Opinion
C099026
10-29-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MICHAEL ARELLANO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 2022-CR0050688)
FEINBERG, J.
Defendant Robert Michael Arellano pleaded no contest to sexually abusing a child. The trial court sentenced him to 30 years in prison and awarded victim restitution of $100,000 in economic damages and $1 million in noneconomic damages. On appeal, Arellano challenges the noneconomic restitution award, arguing that the trial court relied on inapposite case authority involving punitive damages to arrive at the $1 million sum. We affirm.
BACKGROUND
Arellano pleaded no contest to continuous sexual abuse of a child (Pen. Code, § 288.5), forcible sodomy of a child (§ 286, subd. (c)(2)(B)), and a forcible lewd act on a child (§ 288, subd. (b)(1)). The plea agreement provided for a stipulated aggregate prison term of 30 years to be served concurrently with a 110-year sentence imposed by a court in Montana. The agreement acknowledged that the trial court would order Arellano to pay various fines and fees, including victim restitution in an amount to be determined. At the change-of-plea hearing, the People indicated that there could be a request for restitution for noneconomic harm.
Undesignated statutory references are to the Penal Code.
The probation department's presentence report described the facts underlying Arellano's offenses and the impact of his crimes. Arellano's abuse of G.M. started when she was seven years old and occurred more than once, including Arellano sodomizing her. G.M.'s sister, S.M., reported that Arellano first raped her (S.M.) when she was eight years old, primarily sodomizing her. Arellano threatened to hurt the girls or their mother if they told anyone about the abuse. Once the abuse came to light, the girls were taken into foster care for five months, and their mother was convicted of abuse and/or neglect for failing to protect them from Arellano.
As a result of the abuse, G.M. tried to hurt herself twice and was hospitalized on three occasions. She suffered from panic attacks as frequent as five to six per day, later occurring approximately twice a month. She engaged in extensive, ongoing therapy and got a therapy service dog. She had been unable to return to traditional school and was homeschooled. She started attending a gym but only if accompanied by her mother.
The report recommended an award of restitution of $80,000 to G.M. for counseling and noneconomic losses, $75,000 for S.M., and $75,000 for their mother for further counseling, the care and maintenance of G.M.'s service dog, moving expenses, and added costs. The report said that the recommended amounts were "merely a suggestion" and noted that the court could award a different amount in its discretion given the extent of trauma and the difficulty in setting an appropriate award.
Before sentencing, the People filed a motion for restitution requesting $50,000 for each of the two victims to pay for future counseling or therapy. The People argued that the requested sums were "modest . . . considering the impact these types of crimes can have on victims."
Both victims and their grandmother addressed the trial court at the sentencing hearing. G.M. told the court that Arellano began sexually abusing her when she was seven years old, and he was arrested when she was 12. She lacked "any trust in adults, in men, or anybody." She had a service animal because she did not feel safe. She explained to the court: "I will never be able to think or act or play or anything like any normal kid my age will ever be able to do." S.M. explained that Arellano started raping her when she was eight years old, but his physical abuse of her had started when she was younger. Arellano began abusing her and G.M. when they were as young as five years old and continued abusing them until they were in their early teens. He abused, raped, and manipulated them so they would think that "he loved us and that he was hitting us and raping us for love."
The children's grandmother stated that the trauma that G.M., S.M., and their mother experienced reverberated "every single day" in simple things such as "when it's a little too dark or when someone comes into the room a little too quietly." She worried that her daughter and granddaughters would "likely spend their entire lives in counseling" and that the abuse they suffered would forever infect their future relationships.
Arellano's counsel argued that restitution could only be awarded for G.M. because the abuse of S.M. occurred outside the state. Counsel also asserted that noneconomic restitution was inappropriate because noneconomic harm was "immeasurable." Counsel contended that when the Legislature adopted section 1202.4, subdivision (f)(3)(F) to allow for noneconomic restitution in certain cases, it provided "no goalposts, no measurement standards by which to ascertain what those numbers should be." He said: "in the area of psychological harm, Judge, it's pin the tail on the donkey, for lack of a better word. What is 50,000 to one person, to the probation it's 80,000. Why not 150- or 25- ? We don't know because we can't measure. Yes, we can measure the costs associated with the expenses associated with counseling, but that's always been something that's properly orderable and hasn't changed with this new subsection. But the new subsection invites awards of restitution for some immeasurable, I didn't say 'nonexistent,' I said immeasurable amounts, and I don't know how you get there, Judge."
The trial court responded: "How do juries get to punitive damages. I mean, you know, one jury will come in with $100,000 and another jury will come in with 2 million. And the instructions-I've always had trouble with punitive damages because-for a lot of reasons. They're so vague and subject to, you know, an arbitrariness, although some people call it the collective wisdom of 12. The other thing is when you get a company that does something bad, I mean, when does it end. They get punitive damages in Georgia, Texas, California, New Jersey, and the argument is, Well, they're making money. But at some point, it becomes excessive. [¶] It took a long time, and finally the Supreme Court, I think it was in Campbell versus State Farm, they came down with a ten to one ratio to economic damages. Anyways, I'm kind of digressing about that."
