Filed 1/14/20 CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E070658
v. (Super.Ct.No. RIF1506320)
HIPOLITO OSORIO MORALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Thomas Kelly, Judge.
(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and
Appellant.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.B. and II.C.
1 Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Craig H. Russell,
and Helen H. Hong, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Hipolito Osorio Morales was charged with two counts of
oral copulation or sexual penetration of a child under 10 (Pen. Code, § 288.7, subd. (b))1
and seven counts of committing a lewd or lascivious act on a child under 14 (§ 288, subd.
(a)). During his trial, the trial court admitted into evidence, after jury deliberations began
and without any limiting instructions, a video and transcript of Morales’s police
interrogation. In a pre-Miranda2 portion of that interrogation, an officer made statements
to the effect that children had informed law enforcement that Morales had molested them;
he (the officer) knew Morales was lying; he could tell Morales was lying from his
experience as an investigator; and Morales committed the crimes. Although the officer
testified at trial, the parties had agreed to limit questioning to the post-Miranda portion of
the interrogation only. The jury found Morales guilty, and he was sentenced to 175 years
to life.
In the published portion of this opinion, we address Morales’s contention that
admission of the officer’s statements from the pre-Miranda portion of the interrogation
violated the confrontation clause. According to Morales, because the full interrogation
was admitted only after the officer was excused and the jury began its deliberations, he
1 All further undesignated statutory references are to the Penal Code.
2 Miranda v. Arizona (1966) 384 U.S. 436.
2 was deprived of the right to confront the officer about the pre-Miranda statements
described above, none of which were repeated after Morales was read his Miranda rights.
We find no confrontation clause violation. In order to implicate the confrontation clause,
a statement must be testimonial, meaning that it must be made with sufficient formality
and with the primary purpose of creating a substitute for trial testimony. Accusatory
statements made by law enforcement in an interrogation will, absent unusual
circumstances, satisfy neither of these requirements.
We address Morales’s other contentions in the unpublished portion of this opinion.
We find them unmeritorious and therefore affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Morales and his wife3 moved into a house in Perris. A.C., her brother
G.C., and their parents also lived in the house.
A.C., who was born in 2007, testified that after Morales moved in, he began to
touch her in inappropriate ways, such as by rubbing and touching her rear, kissing her,
and pulling down her shorts. Morales would also touch and put his tongue inside A.C.’s
mouth and vagina and touch her breasts underneath her clothes. Although A.C. would
tell Morales to stop, he would not listen. Neither A.C.’s parents nor Morales’s wife
would be around when this occurred. According to A.C., Morales would promise to give
A.C. money and make her a dollhouse. A.C. did not tell her parents about Morales’s
3 Morales stated during his interrogation that he and his wife have never been married, although Morales and other witnesses at trial referred to the woman as his wife.
3 actions because she was afraid they would think she was “nasty” and would not love her
anymore.
G.C., A.C.’s younger brother, testified that he would see Morales kiss A.C. and
make her touch Morales’s “private part.” G.C. stated that Morales would also fondle
G.C.’s penis and digitally penetrate G.C.’s anus. A.C. had observed Morales touch
G.C.’s “private part” as well. A.C. did not want to tell their mother because, as with her,
A.C. was afraid that their mother would think G.C. was “nasty” and no longer love him.
G.C. stated that he was scared at the time and remains embarrassed about what happened.
S.M., a friend of A.C., lived next door. S.M. testified that on various occasions
Morales had touched her anus and vagina, pulled down her skirt, and kissed her rear. On
one occasion, S.M. observed Morales attempt to enter a closed room while A.C. was
changing inside and that Morales did not stop after A.C. told him to. S.M. was scared to
tell her mom about what Morales did because she was afraid that she would get in trouble
for not telling her before. S.M. also stated that what Morales did was embarrassing to
think about and that when she begins to remember it, she gets sad and tries to stop
remembering.
