People v. Brown CA1/5

Filed 11/2/26 P. v. Brown CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi- cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or- dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, A169883 & A170246 v. RODNEY LEROY BROWN, (Contra Costa County Defendant and Appellant. Super. Ct. No. 05002004059) A jury convicted Rodney Leroy Brown of five counts of forcible lewd acts on a child under the age of 14 (counts 1–5; Pen. Code, § 288, subd. (b)(1))1 and three counts of nonforcible lewd acts on a child under the age of 14 (counts 6– 8; § 288, subd. (a)) and found that he committed the offenses against more than one victim for the purposes of the “One Strike” law (§ 667.61, subds. (e)(4), (j)(2)). The trial court sentenced him to an aggregate prison term of 137 years to life. Brown appeals from that judgment and from the trial court’s postjudgment orders requiring Brown to pay a total of $800,000 in restitution for the three victims’ noneconomic losses. In his consolidated appeals, Brown argues that counts 6–8 are barred by the statute of limitations, that the trial court abused its discretion in admitting certain evidence, and that the restitution awards should be reversed as unauthorized or excessive. We agree on the first point and reverse his convictions (and accompanying restitution awards) on counts 6–8. We otherwise affirm. 1 Undesignated statutory references are to the Penal Code. 1  BACKGROUND A. Jane Doe One, who was 16 years old at the time of trial, testified that, between the ages of five and seven, she occasionally stayed with her paternal grandmother and Brown—who was then her grandmother’s boyfriend—for one to two nights at a time. One morning, Jane Doe One accompanied Brown, in her nightgown, to the backyard to collect eggs from the chicken coop. Once collected, Brown said they needed to put the eggs in the refrigerator in the camper, which had a refrigerator and a pullout bed. After they put the eggs in the refrigerator, Brown made Doe One lie on the bed, took off her nightgown and underwear, and began rubbing her vagina. She did not understand what was happening but did not feel she could get away because Brown was holding both her hands (at the wrist) in one of his hands. She felt uncomfortable. After about 30 minutes, Brown grabbed Doe One’s hand, put it on his penis, and then made her hand move up and down. Brown told her that this was a secret that she should not tell anyone. She was scared and felt “uncomfortable and helpless.” Brown took Doe One to gather eggs, then to the camper, “eight or more” times during that year or two. Each time he would touch her vagina and pull her hand to touch his penis. The touching stopped when Brown and Doe One’s grandmother broke up—when Doe One was seven or eight years old. Doe One did not initially tell her father, grandmother, or anyone else about Brown’s touching because she was scared. In 2018, when Doe One was in fifth grade, she disclosed Brown’s abuse—first to a friend and then to her mother and law enforcement (in a forensic interview). Jane Doe Two was born in 1982 and was 41 years old when she testified at trial. She has a younger sister, Jane Doe Three, who is six years younger. In 1994, Doe Two turned 12 years old (that September) and her family lived in El Dorado County. Brown was a family friend who lived in a trailer nearby and had sons around Doe Two’s and Doe Three’s ages. About 2 once a month, Brown would babysit Doe Two and Doe Three when no one else was home. On one such occasion, about a month before Doe Two turned 12 years old, Brown was babysitting the sisters. Doe Three was in her own room. Brown walked up behind Doe Two, put his hand on her shoulder, pulled her backwards towards him, and then slid his hand under her left breast. Brown told Doe Two that she looked “very pretty and so grown up” and moved his hand to touch her vaginal area, over her clothes. Initially, Doe Two froze, but then she pulled away, and walked away toward her sister’s room. Doe Two felt embarrassed and scared and, at first, did not tell anyone what Brown had done. One day, in December 1994, Doe Two informed her father that Brown touched her in a way she did not like. Her parents also reported the abuse to police. The police interviewed Doe Two and organized a pretext call, but then there was very little follow-up until 2019. Doe Two eventually learned that Brown had moved. Doe Three was born in 1988 and was almost 35 years old at trial. She testified that, when she was five years old (between November 1993 and November 1994), she lived in El Dorado County with her family. Brown was a family friend who lived nearby and babysat Doe Three and her sister (Doe