P. v. Hernandez

Filed 10/25/07 P. v. Hernandez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury convicted defendant Carlos Hernandez of 30 counts of lewd or lascivious acts upon a child under the age of 14 in violation of Penal Code section 288, subdivision (a). On appeal, defendant asserts four errors: (1) the trial court erred when it denied his Batson/Wheeler[1] motion; (2) the introduction of evidence of uncharged sexual offenses to show defendants propensity to commit sexual offenses violated his rights to due process and a fair trial; (3) the use of generic testimony violated his rights to present a defense and due process, and was insufficient as a matter of law; and (4) the order that defendant pay restitution in the amount of $10,000 to each of his two victims was unconstitutional. We agree that the restitution order was improper, but affirm the judgment of conviction in all other respects.

I. Background

A. Evidence at Trial

The prosecutions case against defendant consisted largely of the testimony of his three victimsdefendants daughter, A.H., and his two nieces, M.G. and G.V. The girls testified as follows.

1. A.H.

A.H. was born in September 1988, at which time her family lived in a house on Folsom Street in San Francisco. When A.H. was six years old and her family still lived in the Folsom house, defendant began subjecting her to what would be a six-year saga of sexual abuse. The first incident of molestation occurred when A.H. had just gotten out of the shower and was in a bedroom shared by her family. Defendant came into the room, closed the door, lifted her shirt, and began sucking on her nipple. When A.H.s brother came into the room, defendant stopped, claiming that he was just looking at A.H.s chicken pox mark. A.H. did not realize at that time that what defendant had done was wrong. This was not an isolated incident, however, and similar sexual assaults occurred [a] lot while they lived in the Folsom house.

In 1995, defendants family moved to Evergreen Street in Daly City, where they lived in the downstairs apartment of a house. A.H.s aunt Maria and Marias daughter G.V. lived upstairs. Defendants family resided at the Evergreen house from the time she was seven years old to when she was nine, and during that time, defendant continued to sexually assault herless frequently than he had at the Folsom house but still about once a week. Typically, defendant would come into her bedroom with his shirt off and, in A.H.s words, I would just know I had to do it because it happened so often. Specifically, defendant would grab or suck her nipple, sometimes hurting her, and she would do the same to him. If he did not like the way she was doing it, he would teach her what to do. He made her swear not to tell anyone, and she thought of breaking a swear was committing a sin, so she remained silent.

In January 1998, when A.H. was nine years old, her family moved to a house on Winchester Street in Daly City. Sexual assaults of the same nature continued when they lived at that house, typically occurring twice a week and happening [h]undreds of times. They often occurred on Saturday mornings when her mother was at work and her siblings were asleep. Soon after they moved in, A.H. threatened to tell someone what defendant had been doing, but he never took it seriously, and she never told.

In addition to the myriad of incidents when defendant would suck A.H.s nipples and she his, A.H. also testified to an instance when she touched defendants penis through his underwear. She also described an incident when she and defendant were lying on his bed, with her back to his front, watching television, and she felt him rub his penis up against her. Another time, she did not want to suck his nipples, but he insisted, giving her $20, and she ultimately relented.

When A.H. was in the fifth grade, she started to realize that her fathers touching was inappropriate. By the time she was 12, she started avoiding him, like acting really tired and sleepy so he would not touch her. She tried to stay in the company of others so she was never alone with him, and the sexual abuse finally ended.

In May 2003, when A.H. was 14 years old, she told her mother what defendant had done to her.

2. M.G.

M.G., A.H.s cousin, was born in May 1989 and was also the victim of defendants sexual assaults. By M.G.s recollection, the first incident occurred when she was about six years old and was visiting A.H.s family at the Folsom house. M.G. was playing with her cousins and brothers, hiding under a sheet, and defendant touched her breast.