On October 7, 2015, A.C. was at S.M.’s house, and the two went to A.C.’s house
to get dolls. At some point after the two arrived at A.C.’s house, Morales touched A.C.’s
rear over her shorts for two to three minutes. It is not clear whether Morales touched
S.M. as well. According to the girls, Morales gave A.C. a handwritten letter and told her
not to show anybody. The letter read: “I promise your little house in three weeks. This
4 is a real promise because I love you so much. You are my good girl, my better girl, my
favorite girl, my beautiful girl. You are so nice. You are so nice [A.C.]. Remember your
little house will be delivered 10 – 23 – 15.” Later that day, A.C. informed S.M.’s mother
that Morales had touched her, at which point S.M.’s mother called the police.
Morales was interrogated by Deputy Sheriff Manuel Campos at the Perris police
station that same day. At the beginning of the videotaped interrogation, which was
conducted in Spanish and later transcribed, Campos repeatedly informed Morales that he
was not under arrest. After some initial questions about Morales and his relationship to
the girls and their families generally, Campos relayed A.C.’s and S.M.’s claims that
Morales had been “touching them on their bodies.”4 Morales denied the claims, but as
the interrogation continued, Campos began to accuse Morales, telling him that he
(Campos) knew Morales was lying about whether he molested the girls. For example,
Campos variously stated that: “[Y]ou lied,” “I don’t believe you,” “I noticed that you
went from lying to telling me the truth,” “I know when someone is lying to me and I
know when someone is telling me the truth,” “I know that you pulled down those – those
girls’ pants,” “I already know that you did it,” “these girls – all boys and girls speak the
truth,” and “I’m telling you right now that I know the truth.” At one point, Campos
stated that he could tell, based on professional experience, that he knew Morales was
lying: “I’ve been almost – almost 20 – 20 years doing this job. [¶] . . . [¶] And I have
4 At the time, neither the parents nor law enforcement appeared to know whether G.C. had been molested. G.C. did not disclose what Morales had done to him until some weeks later.
5 spoken to a lot of people, and I can look at you now and I can tell you that I know that
you’re not telling me the truth.” Campos also stated that there was additional evidence
that Campos would not reveal to Morales: “When – when all of this goes to court they’ll
know that you’re lying to me. Because I also have proof I’m not showing you. Okay?”
In addition, Campos relayed statements from A.C. and S.M. about how Morales had
touched them, such as Campos’s statement that “one girl . . . says that you pulled down
her – you pulled down her pants and that you – that you gave her a kiss down there.” In
response to Campos’s questioning, Morales admitted that he had touched A.C. and S.M.,
although not sexually, and that he wrote the letter to A.C.
At a point in the interrogation after Campos made all of the above statements,
Campos arrested Morales and read him his Miranda rights. (See Miranda v. Arizona,
supra, 384 U.S. 436.) The interrogation then continued with Morales denying that he
ever touched A.C. or S.M. sexually.
At trial, both Morales and Campos testified, as did the three children and a handful
of other witnesses. Before either Morales or Campos took the stand, the People indicated
on the record that they intended “to only cover the portions of [Morales’s interrogation]
that was discussed with [Morales] post-Miranda.” Campos testified before Morales, and
the questions focused only on the post-Miranda portion of the interrogation. When
Morales later took the stand, however, he testified that he had lied to Campos during the
interrogation about touching the girls and writing the letter, saying he did so because he
felt confused, scared, and threatened by Campos. Morales stated that he lied to Campos
6 because he did not know what Campos was accusing him of, because Campos was
threatening him by asking “strong” questions and standing “too close,” and because he
(Morales) was raised in a small town in Mexico “where there’s a lot of abuse in
authority” and was therefore afraid of what Campos might do.
To the People, Morales had opened the door to the entire interrogation by
characterizing it as coercive. However, the People did not seek to offer the full
interrogation into evidence immediately following Morales’s testimony. Rather, after
both sides rested their case and delivered closing arguments, and after the jury was given
instructions and retired to deliberate, the People, in a final “housekeeping” discussion
with the trial court, requested that the full interrogation be admitted into evidence.
Morales objected, contending that admission of the full interrogation constituted
“evidence that is presented to the jury after the close of evidence” and that admission
would violate his Sixth Amendment right to confront witnesses against him. The trial
court disagreed and allowed the full interrogation to go to the jury.
