Filed 10/19/26 P. v. Weise CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A175042
v.
JOSH PAUL WEISE, (Solano County Super. Ct.
No. F23-01620)
Defendant and Appellant.
Josh Paul Weise appeals from the trial court’s $100,000 restitution
order for noneconomic loss arising out of a judgment of conviction after Weise
pleaded no contest to one count of committing a lewd or lascivious act on a
child under the age of 14 with an enhancement for inflicting great bodily
injury and one count of willful cruelty to a child.1
Weise’s court appointed counsel asks us to independently examine the
record in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) to
determine if there are any arguable issues that require briefing. Counsel
advised Weise of his right to file a supplemental brief, but Weise has not done
1 Weise did not obtain a certificate of probable cause and claims he does
not challenge the validity of his plea; he challenges the restitution order only.
As we describe below, our review is similarly limited. (Cal. Rules of Court,
rule 8.304(b)(3); further rules citations are to the California Rules of Court.)
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so. After an independent review of the record, we find no meritorious issues.
Accordingly, we affirm.
BACKGROUND2
Weise was in a relationship with the victim’s mother beginning in 2014,
when the victim was eight years old. At the time, the victim lived in
Vacaville with her mother and two brothers; Weise had a separate residence,
but “was always at [their] house.” After the victim turned nine years old,
Weise began “touch[ing her] genitalia” when her mother went to work in the
evening. The victim recalled the first incident took place when she and Weise
were watching a movie in her mother’s bed; Weise asked the victim to remove
her pants, and he “put his fingers inside [her] vagina.” The victim felt “hurt”
and “scared”; after the incident, Weise “told [her] he loved [her] and not to tell
anyone.” The victim testified that “anywhere from two to four times a week
when [her] mom would go to work” Weise would tell her “to go upstairs and
take off [her] pants and he would touch [her] vagina with his fingers and then
he would use objects.” The victim stated that Weise put a toothbrush inside
her vagina on more than five occasions; “then he started using sex toys” and
“put it inside” her “[a]lmost every time.”
When the victim was 10 years old, Weise also put his “fingers and
penis” inside her anus. One time, when the victim refused to remove her
pants as Weise instructed, he “smacked” her, took off her pants, and “[p]ut
his penis inside my vagina” while she was face down on the ground, which
“hurt a lot.” Weise put “his penis inside her vagina” “twice or more” times.
Weise “would always start off with his fingers and then it would move to oral
2 Consistent with Weise’s briefing, our summary is drawn from the
victim’s testimony at the January 5, 2025 preliminary hearing and is limited
to the testimony relevant to the trial court’s noneconomic restitution
determination.
2
and then he would put his penis inside. And after each time he would make
[the victim] sit and tell him that [she] wanted it.”
Beginning when she was nine years old until after she was 11, Weise
“would push [her] head on to his penis,” and if she did not swallow his
ejaculate, “he would get mad.” Weise once put his mouth on the victim’s
genitals, “before he put his fingers inside and he licked it and put his fingers
inside.” On one occasion, when the victim was around 10 years old, she
refused to go upstairs with Weise, he grabbed her “by the back of [her] hair,
the bottom of [her] head, and dragged [her] upstairs” before assaulting her
again. During another incident, Weise called the victim into a room in the
middle of the night where her mother was sleeping, “asked [her] to take [her]
pants off and put his fingers inside [her] vagina.” Weise stopped sexually
assaulting the victim after she turned 12 years old because she began
menstruating, but he continued to comment on her body.
In 2022, the victim confided in her father about the abuse; he
accompanied her to report the incident to a school resource officer and then
the Vacaville Police Department.
Criminal charges were filed, and Weise was held to answer at a
preliminary hearing, after which, he was charged in January 2025, with
three counts of the sexual penetration of a child 10 years of age or younger
(Pen. Code,3 § 288.7, subd. (b); counts 1, 2 & 4), two counts of oral copulation
of a child 10 years of age or younger (§ 288.7, subd. (b); counts 3 & 5), sex
with a child 10 years of age or under (§ 288.7, subd. (a); count 6), two counts
of aggravated sexual assault of a child by rape (§ 269, subd. (a)(1); counts 7 &
8), aggravated sexual assault of a child by sexual penetration with a foreign
3 Further undesignated statutory references are to the Penal Code.
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object (§ 269, subd. (a)(5); count 9), and aggravated sexual assault of a child
by oral copulation (§ 269, subd. (a)(4); count 10).
