People v. Castillo

Filed 9/1/26

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

F089345

Plaintiff and Respondent,

(Super. Ct. No. BF171537A)

v.

MIGUEL ACOSTA CASTILLO, JR.,

OPINION

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John D.

Oglesby, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary, Darren K. Indermill and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooINTRODUCTION

Defendant Miguel Acosta Castillo, Jr. was found guilty by jury of a lewd or lascivious act with a child 14 or 15 years of age (Pen. Code, § 288, subd. (c)(1); 1 count 2; Doe), sexual penetration by force or fear (§ 289, subd. (a)(1)(C); count 3; Doe), and annoying or molesting a child (§ 647.6, subd. (c); count 8; Doe 2). A prior conviction under section 288, subdivision (a) (section 288(a)), was found true in a bifurcated proceeding, which had been alleged as a circumstance in aggravation under the “One Strike” law (§ 667.61), as a prior serious or violent felony within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and as a prior serious felony within the meaning of section 667, subdivision (a) (section 667(a)).

At a resentencing hearing in 2024, the trial court sentenced defendant to an indeterminate term of 25 years to life on count 3 (§ 667.61, subd. (a)), doubled for the prior strike (§ 667, subd. (e)(1)) (section 667(e)(1)), plus five years for a prior serious felony enhancement (§ 667(a)); on count 2, the court imposed the middle term of four years, which was stayed under section 654; and on count 8, the court imposed the middle term of eight years (§§ 647.6, subd. (c)(2), 667(e)(1)). The aggregate term of incarceration was 13 years determinate, followed by one consecutive term of 50 years to life.

Restitution hearings were held in November 2024 and January 2025 where Doe and her mother (Mother) gave sworn testimony about noneconomic loss they suffered as a result of defendant’s conduct. Following the hearing, the trial court issued a written order awarding noneconomic restitution as follows: $1.8 million for Doe; $250,000 for Mother; $50,000 for Doe’s brother, A.; and $10,000 for Doe’s sister, K.

Defendant appeals, claiming the trial court erred by failing to articulate a method for calculating the amount of noneconomic restitution. Defendant also argues the amount

1 All undesignated statutory references are to the Penal Code.

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of noneconomic restitution as to each victim is unsupported by the evidence, and should be reduced and/or eliminated. For the reasons that follow, we conclude the trial court was not required to articulate a particular method of calculating the noneconomic restitution. Under the abuse of discretion standard, the noneconomic restitution as to Doe, Mother and A. was factually supported, and the amount of the awards was not so grossly excessive that it shocks the conscience—i.e., the award amounts were not arbitrarily or capriciously excessive such that the court abused its discretion. As to K., the noneconomic restitution amount was not supported by any facts of noneconomic loss related specifically to K. We therefore vacate the noneconomic restitution ordered as to K., and modify the court’s ruling accordingly. In all other respects, we affirm the trial court’s restitution order.

FACTUAL BACKGROUND 2

Defendant was charged with sexual offenses related to two victims: Doe and Doe 2. As to Doe, defendant was charged with various offenses over a course of years (counts 1–7). As to Doe 2, defendant was accused of one sexual offense (count 8). I. Trial Proceedings

Doe testified she met defendant, his wife, and their children, when she was three or four years old. Their families were involved in the same sports, and they began socializing, eventually becoming close. Doe began spending time at defendant’s house, and he became like a father-figure to her, particularly after her parents separated when she was eight years old.

2 Defendant appealed from the conviction, and we vacated the sentence and remanded for a full resentencing, but otherwise affirmed the judgment. (People v. Castillo (Mar. 18, 2024, F084253) [nonpub. opn.].) Pursuant to defendant’s request, we take judicial notice of the appellate record and the opinion in that case. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) Some of the relevant facts herein are drawn from Doe’s trial testimony, which is contained in the reporter’s transcript in the appellate record of defendant’s original appeal. Only the facts relevant to defendant’s appeal are summarized.

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Doe testified defendant first touched her when she was eight years old. They were sitting on defendant’s couch, and he started rubbing her thigh. He then touched her lower stomach underneath her clothing, and he rubbed his fingers along the inside of the waistline of her clothing. It lasted about five minutes, and then he stopped. This type of touching occurred on other occasions when she was between the ages of eight and 14 years old, but she could not remember the details.

In 2016, the parents had a falling out, but the children remained friends. Doe spent time at defendant’s house each week. When Doe was 15 years old, she was at defendant’s house, and they were sitting on the couch. He started touching her thigh, and then he stuck his finger inside her vagina. The incident lasted a few minutes, and then he stopped.

The jury found defendant not guilty on counts 1, 5, 6 and 7, but found him guilty as to counts 2 (lewd or lascivious act on child 14 or 15 years old (Doe)), 3 (sexual penetration by force, fear or threats (Doe)) and 8 (annoying or molesting a child (Doe 2)). The jury deadlocked on the lesser offenses for counts 1 and 5, and it deadlocked on count 4; a mistrial was declared as to those deadlocked counts.

In a bifurcated proceeding, the trial court found true a prior conviction under section 288(a), for purposes of a prior serious felony enhancement, and as to One Strike and Three Strike allegations.

II. Victim Impact Statements at Sentencing

Mother gave a victim impact statement at the sentencing hearing. She described her daughter becoming depressed and suicidal after the abuse was disclosed; Doe developed anxiety, and she switched high schools twice. Mother took time off from work to take Doe to medical and counseling appointments, and Mother feared for Doe’s safety. Mother distanced herself and her children from those friends who supported defendant. She took time off from work to attend hearings in the case, and her family had to cancel plans and vacations to make themselves available for hearings in the matter.

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Doe also gave a victim impact statement. As the criminal case against defendant proceeded, Doe described feeling hopeless. She thought about suicide several times because she suffered unbearable pain in reliving the abuse as a witness for the prosecution. She described the abuse as lasting over five years and happening “over a hundred times.”