M.G. described another incident that happened when she was about seven years old. It was her parents anniversary, so she was staying with A.H.s family at the Evergreen house, and defendant was babysitting. While they were watching television, he touched her breast under her shirt. Later that evening, the children went to bed, and M.G. shared the bottom bunk of a bunk bed with A.H. M.G. wanted to sleep on the side of the bed closest to the wall because she was worried that defendant would do something, but defendant insisted that she sleep on the side away from the wall and towards the center of the room. M.G. was awakened in the middle of the night by defendant touching her breast under her clothing. She asked what he was doing, and he told her to  [j]ust be quiet.  He continued touching her, and she was about to yell, but he raised his hand like he was going to strike her. He then told her not to tell anyone, and she complied.

After that incident, M.G. tried to avoid defendant, which she was able to do while A.H.s family was living at the Evergreen house. However, when defendant and his family moved to the Winchester house, M.G.s family moved in with them for a while. M.G. could no longer avoid defendant, and he sexually assaulted her three to four times a month while the families lived under the same roof. The first time defendant touched M.G. at that house, she had gone down to the garage to get something, and he followed her down there and just started grabbing her. He touched her breast under her clothing and sucked on her nipple. And again, he admonished her not to tell anyone. In another incident, M.G. was sleeping when all of a sudden, she woke up in the bathroom with defendant. He sucked her nipples and pulled her head to his nipple so she could do the same to him. She wanted to leave but the door was locked.

M.G.s family moved out about three months later and into a house of their own just a few doors down the street. She tried to avoid defendant after that, but she and A.H. were good friends and she liked to visit her cousin, so she could not always stay away. Defendant continued touching her in the same manner at least three times a month.

M.G. also described other specific incidents of sexual abuse. One time, when M.G. was 11 or 12, she and defendant were on a family trip in Mexico, and he was giving her a tour of his house. They ended up in the bedroom, where he wanted to have sex with her but was interrupted by a knock on the door. On another occasion when she was 13, defendant had been sucking her nipples and attempted to put his hand down the front of her pants, but she stopped him. He then drove her to school, and when they got there, he locked the car door and kissed her, putting his tongue inside her mouth.

Defendant continued molesting M.G. until A.H. reported defendant to the police.

3. G.V.

G.V., who was born in August 1991, was another of A.H.s cousins, and their families lived at the Evergreen house during the same time. They moved into the house when G.V. was about three years old. While both of the families were living on Evergreen, defendant sexually abused G.V. by touching her chest.

G.V. also testified about various assaults that occurred while A.H.s family lived at the Winchester house. In one incident, when G.V. was staying with A.H.s family, defendant put his hands under her shirt and pinched her nipples. In a second incident, defendant touched her bottom, which made her feel uncomfortable. She did not tell anybody, however, because she was scared and did not think they would believe her. She tried to talk to M.G. and A.H. about what defendant did, but neither one wanted to talk about it.

B. Procedural Background

Defendant was arrested on May 8, 2003. In an interview with the police, he admitted to having sexually abused A.H. and M.G. At the suggestion of a police officer, defendant wrote a letter to A.H. and M.G. apologizing for what he had done.

By way of an amended information filed on April 22, 2005, the San Mateo County District Attorney charged defendant with 30 counts of lewd or lascivious acts upon a child under the age of 14 in violation of Penal Code section 288, subdivision (a). Counts 1 through 11 alleged sexual assaults on A.H., while the remaining 19 counts alleged sexual assaults on M.G.

On April 25, 2005, a jury found defendant guilty on all 30 counts. He was sentenced to 60 years in state prison and ordered to pay various fines and administrative fees. The court also ordered defendant to pay restitution of $10,000 each to A.H. and M.G.

This timely appeal followed.

II. Discussion

A. The Trial Court Did Not Commit a Batson/Wheeler Error

In Wheeler, supra, 22 Cal.3d 258, our Supreme Court held that the use of peremptory challenges solely on the basis of group bias was prohibited by article I, section 16 of the California Constitution. In Batson, supra, 476 U.S. 79, the United States Supreme Court held that peremptory challenges based solely on race violate the Fourteenth Amendment to the United States Constitution when the defendant is a member of the race being challenged. During jury selection, defendant made a Batson/Wheeler motion when the prosecution excused a prospective juror who was the first African-American juror called into the jury box. The court denied defendants motion, which denial defendant argues was erroneous. For the reasons detailed below, we disagree.

