Filed 7/28/17 P. v. Arzola CA4/1
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRES ROSALES ARZOLA,

Defendant and Appellant.
D070645



(Super. Ct. No. JCF35211)

APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Reversed.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Andres Rosales Arzola pleaded no contest to two counts of committing a forcible lewd act upon a child under 14 years of age under Penal Code section 288. The court sentenced him to 20 years in state prison. It ordered him to pay the victim, Jane Doe, $150,000 in restitution for noneconomic damages under Penal Code section 1202.4, subdivision (f)(3)(F). Arzola's sole contention on appeal is that the court abused its discretion by failing to find facts, cite to reliable evidence, or establish the basis for its calculation of the award. We agree and therefore reverse.
BACKGROUND
The parties stipulated that the police reports established the factual basis for Arzola's plea. The probation officer stated that Jane Doe reported that Arzola had "put his private part in her private part" approximately five or six times on different occasions. The probation report also stated that Arzola confessed to an El Centro Police Department detective that when Jane Doe was four or five years old, he pulled down her pants and underwear and inserted his finger inside her vagina. He also attempted to put his penis in her vagina but his penis did not fully enter because of her small body. She was afraid and cried, asking him to stop. Arzola stated it was possible he had sex with Jane Doe but forgot about it, considering that he was under the influence of marijuana during the incident. The victim's mother and Arzola's father were at home at the time of the incident. Arzola confessed that approximately two years later, he touched, groped and caressed Jane Doe's vagina and buttocks underneath her clothing. During that incident he was sober, his penis was exposed, and he was "turned on."
In discussing possible circumstances in aggravation for sentencing purposes, the probation officer stated: (1) "The crime involved great violence/great bodily harm/threat of great bodily harm/other acts disclosing a high degree of cruelty, viciousness or callousness"; (2) the victim "was particularly vulnerable due to the fact that she was a minor at the time of the offense and that she was [Arzola's family member]"; (3) the "manner in which the crime was carried out indicates planning, sophistication or professionalism"; and (4) Arzola "took advantage of a position [of] trust or confidence to commit the offense."
The probation report stated: "As to restitution, the victim is not seeking any against the defendant. . . . [T]he victim's guardian . . . stated the victim is doing much better now that she is aware of the sentence [Arzola] is going to receive. Her grades are improving and her attitude is more positive. [The guardian] did state that the victim is currently receiving counseling; however her Medi-Cal is covering the expenses. . . . [T]he victim is ready to move forward and put this traumatic experience behind her."
The court's tentative ruling was to order Arzola to pay Jane Doe $200,000 in non-economic restitution damages. At a subsequent hearing, the prosecutor stated she had spoken to Jane Doe's mother, who said the family was seeking such damages. The court decided to reduce the restitution award to $150,000: "Essentially, I considered the nature of the conduct that occurred, the period of time that it occurred, the age of the victim, the life expectancy of the victim. I considered the civil jury instruction regarding emotional harm and detriment that this would be analogous to, and, you know, in particular the nature of the conduct that this type of—this type of conduct has life-long emotional distress to victims that suffered from this type of abuse."
The court held a separate hearing for the parties to address noneconomic restitution. No witnesses testified. Defense counsel, relying on People v. Valenti (2016) 243 Cal.App.4th 1140 (Valenti), argued: "[T]here hasn't been established, determine [sic] or a sufficient rational basis for the award of noneconomic damages in the amount stated and that the record is insufficient to permit a meaning[ful] review as it stands, which is based on the probation report. [¶] I will point out that the—there's no indication from my reading of the report that the victim is suffering nightmares or flashbacks or extent of counselling she's received or even the type of counseling or that she's having problems at school or making friends. [¶] In fact, I believe the parents said she was doing very well in school. And—or that she's considered harming herself or others."
The court reiterated its reasoning for ordering noneconomic restitution: "Well, for the record the court has re-evaluated—relooked at the probation officer's report, other information that was presented at sentencing. [¶] Given the circumstances of the events and the crimes that occurred, these are very significant, harmful events to the victim. I've taken into consideration her age, her life expectancy. I've looked at the jury instruction on civil damages and then for noneconomic damages, and I think that the appropriate amount of noneconomic damages is $150,000."
DISCUSSION
Penal Code section 1202.4, subdivision (f), provides in part: "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court. . . . [¶] . . . [¶] (3) To the extent possible, the restitution order shall be . . . of a dollar amount that is sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to . . . the following: [¶] . . . [¶] (F) Noneconomic losses, including, but not limited to, psychological harm, for felony violations of [s]ection 288." (Italics added.)
"[Penal Code s]ection 1202.4 does not provide guidelines for evaluating a child victim's noneconomic damages for sexual abuse. Unlike economic damages, which encompass 'objectively verifiable monetary losses' [citation], noneconomic damages compensate the victim for 'subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.' [Citations.] 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.' " (Valenti, supra, 243 Cal.App.4th at p. 1182.)
The court here relied on the probation officer's report that Arzola had inflicted such harm on Jane Doe that she required counseling. The probation officer reported that since Jane Doe learned Arzola was going to prison for a long time, she started to feel better and her grades improved. The court took into account that Arzola had harmed Jane Doe at an early age, and it calculated her life expectancy. The court did not specify which jury instructions it consulted in calculating noneconomic restitution. Moreover, none of the matters the court considered specify how the court calculated the noneconomic damage award.
The present case is identical to Valenti in that the People did not submit any evidentiary support for the amount of the noneconomic restitution award. The record contains no victim declarations, independent documentation, or professional evaluations. (People v. Valenti, supra, 243 Cal.App.4th at p. 1182.) We therefore conclude as in Valenti: "In sum, the court in this case did not find facts, cite reliable evidence, or even explain how it arrived at the amount of restitution awarded to [the] victim. There was no evidence, either through direct testimony or victim-impact statements, that the [victim] suffered nightmares or flashbacks, that [she was] having trouble in school or problems making friends, that [she] had considered harming themselves or others, or that they had sought or received counseling in any form." (Id. at p. 1183.) We remand for a redetermination of the restitution award for noneconomic damage if any.

DISPOSITION
The judgment is reversed. The matter is remanded with directions for the trial court to conduct a restitution hearing to reconsider Jane Doe's noneconomic damage if any.


O'ROURKE, J.

WE CONCUR:


NARES, Acting P. J.


DATO, J.