III. Restitution Hearing

Restitution hearings were held in November 2024 and January 2025; Mother and Doe provided testimony.

A. Mother’s Testimony

Mother testified at the restitution hearing that once she knew about defendant’s abuse of Doe, she felt unsafe living near defendant, so the family moved; Mother bought security cameras and an alarm system. She sought mental health counseling for herself, her son, and her three younger children. Mother took time off from work because Doe was not mentally stable between 2018 and 2020. Doe was evaluated at Mary K. Shell Mental Health Center, and there were “a couple times” when the family called 911; Doe was never admitted or hospitalized due to her suicidal ideation. The family kept anything out of the house Doe could use for self-harm, including medication and knives.

Mother continues with mental health counseling for her own major depression and anxiety. She sees her therapist on a monthly basis, but she does not incur cost for the services. Her therapist did not estimate a time for recovery, and Mother does not take any medications. Mother sought $250,000 in noneconomic restitution for herself. She explained this was based on her general feeling, not any particular formula.

Mother’s eldest son A., who was 23 years old at the time of the restitution hearing (and 16 years old when Doe reported the abuse), was closest in age to Doe, and they were best friends. He saw himself as her protector, so he suffered when Doe revealed she had been victimized. Doe was suicidal for years, and A. felt he had to watch her to keep her safe. Mother observed A. to be angry and reserved, and it has been difficult for him to

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hold a job. He used to be a happy-go-lucky kid, but after the abuse was reported, Mother noticed he quit playing basketball, and he wasn’t acting like himself. Mother indicated A. continues with mental health counseling, but Mother did not know the details of his diagnoses. She sought $500,000 on behalf of A. Mother explained this is the amount A. felt was warranted for his pain and suffering.

Beyond A., Mother sought $10,000 each for her other three children. Mother’s middle daughter K., was in fifth or sixth grade when Doe reported defendant’s abuse (17 years old at the time of the restitution hearing), and when the news made its way through their social circles, people stopped supporting them, and none of Doe’s siblings wanted to play sports or see people who associated with defendant. The children stopped going places, and, from Mother’s perspective, they stopped enjoying their youth. Because the families were close, the abuse tore everyone apart. Doe’s family isolated themselves for many years, and they have lost trust in other people. As a result, they have missed opportunities in friendships, jobs, and social environments.

She and the children had discussed how much suffering they felt they had experienced in the seven years since the abuse had been reported. Mother suggested the damage amounts for each of the three younger children based on what impact she felt they had sustained. At the end of the hearing, Mother withdrew her request for noneconomic damages for her youngest two children.

B. Doe’s Testimony

Doe testified she was 22 years old at the time of the restitution hearing; she was eight years old when the abuse started. She was friends with defendant’s children, and the families were close and spent a lot of time together. When the abuse was reported, all their mutual friends sided with defendant and did not believe her; those friends made it clear they wanted nothing to do with Doe’s family. She was abandoned by everyone but Mother.

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Doe explained that after the abuse was reported she became severely depressed and suicidal; she has made at least two suicide attempts. On these occasions, she was remembering the abuse and that she had no friends anymore. She had considered defendant and his family to be her family; they had spent holidays and birthdays together; after the abuse was reported, and it tore the families apart, friends abandoned them, and Doe felt she had no identity. When she told Mother about sitting in the bathroom wishing she was dead on a third occasion, Mother took Doe to the Mary K. Shell Mental Health Center for evaluation.

Doe completed high school, but she did so on independent study because her health declined; she had switched high schools multiple times. She experienced panic attacks from smells that would trigger memories of defendant or people that resembled defendant. She was too fragile and could not be in public. She did not pursue a postsecondary education, and she feels it has to do with the abuse. She worked in a restaurant for about two months when she was 20 years old, but she experienced unwanted attention from older men, and she did not want to be in the environment anymore. She testified she would not be able to hold a job or continue with her education because she was not mentally capable.

Doe is in a romantic relationship with someone she trusts, and they have a child together. Doe does not trust anyone with her child, and she feels her child is not going to have a normal life because Doe is too scared—she is not the parent she wants to be, nor the mother she imagined. She does not work because she does not trust anyone with the baby. She has attended mental health counseling “on and off” for the past seven years, and she continues to attend every two to three weeks; she has called the suicide hotline twice in the six months preceding the hearing. She has been diagnosed with depression, anxiety and posttraumatic stress disorder.

She explained she sought $5 million in restitution because that is the amount she feels is appropriate.

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IV. Victim Impact Written Statements

Doe and Mother also submitted written statements to the court, largely consistent with their in-court testimony. Doe described her relationship with defendant, and how interconnected her family was with his. She described feeling unsafe; that she battles continued nightmares; certain smells trigger unwanted thoughts of defendant. Because of the molestation, Doe does not trust anyone with her son.

Mother also described the close relationship her family had with defendant and his family, and how the abuse affected her entire household. Mother described struggling with depression and inadequacy for failing to protect her children; she has experienced helplessness, constant anxiety, hypervigilance, and nightmares. Close relationships are difficult because she struggles to trust anyone. The abuse strained the entire family dynamic, and it left her and her children feeling isolated.

V. Trial Court’s Ruling

After the restitution hearing, the trial court took the matter under submission and issued a written ruling. In its written order, after summarizing the relevant facts, the trial court reasoned that based on the “significant evidence presented of the destruction of her psychological well-being as manifested by the significant depression and suicidal thoughts of which she continues to suffer, this Court awards the victim, Doe, $1.8 million dollars in non-economic damages for psychological harm suffered.” As for other members of the family, the court awarded Mother $250,000 “for psychological harm in light of the stress and anxiety she has continued to experience including ongoing nightmares, this stress having been compounded by the stress of caring for a severely traumatized daughter.” As to Doe’s siblings A. and K., “the evidence as to their trauma was limited in that it was presented by the testimony of their mother, but the evidence was clear that both suffered trauma and psychological harm as a result of the victimization of Doe, their sister.” The court awarded A. $25,000 and awarded K. $10,000 for the harm inflicted on them.

