People v. Diaz CA4/1

Filed 5/16/22 P. v. Diaz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078649
Plaintiff and Respondent,
v. (Super. Ct. No. JCF003287)
JOAQUIN ALVARADO DIAZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland
Assistant Attorneys General, Eric A. Swenson and Heather M. Clark, Deputy
Attorneys General, for Plaintiff and Respondent.
Joaquin Alvarado Diaz was charged with eight counts of felony sexual
abuse: unlawful sexual intercourse/sodomy (Pen. Code,1 § 288.7, subd. (a);
1 Undesignated statutory references are to the Penal Code.
counts 1, 4, 6); oral copulation/sexual penetration (§ 288.7, subd. (b); counts 2,
5, 7); forcible lewd act upon a child (§ 288, subd. (b)(l); count 3); and lewd act
upon a child (§ 288, subd. (a); count 8). Diaz pleaded no contest to one count
of committing a lewd act upon a child under 14 years of age (§ 288, subd. (a)),
and the remaining counts were dismissed. His plea included a Harvey
waiver.2 The court suspended imposition of sentence and placed Diaz on
three years’ formal probation subject to various terms and conditions,
including that he serve one year in county jail.
The court awarded the minor restitution in the amount of $665,000 as
follows: $300,000 for past noneconomic damages for psychological harm due
to Diaz’s criminal conduct ($50,000 per year for the six years of abuse she
suffered from January 2014 to March 2020), plus $365,000 ($50 per day for
20 years) for future noneconomic damages. The court found the minor had an
approximate life expectancy of 78 years, and would potentially “continue to
suffer serious psychological harm for the rest of her life, but will certainly
suffer the serious traumatic effects of defendant’s criminal conduct for at
least 20 years in the future.”
Diaz contends the trial court abused its discretion in awarding the
minor $365,000 in future noneconomic damages. He further contends no
objective evidence supported either the nature of the future emotional
distress damages or the 20-year period upon which the court based it;
2 The waiver under People v. Harvey (1979) 25 Cal.3d 754 in the plea
form that Diaz initialed states: “The sentencing judge may consider my prior
criminal history and the entire factual background of the case, including any
unfiled, dismissed or stricken charges or allegations or cases when granting
probation, ordering restitution or imposing sentence.”
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therefore, this court cannot meaningfully review the restitution award. We
affirm the order.
PROCEDURAL AND FACTUAL BACKGROUND
A probation report stated that Diaz began sexually abusing the minor
when she was four years old. Her mother learned Diaz had touched the
minor inappropriately when the minor was 10 years old. The mother
contacted police, and the minor reported that Diaz raped, sodomized, and
fondled her on average once a week during those six years.
In a written statement attached to the probation report, the mother
explained that the minor experienced “severe mental health and emotional
issues” because of Diaz’s actions. Further, the minor had difficulty taking
showers and sleeping at night and had “flashbacks.” The mother explained
that the minor, who had poor self-esteem due to the trauma Diaz had caused,
would “continue to live with [the trauma] for the rest of her life.” Her mother
said the minor was taking “medicine to try to cope,” and was receiving help
from her doctors.
During the sentencing hearing, the court tentatively found that the
minor was entitled to $250,000 in noneconomic damages plus the cost of
therapy, medication, or related expenses. However, the court reserved its
ruling on the final amount pending a formal restitution hearing. Diaz
initially filed a motion stipulating to the court’s award of $250,000 in
restitution for noneconomic damages.
At the first restitution hearing, the mother testified regarding the
minor’s damages:
“The Court: So does [the minor] suffer psychological harm on a daily
basis because of the defendant’s conduct?
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“[Mother]: Yes. She’s been on suicide watch a couple of times by a
psychologist, but it really affected her.
“The Court: So she’s receiving professional treatment for her
psychological harm; is that correct?
“[Mother]: Yeah. She’s on medication and everything, but it’s still a lot
even with medication.”
The mother testified at a second restitution hearing that the minor had
made several suicide attempts, was unable to sleep at night, could not shower
by herself, suffered flashbacks, experienced difficulty adapting to new
situations, and was scared to be outside of the home or away from her
mother. The mother testified that although the minor was in therapy four
times per week, it was “still not enough” and she did not believe it would ever
be enough. She testified that her daughter “can’t live a normal life like a
normal child is meant to live, a normal childhood.” The mother explained
that her daughter’s condition had worsened from the time she reported Diaz’s
conduct to police. Since Diaz began abusing her, the minor lost her friends,
had difficulty talking with strangers, and developed learning problems in
school. The mother reported no economic damages.
