Opinion
A164936
11-30-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE SALVADOR ROMERO- LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-192368-9.
STREETER, Acting P. J.
Following a jury trial, Jose Salvador Romero-Lopez was convicted of violating Penal Code sections 288, subdivisions (a) and (b)(1), and section 269, subdivision (a)(4). In this appeal, he claims error in each of the jury's section 288, subdivision (b)(1) and section 269, subdivision (a)(4) verdicts, as well as in a substantial sexual conduct finding the jury made along with its section 288, subdivision (a) verdict. Arguing lack of record support, he also appeals an award of victim restitution imposed at sentencing. We will vacate the victim restitution award and remand for further restitution proceedings, but will otherwise affirm the conviction and sentence.
All further undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. Evidence at Trial
The evidence at trial showed the following.
1. The incidents in Oakland
Doe was born in 2007. She was approximately six years old when her mother began dating Romero-Lopez. Romero-Lopez was born in 1990, he was five feet ten inches tall, and he weighed approximately 235 pounds. Romero-Lopez was the father of Doe's brother, and Doe and her siblings referred to Romero-Lopez as "Papi." They lived in a house in Oakland.
"Papi" means "dad" in Spanish.
When Doe was eight years old, she had an encounter with Romero-Lopez that made her uncomfortable. That evening, Doe's mother left with her friends. Romero-Lopez turned off the lights and locked the door of the room they were in. He told Doe to take off her clothes and sit on him. She complied because she did not know what was going to happen and she was scared. Romero-Lopez also took off his clothes. She sat on Romero-Lopez and she felt his penis touch her vagina.
This encounter ended when Romero-Lopez's cell phone rang. After Romero-Lopez ended the phone call, he told Doe to be quiet because they did not want to get in trouble with the police. Romero-Lopez told Doe not to tell anyone, and she complied because she was scared and afraid of Romero-Lopez.
There were other times in the Oakland house when Romero-Lopez touched Doe in a way she did not like. These encounters, which occurred multiple times, took place in the bedroom with the door shut, and while Romero-Lopez and Doe were alone together. He would close the door and tell Doe to lock it. He would then place his hands inside her pants and underwear and touch her skin. During these encounters, he told Doe not to tell anyone, and she did not.
2. The incidents in San Pablo
When Doe and her family moved to San Pablo sometime between January and May of 2019, Romero-Lopez continued touching Doe in the same manner as he did in Oakland. During these encounters, which took place behind a locked door, Romero-Lopez would place his hands down her pants and touch her vagina and buttocks. He touched her over and underneath her underwear. These encounters lasted a few minutes, occurred more than ten times, and Doe would not do anything. She did not tell anyone about Romero-Lopez's abuse because he and Doe's mother were planning to get married, and Doe was worried how this news would affect her family.
On July 14, 2019, Romero-Lopez and Doe were in the bedroom and he locked the door. Romero-Lopez pulled down her leggings and underwear and touched her vagina with his hand. At some point, he placed his mouth on her "private part" and began licking her. Romero-Lopez stopped and told her not to tell anyone. This time Doe did not comply, and she instead told her mother what happened later that same day.
Doe clarified that her "private part" meant her buttocks or vagina.
3. The police investigation
Doe, Doe's mother, and Romero-Lopez, drove to the police station. Before they arrived, Romero-Lopez opened the car door and ran out in a direction away from the police station. The police captured him. An oral buccal swab from Romero-Lopez's cheek was taken for DNA analysis and he provided the police with the passcode for his iPhone. San Pablo Police Officer Chelsea Douglass interviewed Doe at the police station. Doe was very quiet; she appeared nervous and scared; and she was crying. Officer Douglass told Doe to be one hundred percent honest, and Doe indicated she understood the difference between a truth and a lie.
The video of the recorded interview was played for the jury.
Doe told Officer Douglass that Romero-Lopez made up a "tickle game" during which he touched her private parts, and this started in their house in Oakland when she was seven or eight years old. Romero-Lopez told her to take off her clothes, he turned off the light, and he checked if everybody else was asleep. She did not know what to do and she was scared of him. He then told her to get on top of him and she felt his private part go close to her private part. He placed his finger on her private part and began kissing her neck. She was really scared. These types of incidents occurred more than three times in Oakland and in San Pablo, and they always occurred at the house while her mother was absent.