Two). When he babysat, Brown would often separate Doe Three from her sister. On two of those occasions, when she was five years old, Brown touched her inappropriately. First, Brown took her for a ride on a four-wheeler and drove her behind a barn. He then put his hands inside her pants and touched her vagina. He said it was a secret, and she should not tell anyone. Doe Three felt very uncomfortable, but she did not understand that what Brown was doing was wrong. On a later occasion, Doe Three was in Brown’s trailer and was wearing one of his T-shirts instead of her own clothes. Brown touched her vagina with his hands, then put his mouth on her vagina. This also made her feel very uncomfortable and she did not understand what he was doing. Again, he told her it was a secret and she could not tell anyone. She kept his secret 3 and did not tell anyone until later questioned by police after the report of Doe Two’s abuse. When Doe Three was questioned by El Dorado County police in 1994, she used a teddy bear to demonstrate where Brown had touched her. B. Brown represented himself in propria persona at trial, with the assistance of advisory counsel. In his defense, Brown called various character witnesses—who testified they had not observed him behaving inappropriately around children. Brown also called his ex-wife, A.T., who had been married to Brown when he lived in El Dorado County in the 1990’s. A.T. remembered Doe Two and Doe Three, but had never seen Brown acting “incorrect” with the girls. When asked by Brown if the couple had ever gotten in physical fights, A.T. said that Brown had occasionally “hurt” her during their marriage. When he followed up by asking, “How would I hurt you?” A.T. said Brown “[s]exually violated” her. Brown testified on his own behalf and denied sexually abusing Doe One, Doe Two, or Doe Three. Brown believed their families were mad at him because he did not marry Doe One’s grandmother and because he had dated Doe Two and Doe Three’s mother while their parents were separated. C. The information, which was filed on March 13, 2020, as well as two subsequently amended versions of the information, charged Brown with five counts of forcible lewd acts on a child under the age of 14 (counts 1–5; § 288, subd. (b)(1)) and three counts of nonforcible lewd acts on a child under the age of 14 (counts 6–8; § 288, subd. (a)). The first five counts in the operative (second amended) information alleged forcible lewd acts committed against Doe One, which occurred between January 2, 2012, and January 1, 2015. The sixth count in the operative information alleged a lewd act committed against Doe Two, which occurred between September 2, 1993, and January 24, 1995. The seventh and eighth counts alleged lewd acts committed against Doe Three, which occurred between November 10, 1993, and November 9, 1995. 4  The information further alleged (as to all counts) that Brown committed offenses against more than one victim for the purposes of the One Strike law (§ 667.61, subds. (e)(4), (j)(2)). The first amended information and second amended information added allegations that several aggravating factors—including that the victims were particularly vulnerable (Cal. Rules of Court, rule 4.421(a)(3)) and that Brown took advantage of a position of trust (id., rule 4.421(a)(11))—applied. At the conclusion of the trial, a jury convicted Brown of all charged counts and found the One Strike (multiple victims) allegation true. Pursuant to a jury trial waiver, the court was made trier of fact on the aggravating circumstance allegations, which were also found true. The trial court sentenced Brown to five consecutive 25-years-to-life terms, pursuant to the One Strike law (§ 667.61, subds. (e)(4), (j)(2)), on counts 1–5. The court also sentenced Brown, on count 6, to a consecutive determinate term of eight years, and to consecutive one-third middle terms of two years each on counts 7 and 8, for an aggregate prison term of 137 years to life. After a postjudgment restitution hearing, the court awarded the following amounts as restitution for the victims’ noneconomic losses: $500,000 to Doe One; $100,000 to Doe Two; and $200,000 to Doe Three. DISCUSSION A. Brown argues that we must reverse his convictions on counts 6–8 because the statute of limitations barred the prosecution of those offenses. After independently reviewing the trial court’s statute of limitations ruling (see People v. Brown (2018) 23 Cal.App.5th 765, 772 [standard of review]; People v. Hollie (2010) 180 Cal.App.4th 1262, 1271 [same]), we agree with Brown. 