1. Factual Background

On the third day of jury voir dire, prospective Juror No. 15, Norma R., an African-American, was questioned. She stated that she lives in Foster City with her husband and two grandsons, ages 10 and 14. She has three children, two sons and one daughter, whose ages range from 27 to 40. Her daughter works for the United States Postal Service, one son is a welder, and the other son does not work due to illness. She affirmatively stated she could be fair and impartial.

As for employment, Ms. R. has been a registered nurse specializing in emergency and cardiac medicine for 28 to 29 years. In her work in the emergency room, she has dealt with pediatric patients and has had occasion to provide care for a child that has been molested. She is a mandated reporter, and responded I think so when asked if she has ever reported a suspected child molestation situation. While she has done quite a bit of reporting over the years, she could not remember the most recent time she had reported a suspected incident. She has received training regarding the reporting requirements and look[s] at the whole person for signs of potential abuse. In response to defense counsels inquiry, Does your work in having to report those types of incidents to authorities, does that leave you with any strong impressions, any strong opinions about child molest?, she responded, Not really.

Through her work, she has met members of law enforcement but never discusses sexual abuse cases with them.

Her husband does not work, but he was last employed by United Automotive Company.

She claimed to have once been a witness on a drunk-driving case, although it was clarified that she was actually a juror on the case.

Later that same day, the prosecution used its 12th peremptory challenge to excuse Ms. R. Defendant, who is Latino, made a Batson/Wheeler motion, arguing for a mistrial on the ground that there was no valid, race-neutral justification for the challenge. Defense counsel explained: She told us that she could be fair and there wasshe never served on a jury before. She has a daughter and two sons. She has two grandsons. So, there was really nothing stands out as being challengeable cause for her other than . . . her race, her being African-American. So, thats the basis for our challenge. My client is Latino, Hispanic. Of course the law recognizes that doesnt have to be the same race as the challenged juror to partake or to benefit from the WheelerBatson law. So, I proffer it on the totality of [Ms. R.s] answers to the questions posed.[2]

The court responded:

The Court: I thought that there has been some recent development in case law, the Johnson case at 30 Cal.4th 1302, which essentially collapsed the strong likelihood and references [sic] reasonable inference standard into one. [] . . . [] Okay, [prosecutor], any comments? Im not asking you to put yourself to burden of proof yet, but if you have any comments. [] Let me rephrase that. . . . I am just wondering if you had any comments at all.

[Prosecutor]: No.

The Court: The case law seems to show that it has to be [a] more likely than not standard that a juror has been excused for an impermissible reason, namely, in this case it could be race. [] I didnt take notes when the attorneys were questioning her, which was in hindsight a mistake. So, I dont have an honest recollection of the specific statements made by her to the attorneys. [] I am just thinking about perhaps out of an abundance of caution that you should get thatI can note there were two things that I noticed that caused methat I could see would be reasons why the [d]istrict [a]ttorney might have wished to excuse her. It seemed to me one was her confusion as to being a witness as opposed to being a juror, which may be understandable. [] The other was my recollection, best I can recall, her body language seemed to me that she just kind of seemed to be out of it in a way. I dontIm not saying she was under the influence of anything, but there just didnt seem to besomething where she was fully not saying. She could understand the proceedings, but there was something with body language and her demeanor where it didnt seem she was speaking in the normal way that other jurors were. That is the best I can describe it. Which would be a concern. The court then requested a transcript of the voir dire of Ms. R. and deferred ruling on the motion until the following day.

The next morning, the court and defense counsel engaged in the following colloquy:

The Court: Did you have any final comments, Mr. DeMeester?

