People v. Cruz CA5

Filed 10/23/26 P. v. Cruz CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F090649 Plaintiff and Respondent, (Super. Ct. No. F19904567) v. PETER CRUZ, OPINION Defendant and Appellant. THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Jr., Judge. Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ian Whitney and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Before Franson, Acting P. J., Meehan, J. and Snauffer, J.  INTRODUCTION Defendant Peter Cruz appeals a restitution order issued after defendant entered a no contest plea to two counts of lewd or lascivious acts on a child under 14 years of age (Pen. Code, § 288, subd. (a)) (all further statutory references are to the Penal Code unless indicated otherwise). The trial court ordered noneconomic restitution to three victims in the amounts of $350,000, $150,000, and $25,000. On appeal, defendant argues the trial court failed to articulate a rational method for calculating the noneconomic restitution pursuant to People v. Giordano (2007) 42 Cal.4th 644 (Giordano), and it offered no sound reason to justify the amounts ordered. Instead, defendant argues, the trial court imported a $50,000-per-year-of-abuse award based on People v. Smith (2011) 198 Cal.App.4th 415 (Smith), which is not rational or factually supported because it is unrelated to the specific victims and noneconomic injury at issue in this case. A panel of this court recently considered similar arguments in People v. Castillo (2026) 122 Cal.App.5th 1142, 1158 (Castillo), and held that, different from the economic restitution award at issue in Giordano, noneconomic restitution awards are based on subjective considerations which are not amenable to a specific method of calculation, and such awards are more appropriately reviewed on appeal for an abuse of discretion under the shocks-the-conscience test. Having considered defendant’s arguments in light of Castillo and Smith, we conclude the trial court did not abuse its discretion by imposing $525,000 in noneconomic restitution. 2.  BACKGROUND I. Defendant’s Plea and Underlying Factual Basis1 By amended information, defendant was charged with three counts of lewd or lascivious acts on a child under 14 years of age (§ 288, subd. (a); counts 1, 2, 4), and one count of oral copulation or sexual penetration with a child under 10 years of age (§ 288.7, subd. (b); count 3). The charges pertained to three separate victims. An aggravating circumstance was alleged under the One Strike law (§ 667.61) as to counts 1, 2 and 4, and two aggravating sentencing factors were alleged under California Rules of Court, rule 4.421 (further reference to rules are to the Cal. Rules of Court). Shortly after opening arguments were presented in defendant’s jury trial, defendant agreed to plead no contest to counts 1 and 2, and to admit the aggravating sentencing factors alleged under rule 4.421(a)(1) and (a)(3). In exchange, the prosecution agreed to dismiss the remaining counts and the One Strike law circumstances, and the parties stipulated to a 10-year sentence. The factual underpinning for defendant’s conviction by plea is as follows:2 S.D. was interviewed by police in April 2019, where she disclosed that from the age of seven until she was 11 or 12 years old, defendant sexually abused her, including oral copulation and digital penetration.3 Defendant is S.D.’s stepgrandfather with whom she was living. When the abuse was reported, S.D. was removed from her home. 1 The parties requested that this court take judicial notice of the clerk’s transcript from the appellate record in defendant’s related appeal before this court (People v. Cruz, case No. F090503), which was granted. We directed the Clerk/Executive Officer of this court to file exhibits Nos. A and B received with defendant’s request for judicial notice, which include a transcript of the preliminary hearing and the prosecution’s restitution brief. 2 The facts are drawn from the prosecution’s restitution brief, the probation report, and the preliminary hearing transcript. 3 In her victim impact statement, S.D. stated the abuse lasted until she was about 14 years old. 3.  In June 2019, police responded to a call related to possible sexual assault involving S.D.’s younger sister, A.T. A.T.’s mother was told by her son, G.D., that he walked into a room in the house and saw defendant quickly toss or push A.T. away. A.T. told her mother that defendant had licked her vaginal area, and that he put his nose in her crotch. During an interview, A.T. said defendant had pulled her pants down and picked her upside down; he touched her vagina, but she did not know what he used to touch her. She said he had touched her private parts many times before. A sexual assault response team (SART) exam was performed on A.T., and defendant’s DNA was found on her vagina and anus. After defendant’s arrest related to his conduct with S.D. and A.T., defendant’s friend and the friend’s 13-year-old daughter (A.Y.) moved in with defendant. A.Y. disclosed to her father and a student teacher that defendant had touched her inappropriately three times in 2019. A.Y. described the first incident occurred when defendant placed his open palm on the couch just before A.Y. sat down, contacting her buttocks. Later the same day, during a trip to the grocery store, defendant was in the car alone with A.Y. and began running his fingers through her