1. We begin with some background law. In criminal cases, the statute of limitations is jurisdictional. (People v. Lopez (1997) 52 Cal.App.4th 233, 244.) If the limitations period expires without prosecution having begun, 5 prosecution is “forever time-barred.” (People v. Robinson (2010) 47 Cal.4th 1104, 1112.) The People bear the burden to “plead and prove, by a preponderance of the evidence, that prosecution commenced within the statutorily prescribed time period.” (People v. Angel (1999) 70 Cal.App.4th 1141, 1146–1147; accord, Lopez, at p. 248.) Generally, the length of a limitations period corresponds to the seriousness of the crime, as indicated by the maximum punishment permitted by statute for the offense. (§ 805, subd. (a); People v. Turner (2005) 134 Cal.App.4th 1591, 1595.) “An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed.” (§ 805, subd. (a).) This is a key point for resolving the issue at hand. Brown contends section 800 provides the correct limitations period; the People contend that section 799 does. To determine which one applies, we must determine the maximum statutory punishment for the offenses at issue—which, in this case, was complicated by a change in law. Section 800 provides a six-year limitations period for crimes “punishable by imprisonment . . . for eight years or more.” (§ 800.) In 1993 and 1994, the maximum punishment for lewd acts was eight years. (See former § 288, subd. (a), as amended by Stats. 1989, ch. 1402, § 3, pp. 6139– 6140 [“[a]ny person who shall willfully and lewdly commit any lewd or lascivious act . . . upon . . . a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years”].) Thus, the parties agree that, in 1993 and 1994, section 800’s six-year limitations period generally applied to lewd act offenses. (See former § 800, as amended by Stats. 1984, ch. 1270, § 2, p. 4335.) Section 799, on the other hand, provides that there is no limitations period for an offense “punishable . . . by imprisonment . . . for life . . . .” (§ 799.) And beginning November 30, 1994, the One Strike law set forth an 6 alternative, harsher sentencing scheme (People v. Mancebo (2002) 27 Cal.4th 735, 741; § 667.61, enacted by Stats. 1994, 1st Ex. Sess. 1993–1994, ch. 14, § 1, pp. 8570–8572) that made certain sex crimes subject to an indeterminate life sentence when there are multiple victims. (§ 667.61, subds. (c), (e)(4), (j); People v. Canales (2024) 106 Cal.App.5th 1230, 1259 (Canales); People v. Perez (2010) 182 Cal.App.4th 231, 238–240.) As a result, when the One Strike law’s multiple-victim circumstance applies, it triggers section 799, and thus there is no time limit on a prosecution for that crime. (Perez, at p. 239.) As we will explain, because the One Strike law was enacted after some of Brown’s offenses were committed, we must also consider whether its application would violate the constitutional prohibition on ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9; Stogner v. California (2003) 539 U.S. 607, 610 [156 L.Ed.2d 544] (Stogner).) A legislature may not retroactively increase the punishment for a crime. (Collins v. Youngblood (1990) 497 U.S. 37, 42–43 [111 L.Ed.2d 30]; People v. Grant (1999) 20 Cal.4th 150, 158.) A state also violates ex post facto principles by reviving a time- barred prosecution after expiration of the previously applicable limitations period. (Stogner, at pp. 632–633.) The state is not forbidden, however, from extending time limits applicable to the prosecution of future offenses or to prosecutions that have not yet become time-barred. (Id. at pp. 618, 632; see § 803.6, subd. (b) [“[a]ny change in the time period for the commencement of prosecution . . . applies to any crime if prosecution for the crime was not barred on the effective date of the change by the statute of limitations in effect immediately prior to the effective date of the change”].) Courts have applied ex post facto principles to the One Strike law and its amendments. (See Canales, supra, 106 Cal.App.5th at pp. 1259–1260 [because continuous sexual abuse of child (§ 288.5) was not a One Strike crime at the time of the offense, the defendant’s sentence could not be increased under the multiple-victim circumstance]; People v. Hiscox (2006) 136 Cal.App.4th 253, 257–262 (Hiscox) [One Strike punishment barred when timing of offenses not identified with any specificity and evidence only showed they occurred during time period of years that was both before and after effective date of One Strike]; People v. Alvarez (2002) 100 Cal.App.4th 7 1170, 1178 (Alvarez) [“because the one strike law was adopted after [the defendant’s] sexual abuse of [one victim] had occurred, applying it to the charges for that conduct violates the state and federal constitutional protections against ex post facto laws”].) Where the ex post facto clauses apply, “it is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.” (Hiscox, supra, 136 Cal.App.4th at p. 256.) 