[Defense counsel]: Yes, Your Honor, two comments. One is having had an an [sic] opportunity to review itI appreciate the [c]ourt providing that transcript to usI requested that the trial court undertake [a] comparative analysis and draw comparisons between jurors who were excused, especially [Ms. R.], versus jurors not excused.

The Court: At least not yet.

[Defense counsel]: By the prosecution. Correct. We sort of had to take that snapshot in time where we are at the time of course. And that comparison between excused and non-excused jurors from the point of view that prosecution, meaning excusing by prosecution versus not excusing by prosecution, that comparative analysis will show that the only reason that may be distilled from it is based on [Ms. R.s] race. [] I also want to point out yesterday the [c]ourt stated some reasons of its own where the [c]ourt could discern maybe reasons for excusal. I think by the [c]ourts engaging in that kind of analysis that the [c]ourt implicitly found [a] prima facie case and that thereby [the] burden shifts to the prosecution to proffer race neutral reasons. So, I think we are now at aat the step two of the three step with the Wheeler inquiry.

The Court: I was simply laying a record, . . . because the reviewing court has to have some information. What I am going to find is I dont find that [the] defense met [a] prima facie case for discrimination. [] I had two concerns with [Ms. R.], one minor and one major, one of which . . .  might relate to the second, but first one was on Page 27 of the transcript where a seemingly obviously educated person seemed to have difficulty distinguishing being a witness to a casebecause the question that is asked is Have you or any close friend or relative ever been involved in a criminal case either as a victim or witness? And she seemed to have confusion over what a witness was. She said A witness maybe, and then I said Anything comes to mind then she says I dont know. It was justI was on a case, an alcoholic case. I dont know whether it was criminal drunk driving. To which I responded Were you a witness to it? Then she says Not really a witness. I guess I was a juror. [] That causes me some concern that an intelligent woman wouldnt know the difference between that, but most importantly I wasam concerned about her body language. I made a comment yesterday that she seemed to be out of it. She seemed kind of listless and thatI did not notice that among any of the jurors. There was something about herwhether you call it body language or whateverthat could clearly be a cause for concern. So, those are the two things I am relying upon. [] I alsowell, she does have also some the another concern that certainly could be seen from [the] transcript . . . where she does have some sort of reporting requirement in [her] job, but she cant remember the last incident, which also strikes me as rather odd. But thats just an aside. [] I just dont find [a] prima facie case has been made for discrimination the reason imputing what I saw on the record. So, there is a record of it, mainly the whole body language kind of listlessness, out of it thing, because that is not going to be on the record. So, I have to put it on there, at least to my best recollection as to what my observations were. So, I needed to maintain that record. [] So, based upon that Im not going to find [a] prima facie case has been made for discrimination. Im not going to require the . . .  [d]istrict [a]ttorney to give an explanation. Therefore, [the] motion under Batson/Wheeler is denied.

2. Applicable Legal Principles

The proper method by which a trial court is to analyze a Batson/Wheelermotion is well established. Batson, supra, 476 U.S. 79created a three-step, burden shifting process that has recently been affirmed by the United States Supreme Court: First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, if a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation]. (Johnson v. California(2005) 545 U.S. 162, 168, fn. omitted.)

In Johnson v. California, supra, 545 U.S. 162, the United States Supreme Court considered the scope of the first of three steps . . . and concluded that a defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (Id. at pp. 168, 170.) In doing so, the court rejected the standard articulated by the California Supreme Court in People v. Johnson (2003) 30 Cal.4th 1302, which held that the moving party in a Batson/Wheeler challenge bears the initial burden of showing that it was more likely than not that a challenge was motivated by discriminatory intent. (People v. Johnson, supra, at p. 1306.)