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The trial court also awarded Mother for economic losses, including relocation expenses, expenses for residential security systems, lost wages and mileage. Although Doe and Mother requested expenses for mental health counseling, including future counseling expenses, there was no evidence offered they actually incurred costs for that counseling. Doe requested an award for loss of past and future income, but the court concluded there was no work history on which a calculation could be made.

DISCUSSION

Defendant argues the trial court’s ruling on noneconomic restitution provides no methodology for the amounts awarded, and, thus, the order is insufficient to support meaningful appellate review. Defendant also challenges the specific amount of noneconomic restitution awarded to Doe, Mother, and Doe’s siblings A. and K. as factually unsupported and, therefore, excessive.

I. Legal Principles and Standard of Review

The California Constitution provides victims with the right to restitution from criminal defendants. (Cal. Const., art. I, § 28, subd. (b)(13)(A)–(C).) The Constitution provides that, “(A) It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] (B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss. [¶] (C) All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.” (Ibid.) The Constitution defines a “‘victim’” as “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act[,]” and “includes the person’s spouse, parents, children, siblings, or guardian .…” (Id., subd. (e);

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see People v. Montiel (2019) 35 Cal.App.5th 312, 322 [mother of victim entitled to restitution for noneconomic losses].)

This constitutional provision is codified by statute; section 1202.4, subdivision (f), requires the trial court to order the defendant to pay restitution to the victim “in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” “The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution….” (Id., subd. (f)(1).) With one exception for specific offenses, restitution orders are limited to the victim’s economic damages. (People v. Smith (2011) 198 Cal.App.4th 415, 431 (Smith); accord, People v. Gomez (2023) 97 Cal.App.5th 111, 115 (Gomez).) Noneconomic losses, including, but not limited to, psychological harm, are available for felony violations of sections 288, 288.5, or 288.7. (§ 1202.4, subd. (f)(3)(F).) A victim is defined by the statute as, among other things, “A person who is eligible to receive assistance from the Restitution Fund pursuant to Chapter 5 (commencing with Section 13950) of Part 4, of Division 3 of Title 2 of the Government Code.” (Id., subd. (k)(4).) In turn, Government Code section 13955, subdivision (a)(2), allows for compensation for a “derivative victim,” which includes a parent, grandparent, sibling, spouse, child or grandchild of the victim (id., subd. (c)(1)).

In determining the propriety and amount of restitution, the trial court applies the preponderance of evidence standard. (Smith, supra, 198 Cal.App.4th at p. 433.) “The burden is on the party seeking restitution to provide an adequate factual basis for the claim.” (People v. Giordano (2007) 42 Cal.4th 644, 664 (Giordano).) The preponderance of evidence is a low evidentiary threshold, and it can be met through a variety of means, including, but not limited to, testimony or statements “presented to the court or probation officer by the victim’s parents, a treating physician or therapist, or others with personal knowledge of the impact on the victim.” (Gomez, supra, 97 Cal.App.5th at pp. 119–120.)

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Establishing the amount of restitution does not require the formalities of other phases of a criminal prosecution, and, thus, sentencing judges have wide discretion as to the kind and sources of information they can consider. (People v. Baker (2005) 126 Cal.App.4th 463, 470.) “‘“No fixed standard exists for deciding the amount of [noneconomic] damages.”’” (People v. Lehman (2016) 247 Cal.App.4th 795, 801 (Lehman).) Courts are permitted to apply “‘“‘any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole.’”’” (People v. Ortiz (1997) 53 Cal.App.4th 791, 800.) Noneconomic restitution “need not be tied to any specific damages, but rather the trial court, within its discretion, tries to determine the appropriate compensation for such pain and suffering.” (People v. Narro (2023) 95 Cal.App.5th 316, 329.)

A trial court’s restitution order is reviewed for an abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) Pursuant to this standard, an appellate court assesses whether the ruling “‘“falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’” (Ibid., quoting People v. Williams (1998) 17 Cal.4th 148, 162.) When a defendant claims on appeal that a noneconomic restitution ruling awards an excessive amount to a victim, a shocks-the-conscience standard is employed to test for an abuse of discretion. (Smith, supra, 198 Cal.App.4th at pp. 435–437.) II. Analysis

A. Calculating Noneconomic Restitution is Not Subject to Precise Method

Defendant asserts the trial court was obligated to provide a clear statement of the calculation method it employed to formulate the noneconomic restitution ordered, which the trial court failed to do. Instead, defendant argues, the court cited only facts testified by Doe and Mother without explaining the method used to arrive at any particular amount of restitution ordered. According to defendant, by failing to articulate its calculation method, the trial court did not demonstrate how its method was reasonable and

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nonarbitrary, and, as such, the ruling is insufficient to permit meaningful appellate review.

The People dispute the trial court was obligated to identify its method of calculation. According to the People, several of the cases defendant relies on relate to economic rather than noneconomic losses. Pursuant to Smith and Lehman, the People maintain, the standard for assessing noneconomic loss is subjective. While an award for noneconomic loss must be supported by substantial evidence of noneconomic harm, a factually supported restitution order awarding noneconomic restitution is not to be overturned on appeal unless it is so large that it shocks the conscience. (See Lehman, supra, 247 Cal.App.4th at p. 803; Smith, supra, 198 Cal.App.4th at p. 436.)

Defendant responds that the abuse of discretion standard can be meaningfully applied only where the trial court provides a rational and reasoned basis for the amount ordered so that a reviewing court can determine whether the trial court reached the amount arbitrarily—regardless of whether the award is for economic or noneconomic harm. Absent such an articulation by the trial court here, defendant maintains, there is no meaningful way to review the trial court’s restitution order for an abuse of discretion.