Doe told Officer Douglass that, earlier that day, Romero-Lopez told her to take off her pants and he started licking her private part. That was the only time he licked her private part. Doe also told Officer Douglass that when Romero-Lopez talked about her private parts, she had to act like she did not know about it because she was scared he would do something. Doe explained that Romero-Lopez "always did really bad thigs [sic] . . . when nobody was around to help." When her siblings asked Doe why she was crying, she did not tell them the reason because she was scared.
Data extracted from Romero-Lopez's iPhone showed that between June 9, 2019 and July 13, 2019, there were approximately 15 searches for pornographic material. All 15 searches related specifically to a father/daughter/stepfather relationship. The web history on the iPhone also showed that approximately 39 pornographic videos on the phone were accessed, 36 of which related to father/stepdaughter/daughter type relationships. The combined searches and web history for the month leading up to July 14, 2019, showed that pornographic material was sought and accessed on the iPhone 54 times, 51 of which sought material related to a father-daughter type of relationship.
4. The sexual assault examination and DNA analysis
Ana Maree Rea, a licensed nurse, performed Doe's sexual assault examination on July 14, 2019. Doe was 11 years old at the time. According to Rea, Doe was soft spoken; cooperative and calm; and forthcoming.
Doe told Rea that, a couple of hours earlier, Romero-Lopez took off her pants and underwear. He licked her vagina and stuck his tongue inside, and it felt weird. Romero-Lopez had been molesting her since she was eight years old. The first time occurred when he took his clothes off, turned off the lights, and put his private part next to, or on, her vagina.
Doe told Rea that she had not disclosed Romero-Lopez's conduct earlier because she was afraid he would abuse her more. Doe's family loved Romero-Lopez, and she was concerned that if she told anyone, they would be taken away. Rea examined Doe's genitals and swabbed her external genitalia. Saliva was detected on the swabs taken from her mons pubis area and her upper external vaginal area. A DNA analysis of these swabs showed, among other things, that Romero-Lopez's DNA profile matched the male DNA profile taken from the swab of Doe's mons pubis area.
5. Doe's interview at the Child's Interview Center
Pat Mori interviewed Doe at the Child's Interview Center on July 15, 2019. Much of what Doe told Mori concerning Romero-Lopez's abuse in Oakland and San Pablo, and her fear of him, were similar to what she told Officer Douglass and Rea. As to the July 14 incident, Doe added that her legs were spread on the edge of the bed because Romero-Lopez "forced" her to do that and she was scared.
The audio and video recording of that interview, which was 70 minutes long, was played for the jury.
B. Jury Verdict and Sentence
The jury convicted Romero-Lopez of one count of committing a lewd or lascivious act upon a child under 14 (§ 288, subd. (a); count 1) and found that he had substantial sexual conduct with Doe (§ 1203.066, subd. (a)(8)). The jury also convicted Romero-Lopez of seven counts of committing a forcible lewd or lascivious act with a child under 14 (§ 288, subd. (b)(1); count 2-7, 9), and one count of committing an aggravated sexual assault upon a child - oral copulation (§ 269, subd. (a)(4); count 8). He was sentenced to state prison for 62 years plus an indeterminate term of 15 years to life. He was also ordered to pay, among other things, $400,000 in noneconomic restitution (§ 1202.4, subd. (f)(3)(F)).
Romero-Lopez appeals from the judgment of conviction and the restitution order.
II. DISCUSSION
A. The Count 2 Through 9 Verdicts: Use of Duress
Romero-Lopez argues the record does not support the jury's guilt verdict on the seven counts of forcible lewd or lascivious conduct with a child under 14 (counts 2 through 7 and 9) and aggravated sexual assault of a child (count 8). According to him, there is no evidence that, when committing these alleged offenses, he used "force, violence, duress, menace, or fear of immediate unlawful bodily injury." (§§ 287, subd. (c)(2); 288, subd. (b)(1).) Romero-Lopez is correct nothing in the evidence shows the use of force, violence, menace, or fear of immediate bodily injury. But we agree with the Attorney General that there is substantial evidence he used duress.
Duress is" 'a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citation.]" (People v. Leal (2004) 33 Cal.4th 999, 1004-1005, 1010.) This definition is "objective in nature and not dependent on the response exhibited by a particular victim." (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto).) To evaluate duress, we look at "[t]he totality of the circumstances including] the victim's age, her relationship to the perpetrator, threats to harm the victim, physically controlling the victim when the victim attempts to resist, warnings to the victim that revealing the molestation would result in jeopardizing the family, and the relative physical vulnerability of the child." (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072 (Thomas).)
