon which sentence is imposed under any
provision of law.”
17
aggravating factors were based on the same fact, he identifies no
such fact.
Finally, although there potentially could be overlap
between continuous sexual molestation (the offense) and repeated
molestation (part of the aggravating factor), that potential
overlap does not support resentencing defendant. First, although
continuous sexual molestation requires three occurrences, T.B.
testified that defendant touched his penis 25 times. That
evidence was undisputed. Thus, this case involved repeated
molestation far beyond that required for the offense of continuous
sexual molestation. Additionally, the “grooming” element of the
aggravating factor is not an element of the offense of continuous
sexual molestation.
Significantly, the record also indicates even absent the
aggravating factor of repeated molestation, the trial court would
have nevertheless imposed the high term and defendant does not
argue otherwise. The trial court noted numerous other factors in
aggravation and found that the factors “so vastly outweigh” the
single factor in mitigation (defendant’s lack of a prior conviction).
Further, the court found “most damning” defendant’s taking
advantage of a position of trust and confidence, which as
explained above, substantial evidence in the record supports. In
sum, defendant does not argue or show that the court would not
have imposed the high term for the continuous sexual abuse
absent the aggravating factor of repeated sexual abuse.
D. Defendant Fails To Demonstrate the Trial Court
Erred in its Award of Restitution
On appeal, defendant does not contest T.B. or his parents’
entitlement to noneconomic restitution but challenges the
amounts the trial court awarded. Defendant argues the trial
18
court “simply took the amount requested by the People, $50,000,
as the base number” without any explanation. Our record
does not include the People’s request to which defendant refers.
We begin with additional background and then consider
defendant’s argument that the amounts of restitution the trial
court ordered constitutes an abuse of discretion. (People v.
Montiel (2019) 35 Cal.App.5th 312, 318 [where it does not involve
statutory interpretation appellate court reviews restitution order
for abuse of discretion]; People v. Lehman (2016) 247 Cal.App.4th
795, 801 [a restitution order will not be reversed unless it is
arbitrary or capricious].)
1. Additional background
At the restitution hearing, the trial court noted it had read
the People’s brief7 and considered the case of People v. Smith
(2011) 198 Cal.App.4th 415, 431 (Smith), which holds that
restitution for committing a lewd act on a child is not limited to
economic damages. “Noneconomic damages are ‘subjective, non-
monetary losses including, but not limited to, pain, suffering,
inconvenience, mental suffering, emotional distress, loss of
society and companionship, loss of consortium, injury to
reputation and humiliation.’ [Citation.]” (Ibid.) The trial court
indicated that in a sex crime case, it had authority to order
restitution of noneconomic losses and that in a sex crime case,
family members are entitled to restitution. The court relied on
People v. Montiel, supra, 35 Cal.App.5th 312, which holds that
“parents of children who are sexually abused may be awarded
7 The People also attached a statement from T.B.’s mother,
which the court indicated it was considering. That attachment
is not included in our record.
19
restitution for noneconomic losses.” (Id. at pp. 320–321.) The
court also stated it could consider the evidence at trial and the
sentencing hearing. Defense counsel did not below, and does not
on appeal, dispute any of these propositions.
T.B.’s mother testified at the restitution hearing. One day,
when defendant drove by T.B.’s school in violation of a
restraining order, T.B. was distraught. When a police officer
escorted T.B. out of school, T.B. was an “emotional wreck” and
was “scared.” On another day, mother saw defendant near T.B.’s
school after there was a restraining order in place. She recorded
defendant’s vehicle on video and was afraid that defendant’s
presence would upset T.B.
The family moved out of state so that T.B. could feel safer.
Mother testified T.B. had to move out of his home and watch his
father shut down the family business. T.B. was diagnosed with
posttraumatic stress disorder and required a service dog to assist
him. T.B. was in therapy, but it was “very difficult for him to
talk about” the abuse and the therapy was “painful” for him.
After testifying at trial, T.B. was “crying” and felt “belittled.”
T.B. had “such bad days” for which mother could not
provide relief from his distress. Mother explained, “[A]s a parent
what that pain, watching him go through what he goes through
on a daily basis feels like” was indescribable. When asked about
how she felt when she initially learned of the abuse, mother
stated, “There is nothing as a parent that can prepare you for
watching your son go through that pain when you’ve watched
your family literally do everything for [defendant] in regard[ ] to
vacations and all that and watch the pain of your son having to
come truthful about what has happened.” “I have taken him
from his home. . . . It’s all been taken from us. We didn’t do
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anything wrong. T.B. didn’t do anything wrong.” Mother
testified the father blames himself for allowing defendant around
T.B. Mother also testified that father felt “defeated” that he had
to shut down the business he owned for 13 years.
