P. v. Barriere

 

 

 

 

 

 

 

 

 

Filed 8/8/13  P.
v. Barriere CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
>

THE PEOPLE,             Plaintiff and Respondent, v. JESUS LEONARDO BARRIERE,             Defendant and Appellant.

A134247         (Contra Costa County       Super. Ct. No. 05-070288-6)

 

            Jesus
Leonardo Barriere (appellant) was previously convicted of, inter alia, numerous
counts of lewd and lascivious acts on a child. 
Following a prior appeal, we affirmed the judgment, with minor
exceptions related to sentencing. 
Appellant now appeals again after the trial court ordered that he pay
$1,000,000 in victim restitution for noneconomic losses, pursuant to Penal Code
section 1202.4, subdivision (f)(3)(F).href="#_ftn1" name="_ftnref1" title="">[1]  He contends (1) the restitution order
violated his constitutional right to a
jury trial under both the United States and California Constitutions; (2)
section 1202.4, subdivision (f)(3)(F), violates his href="http://www.mcmillanlaw.com/">right to equal protection of the laws
under both the United States and California Constitutions; and (3) the trial
court abused its discretion in making the award because it did not use a
rational method of calculation.  We shall
affirm the judgment. 

>PROCEDURAL BACKGROUND

            On
May 16, 2007, appellant was charged by amended information with eleven counts
of forcible lewd and lascivious acts upon a child (Pen. Code, § 288, subd.
(b)(1)—counts one to ten and count twelve); one count of soliciting a minor to
use a controlled substance (Health & Saf. Code, § 11353—count eleven); one
count of lewd acts upon a child under age 14 (Pen. Code, § 288, subd. (a)—count
thirteen); and two counts of oral copulation of a minor under age 14 (Pen.
Code, § 288a, subd. (c)(1)—counts fourteen and fifteen).  The information alleged as to count six that
appellant had personally used a deadly and dangerous weapon, a knife, in the
commission of the offense (Pen. Code, §§ 667.61, subds. (a), (e), 12022.3,
subd. (a)).  The information further
alleged as to counts ten and twelve that appellant personally inflicted great
bodily injury (Pen. Code, §§ 667.61, subds. (a), (e), 12022.8), and as to count
ten that appellant administered a controlled substance by force (Pen. Code, §§
667.61, subds. (a), (e), 12022.75). 

            On
December 3, 2009, a jury found appellant guilty of the 15 charged offenses and
found true the allegation that he personally used a deadly and dangerous weapon
in the commission of count six.  The jury
failed to make findings on the allegations that appellant personally inflicted
great bodily injury in counts ten and twelve or that he administered a
controlled substance by force in count ten. 


            On
April 30, 2010, the trial court sentenced appellant to a total term of 99 years
to life in state prison. 

            On
May 10, 2010, appellant filed a notice of
appeal.  In a nonpublished opinion,
filed on July 19, 2012, we remanded the matter to the trial court for
resentencing on count six, correction of an improper restitution fine imposed,
and recalculation of appellant’s presentence credits, but otherwise affirmed
the judgment.  (People v. Barriere (A128614).)href="#_ftn2" name="_ftnref2" title="">[2] 

            On
November 4, 2011, the trial court granted restitution to the victim “Jane Doe”
(Jane) for noneconomic losses in the amount of $1,000,000.   On December 5, 2011, appellant filed a
notice of appeal from that order.href="#_ftn3"
name="_ftnref3" title="">[3]  

>DISCUSSION

I.  Trial
Court Background

            On
February 10, 2011, the probation department filed a supplemental restitution
report in which it recommended that the trial court order $1,000,000 in
restitution for Jane for noneconomic losses, pursuant to section 1202.4,
subdivision (f)(3)(F).  

            On
February 16, 2011, a restitution specialist with the Contra Costa County
District Attorney’s Office, filed a notice, which was served on appellant and
the Public Defender, requesting $1,000,000 in restitution for Jane.  A proposed order for restitution was
attached.  

