Opinion
A166044
05-17-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO ROJAS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 05001923325)
TUCHER, P.J.
Defendant Jose Alfredo Rojas appeals a judgment entered upon a jury verdict finding him guilty of 12 sexual crimes against a child. He contends that the trial court erred in instructing the jury and in ordering victim restitution and that the prosecutor committed misconduct. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Doe's Testimony
Jane Doe 1 (Doe) was born in September 2004. Defendant began dating Doe's mother (Mother) when Doe was about four or five years old, and the three of them began living together shortly thereafter. Doe's half-sister (Sister), who is defendant's daughter, was born in 2011. Defendant would take care of Doe while Mother was at work or out of the house.
The first act of sexual abuse took place when Doe was seven or eight years old. Defendant told Doe he was going to blindfold her and they would play a game in which she would guess the flavor of a popsicle. He told her to get on her knees and, while she was blindfolded, he put his penis in her mouth as he stood before her. She did not tell anyone about this event because it was awkward and she was embarrassed.
As time went on, defendant touched Doe on other parts of her body. He touched her chest both over her clothing and directly on her skin. He did so multiple times a week, "[e]very day for a long time," "a lot more than once per year" from the time she was seven until she was around 12 years old. He touched her buttocks, both under and over her clothing, approximately once a week over the same time period. Beginning a couple of days after the first act of abuse, defendant began to touch Doe's vagina, sometimes penetrating it with his finger. He put his finger in her vagina "[a] lot of times," at some points every day or perhaps every week, and at least once a year from the time she was seven to at least the age of 12. The last time he put his finger in Doe's vagina was about the time she was 12 or 13 years old.
Beginning when Doe was seven or eight years old, defendant sometimes would come up to her when she was lying on her stomach watching television, and pull her pants and underwear down to her thighs. He would then sometimes pull her legs apart and rub his penis on her buttocks or vagina, without entering them, until he ejaculated. This happened at least once a month until she was about 13 years old.
When defendant touched Doe, she would "block[] it out," or "zone out or focus on the TV and kind of like blur my eyes." Once Doe started middle school, she would tell defendant to stop when he tried to abuse her.
Doe described one incident in particular. When she was "[m]aybe" 10 years old, she went to the Oakland Zoo with defendant and Sister. Defendant parked in the parking lot, away from other cars and next to a shade tree. Sister was in her car seat in the back seat. Defendant pulled his penis out of his pants, then moved Doe's hand up and down on his penis, and guided her head to downward and had her orally copulate him for two or three minutes. Something distracted them, and the three of them went into the zoo.
On cross-examination, Doe testified she did not remember her age at the time, but that she was "[l]ike, 10, 11" when incident took place.
In the summer after seventh grade, after Mother's relationship with defendant ended, Doe moved with Mother to a different county. She lived there until early in her freshman year in high school, when she returned to Contra Costa County. Doe then began seeing defendant regularly again. He would still touch her over her clothes, but would no longer force her to do anything, instead trying to bribe her with money. Doe would refuse to accede to his requests. During the time she had been away, she had realized there were "better things to do with your life than comply," and she had been happier.
During the time defendant was abusing Doe, they often got along well. He would take her to the park or to the movies and they would text each other about normal things. Doe did not tell Mother about defendant's actions because she cared about both Mother and defendant. She did not want Mother to be "stressed out" or sad or to blame herself, she did not want Sister to lose her father, and she did not want defendant to go to jail. Defendant would tell Doe not to say anything about the abuse, and he suggested it would be sad if Sister were to grow up without a father, as Doe was doing. Doe once asked defendant why he abused her but not Sister, and defendant said it was because Doe was not his real daughter. This response made her feel sad and disappointed.
On one occasion, Doe sent defendant a text message that said, "[Y]ou won't understand I didn't choose for you to even be in my life, that was my mom, and I would tell her, but then I have [Sister], and [Sister] needs a dad. I don't have one and you're not my dad or my stepdad."
On August 15, 2019, in the summer after Doe's freshman year of high school, Mother and Doe argued while defendant was present, and Mother asked Doe why she had been misbehaving. Doe suggested defendant tell Mother, and defendant looked frightened. Doe told Mother of defendant's sexual abuse, and she told Mother it was "getting really exhausting." That was the last time she saw defendant until the trial.
The police were summoned, and Doe spoke with them. Afterward, everyone in the house was "just depressed, and the house was quiet." Mother started working more, Doe had to care for Sister more, Doe had to find a second job, she started skipping classes, and her grades suffered. Doe testified that Sister did not know why defendant was no longer around, and Doe felt sad and guilty about that.