The jury found Morales guilty on all counts. At sentencing, the trial court
sentenced Morales to a term of 175 years to life. The trial court also imposed $40,000 in
direct victim restitution ($25,000 to A.C., $10,000 to G.C., and $5,000 to S.M.), among
other fines and fees. The trial court arrived at $40,000 by awarding $5,000 to each child
for each year of abuse they suffered. The trial court noted that the People had requested
$50,000 per year per child pursuant to People v. Smith (2011) 198 Cal.App.4th 415,
which had upheld such a formula. After discussing the issue with the parties, however,
7 the trial court reduced the amount to $5,000 per year per child. The trial court stated:
“These children have suffered greatly. Their innocence has been taken away. They’ve
witnessed things that no child should ever witness. It’s going to cause, I’m sure, lasting
damage, and they need all the help that they can get for their recovery, so these are very
modest figures when you consider the gravity of what’s been done to them, so that will
be imposed.”
II. ANALYSIS
A. Confrontation Clause
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .” This confrontation clause is made applicable to the states via
the Fourteenth Amendment. (Pointer v. Texas (1965) 380 U.S. 400, 403.)
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States
Supreme Court held that the confrontation clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53-54.)5
5 Here, Campos did appear at trial. Nevertheless, Morales contends that the fact that the full interrogation was admitted into evidence as late as it was effectively made Campos “a witness who did not appear at trial” (Crawford, supra, 541 U.S. at p. 54) with regard to the pre-Miranda statements for confrontation clause purposes. We agree. Contrary to what the People argue, the mere fact that Campos testified at trial does not render the confrontation clause inapplicable here. (See United States v. Wilmore (9th Cir. 2004) 381 F.3d 868, 872, fn. 6 [finding confrontation clause violation under Crawford in case where “it was only after the evidence was admitted that [the witness] became unavailable . . . .”].) Because Campos was not recalled and cross-examined after the
8 Only statements that are testimonial “cause the declarant to be a ‘witness’ within the
meaning of the Confrontation Clause.” (Davis v. Washington (2006) 547 U.S. 813, 821.)
Citing Webster’s, Crawford defined “testimony” as “‘[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.’” (Crawford,
supra, at p. 51.) The court, however, declined to “spell out a comprehensive definition”
of when a statement is or is not testimonial. (Id. at p. 68.)
Since then, our Supreme Court has concluded that “a statement is testimonial
when two critical components are present.” (People v. Lopez (2012) 55 Cal.4th 569, 581
(Lopez); see also People v. Dungo (2012) 55 Cal.4th 608, 619.)
“First, to be testimonial the out-of-court statement must have been made with
some degree of formality or solemnity.” (Lopez, supra, 55 Cal.4th at p. 581.) For
instance, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, the United States
Supreme Court held that “‘certificates of analysis’ showing the results of . . . forensic
analysis” were testimonial because they were “‘declaration[s] of facts written down and
sworn to by the declarant before an officer authorized to administer oaths’” and were
therefore “incontrovertibly a ‘“solemn declaration or affirmation made for the purpose of
establishing or proving some fact.”’” (Id. at pp. 307-308, 310.) Similarly, in Bullcoming
v. New Mexico (2011) 564 U.S. 647, the court held that “the formalities attending the
[footnote continued from previous page] [footnote continued from previous page] purportedly testimonial statements were offered into evidence, we conclude that, for confrontation clause purposes here, he was not a witness who appeared at trial.
9 ‘report of blood alcohol analysis’” at issue were “more than adequate to qualify [the
assigned forensic analyst’s] assertions as testimonial” where the report was “‘formalized’
in a signed document.” (Id. at p. 665.) Conversely, in Lopez, where no one “signed,
certified, or swore to the truth of the contents” of a report, our Supreme Court held that
the report was “not prepared with the formality required . . . for testimonial statements.”