            On
October 18, 2011, appellant filed a “Motion to Set Aside or Modify Restitution
Order of February 16, 2011.”href="#_ftn4"
name="_ftnref4" title="">[4]

            A
restitution hearing was held on November 4, 2011, at which Jane was the sole
witness.  Nineteen years old at the time
of the hearing, appellant’s daughter Jane testified that, as a result of
appellant’s actions, she had initially met with a psychiatrist, who determined
that she did not need medication.  She
was seeing a counselor regularly and had been in counseling for the last six or
seven years.  She did not have to pay for
the counseling.  

            Jane
had been suicidal when she was 11 or 12 years old, before she told her mother
about what her father was doing.  She
would cut her wrists and once tried to drown herself in the bathtub.  She “had just extreme rage” and felt “there
was no reason for me to be here.  It was
already ruined.”  

            Jane
testified that she continued to experience nightmares and always felt
afraid.  She repeatedly checked her doors
and windows to make sure they were locked and was nervous about her
surroundings when she was out in public, such as at the community college where
she was a full-time student.  She did not
trust other people and did not have many friends.  She felt like, “If my own father did it,
anybody can.  So I really don’t trust
anybody 100 percent . . . .”  
She socialized mainly with her family and her husband’s family.  She did not want to have anything to do with
the family she had that was also appellant’s family because it would make her
feel “like if I’m with them his presence is somehow with me.”

            Jane
also was very cautious with her child, including who was around him and who
could take care of him.  Even when she
drove, she would look back to see what cars were behind her.  If a car followed behind her for more than
five minutes, she would panic and pull over because she was always afraid that
appellant’s family members might come looking for her.  “So that is like a constant thing for me
having to be careful when I’m driving, be careful when I’m on campus walking,
be careful with everything.  It’s always
extra for me.”  Jane had talked to her
counselor about all of these issues, “but it’s not really getting better.”

            Jane’s
personal life with her husband had also been affected because appellant had
given her a sexual disease that will affect her for the rest of her life.  As she stated at the hearing:  “I hate it. 
I just—he ruined my life forever, my health, everything.”  

            At
the conclusion of the hearing, the court ruled as follows:  “All right. . . .  I think that People v. Smith [(2011) 198 Cal.App.4th 415] as we discussed is the
word on the issue of whether or not it would proceed via the civil realm.  So I’m going to deny the request to have a trial
on the issue of those damages civilly. 
And I am going to say I’m persuaded by Jane Doe’s explanation of how
she’s been having to deal with the nightmares and the locking of the doors and
the fact that she’s so cautious with her child by virtue of the fact that she
was a child when she was robbed of basically her life. 

            “I
think this case is more egregious than the others.  And it is not just because it’s her father
who perpetrated these horrific acts on her and in the manner in which he did
them, but because he’s also left her with a lifelong disease.  She has to deal with that every day of her
life.  And that is something that
compounds the severity of what he did knowing that he had the disease and
passed it to his own child. 

            “So
having said those things, I am going to reaffirm Judge Haynes’s order and grant
the million dollars in restitution.”href="#_ftn5" name="_ftnref5" title="">[5]  

II.  Legal
Analysis

            Article
I, section 28, subdivision (b)(13)(A)-(C), of the California Constitution,
provides crime victims the right to restitution from criminal defendants.  Penal Code section 1202.4, subdivision (f),
which implements that constitutional right, “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 . . . .’  (§ 1202.4, subd. (f)(1).)”  (People
v. Smith, supra, 198 Cal.App.4th
at p. 431  (Smith).) 

            Although
restitution orders are generally limited to the victim’s economic damages,
under section 1202.4, subdivision (f)(3)(F), restitution shall be ordered for
“[n]oneconomic losses, including, but not limited to, psychological harm, for
felony violations of Section 288.” 
Unlike economic damages, which are concerned with “objectively
verifiable monetary losses” (Civ. Code, § 1431.2, subd. (b)(1)), noneconomic
damages relate to “subjective, nonmonetary 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.”  (Civ. Code, § 1431.2,
subd. (b)(2); see Smith, >supra, 198 Cal.App.4th at p. 431.) 