On August 14, 2025, pursuant to a negotiated disposition, the district
attorney filed an amended information and Weise pled no contest to the two
felonies charged therein: committing a lewd act on a child (§ 288, subd. (a);
count 1) with an enhancement for inflicting great bodily injury (§ 12022.7,
subd. (a)), and child abuse or endangering the health of a child (§ 273a,
subd. (a); count 2). For both counts, Weise also admitted the special
allegations that he had taken advantage of a position of trust or confidence in
committing the offenses (rule 4.421(a)(11)).4
The plea waiver form indicated an agreed upon maximum sentence of
12 years four months, and Weise waived his right to appeal, initialing by the
statement, “I give up my right of appeal.” (Bold in original.) Weise also
initialed the advisement that, “In addition to other penalties that may be
ordered by the Court, I will be subjected to fines, fees and/or assessments
that may vary in amount from $10.00 to $20,000.00 or more. . . .” Where the
waiver form gave the parties an opportunity to list “additional matters,”
including “restitution; 1202.4 PC restitution fine,” the phrases “Tellez[5]
Advisement” and “PC 290 tier 2” are handwritten; no form of restitution is
separately listed; Weise initialed the paragraph.
4 On the plea waiver form, the box acknowledging “I also admit the
truth of the following enhancements or special allegations: Rule
4.421(a)(11),” was not checked, but “Rule 4.421(a)(11)” was handwritten on
the form, and Weise orally affirmed his admission to the court.
5 In re Tellez (2024) 17 Cal.5th 77, 83–84 (trial courts are required to
advise defendants of the potential consequences of a guilty or no contest plea
under the Sexually Violent Predator Act).
4
Prior to accepting Weise’s change of plea, the court confirmed the terms
and conditions of the negotiated disposition as was recited in the plea waiver
form, reviewed with Weise’s attorney, and signed and initialed by Weise. The
court asked Weise, “Do you understand all of the consequences of your pleas,
including both any direct and indirect consequences?” To which Weise
replied, “I do.” The court continued, “Do you have any questions about any of
your rights or the consequences?” And Weise answered, “No, sir.” The court
accepted the preliminary hearing transcript as a stipulated factual basis for
the plea, found Weise “knowingly, intelligently, and voluntarily waived [his]
rights,” accepted Weise’s no contest plea, and found him guilty. In referring
the matter to the probation department for the preparation of a
presentencing report, the court asked, “Any restitution? Any other purposes
that probation needs to be advised of?” The district attorney answered, “Yes.
Well -- yes. I mean, there may be a restitution request. I am not sure.”
Weise’s counsel offered no additional comment, and the matter was continued
for sentencing.6
On September 30, 2025, the probation department filed its presentence
report that summarized its interviews with the victim and her father. As
relevant to noneconomic damages, her father reported the victim “suffered
from an array of mental injuries. She has a distrust of male subjects due to
the defendant’s manipulative actions.” The father said the victim, “has
suffered from mood swings and her self-esteem has been tremendously
affected. She is ‘not comfortable in her own skin’ and covers up or tries to
‘mask herself’ . . . . [¶] [S]he struggles with relationships, including dating
6 Weise also entered a waiver pursuant to People v. Arbuckle (1978)
22 Cal.3d 749, 757 (defendants are “entitled to be sentenced” by the judge
who accepts their plea or alternatively “should be permitted to withdraw
[their] plea”).
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ones.” He explained that the victim “copes with the aftermath of the instant
offense by staying busy.” She graduated from high school and was attending
college, but the time spent on her studies “prevented her from accessing
mental health care, which she still desires.”
In her interview, the victim reported that she suffered “bruising and
marks on her body from [Weise’s] physical abuse” but did not indicate long
term physical injuries. However, the victim represented she “has suffered
from long term mental health/emotional injuries.” Specifically, the victim
reported difficulty sleeping “as she dwells on the circumstances of the instant
offense.” The victim “indicated she wishes to attend mental health
treatment” but has yet to do so; she had “concentrated on school and work,
which has helped her cope and it takes up her time.” The victim did not
disclose any financial losses but stated, “she is seeking noneconomic losses
(1202.4(f)(3)(F)PC), but she was unsure about the amount she will request.”
The department recommended the court order the negotiated sentence
of 12 years four months, and “a determination of future expenses/restitution
be reserved by the court, pursuant to 1202.4(f)PC and 1202.46PC.”