(Lopez, supra, 55 Cal.4th at p. 584; see also People v. Sanchez (2016) 63 Cal.4th 665,
696-697 [notice that was “part of an official police form containing the officer’s sworn
attestation that he issued the notice on a given date and that it accurately reflected the
attendant circumstances, including defendant’s statements,” was sufficiently formal].)6
Second, a statement is testimonial if it was “given with the ‘primary purpose of
creating an out-of-court substitute for trial testimony’” or “made with the primary
purpose of creating evidence for [the defendant’s] prosecution.” (Ohio v. Clark (2015)
576 U.S. __ [135 S.Ct. 2173, 2181, 2183] (Clark); see also People v. Rangel (2016) 62
Cal.4th 1192, 1214-1215, 1232.) In conducting a primary purpose analysis, courts
consider both whom the statement was made by as well as whom it was made to.
“Statements made to someone who is not principally charged with uncovering and
prosecuting criminal behavior are significantly less likely to be testimonial than
statements given to law enforcement officers.” (Clark, supra, at p. 2182, italics added;
see also ibid. [“Statements by very young children will rarely, if ever, implicate the
6 Although formality is required, the precise “degree of formality . . . remains a subject of dispute in the United States Supreme Court.” (Lopez, supra, 55 Cal.4th at p. 582.)
10 Confrontation Clause.”], italics added; Giles v. California (2008) 554 U.S. 353, 376
[“Statements to friends and neighbors about [an abused woman’s] abuse and intimidation
and statements to physicians in the course of receiving treatment would be excluded, if at
all, only by hearsay rules . . . .”].) Moreover, in considering primary purpose, courts must
“objectively evaluate the circumstances in which the encounter occurs and the statements
and actions of the parties.” (Michigan v. Bryant (2011) 562 U.S. 344, 359.) The primary
purpose “must be objectively assessed from the perspective of the parties to the
interrogation at the time, not with the benefit of hindsight.” (Id. at p. 361, fn. 8.)
Of course, a testimonial statement must be offered to the jury for its truth: The
confrontation clause “does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” (Crawford, supra, 541 U.S. at p. 59,
fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.)
Thus, to summarize, in order for the confrontation clause’s bar to apply, a
statement must (1) be offered for its truth, (2) have a sufficient degree of formality, and
(3) be made with the primary purpose of at least “creating evidence for [the defendant’s]
prosecution” or “‘creating an out-of-court substitute for trial testimony.’” (Clark, supra,
576 U.S. at p. __ [135 S.Ct. at pp. 2181, 2183].) Here, Campos’s pre-Miranda statements
lacked sufficient formality and were not made for the primary purpose of creating
evidence for Morales’s prosecution or an out-of-court substitute for trial testimony. As a
result, the confrontation clause does not bar their admission.
11 The People contend that Campos’s pre-Miranda statements were not offered for
their truth. Importantly, although the People sought at trial to introduce the full
interrogation to rebut Morales’s coercion claim, the jury was never told that it may not
consider the statements for their truth. In situations such as this—where evidence
challenged on confrontation grounds has been admitted for a not-for-the-truth purpose
but the jury is never instructed as such—the controlling case law appears to be in tension.
In People v. Hopson (2017) 3 Cal.5th 424, our Supreme Court considered whether an
accomplice’s “un-cross-examined confession” was offered for its truth. (Id. at p. 432.)
In holding that it was, and that its use therefore violated the confrontation clause (id. at p.
443), the court relied in part on the “fundamental” fact that “the jury was never informed
of the limited nonhearsay purpose for which [the accomplice’s] confession was
ostensibly admitted” (id. at p. 433; see also id. at p. 430 [“defense counsel did not request
a limiting instruction, and none was given”]). More recently, however, our Supreme
Court found the lack of a limiting instruction insignificant in People v. Bell (2019) 7
Cal.5th 70. In Bell, the court held that the statement in question raised no confrontation
clause concerns because it was not offered for its truth. (Id. at p. 100.) The statement
was admissible in part to rebut the defendant’s claim, first raised during his case-in-chief,
that law enforcement’s forensic “investigation was sloppy.” (Ibid.) “Accordingly, there
was no confrontation clause violation” even though no limiting instruction was given.
(Ibid.) The court noted that “[a]lthough a limiting instruction was not given, defendant is
12 in no position to complain. He failed to make a hearsay objection and, despite the
court’s invitation, failed to propose a limiting instruction.” (Ibid.)