II. Evidence of Other Acts
The People also provided evidence of uncharged crimes involving a different victim, Jane Doe 2 (Doe 2), who was born in February 2002. Doe 2 was defendant's niece. She lived in El Salvador when she was a child, and defendant made several trips to visit the family. During one visit, when Doe 2 was six or seven years old, she was sleeping in a hammock. Defendant pulled her zipper down to get into her pants. Doe 2 asked him what he was doing, and he told her to go back to sleep.
When Doe 2 was about 13 years old, defendant asked her to send sexual photographs to him, and he told her he would give Doe 2's mother money if she did so. Doe 2 sent photographs because she thought defendant would not continue to help her mother financially if she did not. Doe 2 characterized the photographs she sent before she was 15 years old as "sexy," and when she was 15 she began to send him pictures of herself entirely naked.
On one occasion, when Doe 2 was 14 years old, defendant said he wanted to buy pizza for the family, and he took Doe 2 with him. He drove to a road with hotels and motels, and he told Doe 2 she had to "pay up for everything that he had been sending to [her] mom," in reference to money he had been sending. Doe 2 understood him to mean that she needed to sleep with him, she refused. Defendant got angry and tried to hit her. She threatened him with jail, and he did not persist.
In September or October of 2018, defendant was again in El Salvador, at a time that Doe 2's mother was away from the home and Doe 2 was on her own with her sister. According to Doe 2, defendant "wanted to be paid for everything that he had sent to [her] mom." During the visit, Doe 2 had nonconsensual sexual intercourse with defendant; she testified he "just took [her] by force." Afterward, defendant gave $100 to Doe 2.
Doe 2 left El Salvador in November 2018 and came to the United States. Her immigration case manager suggested she live with defendant, and she disclosed the abuse to avoid being sent to live with him. She did not discuss the matter with anyone in law enforcement until August 22, 2019. She and Doe did not know each other.
III. Electronic Evidence
Defendant's cell phone was seized when he was arrested. Data from the cell phone showed that it had been at the Oakland Zoo on April 18, 2015.
The phone had been in El Salvador between September 22 and September 29, 2018. It had been used to search for the terms" 'tiny teen anal'" and "[h]er 8-year-old daughter masturbates her boyfriend, and she transmits it on FB live."
IV. Verdict, Sentence, and Restitution
The jury found defendant guilty of five counts of oral copulation or sexual penetration with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); counts 1, 2, 4, 5 & 6), five counts of forcible lewd act upon a child (§ 288, subd. (b)(1); counts 3, 9, 10, 11 & 12), and two counts of aggravated sexual assault on a child (§ 269, subd. (a)(5); counts 7 & 8).
All statutory references are to the Penal Code.
The trial court imposed consecutive sentences of 15 years to life for the five violations of section 288.7, subdivision (b) and the two violations of section 269, subdivision (a)(5), as well as consecutive eight-year terms for the five violations of section 288, subdivision (b)(1), for a total prison term of 145 years to life. It ordered defendant to pay $250,000 in victim restitution. This timely appeal ensued.
DISCUSSION
I. Instructional Error
Count 2 alleged that defendant committed oral copulation with a child 10 years old or younger (§ 288.7, subd. (b)) on or about April 18, 2015, the day defendant's phone indicated he was at the Oakland Zoo. On that date, Doe was 10 years old; she would turn 11 about five months later, in September 2015.
In connection with this count, the jury was instructed pursuant to CALCRIM No. 1128 that the People must prove that (1) defendant engaged in an act of oral copulation with Doe; (2) Doe was 10 years of age or younger when he did so; (3) defendant was at least 18 years old at the time; and (4) the act was "committed on or about April 18, 2015." And, in an instruction defendant contends was improper in this context, the jury was also instructed pursuant to CALCRIM No. 207 that the People were not required to prove that the crime charged in count 2 "took place exactly on [April 18, 2015] but only that [the crime] happened reasonably close to that date."
Defendant contends that it was error to instruct the jury with CALCRIM No. 207 because the jury might have interpreted "reasonably close" to include a time five months after April 18, 2015, when Doe was no longer 10 years old, thus, he argues, "effectively eras[ing] the age element of section 288.7, subdivision (b)." And, he posits, because Doe told a law enforcement officer in August 2019 that the last time she orally copulated defendant was "like a year ago," at a time she would have been 13 years old, the act of oral copulation alleged in Count 2 could have taken place well after Doe was 10 years old. We are unpersuaded.