Duress can take the" 'form of psychological coercion to get someone else to do something.'" (Soto, supra, 51 Cal.4th at p. 243; see People v. Cochran (2002) 103 Cal.App.4th 8, 15 (Cochran), overruled on other grounds in Soto, at p. 248, fn. 12.) It "can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes." (People v. Schulz (1992) 2 Cal.App.4th 999, 1005.) Duress also can be established by "a defendant's attempt to isolate the victim and increase or maintain her vulnerability to his assaults." (Cochran, at p. 15.) "When the victim is young and is molested by her father in the family home, duress will be present in all but the rarest cases." (Thomas, supra, 15 Cal.App.5th at pp. 1072-1073, italics added.) Although Lopez-Romero is not Doe's biological father, his role in her life was equivalent to that of a father, and thus we think the principle enunciated in Thomas applies.
This case falls within the norm identified by the Thomas court for paternal molestation cases involving young children. The fact there was no use of force or explicit threats of violence does not eliminate the possibility there was duress, given the victim's "age and her relationship to the defendant." (Cochran, supra, 103 Cal.App.4th at p. 14.) "A perpetrator may use duress . . . against a victim even if this conduct does not ultimately influence the victim's state of mind." (Soto, supra, 51 Cal.4th at p. 243.) For instance, in People v. Pitmon (1985) 170 Cal.App.3d 38, 51, overruled on other grounds in Soto, supra, 51 Cal.4th at p. 248, fn. 12, the court held there was substantial evidence of duress even though the defendant did not use force, violence, or the threat of violence. Similarly, in People v. Veale (1990) 160 Cal.App.4th 40, the defendant abused his seven-year-old stepdaughter several times, generally when they were alone in the house, without making any verbal or physical threats. (Id. at p. 43.) The victim testified she did not tell her mother because she was afraid, did not think her mother would believe her, and was afraid the defendant would hurt her or her mother if she reported the abuse, although he never said he would. (Id at p. 44.) The Veale court held that, even in the absence of threats or physical force, the jury could reasonably find duress based on an implied threat from the victim's fear, age, and size compared to the defendant. (Id. at p. 47.)
On this record, we have isolation behind a locked door, age disparity, size difference, and a familial relationship in which Romero-Lopez occupied a position of dominance and authority. Romero-Lopez was the father of Doe's brother; she and her siblings referred to him as their "dad"; and they all lived in the same home. Thus, as in Cochran, it is fair to say the victim was a young "vulnerable and isolated child who engaged in sex acts only in response to [a father figure's] parental and physical authority." (Cochran, supra, 103 Cal.App.4th at p. 15; People v. Senior (1992) 3 Cal.App.4th 765, 775 [duress present where the defendant was the victim's father and an authority figure, and had physically controlled her by pulling her back when she tried to resist]; People v. Schulz, supra, 2 Cal.App.4th at p. 1005 [sufficient evidence of duress where the defendant used physical dominance to prevent her from resisting].)
The evidence also shows Doe was unwilling to submit to what Lopez-Romero wanted to do to her, but she felt she had no choice. For example, during the July 14 encounter when Romero-Lopez licked Doe's vagina, she explained how her legs were spread on the edge of the bed because Romero-Lopez "forced" her to do that and she was scared. She explained, "And in my mind I didn't want to do it." During her other encounters with Romero-Lopez in the bedroom, Romero-Lopez often turned off the lights, impeded her escape by locking the door, and told her to take off her clothes. A reasonable inference may be drawn from these circumstances that she understood Romero's directives to disrobe not as requests, but as orders to be followed. (See Thomas, supra, 15 Cal.App.5th at p. 1074 ["The jurors could reasonably conclude that defendant's directives to Jane Doe were orders to be obeyed."].)
Romero-Lopez also made veiled threats that if Doe attempted to contact the police, this would ruin the family because he would get in trouble. She testified, "He . . . said be quiet because we don't wanna get in trouble and go to the police." Doe complied with Romero-Lopez's insistence upon secrecy because she was scared and afraid of him. She also testified she kept the molestations to herself for years because Romero-Lopez and Doe's mother were planning to get married, her family loved Romero-Lopez, and she worried how this news would affect her family. Here, a reasonable person of ordinary sensibilities would be a child of Doe's age; and for any such child, this kind of implied threat would present the prospect of "hardship," since the child's fundamental sense of security and belonging was being placed in jeopardy.