On September 25, 2025, the district attorney filed a request for
restitution for noneconomic losses on the victim’s behalf in the amount of
$100,000, pursuant to section 1202.4, subdivision (f)(3)(F).7 The district
attorney cited People v. Smith (2011) 198 Cal.App.4th 415 (Smith) (upholding
award of $750,000 in noneconomic damages for 15 years of consistent sexual
abuse of a child by her mother’s husband based on a calculation of $50,000
per year), as “an explanation of how the court determined a restitution
7 Section 1202.4, subdivision (f)(3)(F) provides victims may recover
“[n]oneconomic losses, including, but not limited to, psychological harm, for
felony violations of Section 288, 288.5, or 288.7.”
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amount for noneconomic losses in another sexual assault case.” The district
attorney also cited People v. Lehman (2016) 247 Cal.App.4th 795 (Lehman)
(affirming an award of $1,000,000 in noneconomic restitution “for [two]
victims of child molestation”), for the principle that “the prosecution is not
required to present victim testimony or affidavits or expert declarations in
connection with the restitution hearing.”
The district attorney asked the court to consider the statements by the
victim and her father in the presentencing report and made at the time of
sentencing, as well as the victim’s testimony and demeanor during the
preliminary hearing, “as evidence of the psychological harm inflicted on her
by defendant’s actions in this case.” Accordingly, using Smith’s $50,000 per
year amount “as a guide only” and “based on the two year time range [Weise]
pled to in the amended Count 1 (although the offenses themselves spanned
almost four years),” the district attorney requested $100,000 in noneconomic
losses that “include, but are not limited to, the psychological harm caused to
the victim by the defendant as a result of his criminal conduct.”
At the September 30, 2025 hearing, the court sentenced Weise
consistent with the terms of the plea agreement and granted Weise’s request
to continue the noneconomic restitution request for a contested hearing.8 The
district attorney read an impact statement from the victim into the record in
which the victim stated, “[Weise] did more than just violate my body- he
silenced my voice, stole my childhood, and broke my spirit. With each sexual
act he forced on me I lost more of myself, including my will to live.” The
victim explained how “All of it stayed with me. For years I blamed myself
8 The sentencing and restitution hearings were conducted by a different
judge (Hon. Jeffrey C. Kauffman) from the judge who accepted Weise’s no
contest plea (Hon. E. Bradley Nelson).
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and let shame weigh me down. . . . [¶] My mental health, relationships, and
self-worth have been affected by all of this. There are days that I can’t stand
to be in my own skin because I still feel the fear and emotional pain of each
rape Weise inflicted.” The victim still has “frequent nightmares” about the
forcible sexual acts, can no longer say the words “ ‘I love you,’ ” and “cannot
have close relationships with others out of fear that what he did to me might
happen again. This trauma has followed me and changed me.” The victim
stated, “I will never fully recover what was taken from me . . . his crimes will
have a lifetime impact on me.”
The victim’s father made his own impact statement, stating Weise
caused the victim to “have all this doubt within herself. To this day, she
expresses to me how scared she is of this individual.” He further stated that
the victim “does not trust herself sometimes. She struggles in her own skin
often. And this all stems from something that was inflicted [on] a nine-year-
old innocent child.”
After Weise’s counsel agreed that the sentence recommended in the
probation report “comport[ed] with the plea agreement,” the court accepted
the recommendation, denied probation, and sentenced Weise to the high term
of eight years for count 1, three years for the enhancement, and “one-third of
the midterm” for count 2 of one year four months to be served consecutively,
for an aggregate term of 12 years four months. The court imposed a section
1202.4 fine of $3,900 (half of the amount recommended by probation), but
“suspend[ed] that pending the determination of restitution.” The court gave
Weise a total of 814 days credit for time served. The court advised Weise that
he would be subject to parole supervision upon his release, would be ordered
to pay restitution of an amount to be determined, and ordered him to register
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pursuant to section 290. The court issued a 10-year no-contact stay-away
order against Weise protecting the victim.
On October 14, 2025, Weise filed an opposition to the request for
noneconomic restitution arguing “the restitution was imposed in violation of
the negotiated plea agreement and without advisement,” the procedure
denied him due process because there was no evidentiary hearing with sworn
testimony, and the amount imposed is “arbitrary, excessive, and unsupported
by the record.” Weise requested that if restitution for noneconomic loss be
imposed, it be in the amount of $5,000. He asserted that although there was
“extensive conversation regarding collateral consequences of the plea
agreement including restitution for economic loss,” “at the time of the plea,
neither Deputy District Attorney nor counsel for Mr. Weise anticipated a
restitution order for non-economic loss.” Weise’s attorney confirmed this
position in an accompanying declaration stating, “At no time did I advise Mr.