First, we note that defendant did not raise this claim before-as he acknowledges-and he therefore forfeited it." 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.'" (People v. Hart (1999) 20 Cal.4th 546, 622.) "CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove that the offense was committed on that precise date, but only that it happened reasonably close to that date." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304 (Rojas).) By failing to ask for a modification or clarification of the instruction-for instance, to instruct the jury that any date after Doe's eleventh birthday was not "reasonably close" to the alleged date of the offense-defendant forfeited his claim. We therefore review the instructional error only to determine if defendant's substantial rights were affected or the instruction resulted in a miscarriage of justice. (Ibid.)
Defendant has not shown either that these standards are met or that there is any likelihood the jury was misled by the instruction. In evaluating a claim of instructional error, we "consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law," viewing the challenged instruction" 'in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.'" (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We "consider the entire charge of the court," and "we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." (People v. Mills (1991) 1 Cal.App.4th 898, 918.)
There is no reasonable likelihood that the jury misapplied the challenged instruction. The jury heard evidence that Doe was born in September 2004. It was instructed that to find defendant guilty of the crime alleged in count 2, it must find the act was committed "on or about April 18, 2015." Crucially, it was also instructed it must find beyond a reasonable doubt that the act occurred when Doe was 10 years of age or younger. In closing argument, the prosecutor described count 2 as "the Oakland Zoo incident," adding, "We know she was ten at the time because we [have defendant's] cell phone data." The jury was thus left in no doubt not only of the date of the incident alleged to form the basis of count 2, but also that an element of the offense was that it take place while Doe was no more than 10 years old. In the context of the instructions as a whole and the trial record, there is no likelihood that the jury would have misinterpreted CALCRIM No. 207 to mean that it could find that a date after Doe 2 turned 11 years old was "reasonably close" to April 18, 2015 for purposes of determining whether defendant was guilty of committing oral copulation with a child 10 years of age or younger.
We recognize that there are cases in which the use of CALCRIM No. 207 may mislead a jury. In Rojas, for instance, the defendant was charged under a then-new criminal statute that became effective on September 20, 2006. (Rojas, supra, 237 Cal.App.4th at p. 1306, citing § 288.7; Stats. 2006, ch. 337, § 9.) The offense was alleged to have been committed on or about December 1, 2006 through August 5, 2011. As to this count, the jury was instructed that the People need not prove the crime took place exactly during that time period, but only that it occurred after August 12, 2005. (Rojas, at pp. 1303, 1307.) This instruction, the appellate court concluded, was "objectively confusing" and left open the possibility that the jury convicted the defendant based on an act that took place before the September 2006 effective date of the statute, resulting in an ex post facto violation. (Id. at p. 1307.)
The case before us does not involve a similar risk of confusion. Nothing in the instructions would lead the jury to disregard the admonition that the People must prove defendant committed the act alleged in Count 2 while Doe was no more than 10 years old, and there is no basis to think the jury would consider a time after that age to be "reasonably close" to the date defendant was alleged to have committed the crime.
Another example defendant points to is People v. Jones (1973) 9 Cal.3d 546, 556-557, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069 & fn. 13, which concluded a similar instruction that the People need not prove the precise date on which the crime occurred (CALJIC No. 4.71) should not have been given where the prosecution's evidence fixed the commission of the offense at a particular date and the defendant presented alibi evidence for that time. Defendant claims no alibi for April 18, 2015, and the rule of Jones has no application here.
We therefore reject defendant's claim that the trial court erred in instructing the jury with CALCRIM No. 207 in connection with count 2.
II. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during closing argument by relying on matters not in evidence, which she described as "realities" faced by law enforcement officers and prosecutors in child molestation cases.
During her closing argument, the prosecutor asked the jury to "keep a few realities in mind" during deliberations, "[r]ealities that are faced by law enforcement and prosecutors every day when it comes to cases such as this." Those "realities," she argued, were "[f]irst, [that] people who molest children don't usually do it out in the open," so that the victims themselves must come to court and testify, where "oftentimes, they stand alone against their abuser."
The second "reality" was that "oftentimes children who are being sexually abused won't report it, maybe ever. And when they do, there might be a significant delay. There are all kinds of reasons for that that just in common sense we know." She then pointed to two things to explain Doe's delay in reporting: she was too young at the time the abuse began to understand the meaning of what defendant was doing to her, and she feared the harm that would be caused by disclosing that a family member had abused her.