Much of the parties’ dispute over the standard for the trial court’s articulation of, and an appellate court’s review of, noneconomic restitution was addressed by the Court of Appeal in Smith. In that case, the defendant was convicted of molesting a victim from the time she was eight years old. (Smith, supra, 198 Cal.App.4th at p. 419.) After a hearing on the amount of victim restitution, the trial court ordered the defendant to pay $3,265 in economic damages and $750,000 in noneconomic damages. (Id. at p. 420.) Among other things, relying on precedent such as People v. Carbajal (1995) 10 Cal.4th 1114, 1125, the defendant argued on appeal the trial court had abused its discretion in fixing the amount of restitution for noneconomic loss, asserting restitution orders are not to be based on a trial court’s subjective belief as to the appropriate compensation—

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instead, there must be a factual and rational basis for the amount ordered. (Smith, supra, at pp. 435–436.)

In rejecting the defendant’s argument, Smith drew on the civil jury instruction concerning noneconomic loss. Pattern instruction CACI No. 3905A provided then, as it does currently that “No fixed standard exists for deciding the amount of … noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.” Smith then turned to the standard of review for civil awards of noneconomic loss: As articulated by the California Supreme Court in Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498 (Seffert), the award of “nonpecuniary items of damage, including pain and suffering” (id. at p. 506), is a question of fact “first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court [citation]…. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Id. at pp. 506–507.)

Although dealing with a civil award of noneconomic damages, Smith extended Seffert’s reasoning in the context of criminal noneconomic restitution, explaining that even though a trial court, and not a jury, determines noneconomic restitution in the first instance, there was “no reason to adopt any other standard of review.” (Smith, supra, 198 Cal.App.4th at p. 436.) In extending Seffert, the Smith court explained that while “economic damages are quantifiable and thus awards of economic damages are readily reviewed for whether they are ‘rationally designed to determine … the victim’s economic loss’” (Smith, supra, at p. 436, quoting Giordano, supra, 42 Cal.4th at pp. 663–664), noneconomic damages “require more subjective considerations,” and therefore a “different standard is justified” (Smith, supra, at p. 436).

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Smith’s reasoning, and its reliance on Seffert, persuade us the trial court was not required to set forth a particular methodology for calculating the noneconomic restitution nor is the articulation of a specific methodology or formula necessary to permit meaningful appellate review of such restitution. Criminal noneconomic restitution cases such as Smith, as well as civil noneconomic damage cases such as Seffert, point to the difficulty and subjective nature of calculating noneconomic damages—they are not susceptible to precise methods or objective quantification. Unlike economic damages, which are “‘objectively verifiable monetary losses,’” noneconomic damages are “‘subjective, non-monetary losses’” (Smith, supra, 198 Cal.App.4th at p. 431, quoting Civ. Code, § 1431.2, subd. (b)(1) & (2)), which are inherently difficult to quantify and “require more subjective considerations” (Smith, supra, at p. 436). Assessing noneconomic losses such as pain and suffering is “‘“[o]ne of the most difficult tasks imposed on a [factfinder] in deciding a case involving personal injuries .… In a very real sense, the [factfinder] is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy.”’” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300 (Bigler-Engler), quoting Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764.)

As a factfinder determining noneconomic restitution in a criminal case, the trial court may rely on its evaluation of the specific facts of the case evidencing the harm incurred in conjunction with the evidence of noneconomic damage imposed on the victim(s) to arrive at an amount that, in the trial court’s subjective assessment, compensates the victim(s) for their noneconomic losses caused by the wrongful act of the defendant. (Seffert, supra, 56 Cal.2d at p. 507 [“‘[i]n such cases there is no accurate standard by which to compute the injury, and the [factfinder] must, necessarily, be left to the exercise of wide discretion’”].) In Smith, for example, the trial court found the sexual molestation of the victim spanned a 15-year period, and the court multiplied that 15 years by $50,000 to arrive at noneconomic restitution of $750,000. (Smith, supra, 198

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Cal.App.4th at p. 433.) There was no method of calculating the $50,000 per year amount the trial court settled on—that amount was subjectively tabulated from the relevant evidence and the trial court’s assessment of how to value the noneconomic harm caused.

In Lehman, the appellate court rejected the defendant’s argument the trial court erred by failing to state how it calculated the amount of noneconomic restitution ordered. (Lehman, supra, 247 Cal.App.4th at p. 805.) Lehman reasoned that calculating noneconomic losses requires more subjective considerations than economic losses, and pointed out the trial court had set forth its assessment of the psychological distress suffered by both victims. Lehman concluded that, “[a]s there is no fixed standard for calculating noneconomic losses, it is unclear exactly what more the trial court could have done to explain the basis for the noneconomic restitution award.” (Ibid.)

Here, the trial court explained the basis for the award of noneconomic damages to the victims, identifying the evidence it relied on and the findings of fact it drew from the evidence regarding the harm suffered by Doe and her family. The court’s assessment of the evidence is adequate to provide a rational basis for an award of noneconomic damages. In formulating its ruling, it might be useful for the trial court to organize noneconomic losses by particular time periods, or other method or grouping, but there is no requirement that it do so.

This method of determining noneconomic restitution is also sufficient for meaningful appellate review. In reviewing a ruling awarding noneconomic restitution for an abuse of discretion, “[t]here are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant…. The amount to be awarded is ‘a matter on which there legitimately may be a wide difference of opinion’ [citation].” (Seffert, supra, 56 Cal.2d at p. 508.) Notwithstanding this complication, appellate courts are not without means to test an award of noneconomic restitution for an abuse of discretion. The record here provides the relevant facts of the underlying wrongful conduct and the claimed harm

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suffered by the victims, and the trial court’s assessment of that evidence in formulating the restitution order. In Bigler-Engler, the appellate court closely examined the evidence of noneconomic loss to determine the amount of the jury’s award of noneconomic damages was not sufficiently supported and was, therefore, legally excessive under the shocks-the-conscience standard. (Bigler-Engler, supra, 7 Cal.App.5th at pp. 302–303; cf. Lehman, supra, 247 Cal.App.4th at pp. 803–805 [affirming noneconomic restitution order as the trial court specifically identified a sufficient factual basis for the award].) Where the trial court identifies the evidentiary basis for its restitution order, it provides a basis to conduct meaningful appellate review on appeal.