However, we need not attempt to distinguish either case or make a choice between
the two (see Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57
Cal.2d 450, 456) because whether or not Campos’s pre-Miranda statements were offered
for their truth, they fell short of the formality required to deem them testimonial. Lopez
noted that the “degree of formality required . . . remains a subject of dispute in the United
States Supreme Court” (Lopez, supra, 55 Cal.4th at p. 582), but an interrogating officer’s
statements would fall short of any articulated standard under any normal circumstances.
Unlike in Melendez-Diaz, Campos’s statements were not “‘sworn to by the declarant
before an officer authorized to administer oaths.’” (Melendez-Diaz v. Massachusetts,
supra, 557 U.S. at p. 310; see also id. at p. 308.) And unlike in either Melendez-Diaz or
Bullcoming, Campos’s statements were not written down or formalized in any document
signed by him. (Melendez-Diaz v. Massachusetts, supra, at pp. 308, 310; Bullcoming v.
New Mexico, supra, 564 U.S. at pp. 653, 665; see also People v. Sanchez, supra, 63
Cal.4th at pp. 696-697 [notice that was part of form containing “officer’s sworn
attestation” that defendant’s recorded statements were accurate was sufficiently formal].)
Rather, like Lopez, where no one “signed, certified, or swore to the truth of the contents”
of a report, Campos’s statements lacked the formality required to invoke Morales’s
confrontation right.
13 Nor are Campos’s pre-Miranda statements, or generally any statements made by
law enforcement in questioning a witness, made with the necessary primary purpose.
Statements by law enforcement during an interrogation are rarely, if ever, meant to
function as a substitute for trial testimony, because an officer would not expect that such
statements be used as evidence at trial. Whatever Campos’s subjective intentions could
have been, the objective circumstances surrounding Morales’s interrogation show that
only Morales’s statements were intended to create evidence for his prosecution. (See
Michigan v. Bryant, supra, 562 U.S. at pp. 360-361, fn. 8.) Moreover, the fact that the
statement was made to Morales, who is not a law enforcement officer, is meaningful, as
“such statements are much less likely to be testimonial than statements to law
enforcement officers.” (Clark, supra, 576 U.S. at p. __ [135 S.Ct. at p. 2181], italics
added.)
In one sense, statements made by an interrogating officer are often made for the
purpose of “creating evidence for [the defendant’s] prosecution.” (Clark, supra, 576 U.S.
at p. __ [135 S.Ct. at p. 2181].) A question or statement in an interrogation, for instance,
is generally intended to elicit a response, and such response can constitute evidence.
Applying the primary purpose test in this fashion, however, would sweep too broadly, as
it would make everything uttered by law enforcement in questioning a witness
susceptible to confrontation clause challenges. The cases, if anything, point the opposite
way. (See, e.g., Davis v. Washington, supra, 547 U.S. at p. 822, fn. 1 [“And of course
14 even when interrogation exists, it is in the final analysis the declarant’s statements, not
the interrogator’s questions, that the Confrontation Clause requires us to evaluate.”].)
In short, none of Campos’s statements made during the pre-Miranda portion of
Morales’s interrogation were testimonial, no matter how accusatory they appeared.7
B. Due Process
Morales contends that the introduction of the full interrogation after closing
arguments deprived him of due process, as section 1093, subdivision (e) provides that
closing arguments may commence “[w]hen the evidence is concluded.”
For present purposes, we presume that the introduction of evidence after closing
arguments can so distort “the basic right of the accused to make his defense” (Herring v.
New York (1975) 422 U.S. 853, 859) that it violates due process, even when, as here, the
party objecting to the late evidence does not request to reopen the case to amend its
closing argument. (See id. at p. 862 [“[F]or the defense, closing argument is the last clear
chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s
guilt.”].)
Even so, the record shows that Morales did in fact address the full interrogation
during his closing arguments. He was thus “in a position to present [his] respective
version[] of the case as a whole” to the jury. (Herring v. New York, supra, 422 U.S. at p.