hair, rubbing her bare inner thigh and asking if she had intercourse with her boyfriend. The third incident occurred about a month later when defendant again placed his open palm on the couch as A.Y. sat down. The trial court imposed the stipulated sentence of 10 years as follows: the upper term of eight years on count 1, and a consecutive one-third-the-middle term (two years) on count 2. The court awarded 90 days of custody credits, imposed a restitution fine of $3,000 pursuant to section 1202.4, and imposed a suspended $3,000 parole revocation restitution fine pursuant to section 1202.45. The trial court reserved restitution under section 1202.4, subdivision (f), pending a restitution hearing. The court also imposed and suspended a $300 fine under section 290.3, and imposed ancillary court assessments of 4. $30 and $40 pursuant to Government Code section 70373, subdivision (a)(1), and Penal Code section 1465.8, subdivision (a)(1), respectively. II. Victim Impact Statements At the time of sentencing, A.Y. submitted a written victim impact statement indicating defendant was like an uncle to her—she had known him her whole childhood. She felt betrayed by him as she had seen him as a second father figure. In the five years since the abuse occurred, she has struggled to leave the house and has suffered severe anxiety. Due to the anxiety, she has not been able to experience a “normal teenage life,” and she is haunted by the abuse every day. S.D. provided a detailed written victim impact statement. She explained that she met defendant when she was five or six years old, and he became like a grandfather to her. She recalled abuse by defendant when she was between seven and 14 years of age, and she explained how her father found out about the abuse, but he did nothing to stop it. She described telling her therapist what defendant was doing to her, and that if she had to go back to the house to live with him, she was going to kill herself. She described growing up believing that she was loveable only if she gave up her body; she continued to look over her shoulder after the abuse was reported, afraid she would encounter defendant. On multiple occasions, she has seen someone who looks like defendant, and it has caused her panic attacks. She has undergone years of therapy, and she was prescribed medication for suicidal ideation when she was 16 years old due to memories and nightmares about the abuse. She also explained she has worked hard to overcome this enduring trauma, and she has finished high school and college. S.D’s. and A.T.’s mother also provided a written victim impact statement, explaining that her children had been diagnosed with posttraumatic stress disorder, night terrors, and severe anxiety. One of her daughters will need a service animal because she can no longer be in a room alone. After the abuse was reported, she and her children had to leave their home, and ultimately left California because S.D. and A.T. could not see 5. anyone resembling defendant or his car without “screaming, trembling, or crying.” The children continued to see multiple doctors. The abuse tore the family apart, and the children lost family support, friends, and support systems. S.D.’s aunt, K.S., made a statement at the sentencing hearing. She explained she had personally observed S.D.’s fear when encountering defendant in the community, and S.D.’s resulting anxiety attack. She described S.D.’s fear and apprehension of seeing defendant again, and of S.D. reliving the abuse when she saw him. The prosecutor read S.D.’s victim impact statement at the sentencing hearing. III. Restitution Hearing In its restitution brief, the prosecution requested a total of $525,000 in noneconomic restitution for the three victims as follows: $350,000 for S.D.; $150,000 for A.T.; and $25,000 for A.Y. The prosecution maintained the molestation and subsequent injury to the victim in Smith are very similar to the abuse and its effects on S.D. in this case. (See Smith, supra, 198 Cal.App.4th at p. 432.) Based on Smith, the prosecution argued $50,000 per year is a reasonable amount given the abuse, and this would equate to a restitution award of $350,000 for S.D. Similarly, the prosecution argued that because A.T. suffered abuse for approximately three years, she was entitled to $150,000 in noneconomic restitution. As A.Y.’s abuse lasted only a few months, the prosecution argued an award of $25,000 was justified. At the restitution hearing, the prosecution presented no additional testimony, and relied instead on the underlying facts supporting the conviction and the victim impact statements made by A.Y., S.D., and the mother of S.D. and A.T. offered at the time of sentencing. The trial court awarded the requested amounts, reasoning as follows: “There was a preliminary hearing in this case and based on discussions, it appear[s] that the abuse suffered by [S.D.] was ongoing and frequent and somewhat less as to [A.T. and A.Y], but certainly as to frequency, it was presumptively and I would say 6.  