2. Brown contends that his convictions for violations of section 288, subdivision (a), involving Doe Two and Doe Three (counts 6–8) must be reversed because the six-year statute of limitations expired long before the prosecution began—in March 2020.2 Brown is correct that, for these counts, the six-year limitations period under section 800 expired before prosecution. According to Doe Two’s and Doe Three’s undisputed trial testimony, Brown committed the lewd acts no later than September 2, 1994, and November 9, 1994, respectively. Thus, the six-year statute of limitations expired no later than September 2, 2000, for count 6 and no later than November 9, 2000, for counts 7 and 8—two decades before his prosecution commenced. The One Strike law does not change the analysis because it became effective three weeks after Brown committed the last relevant lewd act against Doe Two and Doe Three. (See § 667.61, enacted by Stats. 1994, 1st Ex. Sess. 1993–1994, ch. 14, § 1, pp. 8570–8572, eff. Nov. 30, 1994.) The 2 Section 804 provides three dates on which a felony prosecution may begin: (1) when the information or indictment is filed; (2) when the defendant is arraigned on a felony complaint; or (3) when an arrest or bench warrant issues. The parties agree that the information filing date is the relevant date in this case. 8 ex post facto clauses bar the state from retroactively applying its harsher punishment scheme to Brown. (Collins, supra, 497 U.S. at pp. 42–43; Canales, supra, 106 Cal.App.5th at pp. 1259–1260). The People essentially make two arguments. Neither has merit. First, without specifying any dates, the People suggest that Brown committed “some of” the relevant offenses against Doe Two and Doe Three after the effective date of the One Strike law (November 30, 1994). That is simply incorrect. It is the People’s burden to prove that the offenses occurred after the effective date of the relevant statute. (Hiscox, supra, 136 Cal.App.4th at p. 256.) The People do not point to any evidence to support their theory. Nor do they dispute Brown’s contention that he committed the last lewd act against Doe Two or Doe Three no later than on November 9, 1994. Indeed, the prosecution acknowledged below that Brown could not be punished under the One Strike law on counts 6–8. (See Alvarez, supra, 100 Cal.App.4th at p. 1178.) The jury found the One Strike multiple victim allegations (§ 667.61, former subd. (e)(5), now § 667.61, subd. (e)(4)) “true” as to all eight counts. But when Brown raised the statute of limitations issue at sentencing, the trial court imposed—purportedly to avoid ex post facto problems—the upper determinate term (eight years) for count 6—as authorized by section 288 in 1994—and one-third the middle term for counts 7 and 8. The People have not met their burden of proving that, as far as counts 6–8 go, Brown committed lewd acts after the One Strike law was effective.3 3 Brown did not raise the statute of limitations issue at trial; he waited until after the jury entered its verdicts. Understandably, the trial court did not instruct the jury on the statute of limitations or that it could only consider acts committed after November 30, 1994. Nonetheless, the People do not argue Brown forfeited his claim by delaying raising it. And our Supreme Court has held “when the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time.” (People v. Williams (1999) 21 Cal.4th 335, 341.) 9  Second, the People offer a novel argument that, even though Brown could not be punished under the One Strike law, the law still triggered section 799’s indefinite limitations period for Brown’s offenses against Doe Two and Doe Three because the six-year statute of limitations remained unexpired when the One Strike law became effective. This makes no sense. By its plain terms, section 799 only applies when there is a “[p]rosecution for an offense punishable . . . by imprisonment . . . for life . . . .” (§799.) Because Brown could not be punished to a life term under the One Strike law for offenses he committed before November 30, 1994, section 799 was not triggered. (Cf. People v. Perez, supra, 182 Cal.App.4th 231, 236–242 [qualifying offense that would have been time-barred, had offense been prosecuted individually, could be prosecuted as One Strike multiple-victim offense at any time—but only if offense occurred after One Strike law’s effective date].) Brown could be punished only under former section 288, which, as explained, mandates the limitations period in section 800. (See former § 288, subd. (a); §§ 800, 805, subd. (a).) Accordingly, we must apply the six-year statute