A.  Constitutional
Right to a Jury Trial

            Appellant
first contends the trial court’s restitution order for noneconomic
damages violated his federal and state constitutional rights to a jury trial
pursuant to Apprendi v. New Jersey (2000)
530 U.S. 466 (Apprendi) and its
progeny. 

            In
Apprendi, supra, 530 U.S. 466, 490, the United States Supreme Court held
that, “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.”  In Blakely
v. Washington (2004) 542 U.S. 296, 303, the Court further explained that
the “ â€˜statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.”  A trial
court, therefore, may not impose punishment that the jury’s verdict alone does
not allow.  (Id. at p.
304.) 

            Recently,
in Smith, supra, 198 Cal.App.4th 415, 433, the Third District Court of Appeal
rejected the defendant’s argument that noneconomic damages under
section 1202.4, subdivision (f)(3)(F), are indistinguishable from
noneconomic damages in the civil context and that, therefore, they should be
subject to the jury trial right found in Article I, section 28 of the
California Constitution.  The court
reasoned that a “restitution hearing, whether for economic or noneconomic
damages, is a criminal sentencing hearing, not a civil trial,” and held that a
victim restitution order for noneconomic damages therefore does not give rise
to a jury trial right.  (>Smith, supra, at pp. 433-434.) 

            More
recently, in Southern Union Co. v. United
States (2012) 132 S.Ct.
2344, 2357 (Southern Union Co.), the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Supreme Court held that Apprendi
applies to the imposition of criminal fines. 
In that case, the defendant company had been convicted of an
environmental offense, which called for a maximum fine of $50,000 for each day
the relevant statute was violated.  (>Southern Union Co., supra, at p.
2349.)  The jury had not made a specific
finding as to the number of days of violation, and the trial court therefore
made that finding.  (Ibid.)  The high court
reversed, after holding that the trial court’s factual finding as to the number
of days the defendant committed the offense violated Apprendi.  (>Southern Union Co., supra, at p.
2357.)  As the court explained:  “Apprendi’s
‘core concern’ is to reserve to the jury ‘the determination of facts that
warrant punishment for a specific statutory offense.’  [Citation.] 
That concern applies whether the sentence is a criminal fine or
imprisonment or death.  Criminal fines,
like these other forms of punishment, are penalties inflicted by the sovereign
for the commission of offenses.”  (>Southern Union Co., supra, at p. 2351.) 

            As
we shall discuss, we agree with respondent that the holding in >Southern Union Co. does not apply in the
circumstances of this case, in which the trial court exercised its discretion
to determine the amount of victim restitution based on Jane Doe’s noneconomic
losses. 

            Appellant
first argues that, as with a criminal fine, victim restitution for noneconomic
losses constitutes punishment. 
California courts, however, have uniformly concluded that victim
restitution is not primarily criminal in nature.  (See, e.g., People v. Millard  (2009) 175
Cal.App.4th 7, 35-36 [primary purpose of a victim restitution hearing is “to
provide a victim with a civil remedy
for economic losses suffered, and not to punish the defendant for his or her
crime”]; People v. Harvest (2000) 84
Cal.App.4th 641, 648-649 [“Although restitution has an element of deterrence
[citation], the primary purpose of victim restitution is to provide monetary
compensation to an individual injured by crime”].)  As the cases point out, the chief purpose of
a victim restitution order is to compensate the victim for losses, not to punish
the defendant for the offense committed. 
(Compare Southern Union Co., supra, 132 S.Ct. at p. 2350 [criminal
fines are penalties imposed by the state based on commission of
offenses].) 