Defendant presents three arguments concerning the trial courts application of these standards. First, defendant contends, [r]ather than a mere reasonable inference of discriminatory intent as set forth in Batson and affirmed in Johnson[ v. California], the trial court applied preponderance of the evidence. The People counter that the record does not reflect what standard the court used, and that when it ruled that [defendant] failed to make a prima facie case of discrimination, the court did not state the standard used in making its decision. While it is true that the court did not specifically state what standard it was applying when it denied defendants motion, the record nevertheless evidences the trial courts belief that the more likely than not standard governed. As noted above, the judge stated: The case law seems to show that it has to be more likely than not standard that a juror has been excused for an impermissible reason, namely, in this case it could be race. Nowhere does the court suggest that a different standard, namely a reasonable inference, might apply. We therefore conclude defendant is correct on this issue.

This conclusion is bolstered by the timing of the various Johnson opinions. Defendant made his Batson/Wheeler motion on April 18, 2005. This was after the California Supreme Court incorrectly articulated the more likely than not standard in People v. Johnson (filed on June 30, 2003), but before the United States Supreme Court rejected that in favor of the reasonable inference standard in Johnson v. California (filed on June 13, 2005). Thus, it makes sense that the trial court was applying what it believed to be the state of California law at the time, even though it ultimately proved to be incorrect.

Defendants second argument is that the trial court collapsed the three-step shifting [sic] burdens procedure under [Batson and Wheeler] into a single step, a procedure followed in People v. Bernard (1994) 27 Cal.App.4th 458, but later disapproved by the United States Supreme Court in Miller-El v. Dretke (2005) 545 U.S. 231, 252. From the record, however, it is clear to us that the trial court was in fact following Batsons three-step procedure, as evidenced by the courts remark to the prosecutor that he was not yet asking her to satisfy her burden, a clear recognition of the second step requiring the prosecution to proffer a race-neutral explanation for the challenge only if the court found that defendant made a prima facie showing of a race-based peremptory challenge.

We are thus faced with a situation in which the trial court properly followed the Batson three-step approach but incorrectly required defendant to demonstrate that it was more likely than not that the prosecution challenged Ms. R. due to her race. We address this conundrum by turning to defendants third and final Batson/Wheeler argument, that the trial court erred in determining he failed to make a prima facie showing that the prosecutions challenge of Ms. R. was racially motivated. Typically, a trial courts ruling on a Batson/Wheeler motion is reviewed for substantial evidence, with deference to the trial courts factual assessments. (People v. Huggins (2006) 38 Cal.4th 175, 227-228 & fn. 13.) However, in a situation such as here, where the trial court used an incorrect legal standard to evaluate the motion, we consider the matter without affording deference to the trial courts decision, and may resolve the issue if the record supports a particular conclusion as a matter of law. (See People v. Avila(2006) 38 Cal.4th 491, 553-554; People v. Cornwell (2005) 37 Cal.4th 50, 72-73.)

In determining whether defendant established a reasonable inference of racial bias, we do not limit our review solely to counsels presentation at the time of the motion. This is because other circumstances readily apparent to the trial court might support the finding of a prima facie case even though not cited by defense counsel. (People v. Howard (1992) 1 Cal.4th 1132, 1155.) [T]he trial court [should not] blind itself to everything except defense counsels presentation. (Ibid.) Indeed, Wheeler emphasized that such rulings require trial judges to consider all the circumstances of the case and called upon judges to exercise their powers of observation, their understanding of trial techniques and their broad judicial experience. (Wheeler, supra, 22 Cal.3d at pp. 280-281) [P]eremptory challenges are properly made in response to   bare looks and gestures,   or the demeanor of a prospective juror. [Citations.] (People v. Davenport (1995) 11 Cal.4th 1171, 1203 (Davenport).) Thus, there will be occasions where the reason a prospective juror is challenged may be patently obvious to everyone in a courtroom, yet not be apparent to someone reading a cold trial record.

3. Analysis

With this framework in mind, we turn to the question of whether there existed a reasonable inference that the prosecutions challenge of Ms. R. was race-based. We answer this question in the negative because the record reveals legitimate non-race related reasons for excusing Ms. R.

