Opinion
D073896
01-18-2019
THE PEOPLE, Plaintiff and Respondent, v. KEVIN JONAS ROJANO-NIETO, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Laura Baggett, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CF1874) APPEAL from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Reversed, in part, and remanded with directions. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Laura Baggett, Deputy Attorney General, for Plaintiff and Respondent.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Upon our review of the record, we requested that the parties submit supplemental briefing regarding whether the trial court erred in finding that Kevin Jonas Rojano-Nieto—who was convicted of sodomizing and committing lewd acts on a three-year-old girl—owed no restitution to the victim of his crime. We have reviewed the parties' briefs and conclude that the trial court erred in reaching this determination. Further, we note a discrepancy between the trial court's oral pronouncement of judgment and the abstract of judgment regarding the presentence custody credit to which Rojano-Nieto is entitled.
Accordingly, the victim restitution order is reversed. The matter is remanded with directions to conduct a restitution hearing pursuant to Penal Code section 1202.4 and to make such decision on restitution as may be appropriate. Upon completion of the hearing and entry of the appropriate restitution order the court shall also amend the abstract of judgment to reflect the correct presentence credits. In all other respects, the judgment is affirmed.
All further statutory references are to the Penal Code.
I
FACTUAL AND PROCEDURAL BACKGROUND
a. The Judgment of Conviction and Initial Appeal
A jury convicted Rojano-Nieto of committing sodomy with a child aged 10 years or younger (§ 288.7, subd. (a); count 1) and committing a lewd act on a child under 14 years of age (§ 288, subd. (a); count 2)—specifically, for sexually assaulting a three-year- old girl, Jane Doe. Section 288.7, subdivision (a) mandated that the trial court impose a sentence of 25 years to life for the sodomy conviction. However, the trial court concluded that such a sentence constituted cruel and/or unusual punishment under the California Constitution (art. I, § 17) and the Eighth Amendment to the United States Constitution. Accordingly, it calculated an alternative sentence by applying the sentencing provisions in section 286, subdivision (c) governing convictions for sodomy of a child under the age of 14 and more than 10 years younger than the perpetrator. That provision provides for a penalty of three, six, or eight years. (Ibid.) The court imposed the upper term of eight years for the sodomy count and a consecutive two-year sentence for the lewd act count for an aggregate sentence of 10 years. It awarded Rojano-Nieto 353 days of presentence custody credits, including 307 actual time credits and 46 conduct days.
A full recitation of the background preceding Rojano-Nieto's convictions is found in People v. Rojano-Nieto (Jan. 31, 2017, No. D070919) [nonpub. opn.], opn. mod. Feb. 16, 2017 (Rojano I).
On appeal, we concluded that the 25-year-to-life sentence mandated by section 288.7, subdivision (a) was not " 'so disproportionate to' Rojano-Nieto's crime that it 'shocks the conscience and offends fundamental notions of human dignity.' " (Rojano I, supra, D070919 at p. 28.) Therefore, we concluded that the mandatory 25-year-to-life sentence was not cruel or unusual, reversed the sentence the trial court had imposed, "remanded with directions for the trial court to resentence Rojano-Nieto consistent with the provisions of section 288.7, subdivision (a)," and affirmed in all other respects. (Ibid.) The Supreme Court denied review and our remittitur issued on May 12, 2017.
b. New Trial, Cruel or Unusual Punishment, and Parole Issues
On remand, Rojano-Nieto requested a continuance of the resentencing proceedings to permit his newly-retained counsel to become familiar with the trial documents and interview Rojano-Nieto's prior trial counsel. Rojano-Nieto contended his prior trial counsel was ineffective and, therefore, he intended to file a motion for a new trial and to present additional evidence demonstrating that a sentence of 25 years to life would be cruel or unusual. The People opposed the continuance request on grounds that Rojano I and the corresponding remittitur deprived the court of jurisdiction to consider the matters Rojano-Nieto sought to raise. The People also contended Rojano-Nieto could present his ineffective assistance of counsel argument, to the extent he wished to press it, in a writ proceeding.
Rojano-Nieto later asserted an ineffective assistance of counsel argument in a separate writ of habeas corpus proceeding filed in the Superior Court of California for the County of Orange, In re Kevin Rojano-Nieto (No. M-17306), and has requested a new trial and a new sentencing hearing to present additional evidence supporting his cruel and unusual punishment argument.