Moreover, the noneconomic restitution order can be contrasted with similar cases involving awards of a comparable magnitude. (Seffert, supra, 56 Cal.2d at p. 508 [in considering whether award is excessive such that it shocks the conscience, “appellate court should consider the amounts awarded in prior cases for similar injuries”]; BiglerEngler, supra, 7 Cal.App.5th at pp. 303–304 [in addition to the damage evidence at trial, noneconomic damages deemed excessive when compared to cases involving awards of a similar amount and cases involving similar injuries].) In sum, the trial court was not required to detail a specific method of calculating the noneconomic restitution ordered. The trial court’s order, the evidence in the record, and a comparison of other similar cases provides a meaningful basis to test the noneconomic restitution order as excessive given the facts.

We turn now to consider defendant’s argument there is an insufficient factual basis to support the specific amount of noneconomic restitution ordered as to Doe and her family members.

B. Award of Restitution Based on Evidence in the Record

1. Doe

Defendant argues the abuse Doe suffered is far less egregious than in Smith, for example, where the defendant was ordered to pay his molestation victim $750,000 in

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noneconomic restitution. Defendant points out the victim in Smith had been touched by her stepfather from the age of eight years old, was orally copulated by him at age 14, and had intercourse with him from the age of 16 until she was 26. (Smith, supra, 198 Cal.App.4th at pp. 420–421.) In comparison, defendant notes, he was convicted of touching Doe’s thigh and digitally penetrating her only once, but the noneconomic restitution the court ordered to Doe ($1.8 million) is more than twice the amount ordered in Smith.

In addition to contrasting the facts of Smith, defendant contends Doe provided inconsistent reports of her emotional damage. For example, Doe made statements at the sentencing hearing that she thought about suicide, but, at the restitution hearing, she described two suicide attempts and one instance where she wished she was dead that caused her mother to take her to a mental health facility for evaluation. Defendant also contends the evidence calls into question the severity of Doe’s emotional response—she has never been admitted to a mental health facility, and she attends counseling only once every few weeks. Defendant maintains this evidence (intermittent counseling and the lack of a formal mental health commitment) is inconsistent with purported suicidal ideation spanning eight years since the abuse ceased.

The People dispute the noneconomic restitution ordered is excessive, and argue there is substantial evidence to support the amount awarded to each of the recipients, including Doe. The People point to specific evidence they claim supports each award.

Defendant responds that his claim centers on a challenge to the factual basis for the award, which he argues is distinct from a claim the restitution amount is excessive and shocks the conscience. Defendant maintains the shocks-the-conscience standard does not apply to a claim challenging the factual basis for the award. While defendant concedes there is evidence of psychological impact on Doe and her family, defendant argues that evidence simply does not support the amounts awarded. A claim of insufficient evidence to support the specific amounts requested, defendant argues, should

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be assessed by examining the underlying conduct, the psychological harm claimed, and the amount of the award to determine whether there is a sufficient factual basis reflecting a correlation between these three considerations. In other words, defendant contends, there must be a rational causal relationship between the conduct and the resulting harm alleged.

In this case, defendant maintains, the underlying conduct was on the less serious end of the spectrum—Doe suffered recurring touching of her thigh and a single instance of penetration by a father figure with whom she did not reside. The evidence of Doe’s resulting psychological harm is inconsistent and shows her condition is less serious—her suicidal ideation never resulted in any inpatient hospitalization or institutionalization, her mental health counseling is limited to once every three weeks or so, she is maintaining a trusting romantic relationship and caring for her young child.

Defendant concedes there is evidence that supports an award of some

noneconomic restitution to Doe—that is different from a claim there is insufficient evidence to support any noneconomic restitution. (See People v. Valenti (2016) 243 Cal.App.4th 1140.) In Valenti, for example, the trial court ordered $50,000 in noneconomic restitution for each of three victims. On appeal, the noneconomic restitution ordered was held to lack factual support of any type of harm suffered by the victims. The only current information was “filtered through” the victims’ parents, and the parents’ statements did not provide substantial evidence of any harm. (Id. at pp. 1182–1183.) The appellate court vacated the order, and remanded for a restitution hearing. (Id. at p. 1184.) That is not defendant’s claim here—defendant claims some lesser amount of restitution is appropriate, but that $1.8 million is excessive because, at least in part, there is no rational connection between the harm suffered and that large amount. (See Gomez, supra, 97 Cal.App.5th at p. 116, fn. 4 [declining to apply shocksthe-conscience standard where the claim is there is no factual basis for the noneconomic restitution ordered].)

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As already noted, we review restitution rulings for an abuse of discretion, which is not a unified standard. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) It calls for varying degrees of deference “according to the aspect of the trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Id. at pp. 711–712, fns. omitted.) Absent a claim there is no substantial evidence to support any award of noneconomic restitution, a challenge to the amount of noneconomic restitution ordered is a claim the ordered restitution is excessive. (Compare Smith, supra, 198 Cal.App.4th at pp. 435–437 [applying shocks-the-conscience standard where the defendant claimed the trial court erred in fixing the amount of noneconomic restitution] with Gomez, supra, 97 Cal.App.5th at p. 116 & fn. 4 [reviewing for adequate factual basis where claim is there was no evidence of any noneconomic impact on victim].)

The purported excessiveness of the noneconomic restitution awarded involves the trial court’s application of the law to the facts—which is reversible if arbitrary and capricious. (See People v. Grimes (2016) 1 Cal.5th 698, 712, fn. 4 [“abuse of discretion standard is designed to pay deference to trial court’s application of the governing law to the ‘peculiar facts of the individual case’”].) To determine whether the amount of noneconomic restitution ordered is arbitrarily and capriciously excessive, and thus an abuse of discretion, we apply the shocks-the-conscience test for all the reasons explained in Smith, which extends from the standard of review applicable to nonpecuniary damage awards in civil cases.