of limitations. (§§ 800, 805, subd. (a); cf. Alvarez, supra, 100 Cal.App.4th at p. 1178 [“because the one strike law was adopted after [the defendant’s] sexual abuse of [one victim] had occurred, applying it to the charges for that conduct violates the state and federal constitutional protections against ex post facto laws”].) At the latest, with respect to counts 6–8, the six-year statute of limitations expired on September 2, 2000, and November 9, 2000.4 Because the The proper approach when the information alleges, as it does here, a time range for the offense that includes dates both within and outside the statutory period “is to review the record or, if necessary, to remand the case to the trial court for factual findings on the statute of limitations question.” (People v. Smith (2002) 98 Cal.App.4th 1182, 1191, citing People v. Williams, supra, 21 Cal.4th at p. 341.) Ultimately, the People must prove that the prosecution commenced within the statutorily prescribed period. (People v. Angel, supra, 70 Cal.App.4th at pp. 1146–1147.) 4 On January 1, 2001, the Legislature extended the statute of limitations to 10 years for felonies identified in section 290, including violations of section 288. (Former § 803, subd. (h)(1), enacted by Stats. 2000, ch. 235, § 1, pp. 2238–2342; People v. Simmons, supra, 210 Cal.App.4th at p. 10 information was not filed until 2020, we conclude that Brown’s convictions on counts 6–8 must be reversed as time-barred. 3. Given that Brown’s convictions on counts 6–8 must be reversed because they are barred by the statute of limitations, we also agree with Brown that the indeterminate terms imposed on counts 1–5—under the One Strike law for committing specified offenses against more than one victim (§ 667.61, subds. (e)(4), (j)(2))—must be vacated and the case must be remanded for resentencing. Counts 1–5 involve only Doe One. By failing to address this part of Brown’s argument, the People concede that resentencing is required if we agree with Brown on the statute of limitations question. We agree that resentencing is required on the remaining five counts because this case no longer involves crimes committed against multiple victims. (See § 667.61, subd. (e)(4) [offender who suffers convictions “in the present case or cases of committing an offense specified in subdivision (c) against more than one victim” is subject to life term (italics added)]; Canales, supra, 106 Cal.App.5th at pp. 1259–1260; id. at p. 1259 [“[t]he multiple-victim enhancement cannot apply when only one victim fits the statutory scheme”].) B. We reject Brown’s assertion that the trial court abused its discretion by refusing to strike his ex-wife A.T.’s testimony, given on redirect examination in the defense case, that he “[s]exually violated” her while they were married. “We review claims regarding a trial court’s ruling on the admissibility of evidence for abuse of discretion.” (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) 788.) Ex post facto clause principles prohibit revival of an already expired statute of limitations. (See Stogner, supra, 539 U.S. at p. 609; People v. Smith (1985) 171 Cal.App.3d 997, 1001.) 11  1. Brown, who was representing himself at trial, engaged A.T. in the following colloquy on redirect examination: “Q. [D]id we ever get in any fights, physical fights or anything like that? “A. You got mad at me a few times. “Q. But nothing physical? I mean . . . you would say they were arguments more than physical fights? “A. Arguments—but there were other issues. “Q. Okay. And would that be because of what was going on with the custody battle? “A. No. [¶] During . . . those times, you would hurt me sometimes. “Q. How would I hurt you? “A. Sexually violated me. “Q. Wow. “A. When I asked you not to, you hurt me. “Q. And you’re sure about that? “A. I am sure.” (Italics added.) After Brown concluded his questioning of A.T. on redirect testimony, two additional witnesses testified in Brown’s defense, and then the trial court took a 10-day break for Thanksgiving. When trial resumed, Brown asked the trial court to strike the italicized part of A.T.’s testimony. He explained, “[She] got a phone call right at the last part of the [testimony over Zoom], then she made a statement after that. And I want that statement taken off the record because I don’t know who was on the other end of the phone, somebody told her to say that, or what was going on with that. [¶] So I want that statement taken off the record.” 