The third "reality," the prosecutor argued, was "generalized testimony," meaning that when multiple similar crimes were committed against a child frequently over a long period of time, she might not be able to differentiate one event from another. This is "something that, if you think about, makes a lot of sense," the prosecutor averred, in contrast to a hypothetical robbery victim who "could probably tell pretty specific details" because the "single incident . . . would stick out in [the victim's] mind." Moreover, "a child who has experienced this type of situation" may "try her best to tune it out," the prosecutor continued, as Doe did when she tried to "look at the TV and blur her eyes" during the sexual abuse and "then just forget about it and move on."
"[D]efendant knows about these realities," the prosecutor concluded. "He knows about the limitations of evidence in cases like this. And he used them against [Doe]" to avoid being held accountable for his crimes.
In so arguing, defendant contends, the prosecutor improperly vouched for the strength of her own case, relying on the prestige of her office rather than the evidence presented at trial. That is, without an evidentiary basis the prosecutor described the theory of" 'Child Sexual Abuse Accommodation Syndrome'" and used it as an affirmative argument for defendant's guilt, defendant contends.
The Attorney General correctly points out that defendant forfeited this claim by failing to raise it below. In general," '[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.'" (People v. Lopez (2008) 42 Cal.4th 960, 966.) However, the failure to object is excused "if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct." (People v. Centeno (2014) 60 Cal.4th 659, 674.)
Defendant contends objection would have been futile because by the time the theme of the prosecutor's argument was clear, the argument had continued too long for an objection to be effective. We are unpersuaded. If indeed the prosecutor was relying on the prestige of her office rather than on matters properly before the jury, there is no reason to think the trial court would have refused to consider an objection or provide an appropriate admonition to the jury. (See People v. Bemore (2000) 22 Cal.4th 809, 854 [appellant failed to preserve claim of misconduct where curative steps could have been taken]; People v. Bell (1989) 49 Cal.3d 502, 539 [claim of prosecutorial misconduct forfeited by failure to object where impropriety could have been offset by instruction or admonition].)
As a fallback, defendant contends his counsel rendered ineffective assistance by failing to object to the argument. To establish ineffective assistance of counsel, a defendant must show that counsel's performance was deficient-that is, that it" '"' "fell below an objective standard of reasonableness . . . under prevailing professional norms" '" '" and that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel).) Ineffective assistance of counsel is shown on direct appeal only if "there is affirmative evidence that counsel had '" 'no rational tactical purpose'"' for an action or omission." (Ibid.) And in considering defendant's contention, we bear in mind that" '[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.'" (People v. Williams (1997) 16 Cal.4th 153, 221.)
Under these standards, defendant has not shown either that his counsel could have no rational tactical reason not to object to the prosecutor's argument, or that he suffered prejudice. A prosecutor has wide latitude during closing argument. (People v. Stanley (2006) 39 Cal.4th 913, 951.) Arguments may properly be "based on evidence, including reasonable inferences or deductions drawn from the evidence, and on matters that are common knowledge" (People v. Mendoza (2000) 24 Cal.4th 130, 172) or based on common experience (Stanley, at pp. 951-952).
The prosecutor's arguments were largely grounded in the facts of the case and in common experience. It is not outside common knowledge that child sexual abuse is unlikely to take place out in the open, and the evidence in this case shows defendant in fact sought to hide his actions. It is within common experience that young children are unlikely to have a full understanding of sexual matters and that a child such as Doe, who loved and depended on her family, might fear the turmoil and pain that would be caused by accusing a family member of sexual abuse. And the evidence shows defendant took advantage of that knowledge by pointing out to Doe that Sister could grow up without a father if Doe reported him. Finally, it is well within common understanding that a person who suffers regular abuse for years might not be able to recall each event in separate detail, and this was illustrated both by the general nature of some of Doe's testimony and by her testimony that she tried to "blur" her eyes and block out the abuse.