The shocks-the-conscience standard is not merely a facial and generic evaluation of the total noneconomic restitution ordered. As articulated in Smith, Seffert, and BiglerEngler, reviewing noneconomic damage awards involves careful consideration of the nature of the injury inflicted, evidence of the harm flowing from the injury, the trial court’s findings regarding these elements (including the substantiality of the evidence to

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support those findings), and a comparison of other cases to determine whether comparable amounts were ordered under similar circumstances. (Smith, supra, 198 Cal.App.4th at pp. 435–437 [applying shocks-the-conscience standard and noting the nature of the abuse and the harm flowing from it in determining excessiveness of damages awarded]; Seffert, supra, 56 Cal.2d at pp. 507–508 [to determine whether damage award is so grossly excessive as to shock the moral sense, appellate court must measure the extent of damages suffered by the plaintiff as result of wrongful act, which includes consideration of the amounts awarded in prior cases for similar injuries]; BiglerEngler, supra, 7 Cal.App.4th at pp. 302–303 [in applying shocks-the-conscience review to award of noneconomic damages in civil malpractice suit, court considered nature of injury sustained, pain and suffering resulting from the injury, and a review of cases involving damage awards of the same magnitude].)

Although we consider these details to determine whether the amount of

noneconomic restitution ordered shocks the conscience, our review is necessarily deferential. Where the trial court’s findings are supported by substantial evidence, we do not rethink those findings or substitute our view of the facts in place of the trial court. (See People v. Carmony (2004) 33 Cal.4th 367, 377 [“‘“‘[a]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge’”’”]; accord, City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 848.) We do not second-guess the trial court’s assessment of witness credibility, the weight ascribed to the evidence, or the trial court’s resolution of inconsistencies in the evidence. (Leff v. Gunter (1983) 33 Cal.3d 508, 518 [appellate courts “‘have no power … to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom’”].)

While we do not minimize it, the nature of the sexual abuse inflicted on Doe in this case is not at the extreme end of the severity continuum: the abuse did not involve

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intercourse, sodomy or oral copulation; there was no incest component; and the molestation was not violent. Doe did not live with defendant, and defendant did not have unfettered access to her. Defendant was not convicted of any offenses against Doe before she was 14 years old, although she testified he started touching her when she was eight years old. However, not all victims experience the same degree of trauma from molestation, and how it affects a victim can vary dramatically.

Despite that the molestation was not as heinous as it is in some cases, Doe’s and Mother’s statements and testimony indicate the effects of the abuse are fairly severe. Defendant was in a distinct position of trust—he was a family friend, and he developed a father-like relationship with Doe. Doe’s family was close to defendant’s family—they celebrated birthdays and holidays together; Doe was friends with defendant’s children; and Doe spent time at defendant’s home. Due to this, the fallout from the abuse after it became known was intense: it tore the two families apart; Doe switched high schools multiple times, and ultimately ended up finishing high school online; she became depressed and indicated she had made suicide attempts—she also testified she had called a suicide hotline several times in the months before the restitution hearing. She has lost trust in others, it affects how she parents her child, and it impacts her ability to be away from her child or let others care for the baby.

Defendant contends the evidence regarding Doe’s suicidal ideation was

inconsistent and her testimony reflects it was not especially serious. Doe indicates she attends counseling only every few weeks, even though she claims to have called a suicide hotline on several occasions in the months leading up to the restitution hearing. She has also never been admitted to a mental hospital or inpatient facility. She is in a trusting romantic relationship, and she is caring for her child. According to defendant, this does not point to someone with particularly acute suicidal tendencies or thoughts. Defendant notes Doe’s statements at the sentencing hearing referenced only suicidal thoughts, not attempts, as she indicated at the restitution hearing.

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Reasonable minds could differ as to the consistency of Doe’s testimony and the degree of suffering she experienced; however, while different factfinders might credit the testimony differently, that does not establish an abuse of discretion by the trial court. (People v. Clair (1992) 2 Cal.4th 629, 655 [facts that afford an opportunity for a difference of opinion do not establish an abuse of discretion].) The trial court was entitled to select the statements of Doe to credit or discredit, and it was the province of the trial court to resolve any inconsistencies in the testimony. (Leff v. Gunter, supra, 33 Cal.3d at p. 518.) While the molestation inflicted on Doe may not be the worst abuse imaginable, there is substantial evidence that she experienced considerable pain and suffering flowing from the abuse. While she has never been admitted to an inpatient program for suicidal ideation, that is not a minimum threshold to credit the severity of her emotional distress.

Defendant points out the trial court did not award the full amount sought for any of the victims, indicating the trial court did not credit some of the harm the victims purportedly suffered. Not so. The trial court could have fully credited all the psychological suffering to which Doe and Mother testified, but concluded a different value from what the victims requested was sufficient to compensate for it.

We also do not find the $1.8 million restitution award to Doe to be wholly disproportionate to other similar cases. For example, in Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023 (Ortega), a teacher molested a young girl (Mona Lisa) by touching her breast or bra under her sweater. (Id. at p. 1033.) She told friends the teacher had molested her, and word spread around the school. (Ibid.) The principal called her to his office, and Mona Lisa was forced to wait for her parents for hours in the office in front of a window where everyone could see her. (Id. at pp. 1033– 1034.) During the investigation, the teacher’s lawyer asked the teachers to start phoning the sheriff’s office to tell them the teacher was a “‘good guy’” and by implication “‘maybe say something about the girl.’” (Id. at p. 1034.) Mona Lisa began receiving

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“‘crank’” phone calls from boys who would make sensual noises over the phone and say they wanted to have sex with her; she also received calls from girlfriends who told her to stop pursuing her claim. (Id. at pp. 1034–1035.) The phone calls from the boys became so irksome, the family changed their phone number. (Id. at p. 1035.) Everyone shunned Mona Lisa—the teacher was very popular and “had friends and relatives everywhere who ‘adored him.’” (Id. at p. 1035.) The sheriff’s office had problems verifying Mona Lisa’s timeline, and she seemed unsure of exactly when the touching had occurred on the day in question. Ultimately, under her father’s pressure, Mona Lisa recanted. (Ibid.)