862.) During his closing argument, Morales contended that the full interrogation was
7 Campos’s statements relaying what A.C. and G.C. told law enforcement raise no confrontation clause violation for the additional reason that Morales had an opportunity to, and did, cross-examine the children about molestation at trial.
15 coercive. As counsel stated: “He’s literally in a corner. His entire world, the access to it,
is cut off. The only way out is through that deputy. The only way you get through that
deputy is compliance. [¶] . . . [¶] He told you what his fears were. He told you that his
fears were based on law enforcement in his homeland. How can he compare or how
could he not compare law enforcement with this homeland and law enforcement here?
He had no experience with law enforcement here. All he knows is what he observed in
Mexico.” Although a defendant would generally be surprised if the prosecution
introduces new evidence after closing arguments have been given, the surprise is less
dramatic, and less problematic, when the defendant’s closing argument itself refers to that
evidence.
Other portions of the record indicate an awareness that the full interrogation would
be offered, or at least that the People intended to do so. During rebuttal, the People
informed the jury that it would receive “a copy of defendant’s interview[,] [t]he full
thing, and a transcript to go with that.” Moreover, during the “housekeeping” discussion
where the People offered the full interrogation into evidence, Morales appeared to
acknowledge that his closing argument addressed coerciveness because he expected that
the full interrogation would be admitted. The trial transcript has the following exchange:
“THE COURT: Well, you opened the door. You made a big point in your final
argument about the interview techniques, and how the distance and all the ways they put
pressure on someone to elicit a statement, and how your client came from another culture.
And so the whole process was called into question in your case. So the exhibit speaks for
16 itself. The whole interview with your client was videotaped. The jury can watch it and
draw their own conclusions. So it’s just fair play.
“[DEFENSE COUNSEL]: I understand that.
“THE COURT: It was kept out of the People’s case in chief.
“[DEFENSE COUNSEL]: I understand that, your Honor. Our objection was
made after the Court determined that the substantive video and transcript will be
admitted.[8] So that’s when our closing argument began to encompass that. Nonetheless
. . . .” (Italics added.)
Thus, by the time Morales made his closing argument, he knew, or at least based
on the content of his closing argument should have known, that the full interrogation
would likely be part of the evidence, even if it had not formally been admitted at that
point. Under these circumstances, the trial court’s formal admission of the full
interrogation was not an abuse of discretion. (See § 1094 [order of trial “prescribed in
Section 1093 may be departed from” “for good reasons, and in the sound discretion of the
court . . . .”].) He therefore fails to establish a due process violation here. 9
8 It is not clear whether this refers to some earlier determination that the full interrogation would be admitted or, for example, a tentative indication. The on-the- record admission of the full interrogation did not occur until the end of this exchange. It is also not clear when the trial court made the determination referenced here, except that it was logically sometime before Morales’s closing argument.
9 Accordingly, Morales’s reliance on United States v. Noushfar (9th Cir. 1996) 78 F.3d 1442 is misplaced. There, the federal Ninth Circuit held that allowing the jury to play 14 tapes, never played in open court, during deliberations was a structural error requiring automatic reversal. (Id. at pp. 1444-1445.) Noushfar would only apply, however, if we found a due process violation in the first instance. In any event, since
17 C. Direct Victim Restitution
Generally, crime victims are not entitled to restitution for noneconomic losses.
(§ 1202.4, subd. (f)(3); Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438, 445.)
However, section 1202.4, subdivision (f)(3)(F) provides an exception for “[n]oneconomic
losses, including, but not limited to, psychological harm, for felony violations of Section
288, 288.5, or 288.7,” which includes the sections Morales was convicted under.
Morales argues that the $40,000 ordered as direct victim restitution ($25,000 to A.C.,
$10,000 to G.C., and $5,000 to S.M.) lacked adequate factual basis and was therefore an
abuse of discretion. “We review the amount ordered for restitution using the abuse of
discretion standard” (People v. Smith, supra, 198 Cal.App.4th at p. 435) and find no
error.