Arguing that the evidence is insufficient to constitute use of duress on these facts, Romero-Lopez relies principally on People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker), overruled on other grounds in People v. Soto, supra, 51 Cal.4th at p. 248, fn. 12, and People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza), two cases that find insufficient evidence of use of force to sustain section 288, subdivision (b) convictions where, as here, there was no use of violence, menace, or fear of immediate bodily injury to carry out the charged molestations. We do not find Hecker and Espinoza to be persuasive.
Expansively read, these cases stand for the proposition that"' "Psychological coercion" without more does not establish duress.'" (Espinoza, supra, 95 Cal.App.4th at p. 1321, quoting Hecker, supra, 219 Cal.App.3d at pp. 1250-1251.) We join other courts in questioning the breadth of that statement of the law. (See Cochran, supra, 103 Cal.App.4th at p. 15 [same court that decided Hecker describes the language in Hecker addressing psychological coercion as "overly broad"]; People v. Senior, supra, 3 Cal.App.4th at p. 776 [expressly disagreeing with the holding in Hecker regarding the lack of a "threat" and noting that "[t]his contention improperly assumes a molestation cannot be accomplished by duress unless the molester knows why the victim is submitting"].) Because" '[t]he very nature of duress is psychological coercion'" (People v. Veale, supra, 160 Cal.App.4th at p. 48; Cochran, supra, 103 Cal.App.4th at p. 15), the totality of the circumstances here supports a determination that Romero-Lopez used duress in committing the offenses charged in counts 2 through 9.
B. The Count 1 Verdict: Substantial Sexual Conduct
Next, Romero-Lopez attacks the jury finding of substantial sexual conduct under section 1203.066, subdivision (a)(8) that accompanied the count one verdict for violation of section 288, subdivision (a). This finding is based on the incident where Doe sat on top of Romero-Lopez while they were both naked and his penis touched her genital area. According to Romero-Lopez, the evidence is insufficient to support the 1203.066 finding because that statute defines "substantial sexual conduct" as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 1203.066, subd. (b).) The issue presented is whether the Romero-Lopez's act of touching of Doe's genitals with his penis constitutes "masturbation." We agree with the Attorney General that, on this record, it does.
Section 1203.066, subdivision (a)(8), provides a defendant is ineligible for probation if a person who violates section 288 "has substantial sexual conduct with a victim who is under 14 years of age." Section 1203.066, subdivision (b), states," 'Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." "Masturbation" under section 1203.066, subdivision (b) "encompasses any touching or contact, however slight, of the genitals of either the victim or the offender" done with the intent to arouse the sexual desires of the victim or the offender. (People v. Chambless (1999) 74 Cal.App.4th 773, 783 (Chambless); see People v. Dunn (2012) 205 Cal.App.4th 1086, 1098, fn. 8 [adopting definition of masturbation from Chambless and People v. Terry (2005) 127 Cal.App.4th 750, for purposes of application of "substantial sexual conduct" requirement of § 1203.066, subds. (a)(8) &(b)].)
Here, substantial evidence supports the reasonable inference that Romero-Lopez masturbated Doe during the encounter underlying count 1. Romero-Lopez resists this conclusion, insisting that the mere touching of Doe's vagina is not enough to constitute substantial sexual conduct. He acknowledges that under Chambless, "masturbation" has been interpreted to encompass any touching or contact, however slight, of the genitals of the victim or offender and includes touching through the clothes without skin-to-skin contact. He insists, however that "[t]he Chambless court's analysis is deeply flawed and should be rejected."
We decline to part ways with Chambless so many years after it became settled law, with no response from the Legislature. In Chambless, the Court of Appeal addressed the substantial sexual conduct requirement under the Sexually Violent Predators Act (SVPA) in effect at that time. The court explained the Legislature took the definition of substantial sexual conduct under the SVPA (see former Welf. &Inst. Code, § 6600.1, subd. (b)), directly from section 1203.066, subdivision (b), and held the definition of masturbation under the SVPA "encompasses any touching or contact, however slight, of the genitals of either the victim or the offender, with the requisite intent." (Chambless, supra, 74 Cal.App.4th at pp. 783, 786.)