12  The trial court denied his motion and initially explained to Brown, “It was a . . . subject matter elicited by you. I’m sure that you didn’t expect that she would answer in that fashion, but you did ask her if there was anything physical or anything that you’d done to her that was uncomfortable or to that effect, and she said, ‘Not that, but there were other things,’ and I think that’s when she [gave the challenged testimony].” After receiving a transcript, the trial court denied Brown’s motion to strike. The court stated: “I was concerned whether or not she had no question pending . . . or if it was completely unrelated to a question that you asked. But you specifically asked, ‘How would I hurt you?’ [¶] And so her answer was appropriate, even though it wasn’t what you wanted.” 2. We agree with the People that Brown forfeited the argument he makes on appeal—that the evidence was irrelevant (Evid. Code, §§ 210, 350) or unduly prejudicial (id., § 352)—by failing to object on those grounds below. (See id., § 353, subd. (a) [“[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] . . . There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion” (italics added)]; People v. Demetrulias (2006) 39 Cal.4th 1, 20–22.) Although we ordinarily have discretion to reach forfeited issues, Evidence Code section 353 bars us from doing so when the issue involves the admission or exclusion of evidence. (Evid. Code, § 353, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) C. Finally, Brown argues that the restitution award, in the amount of $500,000, that he was ordered to pay to Doe One to compensate her noneconomic losses must be reversed as excessive.5 We disagree. 5 Brown similarly argues that the restitution awards to Doe Two and Doe Three should be reversed as excessive or, in the alternative, because the 13  1. Crime victims have a constitutional right to restitution, which is broadly and liberally construed. (Cal. Const., art. I, § 28, subd. (b)(13); People v. Mearns (2002) 97 Cal.App.4th 493, 500.) Restitution is generally limited to a crime victim’s economic loss. (See § 1202.4, subds. (a)(1), (f); People v. Smith (2011) 198 Cal.App.4th 415, 431 (Smith).) However, section 1202.4, subdivision (f)(3)(F), makes an exception by providing that a restitution order shall “fully reimburse” a victim’s “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.7.” The party seeking restitution bears the burden of proof by a preponderance of the evidence, but “section 1202.4 does not require any particular kind of proof to establish a victim’s losses.” (People v. Lehman (2016) 247 Cal.App.4th 795, 801, 803 (Lehman).) The prosecution is not required, at the restitution hearing, to present victim testimony or affidavits or expert declarations. (Id. at p. 803.) To demonstrate entitlement to noneconomic damages, the “evidentiary bar” is low, but the evidence must show the impact of the crime on the specific victim, rather than on victims generally. (People v. Gomez (2023) 97 Cal.App.5th 111, 118–120.) The court may not rely “exclusively on its experience and common sense regarding similar incidents in awarding restitution,” but it may consider, among other types of evidence, the victim’s trial testimony, the contents of the probation report, sentencing statements by the victim or their parents, or testimony from a treating physician or therapist or others with personal knowledge of the impact on the victim. (Id. at pp. 119, 120; Lehman, at pp. 803–804.) We review the amount of a trial court’s restitution award for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663; Smith, supra, 198 Cal.App.4th at p. 435.) No abuse of discretion exists if there is a rational and factual basis for the award. (People v. Gomez, supra, 97 Cal.App.5th at p. awards violate ex post facto prohibitions. However, we need not reach these points because we have already concluded the corresponding convictions (in counts 6–8) must be reversed. 14 116.) “Unlike restitution for economic loss, . . . loss for noneconomic loss is subjectively quantified.” (Smith, at p. 431.) “ ‘ “No fixed standard exists for deciding the amount of these damages.” ’ ” (Lehman, supra, 247 Cal.App.4th at p. 801.) We must affirm a restitution order for noneconomic damages if it “does not, at first blush, shock the conscience or suggest passion, prejudice or corruption on the part of the trial court.” (Smith, at p. 436.) Here, the prosecutor filed a sentencing brief requesting restitution for all three victims in the amount of $100,000 per count. Brown opposed that request, arguing there was an “insufficient basis” for such an award. In awarding Doe One $500,000 for her noneconomic loss, the trial court explained: “[T]he court observed the trial testimony of each of the victims. [¶] . . . [¶] Jane Doe 1 went to counseling because of what happened to her and was traumatized because of defendant’s actions. [¶] . . . [¶] Given the trauma that each of these victims has had to endure during and years after defendant’s abuse[,] the court finds there is a sufficient basis to award noneconomic damages.” 