            In
addition, victim restitution is distinguishable from a criminal fine in that a
fine has a statutory maximum as to the amount of money that may be
ordered.  With victim restitution, the
purpose of which is full reimbursement for all losses incurred, there is no
specified limit on the amount that may be awarded.  (People
v. Harvest, supra, 84 Cal.App.4th at p. 647.)  Thus, victim restitution orders—whether for
economic or noneconomic losses—are
simply not comparable to criminal fines. 
Accordingly, just as there can be no Apprendi
violation where the trial court imposes a restitution fine within the range
prescribed by statute (see Southern Union
Co., supra, at p. 2353; >People v. Kramis (2012) 209 Cal.App.4th
346, 351), there can be no such violation where the court orders victim
restitution, for which “no maximum is prescribed.”  (Southern
Union Co., supra,
132 S.Ct. at p. 2353 [observing that there can “be [no] Apprendi violation where no [statutory] maximum is prescribed”];
cf. United States v. Phillips (9th
Cir. 2012) 704 F.3d 754, 770-771 [distinguishing Southern Union Co., by observing, in the context of criminal
forfeiture, that “[a] judge cannot exceed his constitutional authority by
imposing a punishment beyond the statutory maximum if there is no statutory
maximum”].) 

            For
these reasons, appellant was not entitled, under either the federal or state
Constitutions, to a jury trial on the amount of victim restitution to be
ordered pursuant to section 1202.4, subdivision (f)(3)(F). 

B.  Equal
Protection

            Appellant
also contends section 1202.4, subdivision (f)(3)(F), violates his right to
equal protection of the laws under both the United States and California
Constitutions.  Specifically, he asserts
that subjecting only those defendants convicted of violating section 288, and
not those convicted of any other crime, to victim restitution for noneconomic
losses unjustifiably singles out this group of criminal offenders. 

            “ â€˜The
first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more >similarly situated groups in an unequal
manner.’ 
[Citations.] . . . . [¶] . . .[¶] Under
the equal protection clause, we do not inquire ‘whether persons are similarly
situated for all purposes, but “whether they are similarly situated for
purposes of the law challenged.” â€™ 
[Citations.]”  (>People v. Hofsheier (2006)
37 Cal.4th 1185, 1199-1200 (Hofsheier
).)  The second requirement is to show
that the challenged law bears no “rational relationship to a legitimate state
purpose.”  (Hofsheier, supra, 37 Cal.4th at p. 1200.)href="#_ftn6" name="_ftnref6" title="">[6] 

            A
similar argument was recently rejected by the appellate court in >Smith, supra, 198 Cal.App.4th 415, in which the defendant, who had been
convicted of violating section 288, contended that section 1202.4, subdivision
(f)(3)(F), violated his equal protection rights because it “deprives child
molesters of a civil jury determination of noneconomic damages liability but
does not so deprive other criminals.”  (>Smith, supra, at p. 434.)  The >Smith court concluded the contention was
meritless because “child molesters are not similarly situated with other
criminals.”  (Ibid.)  The court further
concluded that the differential treatment was “rationally related to a
legitimate public purpose.  Enacted as
part of a broader effort to protect child victims of sexual abuse (Stats. 1995,
ch. 313, § 5), the noneconomic loss provision of section 1202.4, does just
that—helps to protect child victims of sexual abuse, both by increasing
punishment for offenders and by compensating those victims for psychological
harm.  Differentiating between child
victims and other victims is rational based on the vulnerability of children in
general and society’s interest in protecting children.  Therefore, even though section 1202.4
allows restitution orders for noneconomic damages against child molesters only,
it does not violate the equal protection provisions of either the federal or
state constitution.”  (>Smith, supra, at p. 435.) 

            Appellant
asserts that Smith is not dispositive
because the court in Smith did not
address his specific contention when it compared child sexual abuse victims
with adult victims.  Appellant’s equal
protection argument, according to appellant, is distinguishable because it
involves comparing offenders convicted of sex offenses against children under
section 288 and offenders convicted of other sex offenses, also against children.  We conclude that even this more specific
comparison, involving only those sex offenders who commit crimes against
children, does not negate the conclusion reached in Smith. 

