Filed 6/28/17 P. v. Agramont CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE ALBERTO AGRAMONT,

Defendant and Appellant.
D070800



(Super. Ct. No. JCF35403)

APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed.
Sheila O'Connor, 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, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
In this case appellant Jorge Alberto Agramont appeals from a judgment which includes an award of $365,000 in noneconomic restitution to the victim of a child molestation offense. Appellant contends the award of restitution for psychological damage was not supported by the evidence and that the amount selected by the court is excessive and "shocks the conscience." We will find the trial court's decision was rational, based upon a reasoned assessment of the facts and was well within the court's discretion. Therefore, we will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
The facts of the offense are not disputed by the parties. Since this is an appeal following a guilty plea, and the facts only provide background for our discussion, we will adopt the brief summary of the facts contained in the respondent's brief.
Appellant molested A.V. when she was 12 years old. At the time, A.V. lived with her father, stepmother, and siblings. Appellant is the brother of A.V.'s stepmother. While on summer break from school, A.V. slept in the room she shared with her younger sister. Although A.V. and her sister shared a room, they had separate beds. Appellant entered the girls' room at night. As A.V. slept, she felt a sudden "jolt" and found appellant next to her on her bed. Appellant touched A.V.'s breasts and vagina under her clothing. A.V. began to cry, and appellant put his hand over her mouth. Appellant inserted his fingers in A.V.'s vagina, and she felt "pressure" and "a lot of pain." Appellant also kissed A.V. on her neck.
Appellant then exposed his penis. He forced A.V. to wrap her hand around his penis and stroke it. A.V. tried to move her hand away, but appellant kept her hand in place. A.V. stated that appellant's penis felt like a "rock." A.V. stroked appellant's penis for 20 minutes until he ejaculated on her clothing. After that, appellant left the room. A.V. found blood on her body including on her legs and around her vaginal area and on her sheets. A.V. did not immediately report the molestation because she was "terrified," but she did inform law enforcement of the sexual abuse approximately four to five years later.
Prior to trial, Agramont pleaded guilty to one count of forcible lewd acts on a child (Pen. Code, § 288, subd. (b)(1)); and one count of sexual penetration by a foreign object on a child under the age of 14 years (§ 289, subd. (a)(1)(b)). The court sentenced Agramont to a determinate term of 20 years in prison.
Pursuant to section 1202.4, subdivision (f)(3)(F), the court ordered Agramont to pay $365,000 in restitution in noneconomic damages. We will discuss the factual basis of the restitution award in the section that follows.
Agramont filed a timely notice of appeal, without obtaining a certificate of probable cause. (§ 1237.5.)
DISCUSSION
A. Background
At the sentencing hearing the trial court reviewed the probation officer's report and the victim impact statements of both the victim of the offense and her mother. At the time of sentencing almost six years had passed. The victim, at that time, was 18 years old, but continued to suffer serious emotional and psychological trauma as a result of this offense. She had struggled with school, social interactions and was unable to seek employment. She often slept in her mother's bed and was unable to form trusting relationships.
The probation officer's report concluded the victim's world had been "turned upside down." She was not able to live like an adult and that family relationships were strained because of her condition.
The trial court concluded the victim was, and continued to be traumatized by Agramont's criminal acts. The court concluded the victim suffered greater psychological harm than other civil cases with awards of noneconomic damages which were substantially higher. The court, based on its review of the facts, and its experience determined that by the time of sentencing, the victim had suffered six years of trauma which would likely continue for at least 20 years. The court calculated the restitution based upon $50 per day for a 20-year period, for a total of $365,000.
B. Legal Principles
Section 1202.4, subdivision (a)(1), requires restitution for victims of crime for economic losses directly caused by the defendant. Section 1202.4, subdivision (f)(3)(F) authorizes restitution for noneconomic damages in the case of victims of felony violations of section 288. We review decisions awarding restitution in criminal cases under the abuse of discretion standard. (People v. Giordano (2007) 42 Cal.4th 644, 665.) We will only reverse such orders where the record demonstrates a clear abuse of the trial court's broad discretion. (People v. Holmberg (2011) 195 Cal.App.4th 1319, 1320.)
Trial courts in section 288 cases can award restitution for noneconomic losses due to emotional and psychological harm caused by the defendant's action. The amount of the award is based on a rational assessment of the extent of the harm done and is calculated in a fashion that is not arbitrary or driven by passion or anger. (People v. Smith (2011) 198 Cal.App.4th 415, 435-436 (Smith).)
There is no fixed standard for the calculation of noneconomic losses. (People v. Lehman (2016) 247 Cal.App.4th 795, 805.) Such losses, like the calculation of noneconomic damages in civil cases, cannot be readily quantified. (Civ. Code, § 1431.2, subd. (b)(2); CACI No. 3905A. ) Ordinarily the court's calculation of such losses will be upheld where there is a rational basis and the amount does not "shock the conscience" or demonstrates passion or anger. (Smith, supra, 198 Cal.App.4th at p. 436; Lehman, supra, at p. 803.)
C. Analysis
Appellant argues the court's calculation of losses was arbitrary and shocks the conscience. He relies on People v. Valenti (2016) 243 Cal.App.4th 1140, 1182. In that case the court reversed an award of noneconomic restitution in a child molestation case. The court found there was no articulated basis for the award. It noted the trial court did not state any basis for its calculation. Respondent contends Valenti was wrongly decided because it did not apply the proper standard of review. We find it unnecessary to address respondent's argument since Valenti is distinguishable from this matter. Here the trial court fully discussed the reasons for its decision and explained carefully its method of calculation. The trial court relied on its experience with awards for noneconomic losses in civil matters involving abuse. The court also rationally concluded this victim had not only suffered six years of torment, but was not likely to fully recover for years to come. The victim impact testimony and the probation officer's report fully support the trial court's decision.
There is no basis for the argument that the award shocks the conscience. The record reflects that the amount awarded for the calculated years of distress is well within the range of potential civil damage awards that could flow from acts such as were done here.
Finally, appellant cites Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, for the proposition that noneconomic damages based on passion or anger are improper and should be set aside. The case is not relevant to our discussion. The error in Bigler-Engler arose from misconduct by plaintiff's counsel which clearly inflamed the passions of the jury leading to an award well out of proportion to the conduct of the defendants and the suffering of the plaintiff. Appellant argues the court's discussion of the defendant's behavior and the impact on the victim demonstrate the court's decision was influenced by passion and anger. We reject that argument.
The trial court's comments, at the sentencing hearing were appropriate to explain the court's sentencing decisions and the basis for its restitution calculation. Nothing in the court's comments could rationally be construed to hint, let alone demonstrate passion or prejudice to the defendant.
We are satisfied there were sound reasons for the trial court's restitution order and therefore we will affirm the judgment.
DISPOSITION
The judgment is affirmed.



HUFFMAN, Acting P. J.

WE CONCUR:




IRION, J.




DATO, J.