The Chambless court explained that masturbation is not an offense codified in the Penal Code, but that the word appeared to have been used in the SVPA "simply in its commonly understood meaning to describe the touching of one's own or another's private parts without quantitative requirement for purposes of defining conduct that was lewd or sexually motivated." (Chambless, supra, 74 Cal.App.4th at p. 784, fn. omitted.) The Chambless court relied, in part, on People v. Grim (1992) 9 Cal.App.4th 1240, in which the court considered the appropriateness of jury instructions concerning the sufficiency of the evidence to find substantial sexual conduct based on oral copulation as defined in section 1203.066. (Grim, at pp. 12411243.) The Grim court held the instructions telling the jury that" '[a]ny contact, however slight, between the mouth of one person and the sexual organ of another person constitutes "oral copulation"' '' and that penetration of the mouth was not required for finding oral copulation sufficient to constitute substantial sexual conduct under section 1203.066. (Grim, at p. 1242.)
The Chambless court reasoned that because section 1203.066 provided masturbation as well as oral copulation can mean substantial sexual conduct, just as the SVPA then "the Legislature intended the extent of touching of the genitals required to meet the definition of masturbation would also be the same as in Grim. Hence, any contact, however slight[,] of the sexual organ of the victim or the offender would be sufficient to qualify as masturbation and in turn as substantial sexual conduct ...." (Chambless, supra, 74 Cal.App.4th at p. 787.) The court concluded its construction was consistent with principles of statutory construction and the SVPA's purpose of protecting underage children. (Ibid.)
Subsequent cases have affirmed the Chambless court's definition of "masturbation" in a variety of contexts. (People v. Dunn, supra, 205 Cal.App.4th at p. 1098, fn. 8 [quoting Chambless definition in denying probation pursuant to § 1203.066, subds. (a)(8) &(b)]; People v. Carlin (2007) 150 Cal.App.4th 322, 333 [relying on Chambless definition of masturbation in finding prosecution's evidence of substantial sexual conduct sufficient under SVPA]; People v. Fulcher (2006) 136 Cal.App.4th 41, 52 [quoting Chambless definition with approval in SVPA case]; People v. Whitney (2005) 129 Cal.App.4th 1287, 1294 [same]; People v. Terry, supra, 127 Cal.App.4th at p. 772 [adopting Chambless definition of masturbation pursuant to former § 803, subd. (g)]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1311-1315 [relying on Chambless to hold masturbation does not require direct touching of genitals but may be done over clothing under SVPA]; People v. Whitlock (2003) 113 Cal.App.4th 456, 463 [same].) We are not persuaded that we should be the first court to announce that Chambless was decided incorrectly.
Furthermore, the Legislature has amended section 803 multiple times since the Chambless opinion was issued in 1999, yet it has not amended the statute to indicate a disagreement with the Chambless definition of masturbation. (See Assem. Bill No. 78 (2001-2002 Reg. Sess.) § 1; Assem. Bill No. 949 (2003-2004 Reg. Sess.) § 1; Sen Bill No. 111 (2005-2006 Reg. Sess.) § 3.) The courts presume that the Legislature is" 'aware of" 'judicial decisions already in existence, and to have enacted or amended a statute in light thereof.'"' Moreover, where the Legislature uses a term well understood by the common law, we must presume that the Legislature intended the common law meaning." (People v. Newby (2008) 167 Cal.App.4th 1341, 1346-1347, citations omitted.) We must therefore presume that when the Legislature amended section 803, it was aware of the common law definition of masturbation set forth in Chambless. Thus, the fact the Legislature did not modify the language in the statute to indicate a disagreement with Chambless indicates an acceptance of the Chambless definition. The Legislature has accepted the common law definition of masturbation set forth in Chambless and adopted by this Court in People v. Fulcher, supra, 136 Cal.App.4th at page 52.
Accordingly, applying the holdings in Chambless, Dunn, and Terry that "masturbation" under section 1203.066, subdivision (b) "encompasses any touching or contact, however slight, of the genitals of either the victim or the offender" done with the intent to arouse the sexual desires of the victim or the offender, we conclude that substantial evidence supports the substantial sexual conduct finding returned by the jury along with its count one verdict for violation of section 288, subdivision (a).
Romero-Lopez separately argues that the substantial sexual conduct finding must be reversed because the court gave a jury instruction premised upon the Chambless definition of masturbation. Because we are unpersuaded by Romero-Lopez's contention that Chambless was wrongly decided, we reject this claim of instructional error.