On this record, there is no affirmative showing that defendant's trial counsel rendered ineffective assistance. He may well have been of the view that an objection was unnecessary or would not be well taken because the prosecutor's argument was sufficiently tied to the evidence in the case. He may also have made the tactical choice instead to undermine the challenged statements in his own closing argument. (See People v. Johnsen (2021) 10 Cal.5th 1116, 1165.) During his closing remarks, defense counsel pointed to the prosecutor's statements and argued, "simply because in other cases where children are molested, . . . there's problems with the evidence[,] [t]hat really has nothing to do with this case." He pointed out that there was no expert evidence that Doe was behaving in a manner typical of someone who was being molested, and he urged the jury to decide the case on the facts before it. We cannot say this approach was outside the scope of reasonable professional assistance. (See Mickel, supra, 2 Cal.5th at p. 198)
Moreover, even to the extent the prosecutor strayed from the trial evidence to generalize about "realities" faced by law enforcement and prosecutors and an objection would have been well taken, defendant has not established he suffered prejudice from his counsel's failure to object. The prosecutor's statements were closely tied to what the evidence showed and to what jurors would understand from common experience. Indeed, the prosecutor expressly appealed to the jury's "common sense" in setting forth these so-called "realities." Moreover, the jury was instructed that it must decide the case based on the evidence and that the remarks of attorneys in closing arguments are not evidence. We presume the jury followed the trial court's instructions. (People v. Sibrian (2016) 3 Cal.App.5th 127, 138.) On this record, there is no reasonable probability the outcome of the trial would have been different had the prosecutor not made the argument defendant challenges.
Defendant has thus failed to establish his counsel rendered ineffective assistance in failing to object to the prosecutor's closing argument.
III. Award of Restitution
Defendant contends the trial court abused its discretion in awarding $250,000 in restitution to Doe.
The probation officer's report indicated the District Attorney's office would request restitution of $100,00 per year of abuse-for a total of $700,000-in noneconomic damages. According to a transcript of the July 1, 2022 sentencing hearing, the trial court indicated it was going to order restitution, told the parties the number it had in mind was $200,000, and reserved the question of restitution for a later hearing. The minutes of the July 1 hearing, however, state the court's tentative award was $250,000.
At the July 29, 2022 hearing, the trial court awarded $250,000 in restitution, an amount it indicated reflected its earlier tentative award. The court stated its award was based on its observation of Doe when she testified as well as other factors, including amounts that had been awarded in other cases and the defendant's ability to pay, rather than "some arbitrary figure that is some wholly unrealistic huge amount" intended to send a message. And, the court explained, the award "reflects five-plus years of sexual assaults by [defendant] upon a minor child. And notwithstanding the fact that one could listen to the testimony at the trial and say this is a child that could be viewed as having survived reasonably well under all the circumstances, there's no doubt in my mind that the extensive five-plus years of sexual assaults upon her and acts committed . . . against her will, and using the authority of a father figure with the dominance that comes with that position, there's no doubt in my mind that [Doe] would have suffered dramatically. And she indicated in the letter that was read in court that she has suffered dramatically, particularly psychiatric/psychological anguish over what has happened to her." The trial court characterized its award as "on the lower end of the spectrum" for such awards.
Defendant contends the award was an abuse of discretion both because there is no evidence of any particular impact his crimes had on Doe and because, without explanation, the trial court increased its intended award from $200,000 to $250,000.
When a defendant is convicted of a violation of section 288 or 288.7, the restitution awarded by the trial court should include reimbursement not only for economic losses, but also for noneconomic damages, including psychological harm, suffered by the victim. (§ 1202.4, subd. (f)(3)(F); see People v. Valenti (2016) 243 Cal.App.4th 1140, 1181 (Valenti).) We review a restitution order for abuse of discretion, and reverse only if there is no rational or factual basis for the restitution ordered. (People v. Gomez (2023) 97 Cal.App.5th 111, 116 (Gomez).)
It is well recognized that child sexual abuse may result in lasting emotional and psychological harm to the child if untreated. (People v. Martinez (2017) 8 Cal.App.5th 298, 305.) But a trial court may not simply presume a child has suffered psychological harm and award restitution accordingly, and it may not simply apply its own experience and common sense regarding similar incidents. Rather, to support restitution for noneconomic damages, the record must contain some evidence of the injury incurred by the victim, although by its nature the appropriate amount of restitution for noneconomic damages is difficult to quantify. (See Gomez, supra, 97 Cal.App.5th at p. 119.)
