People v. Hernandez CA2/6

Filed 11/16/15 P. v. Hernandez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B259787 (Super. Ct. No. 2013036407) Plaintiff and Respondent, (Ventura County)

v.

FIDENCIO HERNANDEZ,

Defendant and Appellant.

Fidencio Hernandez appeals a victim restitution order (Pen. Code, § 1202.4, subd. (f)(3)(F))1 following a judgment after his guilty plea to two felony counts of lewd acts upon a child under the age of 14 (§ 288, subd. (a)) and one felony count of unlawful sexual intercourse (§ 261.5, subd. (d)). Hernandez was sentenced to an aggregate term of six years in prison and ordered to pay victim restitution. We conclude, among other things, that the trial court did not abuse its discretion by awarding $25,000 as noneconomic damages for victim restitution. We affirm. FACTS AND PROCEDURAL HISTORY In 2011, Hernandez sexually molested A.L., an eight-year-old girl living in his home. He sexually assaulted her when she was taking a shower. A.L. said Hernandez "rubbed his penis, up and down, 'in the middle' on her butt." He told her "not to say anything to anyone." A.L. did not tell others what he did because "she was 'afraid' he

1 All statutory references are to the Penal Code.

would be mad at her." He molested her in 15 separate incidents. Each one occurred while she was in the shower and "her mother was at work." In 2013, Hernandez had sexual intercourse with B.M., a 14-year-old girl. After Hernandez's guilty plea and a sentencing hearing, the trial court held a victim restitution hearing. It awarded noneconomic damages of $25,000 as victim restitution for A.L. DISCUSSION The Victim Restitution Order Hernandez contends the trial court abused its discretion by ordering $25,000 as noneconomic damages as victim restitution. He claims the order is so arbitrary and speculative it cannot satisfy due process standards. We disagree. "We review the amount ordered for restitution using the abuse of discretion standard." (People v. Smith (2011) 198 Cal.App.4th 415, 435.) Noneconomic damages are awarded as restitution to child victims for "felony violations of Section 288." (Id. at p. 431.) "Noneconomic damages are 'subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.'" (People v. Smith, supra, 198 Cal.App.4th at p. 431, italics added.) "'No fixed standard exists for deciding the amount'" of these damages. (Id. at p. 436.) "Unlike restitution for economic loss, . . . loss for noneconomic loss is subjectively quantified." (Ibid.) Trial courts "[search] for some way to quantify [the victim's] pain and suffering." (Id. at p. 437.) The court uses a standard similar to what a jury in a civil case applies "concerning noneconomic loss." (Id. at p. 436.) Consequently, great discretion is vested in the trial court's judgment on such restitution orders. (Ibid.) Appellate courts will "affirm a restitution order for noneconomic damages that does not, at first blush, shock the conscience or suggest passion, prejudice or corruption on the part of the trial court." (People v. Smith, supra, 198 Cal.App.4th at p. 436.)