C. The Victim Restitution Award
Finally, relying on People v. Valenti (2016) 243 Cal.App.4th 1140, 1179-1180 (Valenti), Romero-Lopez argues that the trial court abused its discretion in ordering victim restitution "in the amount of $100,000 per year of abuse from age seven to eleven, for a total restitution award of $400,000." He concedes that victim restitution for noneconomic losses for felony violations of sections 288 and 288.7 may be ordered (§ 1202.4, subd. (f)(3)(F); People v. Giordano (2007) 42 Cal.4th 644, 656), but contends the record here was insufficient to support such an award. We agree.
"The burden is on the party seeking restitution to provide an adequate factual basis for the claim." (People v. Giordano, supra, 42 Cal.4th at p. 664.) The trial court "must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review." (Ibid.) Accordingly, "[t]o 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." (Ibid.) An award of victim restitution cannot be based on a mere claim of the amount owed in the absence of documentary or evidentiary proof supporting that figure. (People v. Harvest (2000) 84 Cal.App.4th 641, 653.) An order of restitution that is not supported by substantial evidence constitutes an abuse of the trial court's discretion.
In Valenti, the trial court awarded noneconomic restitution in the amount of $50,000 per year-for a total of $450,000-to each of eight victims of the defendant's sexual abuse. (See Valenti, supra, 243 Cal.App.4th at pp. 1180-1181.) In concluding the record offered no rational basis for the trial court's calculation of noneconomic loss at $50,000 for three of the victims, the Valenti court explained: "The trial court has broad discretion to choose a method for calculating the amount of restitution, but it must employ a procedure that is rationally designed to determine the victim's losses. [Citation.] The court 'must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.'" (Id. at p. 1182, italics added.) We agree that in this case, as in Valenti, the record does not support the challenged award of restitution for noneconomic loss.
The record shows the following. After the trial, both sides filed sentencing briefs. The prosecution asked the court to order victim restitution for noneconomic damages "in the amount of $100,000 per year of abuse from age seven to eleven, for a total restitution award of $400,000." As justification for this request, the prosecution stated: "The defendant in the present case stands convicted of eight separate felony violations of Penal Code section 288, and the psychological harm that he has inflicted upon . . . Doe is immeasurable. [Romero-Lopez] was . . . Doe's father figure. Instead of protecting her, he isolated her, he preyed upon her, and he used her compassion and desire to keep her family together to silence her for years." For his part, Romero-Lopez objected that "the $400,000 urged by the prosecution for psychological harm is excessive and unsupported by the record."
At sentencing, the trial court followed the prosecution's suggestion and ordered payment of victim restitution in the $400,000 amount. The only justification for the award was as follows: "I'm going to order the defendant to pay noneconomic damages pursuant to Penal Code Section 1202.4 (f)(3), large F in the amount of $400,000. And I came to that through the analysis similar to what was offered by the People because this was a period of time that looked to the Court to be roughly about four years' worth of abuse at $100,000 per year. So that's how we come to that amount of noneconomic damages that the law allows."
People v. Lehman (2016) 247 Cal.App.4th 795, is instructive by way of contrast. There, the court upheld noneconomic restitution awards of $900,000 and $100,000 to two minor victims of molestation where neither victim submitted a declaration or testified at the restitution hearing. (Id. at p. 804.) The trial court set forth an assessment of the psychological distress suffered by Jane Doe 1 and Jane Doe 2 based on having observed their testimony at trial, on Jane Doe 1's statements at the defendant's sentencing hearing, and a probation report. (Ibid.) By contrast, in this case, the record shows no rational basis for its noneconomic restitution award.
Here, as in Valenti, the record contains no victim declarations, independent documentation, or professional evaluations in support of the court's award of $400,000 of noneconomic damages. Also, as in Valenti, there was no evidence, either through testimony or victim impact statements, that Doe "suffered nightmares or flashbacks, that [she was] having trouble in school or problems making friends, that [she] had considered harming [herself] or others, or that [she] had sought or received counseling in any form." (Valenti, supra, 243 Cal.App.4th at p. 1183.) Thus, because the evidence does not supply" 'a rational basis for [the trial court's] award'" and because the court failed to" 'ensure that the record is sufficient to permit meaningful review,'" we must vacate the noneconomic restitution order and remand for further restitution proceedings. (Id. at pp. 1183-1184.)
III. DISPOSITION
We vacate the victim restitution award but otherwise affirm the judgment of conviction and sentence. The cause is remanded for further restitution proceedings.
WE CONCUR: GOLDMAN, J., HIRAMOTO, J.[*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.