2. Brown claims that the court abused its discretion because $500,000 is out of proportion to “the extent and severity of [his] criminal conduct.” However, unlike economic damages, which are “objectively verifiable,” noneconomic damages are inherently “ ‘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.’ ” (Smith, supra, 198 Cal.App.4th at p. 431, quoting Civ. Code, § 1431.2, subd. (b)(2).) We find no abuse of discretion in the restitution order. The trial court appropriately relied on evidence—taken from Doe One’s own testimony and her parent’s sentencing statement—that Doe One suffered psychological harm. Doe One herself testified that she felt uncomfortable and helpless immediately after she was first molested and that she remained scared for years thereafter. Doe One’s testimony at trial also indicates that her relationship with her paternal grandmother was damaged by Brown’s abuse. 15 She also testified, outside the presence of the jury, that she had sought therapy after reporting the abuse and that she remained in treatment at the time of trial. At sentencing, Doe One’s mother gave a victim impact statement in which she said that Brown “ha[d] taken a piece of my daughter’s childhood away that she will never get back.” Doe One’s grandfather also stated Brown had “ruined a lot of lives.” Given this evidence of significant harm, we conclude that the trial court’s award of $500,000 to Doe One to compensate her noneconomic losses for suffering at least five separate instances, between the ages of five and seven, of Brown’s forcibly touching her vagina and forcing her to touch his penis does not shock the conscience or suggest passion, prejudice or corruption on the part of the trial court. (See Lehman, supra, 247 Cal.App.4th at pp. 797–798, 802–803 [affirming award of $900,000 for defendant’s sexual abuse of one victim beginning with back rubs at age of nine or 10 and ending with digital penetration when she was in high school, and award of $100,000 to another victim who suffered “ ‘only the early stages of the defendant’s grooming behavior’ ” at age 11]; Smith, supra, 198 Cal.App.4th at pp. 436–437 [affirming restitution award of $750,000 in noneconomic damages for defendant’s sexual abuse of stepdaughter from age of eight until she turned 15].) Brown insists the abuse in this case was less severe in kind and duration than in Lehman and Smith. True, Lehman involved dozens of sex offenses (including oral copulation) committed by the victim’s grandfather beginning when she was nine or 10 years old and continuing through her late high school years. (Lehman, supra, 247 Cal.App.4th at p. 798.) In Smith, the victim’s stepfather regularly abused her for many years. (Smith, supra, 198 Cal.App.4th at p. 420.) The abuse began when the victim was eight years old and became more severe over time, from unwelcome touching (of her waist, stomach, and chest) to oral copulation and intercourse when she was a teenager. (Id. at pp. 420–421.) And neither Smith nor Lehman involved awards calculated at a rate of $100,000 per incident of abuse. However, the trial court was not swayed by Brown’s attempts to minimize his conduct. The court may have been focused on Doe One’s very 16 young age (five to seven years old) at the time Brown abused her. In that sense, at the very least, the facts of this case are more egregious. (Cf. Lehman, supra, 247 Cal.App.4th at pp. 797–798, 802–803 [abuse began when victim was nine or 10 years old]; Smith, supra, 198 Cal.App.4th at pp. 419– 424 [abuse began when victim was eight years old].) Brown suggests no reason to second-guess the judgment of the trial court—who, unlike us, was able to observe Doe One’s demeanor—because it awarded a different amount based on different facts. We cannot say that the trial court abused its discretion. DISPOSITION The judgment and restitution orders are affirmed in part and reversed in part. Brown’s convictions on counts 6–8 are reversed and the correlating restitution awards to Jane Doe Two and Jane Doe Three are stricken. Brown’s convictions on counts 1–5, along with the restitution award to Jane Doe One, are affirmed. The multiple-victim finding and sentences imposed on counts 1–5 are vacated, and the matter is remanded to the trial court for resentencing as to those counts only. After Brown is resentenced on counts 1–5, the trial court shall issue an amended abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation. Burns, J. WE CONCUR: Simons, Acting P. J. Chou, J. A169883, A170246/People v. Rodney Leroy Brown 17