In Smith, the trial court awarded a molestation victim $750,000 in noneconomic
restitution, which it reached by multiplying $50,000 by 15, the years of abuse the victim
suffered. (People v. Smith, supra, 198 Cal.App.4th at p. 437.) On review, the Court of
Appeal held that the award was not an abuse of discretion. (Ibid.) Here, the People
sought to follow Smith, requesting $50,000 per child per year of abuse suffered. At the
sentencing hearing, after hearing from the parties on the issue, the trial court reduced the
[footnote continued from previous page] [footnote continued from previous page] Noushfar, the Ninth Circuit has held that the jury’s consideration of a single tape not in evidence should be reviewed for harmless error, largely limiting Noushfar’s holding to its facts. (Eslaminia v. White (9th Cir. 1998) 136 F.3d 1234, 1236-1237 & fn. 1; see also People v. Gamache (2010) 48 Cal.4th 347, 397 [discussing Noushfar and Eslaminia and rejecting structural error analysis].)
18 amount to $5,000 per child per year, stating that what they have witnessed was “going to
cause, I’m sure, lasting damage,” and that “these are very modest figures when you
consider the gravity of what’s been done to them.”
In contending that the reduced amount was an abuse of discretion, Morales relies
on People v. Valenti (2016) 243 Cal.App.4th 1140, where the Court of Appeal rejected
restitution awards, also calculated at $50,000 per child per year, to three children.
Valenti, however, is distinguishable. There, the parents of each of the victims disputed
the fact that their sons had been abused in the first instance. (See id. at p. 1182
[“Jeremy’s mother . . . ‘thanked God her son . . . did not sustain actual child abuse.’”]; id.
at pp. 1182-1183 [Bradley’s mother “believes the defendant never committed sexual
abuse on him . . . .”]; id. at p. 1183 [noting that “all three families were relieved that their
sons had not ‘actually’ been abused.”].) Moreover, the parents in Valenti were less than
clear about what harm their sons suffered from the defendant, if any. (See id. at p. 1182
[Jeremy’s mother “believed that ultimately learning defendant had a sexual interest in
him was confusing to Jeremy, and made him feel betrayed and embarrassed. . . . At
sentencing, Jeremy’s mother suggested Jeremy ‘will suffer ramifications’ from his
parents’ poor judgment, but did not expand on that belief.”]; id. at p. 1183 [Bradley’s
father “did not know how defendant’s actions would impact Bradley . . . .”]; ibid.
[“Justin’s mother said her son was ‘excellent,’ and defendant had not succeeded in
destroying him or their family.”].) (The opinion does not recite any of the children’s
direct testimony on these issues.) Valenti therefore concluded that, based on the record
19 before it, the trial court’s “only apparent basis” for its award was the formula upheld in
Smith and held that the award lacked any rational basis. (People v. Valenti, supra, at pp.
1183-1184.) Here, in contrast, neither the children nor their parents dispute that Morales
abused and molested A.C., G.C., and S.M., and the children’s own testimony at trial
reveals the psychological harm they suffered from Morales. Moreover, the trial court
considered such evidence, and in doing so modified and reduced the restitution award
that Smith would have produced. Accordingly, Valenti does not benefit Morales here.
Morales notes that A.C. and G.C.’s mother requested no restitution and that S.M.’s
mother could not be reached when the probation officer prepared the sentencing
recommendation. Neither circumstance, however, constituted a reason for the trial court
to neglect its duty to award what it considered full restitution to each of the children.
(§ 1202.4, subd. (f) [“The court shall order full restitution.”], italics added.) Here, the
trial court considered the evidence, heard arguments, and awarded each child $5,000 per
year of abuse they suffered from Morales. We discern no abuse of discretion.10
III. DISPOSITION
The judgment of conviction is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
10 We note that the People requested, and the trial court awarded, restitution for A.C. for five years of harm, despite the fact that the molestation lasted no more than four years. But as in Smith, “there is no credible argument, especially on the facts of this case, that [A.C.’s] psychological harm ended when” Morales was arrested. (People v. Smith, supra, 198 Cal.App.4th at p. 437.)
20 RAPHAEL J.
We concur:
CODRINGTON Acting P. J.
SLOUGH J.