Defense counsel at the second restitution hearing relied on People v.
Valenti (2016) 243 Cal.App.4th 1140 (Valenti) and People v. Giordano (2007)
42 Cal.4th 644 (Giordano) and argued the court should defer its ruling
pending further documentation from mother, as it had no rational basis for a
damages award, because no documentation or independent evaluation
supported either economic or noneconomic damages.
The court countered that the probation report and the mother’s written
statement and testimony supported a restitution award: “What I’ve heard so
far is that the victim in this case [ ] has suffered serious emotional distress
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and the defendant’s conduct was a substantial factor, if not the only factor, in
causing that serious emotional distress. And what I mean by ‘serious
emotional distress,’ I’m talking about the suffering, anguish, fright, horror,
grief, anxiety, worry, shock, humiliation. There’s clearly quite a bit of that.”
The court at two separate restitution hearings asked Diaz’s counsel if
he had affirmative evidence to present regarding noneconomic damages, and
each time counsel replied in the negative and submitted on the record
presented.
The court in its ruling made a factual finding regarding Diaz’s abuse of
the minor: “According to the information provided in the probation report
from a forensic interview with [the] victim, [she] was subjected to acts of
forced sexual intercourse, sodomy and oral copulation over a period of 5 [to] 6
years. The defendant would put his penis in her vagina and buttocks, which
would physically hurt the victim. While in a bed, the defendant would touch
her, he then would make her turn around and he would put his penis inside
her vagina and defendant would leave it there and move it around. Victim [ ]
reported that the defendant would take it back and put it back in. The victim
reported that what the defendant would do to her vaginal area was the same
that he would do to her buttocks area. The defendant’s hands at the moment
the victim was being violated would touch her chest and her vagina. The
victim also reported that the defendant would force her to put his penis in her
mouth and he would tell the victim to lick it. The victim reported that the
defendant forced her not to say anything or else her mother would hit her and
he would tell her mother that the victim had touched him. Victim [ ] reported
the defendant would have intercourse and anal sex about once per week . . . .
. . . The victim told the forensic interviewer that the defendant would put his
hand over her mouth if the victim would start to scream. The victim reported
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that at times, she would try to get away but the defendant would hold her
arms down. . . . The defendant took pictures of her with his phone. The
defendant would also ask the victim to take pictures of herself and her
buttocks area with his phone. The victim also reported that the defendant
showed her videos and pictures of people ‘doing that’, meaning engaging in
sexual intercourse, oral sex and anal sex. The victim reported that it was
children in the videos and the defendant would ask her, ‘Why don’t you do it
like them?’ ”
Finding that the minor suffered severe psychological trauma during the
six years Diaz abused her, the court awarded her noneconomic damages of
$665,000. It relied on the legal framework for restitution awards set forth in
article I, section 28, subdivision (b)(13)(A)-(C) of the California Constitution,
Penal Code section 1202.4, subdivision (f)(3)(F) mandating that those
convicted of committing lewd acts upon a minor pay restitution, and CACI
No. 3905A.3
DISCUSSION
I. Applicable Law
The California Constitution gives trial courts broad power to impose
restitution on offenders. (Cal. Const., art. I, § 28, subd. (b)(13).) “[A]ll
persons who suffer losses” due to crime have the right to restitution. (Ibid.)
Accordingly, courts have held restitution statutes should be interpreted
3 CACI No. 3905A provides in part: “No fixed standard exists for
deciding the amount of these noneconomic damages. You must use your
judgment to decide a reasonable amount based on the evidence and your
common sense. [To recover for future [insert item of pain and suffering],
[name of plaintiff] must prove that [he/she/nonbinary pronoun] is reasonably
certain to suffer that harm.”
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broadly and liberally. (In re S.E. (2020) 46 Cal.App.5th 795, 808; In re
Johnny M. (2002) 100 Cal.App.4th 1128, 1132; accord, People v. Mearns
(2002) 97 Cal.App.4th 493, 500 [“A victim’s restitution right is to be broadly
and liberally construed”]; People v. Lyon (1996) 49 Cal.App.4th 1521, 1525
[“statutory provisions implementing the constitutional directive have been
broadly and liberally construed”].) “[A]ny interpretation that limits a victim’s
right to restitution would be contrary to the expressed intent and purpose of
article I, section 28 of the California Constitution.” (In re S.E., at p. 808.)