Most notably, the trial court described Ms. R.s demeanor as out of it, listless, and as if there were something . . . she was fully not saying. Such body language issues are, of course, a legitimate basis for a peremptory challenge. (Davenport, supra,11 Cal.4th at p. 1203.) That listlessness is an apt criterion is highlighted here by Ms. R.s apparent lack of memoryif not concernabout the molestation reporting requirements, and her claimed lack of any opinion about child molestation. Also relevant were Ms. R.s difficulty in distinguishing between the roles of a witness and a juror and her inability to recall the last time she had reported a suspected abuse situation. These factors in combination depicted a prospective juror that was somewhat confused, forgetful, and unresponsive, certainly a legitimate basis for exercising a challenge.

Defendant disputes any reliance on Ms. R.s body language, contending it is not a factor for consideration in resolving [defendants] prima facie claim. Instead, he submits, we are limited to the record of voir dire, which is necessarily silent on matters such as body language and demeanor. We disagree. A prospective jurors body language, such as a sigh, a rolling of the eyes, or a look of disdain, could be as telling, if not more so, than the individuals verbal responses to questions posed by counsel, as here, where the judge properly observed as he did. Under defendants scheme, we would be prohibited from considering these factors in determining whether there was a reasonable inference that the challenge was race-based, when it would have been patently obvious to the trial court why the individual was challenged by the prosecution. Defendants position is contrary the legal authorities discussed above.

Ultimately, we are of the opinion that there were reasonable, race-neutral bases for exercising a peremptory challenge of Ms. R., and, as such, we conclude that there was no reasonable inference that the prosecutions challenge of this prospective juror was racially motivated. Accordingly, the Batson/Wheeler motion was properly denied.

B. Propensity Evidence

Defendant next argues that [a]dmitting evidence of [his] propensity to commit sexual offenses violated his right to due process and a fair trial under the Fifth and Fourteenth Amendments. Specifically, he claims the court improperly allowed evidence of uncharged sexual offenses against A.H., M.G., and G.V. and improperly instructed the jury that they could infer from that evidence that defendant had a propensity to commit sexual offenses.[3]Defendant acknowledges, however, that in 1995 the California Legislature enacted Evidence Code section 1108 which permits evidence of uncharged sexual offenses to show propensity where the defendant is currently charged with a sexual offense. Evidence Code section 1108 provides in pertinent part: (a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.[4]

Defendant also acknowledges that in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court rejected a similar due process challenge to Evidence Code section 1108. There, the court considered whether Evidence Code section 1108 violates due process by permitting the admission, in a sex offense case, of the defendants other sex crimes for the purpose of showing a propensity to commit such crimes and concluded that the section is constitutionally valid. (Falsetta, supra, at p. 907.)

Defendant contends, however, that the California Supreme Court should reconsider its position in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau), which, according to defendant, held that using other crimes evidence to infer criminal propensity offends the Due Process Clause. Acknowledging that another Ninth Circuit panel reached a contrary conclusion in United States v. LeMay (9th Cir. 2001) 260 F.3d 1018 (LeMay), defendant urges that Garceaus reasoning is the more persuasive.

We need not engage in an analysis of the relative merits of Garceau, supra, 275 F.3d 769 and LeMay, supra, 260 F.3d 1018, however, because, as defendant acknowledges, we are bound by Falsetta, supra, 21 Cal.4th 903 pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales). Defendant is merely presenting the issue to preserve it for further review.

We also observe that even if Evidence Code section 1108 were deemed unconstitutionaland we see no reason why it would bedefendant would still not prevail on this argument because admission of the propensity evidence would have been harmless error. (Chapman v. California (1967) 386 U.S. 18.) A.H. and M.G. offered extensive testimony as to the charged crimes, and that evidence alone was more than sufficient to support defendants conviction on all 30 counts. Defendants argument that the jury may have taken the easy way out and simply convicted on all counts in light of the propensity evidence ignores the bulk of the evidence and is without merit.[5]

C. The Use of Generic Testimony Did Not Constitute Error

Defendant next argues that the use of generic testimony, or testimony that was nonspecific regarding time, place and circumstances, constituted prejudicial error in three regards. First, he claims the jury was precluded from agreeing unanimously on the specific acts committed which resulted in a violation of [his] right to due process under the Fourteenth Amendment. Second, he contends the use of generic testimony violated his right to notice of the charges against him and deprived him of his right to present a defense in violation of the Sixth and Fourteenth Amendments. Third, defendant submits that [g]iven the generic nature of the evidence, it was insufficient to support the convictions.