            First,
we reject appellant’s suggestion that this case resembles Hofsheier, supra,
37 Cal.4th 1185, 1193, in which the defendant was convicted, pursuant to
section 288a, subdivision (b)(1), of voluntary oral copulation with a
minor who is 16 or 17 years of age, for which lifetime sex offender
registration was mandatory.  The
defendant claimed the mandatory registration requirement violated his right to
equal protection because defendants convicted of voluntary sexual intercourse
with minors of the same age under (§ 261.5, subd. (c)) were subject
to discretionary registration.  (>Hofsheier, supra, at p. 1192.)  Our
Supreme Court agreed, first holding that defendants convicted of voluntary oral
copulation with adolescents 16 to 17 years old and defendants convicted of
voluntary intercourse with adolescents in that same age group were similarly
situated for equal protection purposes. 
(Id. at p. 1200.)  The court further held that that there was no
rational basis for concluding that defendants convicted of the former crime
“constitute[d] a class of ‘particularly incorrigible offenders’ [citation] who
require[d] lifetime surveillance as sex offenders.”  (Id.
at p. 1207.)  The court therefore
held that mandatory sex offender registration for defendants convicted of
voluntary oral copulation violated equal protection of the law.  (Ibid.) 

            Appellant
claims that, like the voluntary oral copulation statute at issue in >Hofsheier, section 1202.4, subdivision
(f)(3)(F), improperly distinguishes between offenders based only on the nature
of the sexual act.  He asserts that there
is no rational justification for subjecting defendants convicted pursuant to
section 288 to payment of victim restitution for noneconomic losses, “while
allowing defendants convicted of sex crimes such as rape, penetration, and
sodomy against children to have claims of noneconomic damages litigated in the
civil courts by juries.”  

            Appellant’s
situation is not analogous to the defendant in Hofsheier, in which both offenses involved voluntary conduct with
16- and 17-year-old minors.  While a
defendant accused of sexually victimizing a young child could instead be
charged with offenses such as rape or sodomy—should the defendant’s acts fit
the statutory definition of those crimes—the statutes related to those other
offenses have a much broader scope than does section 288 in that they also
encompass adult victims and largely
require only general intent.  (See, e.g.,
§ 261 [rape]; § 289 [sexual penetration]; § 286 [sodomy].)  Section 288, on the other hand, is
concerned with lewd and lascivious acts against young children (and other
dependent persons) and requires that the perpetrator commit the acts with the
specific intent to arouse him or herself or the child.href="#_ftn7" name="_ftnref7" title="">[7]  Hence, people convicted of violating section
288 are simply not comparable to those convicted of the other sex offenses
mentioned by appellant.  (Compare >Hofsheier, supra, 37 Cal.4th at p. 1200; cf. People v. Brandao (2012) 203 Cal.App.4th 436, 446 [misdemeanor offense
of annoying and molesting a child is not comparable to voluntary sex offenses
at issue in Hofsheier and other
similar cases]; Smith, >supra, 198 Cal.App.4th at p. 434.) 

            For
the same reasons, we also conclude that the Legislature’s decision to provide
noneconomic damages only for victims of defendants convicted of violating
section 288 bears a “rational relationship to a legitimate state purpose.”  (Hofsheier,
supra, 37 Cal.4th at p. 1200.) 
Section 1202.4 does not unfairly single out defendants convicted of
offenses pursuant to section 288. 
Rather, permitting restitution for noneconomic losses only against those
defendants is reasonably based on the understanding that the focus of section
288 is specific intent sex crimes against young children and that any offense
committed pursuant to that section is, necessarily, particularly egregious and
especially harmful to the young victim. 
(Cf. Smith, >supra, 198 Cal.App.4th at p. 435
[“Differentiating between child victims and other victims is rational based on
the vulnerability of children in general and society’s interest in protecting
children”].) 