Generally, victim restitution is limited to “economic loss,” but there is
an exception for restitution orders “relating to felony convictions for lewd or
lascivious acts.” (See Giordano, supra, 42 Cal.4th at p. 656; § 1202.4, subds.
(a), (f).) For such convictions, the restitution order may provide for
noneconomic damages, including, but not limited to, psychological harm.
(§ 1202.4, subd. (f)(3)(F); Giordano, at p. 656.) Specifically, with exceptions
not applicable here, section 1202.4, subdivision (f) provides: “[I]n 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, based on the
amount of loss claimed by the victim or victims or any other showing to the
court. . . . [¶] . . . [¶] (3) To the extent possible, the restitution order shall
be . . . of a dollar amount that is sufficient to fully reimburse the victim or
victims for every determined economic loss incurred as the result of the
defendant’s criminal conduct, including, but not limited to, all of the
following: [¶] . . . [¶] (F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288, 288.5, or 288.7.”
Section 1202.4, subdivision (k) defines the term “victim” as “[t]he
immediate surviving family of the actual victim,” and a person who has
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sustained economic loss as the result of a crime who “at the time of the crime
was the parent, grandparent, sibling, spouse, child, or grandchild of the
victim.” (§ 1202.4, subds. (k)(1), (3)(A).) The statute makes no distinction
between a “ ‘derivative victim’ ” and an “ ‘actual victim.’ ” (Giordano, supra,42 Cal.4th at p. 656.)
We review the amount ordered for restitution using the abuse of
discretion standard. (Giordano, supra, 42 Cal.4th at p. 663.) We ask
whether the ruling “ ‘ “falls outside the bounds of reason” under the
applicable law and the relevant facts.’ ” (Ibid.)
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.’ ” (People v. Smith (2011) 198 Cal.App.4th 415,
431 (Smith).) “Unlike restitution for economic loss, . . . loss for noneconomic
[harm] is subjectively quantified.” (Id. at p. 436.) In light of the difference
between the two types of loss, the court in Smith held a different standard of
review must be applied to orders of noneconomic restitution to allow for the
subjective considerations of the trial court judge. (Ibid.) The court
concluded, “We are guided in this matter by the civil jury instruction
concerning noneconomic loss: ‘No fixed standard exists for deciding the
amount of these damages. You must use your judgment to decide a
reasonable amount based on the evidence and your common sense.’ ” (Ibid.)
“ ‘As a result, all presumptions are in favor of the decision of the trial court.’ ”
(Ibid.) “We therefore affirm a restitution order for noneconomic damages
that does not, at first blush, shock the conscience or suggest passion,
prejudice or corruption on the part of the trial court.” (Ibid.)
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II. Analysis
Diaz argues that no expert testimony was presented related to any
specific harm the minor “is likely to experience in a year or five years, much
less what she is likely to experience two decades from now. The only
evidence that bore on this question, in fact, was the fact that [the minor] had
been in therapy for eight months . . . [and her mother’s] description of what
[the minor] had experienced prior to the hearing, and [her] claim that [the
minor] ‘will continue to live with [those issues] for the rest of her life’ and
would not ‘ever understand why [the abuse] occurred.’ ” Diaz further argues
that mother’s testimony was much like the evidence in Valenti, where the
court concluded the theories about future trauma were an opinion “filtered
through [the] parents” and unsupported by any information such as “victim
declarations, independent documentation, or professional evaluations” that
would permit the court to make a factually grounded evaluation of the
victim’s future prospects. (Valenti, supra, 243 Cal.App.4th at p. 1182.)