At the hearing on Rojano-Nieto's continuance request, Rojano-Nieto's counsel conceded the trial court lacked jurisdiction to consider a motion for a new trial or a renewed argument regarding the cruel or unusual nature of the punishment. Nevertheless, Rojano-Nieto's counsel requested a continuance to make a record for Rojano-Nieto's eventual youth offender parole hearing, as required by section 3051, subdivision (b)(3), and present the record at resentencing. The trial court granted the continuance for the limited purpose of allowing Rojano-Nieto's new trial counsel to prepare a record for his youth offender parole hearing.
Notwithstanding his counsel's concession regarding the trial court's lack of jurisdiction, Rojano-Nieto subsequently filed a motion entitled "Motion to Reconsider the Court's Ruling to Deny Defendant the Right to File a New Trial Motion and Conduct a Sentencing Hearing." In that motion, Rojano-Nieto stated that "in most cases, trial courts are bound to follow the directions contained within an appellate court's remittitur," but argued that his case "present[ed] a unique issue of first impression: How can the trial court be limited to the directions contained within the remittitur when the defendant never had a meaningful opportunity for defense at trial or on appeal?" The trial court denied Rojano-Nieto's motion for a new trial and request to present additional cruel or unusual punishment arguments, reasoning that "the court ha[d] no jurisdiction to entertain the[] motions and . . . ha[d] to comply with the directives of the appellate court."
c. Resentencing and Victim Restitution
At the resentencing hearing, the trial court sentenced Rojano-Nieto to 25 years to life for the sodomy conviction, imposed the midterm of six years for the lewd act conviction, and ran the sentences concurrently. The court pronounced orally that Rojano-Nieto's pre and postsentence actual time credits totaled 1,404 days. However, the abstract of judgment did not reflect the court's oral pronouncement; instead, it reflected the presentence custody credits the court had awarded Rojano-Nieto at his initial sentencing hearing.
Appellant's appointed counsel sent the trial court a letter regarding this discrepancy, requesting that the court prepare an amended abstract of judgment and file an augmented transcript with this court documenting the correction; however, no such augmented transcript has been filed as of the date of this opinion. --------
As the hearing came to a close, the prosecutor raised the issue of victim restitution and informed the court that she did not believe Rojano-Nieto owed victim restitution to Jane Doe. The prosecutor did not state the factual or evidentiary basis for her belief, articulate whether she had consulted the victim or the victim's parents or guardians regarding restitution, or discuss whether future emotional and psychological treatment for Jane Doe may be necessary due to the sexual assault that had been committed against her. Nevertheless, in reliance on the prosecutor's representation, the court set victim restitution at zero and did not reserve jurisdiction to impose or modify restitution at a later date.
II
DISCUSSION
Appointed appellate counsel filed an opening brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal, but invited this court to review the record for error in accordance with Wende and identified the following issue that "might arguably support the appeal" (Anders v. California (1967) 386 U.S. 738, 744): "Whether the trial court erred by denying appellant's requests to file a motion for new trial and to conduct a new sentencing hearing following the remand ordered in the prior appeal (case number D070919)?" After we received counsel's brief, we gave Rojano-Nieto an opportunity to file a supplemental brief, but Rojano-Nieto did not respond.
Subsequently, we directed the parties to file supplemental briefs discussing whether the trial court erred in setting victim restitution at zero, without—at minimum—expressly reserving jurisdiction over the issue of victim restitution. Rojano-Nieto's appointed appellate counsel and the People both filed supplemental briefs on this matter. Rojano-Nieto's appointed appellate counsel urged affirmance of the restitution order. The People, on the other hand, argued that the record was ambiguous regarding the availability of restitution and urged us to remand the matter to the trial court to conduct further restitution proceedings, given that the type of sexual abuse experienced by Jane Doe "results in long-term emotional and psychological damage to the child victim if left untreated."
In 1982, California voters enacted Proposition 8, also known as the Victims' Bill of Rights, which added article I, section 28, subdivision (b) to the California Constitution. (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) That provision establishes a constitutional right to restitution for victims of crimes, as follows: "In order to preserve and protect a victim's rights to justice and due process, a victim shall be entitled to the following rights: [¶] To restitution. [¶] It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) The Legislature also enacted an array of laws to implement these nonself-executing rights, which were later consolidated into section 1202.4. (Giordano, at pp. 652-653.)
Subject to exceptions not applicable here, section 1202.4, subdivision (f) provides as follows: "[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. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court." (See also § 1202.46 ["[W]hen the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined."].)
Further, section 1202.4, subdivision (f) permits victims of child sexual abuse to recover restitution for noneconomic damages, as follows: "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 [¶] Noneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7." (See, e.g., People v. Lehman (2016) 247 Cal.App.4th 795, 800-805 [affirming $1 million victim restitution award for noneconomic damages stemming from child sexual assaults].) Inclusion of such amounts in the restitution order "helps to protect child victims of sexual abuse, both by increasing the punishment for offenders and by compensating those victims for psychological harm." (People v. Smith (2011) 198 Cal.App.4th 415, 435.)