Weise of the potential for restitution to the victim for non-economic loss” and
the “potential for non-economic restitution was not part of the plea
negotiations.” Weise further argued that the court did not advise him that a
“six-figure award for emotional distress could be imposed.”
At the October 20, 2025 restitution hearing, the district attorney
requested the court “notice the victim’s and her father’s statements both at
the sentencing and in the Pre-sentence report as the basis for restitution,”
and argued that restitution is mandatory and Weise’s counsel had advised
him prior to his no contest/guilty plea that he was responsible for restitution.
In response, Weise’s counsel represented that during their “extensive” plea
negotiation, the district attorney “laid out in great detail what collateral
consequences he was requesting” but did not mention noneconomic damages;
nor was it part of the “plea-colloquy that the court engaged in.” According to
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Weise’s counsel, Weise had told her “that he was not aware at the time we
entered into the plea that there could be a claim for non-economic loss,” and
she did not inform Weise of that potential consequence and could not have
advised him because, “how could I have advised him of something that I’ve
never seen implemented or had not reviewed the law or have an
understanding that it could [be imposed].” Defense counsel continued, “This
is not part of actual restitution that is part of this victim’s bill of rights. This
is a different statutory scheme that only applies to very specific charges, very
specific . . . convictions. . . . [¶] . . . [¶] And as such, that consequence would
be something that Mr. Weise would have to have been advised of.” Weise’s
counsel also asked to question the victim and her father directly if the court
planned to consider their statements in its determination.
The court declined to exercise its discretion to call and permit cross-
examination of the victim or her father, citing People v. Cain (2000) 82
Cal.App.4th 81, for the principle that “the defendant has no right to confront
and cross-examine witnesses, including the probation officer who prepared
the Probation Report, at a restitution hearing” and because “One of the
principles of restitution hearings is that . . . the victim shouldn’t be further
victimized in those proceedings.” The court ordered Weise pay the victim the
$100,000 requested by the district attorney for noneconomic losses pursuant
to section 1202.4, subdivision (f)(3)(F), noting, “I frankly don’t know what
amount of money is appropriate, but I think that amount of money
approaches what is appropriate; frankly it could have been more, and I
probably would have ordered it, but that’s what’s being requested.” The court
then permanently suspended the section 1202.4 fine.
Weise timely appeals.
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DISCUSSION
Weise’s counsel filed a Wende brief identifying no error and asks us to
review the record for any arguable issues on appeal. Weise waived his right
to appeal as part of his negotiated disposition and did not obtain a certificate
of probable cause but specifically asserts, “The lower court’s order for direct
restitution is appealable as a post-judgment order affecting Appellant’s
substantial rights. (§ 1237[, subd.] (b); see People v. Denham (2014) 222
Cal.App.4th 1210, 1213–1214; People v. DiMora (1992) 10 Cal.App.4th 1545,
1549–1550.)” Weise was also given the opportunity to file supplemental
briefing but did not.
We first address Weise’s failure to obtain a certificate of probable cause
for his appeal after he entered a general waiver of his right to appeal as part
of his no contest plea. In general, a defendant who has pled guilty or no
contest may not appeal the judgment of conviction without first obtaining a
certificate of probable cause. (§ 1237.5, subd. (b); see Cal. Rules of Court, rule
8.304(b)(1).) “Exempt from this certificate requirement are postplea claims,
including sentencing issues, that do not challenge the validity of the plea.”
(People v. Cuevas (2008) 44 Cal.4th 374, 379.) In determining whether a
certificate of probable cause is required, “ ‘ “courts must look to the substance
of the appeal: ‘the crucial issue is what the defendant is challenging, not the
time or manner in which the challenge is made.’ [Citation.] Hence, the
crucial inquiry is whether a challenge . . . is in substance a challenge to the
validity of the plea, thus rendering the appeal subject to the requirements of
section 1237.5.” ’ ” (People v. Mashburn (2013) 222 Cal.App.4th 937, 942;
People v. Espinoza (2018) 22 Cal.App.5th 794, 802 [“Where a defendant
broadly waives the right to appeal as part of a plea, he or she must obtain a
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certificate of probable cause to appeal on any ground covered by the waiver,
not just grounds that were apparent before entry of the plea”].)
Weise’s challenge to a nonwaivable restitution order appears to be, in
substance, a challenge to the validity of the plea; thus, a certificate of
probable cause is required before his appeal can be substantively addressed.