Again, however, defendant acknowledges that the California Supreme Court has already rejected these arguments, this time in People v. Jones (1990) 51 Cal.3d 294 (Jones). And despite defendants claims that Jones does not meet federal constitutional standards, we are bound to follow it. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.) We thus end our discussion here.

D. Restitution Orders

The last issue defendant raises on appeal concerns the propriety of the restitution order. In its July 5, 2005, sentencing memorandum, the prosecution argued that defendant must be ordered to pay restitution to the victims families pursuant to Penal Code section 1202.4, subdivision (f),[6] but no amount of restitution was proposed. The probation officers September 23, 2005, report likewise recommended that defendant be ordered to pay restitution in an amount to be determined . . . . The report noted that A.H. would be submitting a restitution claim and that M.G. had not submitted a restitution claim.

At the sentencing hearing, after argument on the appropriate prison term, the court stated, The other question I have is the restitution amount. I would like to order restitution to the victims in the sense that I want to give them some money for therapy. The question is that is somethingI assume restitution is pretty broad. I could probably order a pretty large amount, but I think some of that money thatit is one of the things that is obviously up to the victims in the case, but they areI will strongly urge them to get therapy and talk at some point with a competent therapist when they are ready and the defendant should have to pay something like that. [] The question is how to fix an amount. Do you have any thoughts about that? The prosecution responded: The [c]ourt could make an amount to be determined and the [c]ourt could order it through victims compensation board an amountthe problem that we have had with that however is that when we make it an open order in that fashion, they have difficulty collecting it from Department of Corrections. I honestly cannot even fathom a dollar amount of what therapy would cost in order for these girls to get through that process. The [c]ourt could certainly put a cap on it, restitution up to a certain amount, which would then fix the amount and then if the victims could then go through victims compensation board that would be my suggestion to the [c]ourt.

Defense counsel largely agreed with this position: So, as to [the] restitution issue, Your Honor, I think counsel is correct in stating that it is an issue to be determined by [the California Department of Corrections]. There is procedure for that. We dont have an amount now. We cannot award amounts without [a] justified basis, etc. So, I think it is properly something to be determined at a later time and, of course, [defendant] has a right to a [s]uperior [c]ourt hearing on any difference of opinion that he may have with any amount that is finally established through those means.

The court then decided: I think this is something that may be an issue that is ripe for appeal. I will certainly have the appellate court address this. I do think a reasonable amount for restitution for each victim would be $10,000 to [A.H.] and $10,000 to [M.G.] [sic] which I hope and suggest they use for therapy, which I think is a reasonable amount. I will order the defendant to pay that through the victims compensation appeals board. Defense counsel protested: Your Honor, I will object to both those amounts because they havent been determined by any entities.

Defendant continues this protest on appeal, arguing that the restitution order constitutes error because the court failed to provide [defendant] a reasonable opportunity to contest the amount imposed, and there was insufficient evidence to support a finding that the amount awarded was reasonable based on economic or noneconomic losses. We agree.

As a preliminary matter, the Penal Code grants defendant the right to a hearing to dispute the amount of restitution. (Pen. Code, 1202.4, subd. (f)(1); People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550 [A defendant must be afforded a reasonable opportunity to be heard on the issue of restitution.]). But defendant was afforded no such hearing here. Instead, both the prosecutor and defense counsel expressed to the court that no amount had been established, and then at the end of the sentencing hearing, the court unexpectedly set the amount of restitution anyhow.