The teacher sued Mona Lisa and her parents for defamation, and after Mona Lisa stated in deposition that her claim was false, the family’s homeowner insurance company settled the lawsuit for $50,000. (Ortega, supra, 64 Cal.App.4th at p. 1036.) A few years later, another student reported the teacher had molested her, criminal charges were filed, the teacher ultimately pleaded no contest to the charges against him, and Mona Lisa filed a civil suit against the teacher. (Id. at pp. 1036–1041.)

In Mona Lisa’s civil trial, the jury awarded her $1.5 million in noneconomic damages. (Ortega, supra, 64 Cal.App.4th at p. 1056.) The trial court concluded the damages were not excessive, and the appellate court affirmed. (Id. at pp. 1059–1061.) The appellate court explained the award was not excessive in light of the evidence of the suffering inflicted on the victim: “Mona Lisa’s pain and suffering as a result of the [molestation incident] were well documented at trial. She was rejected by her friends, family, and school officials. No one believed her. When she reported the incident to the principal, he put her into a room with windows where her fellow students could stare at her. For a shy, insecure, unsophisticated 12-year-old girl, this experience was traumatic. Then [the teacher] sued her for defamation and the District intervened in that action. She spent most of her high school years in her bedroom, with eating disorders, refusing to communicate with her parents or anyone else. She had no friends at all. Her appearance changed, she was angry, resentful, alienated from society. Her parents blamed her for the

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lawsuit, and her once-close relationship with her father was destroyed. For years, her tale followed her wherever she went: She was the girl who had leveled the ‘false charges’ against a beloved, dedicated teacher. As a result, she changed schools often.” (Id. at p. 1061.)

The sexual molestation in Ortega was limited to one touching episode, but the harm caused by it went on for years, and it caused ripples of pain and suffering throughout the victim’s life. By comparison, Ortega is similar to this case, and the $1.5 million noneconomic damages awarded in Ortega is of comparable magnitude with the $1.8 million in noneconomic restitution awarded here, especially since the Ortega award was made approximately 30 years ago.

While the published cases in the criminal restitution context involve smaller noneconomic restitution amounts than awarded here, several of the cases involve amounts that are near or at a million dollars in noneconomic restitution. (See Lehman, supra, 247 Cal.App.4th at p. 800 [$900,000 and $100,000 noneconomic restitution to two victims, respectively]; People v. McCarthy (2016) 244 Cal.App.4th 1096, 1102 [$1 million in noneconomic restitution to the victim]; Smith, supra, 198 Cal.App.4th at p. 433 [$750,000 noneconomic restitution].) The Lehman and Smith victims reported similar noneconomic losses to Doe here: isolation, nightmares, flashbacks, difficulty keeping jobs, unfinished education, and suicide attempts (Smith, supra, at p. 432); daily emotional pain, feelings of betrayal and self-hatred, and the need for weekly counseling (Lehman, supra, at pp. 799, 804). Viewed next to these cases, the $1.8 million noneconomic restitution amount is not grossly excessive such that it shocks the conscience.

In sum, the injury and the harm suffered are supported by substantial evidence, and comparable nonpecuniary losses have been awarded in similar cases. We cannot conclude the $1.8 million noneconomic restitution order is so grossly excessive it shocks the conscience, representing an abuse of discretion.

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2. Mother

Defendant argues the $250,000 in noneconomic restitution ordered to Mother is not substantially supported by the factual record. Although she described experiencing relentless pain, crippling anxiety, depression, and that she needed counseling for help coping, she did not describe the duration of her symptoms; defendant claims no evidence supported the $250,000 amount awarded.

As with Doe, defendant is not arguing there is no substantial evidence to support an award of noneconomic damages to Mother, but that $250,000 is excessive based on the evidence of nonpecuniary loss Mother suffered. Because of the abuse, as the trial court explained, Mother—a single mother—had to relocate the family to a new home; she organized mental health counseling for herself and all her children. Doe became suicidal—Mother had to take time off from work to organize therapy appointments for Doe; Doe’s mental health was not stable, and Mother feared if she left home, Doe would commit suicide. Emergency services were called several times, and the police came because Doe was suicidal. Mother continues to suffer depression, anxiety and nightmares; she continues with mental health counseling.

In light of the evidence of harm, and the trial court’s assessment of the evidence, the award of $250,000 in noneconomic harm as to Mother does not shock the conscience. Mother described a significant amount of pain and suffering, which the trial court credited. She was a single, working mother responsible for five children, one of whom became suicidal due to defendant’s abuse. She took leave from work between 2018 through 2020 due to Doe’s mental health issues, which caused Mother serious stress. The family had to move to avoid defendant, Doe switched schools several times, the children quit sports and the family isolated themselves. Mother’s statements evidence a significant amount of emotional stress. The pain and suffering Mother endured was not slight or insignificant, and it has continued for many years.

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Mother made some statements at the sentencing hearing indicating she has suffered guilt about the abuse because she knew defendant was a section 290 registrant before the abuse was reported, and she still allowed Doe and her children to interact with him. Defendant argues this is relevant because this trauma relates to Mother’s behavior, rather than that of defendant. While the trial court could have viewed her statements in this manner and given them great weight, it did not. It was the trial court’s province to assess and weigh Mother’s testimony and the evidence of her noneconomic losses—we cannot second guess the trial court’s assessment of her testimony, or supplant it with a different view of the evidence.