(See People v. Espinoza, supra, 22 Cal.App.5th at pp. 802–803.) Because
there is no certificate of probable cause, Weise’s appeal is not cognizable.9
But, accepting on its face Weise’s representation that he is not
challenging the validity of his plea—which necessarily includes acceptance of
the adequacy of his counsel’s and the court’s advisements—and is only
9 Assuming a challenge to Weise’s plea is cognizable, the trial court’s
restitution order was neither error nor a violation of the plea agreement even
though the plea agreement did not reference an anticipated request for
noneconomic restitution. A victim’s right to restitution—including
noneconomic losses when statutorily authorized—is a constitutional right.
(People v. Valdez (1994) 24 Cal.App.4th 1194, 1203; People v. Montiel (2019)
35 Cal.App.5th 312, 322 [observing noneconomic restitution is encompassed
by California’s constitutional right to restitution].) Full restitution to a
victim is mandatory, and thus, the terms of a plea agreement may not
“circumscribe the mandatory duty of the trial court to order appellant to pay
victim restitution.” (Valdez, at p. 1203; People v. Villalobos (2012) 54 Cal.4th
177, 183, quoting § 1202.4, subd. (b)(1) [“when a restitution fine is not
mentioned in the plea agreement or in the trial court’s plea colloquy, ‘[t]he
restitution fine shall be set at the discretion of the court’ ”].)
Here, the plea agreement was silent on the subject of restitution, but
the court inquired about restitution before referring the case for preparation
of a presentencing report. When the district attorney answered in the
affirmative, Weise’s counsel did not object or suggest there would not be a
legal basis. (See People v. Valdez, supra, 24 Cal.App.4th at p. 1203.)
Counsel’s later professed ignorance of the possibility of noneconomic damages
does not invalidate the plea or the sentencing court’s subsequent restitution
order, which was mandatory. (Ibid.)
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challenging the amount of noneconomic restitution ordered, we see no
arguable issue that requires briefing.10
In conducting our “review of the entire record” pursuant to Wende,
supra, 25 Cal.3d at page 441, we highlight our examination of the court’s
restitution order pursuant to section 1202.4, subdivision (f)(3)(F), which
requires the court to order a 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” and includes
“[n]oneconomic losses, including, but not limited to, psychological harm, for
felony violations of Sections 288, 288.5, or 288.7.” “ ‘ “No fixed standard
exists for deciding the amount of [noneconomic] damages.” ’ ” (Lehman,
supra, 247 Cal.App.4th at p. 801.) 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.) We review the amount of
restitution for noneconomic losses ordered for abuse of discretion, employing
a shocks-the-conscience standard. (Lehman, at p. 801; Smith, supra,
198 Cal.App.4th at pp. 435–437.)
Here, the trial court’s award of $100,000 in noneconomic damages
demonstrates no arguable issue. As cited before the trial court, other courts
have upheld noneconomic loss awards considerably higher than this $100,000
award in similar circumstances of consistent sexual abuse of a child over a
multi-year period. (Lehman, supra, 247 Cal.App.4th at pp. 801–802
[$900,000 for one victim]; Smith, supra, 198 Cal.App.4th at pp. 436–437
10 We note that Weise’s counsel asked the sentencing court whether
Weise would require a certificate of probable cause to appeal the restitution
order, and the court replied, “I don’t think you do . . . . [¶] . . . [¶] Maybe
we’re wrong. Who knows.”
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[$750,000].) As noted by the sentencing court, the victim could have
requested a higher amount based on the nature and years of consistent
sexual abuse. For example, considering the $50,000 per year calculation used
in Smith, the nearly four years of assault the victim suffered here could have
supported an order of $200,000, rather than the $100,000 requested and
ordered based only on the “two year time range Weise pled to” in the
amended information. Moreover, the victim’s articulation of the
psychological harm she suffered (in addition to the physical injuries and use
of force testified to at the preliminary hearing) supports the sentencing
court’s determination of the noneconomic losses ordered, as the victim stated
each act of abuse by Weise made her “los[e] more of [herself], including [her]
will to live,” and had negatively impacted her “mental health, relationships,
and self-worth”; the “trauma has followed me and changed me,” and even
now, she “dwells on the circumstances of the instant offense.”
DISPOSITION
The judgment is affirmed.
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DESAUTELS, J.
We concur:
RICHMAN, ACTING P. J.
SWEET, J.*
People v. Weise (A175042)
* Judge of the Marin Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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