The People acknowledge defendants entitlement to a hearing, but argue that he did not request one. We conclude otherwise, that defendant made his desire to be heard on the subject amply clear by first advising the court of his right to a hearing once the amount of proposed restitution was ultimately calculated, and then by objecting when the court set the amount at $10,000 for each victim.

We turn next to defendants argument that the amount of the restitution order was improper. As the trial court is vested with great discretion in fixing a restitution award, some cases have held that appellate review is guided by the abuse of discretion standard. [Citations.] Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious. [Citations.] [] However, People v. Vournazos (1988) 198 Cal.App.3d 948, 958-959 . . . applied the substantial evidence test in concluding that a hearsay probation report was insufficient evidence upon which to base a restitution award. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992-993.)

It could be said, therefore, that the standard of review by which we are to evaluate the trial courts order is unsettled. However, whatever standard of review we usewhether it be substantial evidence, abuse of discretion, or a combination thereofmakes little difference in this case because there was no factual basis whatsoever for the amount ordered by the court. As noted above, the probation report and the prosecutions sentencing memorandum were silent on the amount of restitution, and neither of the victims had submitted a restitution claim. Thus, there were no specific monetary amounts before the court on which it could base the restitution amount. Nevertheless, the court assigned an apparently arbitrary amount to compensate the girls for counseling that it hope[s] and suggest[s] they pursue. The People did not cite, nor are we aware of, any authority in which restitution was ordered without the amount finding some support in the actual economic loss suffered by the victim.

In opposing this argument, the People claim that there was clearly a factual and also rational basis for the amount of restitution ordered by the trial court. They cite A.H. and M.G.s youth, vulnerability, and the emotional scarring caused by defendants conduct. They also point to the girls reluctance to talk about the abuse and their families limited economic resources as grounds for their need for mental health counseling. These are indeed extremely legitimate concerns, but these factors speak to the girls need for counseling, and thus their entitlement to restitution, rather than to the amount of restitution appropriate under these circumstances.

This is not to say that we disagree with the trial courts conclusion that the girls are entitled to restitution in some amount, and we most heartily agree that the girls would likely benefit from counseling. Nevertheless, the court completely lacked any information from which to determine a reasonably compensable amount for therapy.

III. Disposition

The restitution order must be reversed and the matter remanded to allow for reconsideration of the issue of victim restitution. In all other respects, the judgment of conviction is affirmed.

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Richman, J.

We concur:

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Kline, P. J.

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Haerle, J.

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[1]Batson v. Kentucky(1986)476 U.S. 79 (Batson); People v. Wheeler (1978)22 Cal.3d 258 (Wheeler).

[2]Defense counsels statement that Ms. R. had never served on a jury before was in fact incorrect, as she explained that she had been a witness, meaning a juror, on a drunk-driving case.

[3] The trial court instructed the jury on CALJIC No. 2.50.01: Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense [on one or more occasions] other than that charged in the case. [] [Sexual offense means a crime under the laws of a state or of the United States that involves any of the following: [] [A.] [Any conduct made criminal by Penal Code section 288(a). The elements of [this crime] . . . are set forth elsewhere in these instructions.] [] . . . [] If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] was likely to commit and did commit the crime [or crimes] of which [he] is accused. [] However, if you find by a preponderance of the evidence that the defendant committed . . . prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] committed the charged crime[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [] . . . [Y]ou must not consider this evidence for any other purpose.]

[4] Evidence Code section 1101, subdivision (a) provides that with certain exceptions, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.

Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

[5] Because defendant does not argue that the trial court abused its discretion in weighing the probative value of evidence concerning uncharged offenses against its prejudicial value, we need not analyze this issue.

[6]Penal Code section 1202.4, subdivision (f) provides for restitution to cover mental health counseling expenses and for noneconomic losses, including psychological harm, for felony violations of section 288. (Pen. Code, 1202.4, subd. (f)(C), (F).)