            There
was no equal protection violation. 

C.  Abuse
of Discretion

            Appellant’s
final contention is that the trial court abused its discretion when it awarded
Jane Doe $1,000,000 in noneconomic damages because it did not use a rational
method of calculation. 

            “Generally
speaking, restitution awards are vested in the trial court’s discretion and
will be disturbed on appeal only when the appellant has shown an abuse of
discretion.  [Citation.]
. . .  ‘ â€œWhile it is not required to make an order in
keeping with the exact amount of loss, the trial court must use a rational
method that could reasonably be said to make the victim whole, and may not make
an order which is arbitrary or capricious.” â€™  [Citation.] 
‘ â€œWhen there is a factual and rational basis for the amount of
restitution ordered by the trial court, no abuse of discretion will be found by
the reviewing court.” â€™ 
[Citation.].”  (>People v. Holmberg (2011) 195
Cal.App.4th 1310, 1320.) 

            In >Smith, supra, 198 Cal.App.4th 415, 436, the appellate court found that
this standard was not applicable to victim restitution for noneconomic losses
since, “[u]nlike restitution for economic loss, . . . [restitution] for
noneconomic loss is subjectively quantified.” 
The Smith court adopted a
standard of review based on the civil jury instruction regarding noneconomic
loss.  (Smith, at p. 436, quoting CACI No. 3905A (2009 ed.) [“ â€˜No
fixed standard exists for deciding the amount of these damages.  You must use your judgment to decide a
reasonable amount based on the evidence and your common sense.’ â€)  As the court explained:  “The obvious difference between the review of
a civil award of noneconomic damages and a criminal restitution order for
noneconomic damages is that the trial court, not a jury, makes the
determination in the first instance. 
Even with that difference in mind, we see no reason to adopt any other
standard of review.  We therefore 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.  [¶] Admittedly, this
standard is not as delimited as the review of a restitution order for economic
damages.  By their nature, 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.’’ 
[Citation.]  Noneconomic damages,
however, require more subjective considerations.  Thus, the different standard is
justified.”  (Smith, supra, 198
Cal.App.4th at p. 436.) 

            Applying
this different standard, the Smith
court held that the trial court did not abuse its discretion when it ordered the
defendant to pay $750,000 in restitution for noneconomic losses to the victim
who had suffered years of sexual abuse. 
(Smith, supra, 198 Cal.App.4th at p. 436.) 
We agree with the court in Smith
that the standard of review for restitution orders for economic losses is not
directly applicable to review of an order for noneconomic losses, which
requires a more subjective analysis. 

            In
the present case, the court ordered appellant to pay $1,000,000 in restitution
for noneconomic losses to Jane Doe, who also suffered many years of repeated
sexual abuse by her father, abuse that started when she was seven years old and
included frequent intercourse by the time she was eight.  Jane also continues to suffer from a sexually
transmitted disease, with which her father infected her and which, as the trial
court said, she has to deal with “every day of her life.”   In addition, Jane testified to the ongoing
emotional and psychological effects of the abuse, which continue to trouble her
despite years of counseling.  That she
has been able to move forward with her life in some respects is a testament to
her own strength and the support of her family. 
Jane’s fortitude does not, however, diminish the horrific nature of the
abuse or the lasting traumatic effects which persist, in the trial court’s
words, “by virtue of the fact that she was a child when she was robbed of
basically her life.”  

            The
restitution order in this case “does not shock the conscience or suggest
passion, prejudice or corruption on the part of the trial court.”  (Smith,
supra, 198 Cal.App.4th at p.
436.)  There was no abuse of
discretion. 




>DISPOSITION

            The
judgment is affirmed. 

 

                                                                                    _________________________

                                                                                    Kline,
P.J.

 

 

We concur:

 

 

_________________________

Haerle, J.

 

 

_________________________

Richman, J.