The trial court further observed that "[t]here's no amount of money that can compensate that girl that I heard, really. I mean, seriously, she basically-you steal somebody's childhood, you manipulate them, you are controlling and physically dominating them, hitting them, hurting them, and raping them; you might as well kill them.... [¶] . . . So I don't know, if the [L]egislature allows it, you can bet I'm going to award some damages or restitution, as we call it, in this type of setting. And, you know, I will give it my best shot. I'm not saying my judgment is any better than anybody else's, but I honestly believe that no matter what figure I come up with-you know, first of all, there's the obvious issue of will they ever see a nickel out of it, and second of all, I can't conceive of anything that would be really enough to compensate them. So that's my attitude towards that."
After additional argument from Arellano's counsel, the trial court pronounced judgment. It sentenced Arellano to 30 years in prison as the parties had stipulated. As to restitution, the court ruled that it only had jurisdiction to award restitution to G.M., because the harm to S.M. occurred outside of California. The court awarded $100,000 in economic damages, which the court concluded would "barely cover current, future and past and future anticipated costs for the little things, therapy, the service dog, care and maintenance of the service dog and that sort of thing." It also awarded $1 million in noneconomic restitution. The court reasoned that the amount was "inadequate and almost laughable, in terms of the suffering that that poor child had to come up with, had to deal with and still will have to deal with until the day she takes her last breath."
Arellano timely appealed.
DISCUSSION
Our state Constitution provides that "[r]estitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Cal. Const., art. I, § 28, subd. (b)(13)(B).) Section 1202.4 implements this requirement by generally providing that, "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, based on the amount of loss claimed by the victim or victims or any other showing to the court." (§ 1202.4, subd. (f); People v. Lehman (2016) 247 Cal.App.4th 795, 800 (Lehman).)
"With one exception, restitution orders are limited to the victim's economic damages." (People v. Smith (2011) 198 Cal.App.4th 415, 431 (Smith).) The exception provides that restitution may be ordered for "[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7." (§ 1202.4, subd. (f)(3)(F).) "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.' (Civ. Code, § 1431.2, subd. (b)(2).)" (Smith, at p. 431.)
The party seeking restitution has the burden of proof by a preponderance of the evidence, but "section 1202.4 does not require any particular kind of proof to establish a victim's losses." (Lehman, supra, 247 Cal.App.4th at pp. 801, 803.) The "evidentiary bar" for demonstrating entitlement to noneconomic damages "is a low one." (People v. Gomez (2023) 97 Cal.App.5th 111, 119.) Permissible evidence includes victim statements made at the sentencing hearing as well as the contents of the probation report. (Lehman, at pp. 803-804.) The evidence must show the impact of the crime on the specific victim, rather than on victims generally. (Gomez, at pp. 118-120.)
"' "A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered." '" (People v. Gomez, supra, 97 Cal.App.5th at p. 116; see also Smith, supra, 198 Cal.App.4th at p. 436 [reviewing court must "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"].) "One way of establishing an abuse of discretion is by showing a demonstrable error of law." (Smith, at p. 435.)
Arellano does not contend that there was an inadequate factual basis to support the trial court's noneconomic restitution award. Instead, he argues that the court committed legal error by resting its award of noneconomic restitution on the United States Supreme Court's decision in State Farm Mut. Auto. Ins. Co. v. Campbell (2023) 538 U.S. 408, 412, which addressed the different subject of federal constitutional constraints on punitive damages awards. Arellano is correct that a trial court abuses its discretion if it applies the wrong legal standard (Smith, supra, 198 Cal.App.4th at p. 435), but we are not persuaded that any such error occurred here.
"Absent evidence to the contrary, we presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) In this case, the People's motion for restitution provided the trial court with on-point authority, including this court's decision in Smith, supra, 198 Cal.App.4th 415. In addition, the record does not support Arellano's claim that the court grounded its decision on inapposite authority such as State Farm. To the contrary, the court said that its reference to State Farm was a "digress[ion]." The trial judge explained that he would "give it [his] best shot" in setting an appropriate award. That description is consistent with case law recognizing the absence of fixed standards for calculating noneconomic losses (Lehman, supra, 247 Cal.App.4th at p. 805) and inconsistent with Arellano's contention that the court based its ruling on a numeric ratio that the court mistakenly derived from State Farm.
We note as well that, after the trial court pronounced its judgment, defense counsel did not request an explanation as to how the court arrived at $1 million, even after the court asked whether counsel had "[a]nything else." Without an affirmative indication in the record suggesting that the trial court erred, we see no basis for concluding that it failed to properly exercise its authority. (People v. Ramirez, supra, 10 Cal.5th at p. 1043.)
DISPOSITION
The judgment is affirmed.
We concur: KRAUSE, Acting P. J. BOULWARE EURIE, J.