The trial court did not abuse its discretion by ordering $250,000 in noneconomic restitution for Mother.

3. A. and K.

The trial court ordered noneconomic restitution for Doe’s siblings A. and K. in the amounts of $25,000 and $10,000, respectively. The trial court acknowledged the evidence of their trauma “was limited in that it was presented by the testimony of their mother, but the evidence was clear that both suffered trauma and psychological harm as a result of the victimization of Doe, their sister.”

Defendant contends the evidence offered through Mother was insufficient to support any award of restitution to either sibling. Defendant notes A. was 23 years old while K. was 17 years old at the time of the restitution hearing, but neither appeared nor supplied any statement to the trial court. Mother described A. as having an extreme response to Doe’s molestation, but defendant claims there was no rational link between A.’s reaction to his sister’s abuse and defendant’s conduct. Both siblings reportedly experienced social issues, and they quit playing sports because they did not want to be around anyone associated with defendant or those who supported him. Defendant maintains this consequence relates more to other people’s conduct than to defendant’s conduct. According to defendant, even less detail was provided by Mother about K.’s

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harm—Mother described her children’s responses collectively, and did not detail exactly what K.’s harm was specifically.

The People maintain Mother’s testimony at the restitution hearing about her children’s suffering is substantial evidence that supports the award of noneconomic restitution for A. and K. The People emphasize it is the province of the trial court to assess credibility and weigh the evidence—the trial court credited Mother’s testimony, and it supplies substantial evidence to support the award of noneconomic restitution to A. and K.

“[S]ection 1202.4 does not require any particular kind of proof to establish a victim’s losses” (Lehman, supra, 247 Cal.App.4th at p. 803), and the “evidentiary bar is a low one” (Gomez, supra, 97 Cal.App.5th at p. 119). In requesting noneconomic restitution, the victims were not required to present testimony or affidavits: “Statements and testimony may be presented to the court or probation officer by the victim’s parents, a treating physician or therapist, or others with personal knowledge of the impact on the victim.” (Id. at p. 120.)

Mother’s statements were an appropriate evidentiary basis on which the trial court could predicate an award of noneconomic restitution to A. and K. (Gomez, supra, 97 Cal.App.5th at p. 120.) There is no requirement that A., even though an adult at the time of the restitution hearing, make a personal statement or give testimony. (Id. at pp. 119– 120 [“ the evidentiary bar is a low one” and statements and testimony about noneconomic damages may be presented by parents, among others].) Mother explained that A. was particularly close to Doe, and felt responsible for failing to protect her. Mother described A.’s life as being altered the most of all Doe’s siblings due to the abuse. Mother explained that A. was a happy kid before the abuse was reported, enjoying high school and his friends, but, after the disclosure, he transferred schools, he stopped playing basketball, and he became sullen and unhappy. She explained A. had a sense of guilt that

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he did not know what was happening to Doe at the time, and he exhibited feelings of guilt that he was not able to protect her.

The trial court explained the evidence on which it relied and credited the award of noneconomic restitution to A., and Mother’s statements to the court provide substantial evidence to support it. The $50,000 noneconomic restitution amount does not shock the conscience as grossly excessive given the harm specifically suffered by A. (Smith, supra, 198 Cal.App.4th at p. 436.)

As to K., Mother’s statements describing the effects of the abuse on K. were generically worded as the effects on Doe’s siblings and the family generally—there was no testimony given about the particular emotional damage suffered by K. as a result of Doe’s abuse. Mother described that the children stopped playing sports and attending public events, but she did not discuss how those things evidenced emotional damage as to K. While K. apparently continued with counseling, there was no evidence about why she did so, or whether that counseling was reflective of past or continuing emotional harm caused by Doe’s abuse. (See Valenti, supra, 243 Cal.App.4th at pp. 1182–1183 [parents’ statements did not reflect any specific noneconomic damage to the victims sufficient to support an award of noneconomic restitution].) The evidence presented by Mother as to K. did not relate specifically to K.—it was too general and did not establish any specific noneconomic loss as to K. As a result, the noneconomic restitution as to K. is unsupported by substantial evidence.

C. Conclusion

Determining an award of noneconomic restitution does not require the trial court to articulate a specific calculation method—it is necessarily a subjective analysis that is fact sensitive. When a party claims the trial court’s award of noneconomic restitution is excessive, we apply the shocks-the-conscience standard to determine whether the award amount is arbitrarily and capriciously excessive. (Smith, supra, 198 Cal.App.4th at p. 436.) We emphasize here that this standard of review involves more than a facial and

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generic evaluation of the total amount of noneconomic restitution ordered. (See, e.g., Bigler-Engler, supra, 7 Cal.App.5th at pp. 302–304.) Giving appropriate deference to the trial court’s assessment of the facts, evaluating whether an award of noneconomic restitution is so grossly excessive it shocks the conscience involves an examination of the nature and extent of the harm inflicted, the noneconomic losses suffered by the victim(s), and, where possible, a comparison to other similar cases. Importantly, however, comparable harm in other cases may not result in the same amount of noneconomic loss—the extent of psychological harm suffered may vary dramatically from victim to victim. Our role is not to reweigh the evidence or rethink the trial court’s findings, but to evaluate whether the relevant criteria reflect an award of noneconomic restitution that is arbitrarily and capriciously excessive.

Applying this standard, the noneconomic restitution ordered as to Doe, Mother and A. is not so excessive as to shock the conscience. As to K., the evidence does not reflect any noneconomic damage specific to K., and the restitution order as to K. is unsupported.

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DISPOSITION

The noneconomic restitution as to K. is unsupported by substantial evidence showing she suffered any noneconomic loss as a result of Doe’s abuse, and thus we vacate the award of noneconomic restitution to K., and modify the order accordingly. In all other regards, the trial court’s order is affirmed.

MEEHAN, J.

WE CONCUR:

DETJEN, Acting P. J.

SNAUFFER, J.

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