The court stated that in calculating restitution, it would not
engage in speculation. The court ordered T.B. receive $50,000 a
year for seven years and mother and father each receive $50,000
a year for five years, totaling $850,000.
2. Analysis
Although defendant argues the trial court abused its
discretion in awarding $850,000 in restitution, he fails to
summarize the evidence that supports the trial court’s exercise of
that discretion. The following evidence shows the trial court’s
exercise of its discretion was not arbitrary or capricious.
T.B. suffered from defendant’s conduct and even at the time
of the restitution hearing in June 2023 (four years after the last
incident), endured emotional pain, had difficulty in therapy, and
required the support of an assistance dog. T.B.’s parents—who
once referred to defendant as uncle—had to uproot their personal
and professional lives. They moved out of state and relinquished
their business to protect T.B. The record does not include any
estimate when T.B.’s mental anguish would improve and
defendant does not show that considering the frequent abuse T.B.
suffered, the $350,000 awarded to him was unreasonable.
The record supports that T.B.’s parents also suffered
extensively. Father testified he “broke down and felt like [he]
had [himself] turned inside out.” Father felt “like [he] had [his]
heart and soul torn out of” him. Father testified, “My entire
family was turned upside-down by what had went on. There was
a lot of grief and distress going on. . . .” Mother testified that “as
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a parent what that pain, watching him go through what he goes
through on a daily basis feels like” was indescribable. Mother
further testified she blamed herself for allowing defendant to
become a part of the family. In challenging the trial court’s
exercise of its discretion, defendant ignores this evidence. For all
these reasons, the $250,000 award to each parent was not
unreasonable given defendant’s abuse of their son and their trust
forced them to uproot their lives and their livelihood, and to
watch their son suffer significant and lasting emotional pain.
Notwithstanding defendant’s contrary argument, Smith,
supra, 198 Cal.App.4th 415 supports the trial court’s $850,000
award. In Smith, the defendant molested the victim from the
time she was eight years old until she was 15, including digitally
penetrating her vagina, touching her while she touched him,
orally copulating her, and penetrating the victim’s vagina with
his penis. (Id. at pp. 419–421.) Defendant continued having sex
with the victim until she was 26 years old. (Id. at p. 421.) As in
this case, the defendant was convicted of one count of committing
a lewd act on a child and one count of continuous sexual abuse.
(Id. at pp. 419–420.) The court ordered the defendant pay the
victim $750,000 in noneconomic damages. (Id. at p. 420.) The
trial court reached this amount by multiplying $50,000 a year for
15 years, the number of years the defendant abused the victim.
(Id. at pp. 432–433.)
The appellate court affirmed this $750,000 restitution
award. (Smith, supra, 198 Cal.App.4th at p. 436.) “[T]he
restitution order for $750,000 in noneconomic damages for years
of sexual abuse does not shock the conscience or suggest passion,
prejudice or corruption on the part of the trial court.” (Ibid.) The
court rejected the argument that the restitution should end when
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the abuse ended. Instead, it found the victim’s psychological
harm continued after the abuse. (Id. at p. 437.) Smith also noted
authority upholding a $1.5 million dollar award in 1998 to a
student molested by her teacher. (Smith, at pp. 436–437, citing
Ortega v. Pajaro Valley Unified School Dist. (1998)
64 Cal.App.4th 1023, 1059–1061.)
Here, the court awarded T.B. less than half the restitution
awarded in the 2011 Smith case. The evidence showed T.B.
continued to suffer psychological harm long after the abuse
ended. We conclude the undisputed evidence supports the trial
court’s $350,000 award to him. The $250,000 award to each of
T.B.’s parents also was not an abuse of discretion where the
evidence showed they suffered psychological harm seeing their
child suffer and where they were forced to move to another state
to assist their child when defendant violated a restraining order
on multiple occasions even after the criminal charges were filed
against him.
Finally, defendant argues the nature of the abuse in this
case was less severe than the abuse in Smith. We fail to discern
how that argument assists defendant when, as noted above, the
victim in Smith received far more restitution than T.B. As also
noted above, T.B. and his parents received significantly less
collectively than the $1.5 million in noneconomic damages the
victim was awarded in a case on which Smith relied. In short,
defendant demonstrates no abuse of discretion in the trial court’s
award of restitution. (See People v. Lehman, supra,
247 Cal.App.4th at p. 801 [no abuse of discretion where there is a
rational and factual basis for the amount of restitution].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
KELLEY, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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