The evidentiary bar for such an award is a "low one." (Gomez, supra, 97 Cal.App.5th at p. 119.) For example, the evidence was found sufficient in People v. Lehman (2016) 247 Cal.App.4th 795, where the trial court awarded restitution of $900,000 to one child victim and $100,000 to another, after both were sexually abused by their grandfather. (Id. at pp. 797, 800.) As to one victim, the trial court explained, she had described the emotional pain she suffered both in her trial testimony and in her statements at sentencing," '[t]he pain she endured in reliving these events was palpable," and "no one can reasonably contest that the defendant's long-term and extensive molestation . . . caused her immeasurable psychological harm." (Id. at pp. 802-803.) At the sentencing hearing, the victim stated that as a result of the defendant's actions, every day was a challenge, she attended counseling, she said defendant had" 'crippled'" her life and she could not erase the pain, and she felt" 'gross, dirty, and unloveable.'" (Id. at p. 804.) The other victim, who had suffered less severe abuse, was" 'visibly distraught'" during her testimony, which she attributed to the fact that the defendant had also abused her sister and she had to discuss the harm the family had suffered as a result of the defendant's conduct. (Id. at p. 803.) The appellate court concluded this showing was sufficient to support the award of restitution for the victims' noneconomic losses. (Id. at p. 804.)
A similar result was reached in People v. Smith (2011) 198 Cal.App.4th 415. The trial court awarded $750,000 in restitution to a victim who had been molested and isolated, was still having nightmares and flashbacks, had twice attempted suicide, and was having trouble finishing her education and keeping jobs. (Id. at p. 432.) Because the award did not "shock the conscience or suggest passion, prejudice or corruption on the part of the trial court," the appellate court concluded there was no abuse of discretion. (Id. at pp. 436-437.)
An abuse of discretion has been found, however, when there was no evidence to support the award of noneconomic damages. In an illustrative case, our colleagues in Division Five of this court recently reversed a restitution award that had no evidentiary basis. (Gomez, supra, 97 Cal.App.5th 111.) The conviction there was based on a guilty plea, the victim did not testify at the preliminary hearing, and the officer who testified did not describe the victim's demeanor when she was interviewed or when she made a pretext call to the defendant. (Id. at p. 114.) The probation report contained no information about the victim, and the statement of the victim, which was read by the prosecutor at the sentencing hearing, contained no information about the impact of the crimes on the victim except to describe the defendant as a" 'setback.'" (Ibid.) In awarding $100,000 in restitution, the trial court relied solely on its "experience and common sense regarding similar incidents." (Id. at p. 119.) This, our colleagues explained, was an abuse of discretion: although the bar was low, "there must be some evidence of the impact of the crime on the particular victim," evidence that was lacking there. (Id. at pp. 119-120.)
Similarly, in Valenti, the noneconomic restitution award of $50,000 for each of three child victims of lewd acts was unsupported where the only current information about the victims came through their parents, who reported the children were doing" 'fine'" or" 'excellent'" or" 'did not sustain actual child abuse.'" (Valenti, supra, 243 Cal.App.4th at pp. 1182-1183.) There was no evidence the children were suffering nightmares, having trouble in school or social life, considered harming themselves, or received counseling. (Id. at p. 1183.) Thus, there was no rational basis for the award. (Id. at pp. 1183-1184.)
While the evidence of Doe's noneconomic losses is less than overwhelming, we conclude it is sufficient to support the trial court's restitution award under these standards. The probation officer's report indicates that before Doe disclosed the abuse, she had been "exhibiting numerous problematic behaviors, including being rebellious," and Doe attributed her behavioral problems to the abuse defendant had inflicted. In her testimony, Doe described the continuing sexual abuse as "really exhausting." She endured it for years in part because she feared the impact on her family if she revealed it, and her fears were realized when she did so. The house was quiet and everyone was depressed. Doe began skipping school, she had to work at two jobs, her grades suffered, at the time of trial she still felt "a lot of pressure," and she felt bad and guilty about the effect of the events on Sister. The text Doe sent to defendant telling him she had not chosen to have him in her life, that she did not have a father, and that she was not reporting him because "I have [Sister], and [Sister] needs a dad" poignantly illustrates her fears and suffering. Doe testified that defendant's explanation that he abused her because she was not his "real daughter" saddened her. This record sufficiently supports a finding that Doe suffered significant noneconomic harm as a result of defendant's crimes against her.
Defendant complains that the unexplained change from a tentative award of $200,000 in restitution to the $250,000 the trial court actually imposed also shows the unsupported character of the award for noneconomic harm. He makes no other challenge to the specific amount the trial court selected for the award. On this record, it is not clear whether the trial court misspoke at the July 1, 2022 sentencing hearing, whether there was a transcription error at that hearing, or whether the trial court's later memory of its intended award was faulty. Regardless, there is no reason to doubt that the trial court was fully aware of the amount it actually awarded, and defendant has not shown the award of $250,000 is excessive.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FUJISAKI, J., RODRÍGUEZ, J.