We conclude the superior court’s reliance on mother’s testimony does
not undermine the validity of the restitution award. While restitution orders
must be supported by substantial evidence, there is no requirement that the
evidence provided be from a particular source. “Section 1202.4 does not, by
its terms, require any particular kind of proof. However, the trial court is
entitled to consider the probation report[.]” (People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542-1543.) The trial court applies a standard of proof of
preponderance of the evidence, not proof beyond a reasonable doubt. (People
v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
Here, the court stated it was “in the difficult and unenviable position of
quantifying [the victim’s] psychological harm and the loss of her normal
childhood in dollars,” and set forth its calculation of restitution for past
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psychological harm for noneconomic damages based upon the sum of $50,000
per year for the six years of abuse she suffered, for a total of $300,000. The
court calculated the future psychological harm award as $50 per day for a 20-
year period, a total of $365,000. We conclude the restitution award did not
fall outside the bounds of reason; rather, the court provided a rational basis
for its decision. (Giordano, supra, 42 cal.4th at pp. 663-664.) We point out
that the court here made a similar calculation as that which the court
affirmed in Smith, supra, 198 Cal.App.4th at p. 437: “In determining how to
fix an amount of noneconomic damages, the trial court expressed its
willingness to base the award on 15 years of abuse by defendant. Multiplying
that 15 years by $50,000, the court arrived at the figure requested by Doe—
$750,000 for noneconomic damages.” (Ibid.)
Valenti, supra, 243 Cal.App.4th at p. 1140, does not persuade us that
the court’s award of noneconomic restitution was an abuse of discretion. In
Valenti, the appellate court reversed awards of $50,000 in noneconomic
damages to each of three victims. (Id. at p. 1182.) The court noted the record
contained “no victim declarations, independent documentation, or
professional evaluations” in support of the court’s award of $50,000 of
noneconomic damages. (Ibid.) There, the People’s sentencing memorandum
cited to Smith, supra, 198 Cal.App.4th 415 and listed the requested sums but
the People “did not submit any support for the figures.” (Valenti, at p. 1182.)
The only information about the victims was “filtered through their parents
and conveyed in the probation report or in a statement at sentencing” and did
not support the court’s award. (Ibid.) The mother of one victim reported to
probation the victim “ ‘did not sustain actual child abuse’ ” and “had not
expressed his true feelings or discussed them with his mother.” (Ibid.) The
mother of a second victim reported the victim was “ ‘doing fine’ ” and the
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mother had “ ‘not noticed any emotional scars.’ ” (Ibid.) At the sentencing
hearing, the third victim’s mother reported the victim was
“ ‘excellent.’ ” (Id. at p. 1183.) Based on the record in that case, the appellate
court concluded “the court’s only apparent basis for awarding $50,000 [to
each of the three victims] was the [Smith opinion].” (Ibid.) The appellate
court concluded the trial court “did not find facts, cite reliable evidence, or
even explain how it arrived at the amount of restitution awarded to each
victim. There was no evidence, either through direct testimony or victim-
impact statements, that the children suffered nightmares or flashbacks, that
they were having trouble in school or problems making friends, that they had
considered harming themselves or others, or that they had sought or received
counseling in any form.” (Ibid.) Rather, the “three families were relieved
that their sons had not ‘actually’ been abused.” (Ibid.) The court concluded
that, “[b]ecause the court did not ‘demonstrate a rational basis for its award’
or ‘ensure that the record is sufficient to permit meaningful review,’ ” the
award of noneconomic damages to those three victims had to be reversed and
the matter remanded for directions for the trial court to hold a restitution
hearing. (Id. at pp. 1183-1184, citing Giordano, supra, 42 Cal.4th at p. 664.)
Here, in contrast to Valenti, supra, 243 Cal.App.4th 1140, there was
substantial evidence through mother’s testimony presented at the restitution
hearing that Diaz had sexually assaulted the minor, who suffered emotional
damage as a result. Additionally, unlike the victims in Valenti, the minor
here was in counseling for the trauma experienced, and there was ample
evidence that Diaz’s molestation caused the minor to suffer flashbacks
concerning the abuse, and trouble sleeping. She was in therapy four times a
week to deal with the problems caused by the abuse. Further, she was
having difficulty with school and, at age 11 at the time of the hearing, she
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was still depressed, had feelings of isolation, was taking medications for her
condition and was unable to develop childhood friendships. Moreover,
contrary to the trial court’s silence in Valenti, the court here explained the
factors considered in making its determination, and it independently
considered the facts of the case when calculating the $665,000 in
noneconomic damages. As such, on the record before us, this award does not
“shock the conscience” or suggest passion, prejudice or corruption. (See
Smith, supra, 198 Cal.App.4th at p. 436; People v. Lehman (2016) 247
Cal.App.4th 795, 803.)
DISPOSITION
The order is affirmed.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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