"[W]e review the trial court's restitution order for abuse of discretion. [Citations.] The abuse of discretion standard is 'deferential,' but it 'is not empty.' [Citation.] '[I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.] Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the . . . victim's economic loss. To facilitate appellate review of the trial court's restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered." (Giordano, supra, 42 Cal.4th at p. 663; see People v. Mearns (2002) 97 Cal.App.4th 493, 499 [restitution award requires a factual and rational basis].)
Based on our review of the record and the parties' supplemental briefs, we conclude the trial court's restitution order cannot stand. (See § 1202.46; People v. Bernal (2002) 101 Cal.App.4th 155, 164-165 ["We note that victim restitution is mandated by both the Constitution and section 1202.4, and a sentence imposed without such an award is invalid."].) The trial court set victim restitution at zero and did not reserve jurisdiction to modify the award when damages to Jane Doe could be determined, in reliance on the representation of the prosecutor that she did not "believe" victim restitution was necessary. However, the prosecutor did not explicate the basis for her belief, discuss the facts or present evidence supporting her belief, represent that she had discussed restitution with Jane Doe's parents or guardians, or address the realistic possibility—if not probability—that Jane Doe, a minor of tender years, will experience future emotional and psychological turmoil requiring treatment as a result of the criminal assault at issue.
As our court has explained, "child sexual abuse results in long-term emotional and psychological damage to the child victim if left untreated. And such abuse is not the kind of act that results in emotional and psychological harm only occasionally." (People v. Martinez (2017) 8 Cal.App.5th 298, 305-306.) As the People correctly note in their supplemental brief, the grievous nature of the crimes at issue in this case and the tender years of the victim suggest that there is a "high possibility that the child victim will need psychological counseling for which [Rojano-Nieto] would owe restitution." (Capitalization modified.) In the face of these probable damages, the prosecutor's bare statement that she did not believe victim restitution was needed does not justify the victim restitution award rendered in this case.
The prosecutor's representation is also at odds with the trial court's own recognition that Jane Doe may require emotional and psychological treatment as a result of the sexual assault committed against her. At the initial sentencing hearing, the court stated that "it's hard to gauge how this crime may affect [Jane Doe's] mental state in the future. It certainly may, but [the court] hope[s] it does not." The court further expressed its optimism that Jane Doe was headed for a normal life but opined that it "cannot [be] gauge[d]" whether that will happen. Given these uncertainties, the probation and sentencing report recommended that the trial court retain jurisdiction over Rojano-Nieto as to the amount of victim restitution owed until the amount of any losses could be determined.
On appeal, Rojano-Nieto's appointed appellate counsel contends the trial court did not abuse its discretion by setting victim restitution at zero because it was entitled to rely on the prosecutor's representation that she did not believe victim restitution was owed. However, as discussed ante, the prosecutor did not articulate the facts or evidence on which she based her belief. In any event, "[t]he right to restitution, which is constitutional, cannot be waived by the prosecution." (People v. Brooks (2018) 23 Cal.App.5th 932, 939, fn. 12; People v. Valdez (1994) 24 Cal.App.4th 1194, 1203 [the prosecution may not waive or limit the victim's right to reimbursement for losses resulting from criminal conduct].) We will therefore reverse and remand the victim restitution order with instructions to the trial court to conduct a new restitution hearing.
Independent of the trial court's victim restitution order, we note a discrepancy between the oral pronouncement of judgment and the trial court's minutes, on the one hand, and the abstract of judgment, on the other hand. The trial court orally pronounced and memorialized in its minutes that it was awarding Rojano-Nieto 1,404 days of actual custody credits. However, the abstract of judgment reflects the presentence custody credits that were awarded to Rojano-Nieto at his original sentencing hearing (i.e., 307 actual time credits plus 46 conduct days). Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) Because a new restitution hearing will take place, which will result in an amended abstract of judgment, we do not exercise our inherent authority to correct clerical errors in the existing abstract of judgment. (People v. Rowland (1988) 206 Cal.App.3d 119, 123.) However, we note the discrepancy so that the trial court may prepare an amended abstract of judgment on remand that conforms to the oral pronouncement of judgment.
DISPOSITION
The victim restitution order is reversed. The matter is remanded to the trial court with directions to conduct a restitution hearing pursuant to section 1202.4 and to make such decision on restitution as may be appropriate. Upon completion of the hearing and entry of the appropriate restitution order the court shall also amend the abstract of judgment to reflect the correct presentence credits. In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.