clearly a significant factor in their—I mean, it significantly affected all of them negatively as this type of thing would with someone of their respective ages. So I don’t think that the request is extraordinary or inappropriate.” The court added that it based the noneconomic restitution award on “the information contained in the restitution brief, along with my knowledge of the case and the arguments of counsel.” DISCUSSION I. Standard of Review Defendant argues Smith’s application of the shocks-the-conscience standard in the context of noneconomic restitution under section 1202.4 is an incorrect departure from the abuse of discretion standard applied by the California Supreme Court in Giordano, supra, 42 Cal.4th at page 663 for economic restitution. Pursuant to Giordano, defendant contends a trial court must select a rational method for calculating the amount of restitution, clearly articulate it, and explain how it justifies the award; the trial court’s reasoning is reviewed on appeal to determine whether such a method is rationally and factually designed to compensate the victim. Giordano considered how a trial court should determine a surviving spouse’s economic loss under section 1202.4. (Giordano, supra, 42 Cal.4th at pp. 663–667.) Our high court noted that although section 1202.4 “does not itself provide guidelines for calculating the economic loss that a surviving spouse incurs,” “a trial court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review.” (Giordano, supra, at p. 664.) The court explained that an award of restitution “is committed to the sound discretion of the trial court,” and that “[n]o abuse of that discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result.” (Id. at p. 665.) “Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving 7. victim’s economic loss.” (Id. at pp. 663–664.) To facilitate appellate review of the trial court’s economic restitution order, the court reasoned “the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (Id. at p. 664.) Turning to the facts, Giordano observed that the trial court had awarded $167,711.65 in economic restitution to a murder victim’s surviving spouse by multiplying the decedent’s average annual earnings over the three years prior to his death and multiplying that figure by five years. (Giordano, supra, 42 Cal.4th at p. 663.) Giordano found this method to be imprecise because it assumed the surviving spouse was entitled to receive her husband’s gross annual earnings, not just that portion of his earnings that went to her economic support, and it also assumed that five years was the appropriate term for loss of support. (Id. at pp. 665–666.) Nevertheless, the court explained, the defendant had failed to show a more precise formula would have established lesser economic loss. (Id. at p. 666.) Although the trial court had not considered what portion of the decedent’s income would have gone to support himself as opposed to his surviving spouse, the trial court could have used a time period longer than five years to calculate the loss of support to the surviving spouse because the decedent was relatively young when he was killed. (Ibid.) As a result, the court explained, the defendant had not established that a calculation method better designed to approximate the surviving spouse’s loss of economic support would have resulted in an amount of restitution less than what was awarded, and had not, despite the trial court’s imprecise calculation method, established an abuse of discretion. (Id. at pp. 666–667.) In Smith, the Court of Appeal concluded Giordano’s consideration of economic restitution was distinguishable from noneconomic restitution orders. Smith observed that “[u]nlike restitution for economic loss, … loss for noneconomic loss is subjectively quantified.” (Smith, supra, 198 Cal.App.4th at p. 436.) The court explained that while 8. economic restitution awards “are readily reviewed for whether they are ‘rationally designed to determine the … victim’s economic loss,’” noneconomic damages require more subjective considerations. (Ibid.) Drawing on the civil jury instruction for noneconomic loss (CACI No. 3905A), the court observed there is no fixed standard under which a factfinder must calculate noneconomic loss, and such an award constitutes an abuse of discretion only where it is “‘so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the [factfinder].’” (Smith, supra, at p. 436, quoting Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506– 507 (Seffert).) The evidence presented at the restitution hearing in Smith established not only that the defendant molested the victim, but that he isolated her and took advantage of a position of trust from the time she was a child. At 30 years of age, the victim was still having nightmares and flashbacks concerning the abuse, she had been in therapy to deal with the problems caused by the abuse, she was having difficulty keeping jobs, had not finished her education, and had twice attempted suicide. (Smith, supra, 198 Cal.App.4th at p. 432.) Based on this evidence, the trial court awarded $750,000 in noneconomic restitution by multiplying 15 years of abuse (eight to 23 years old) by $50,000. (Id. at p. 433.) Rejecting the defendant’s claim that the award was based on the victim’s suffering during years after the crimes were committed, Smith explained the trial court was “searching for some way to quantify [the victim’s] pain and suffering,” and although the defendant had been convicted of only seven years of abuse, there was “no credible argument, especially on the facts of th[e] case, that [the victim’s] psychological harm ended” when the illegal abuse ended. (Id. at p. 437.) Defendant argues Giordano provides the governing standard for restitution awards; by extending Seffert’s shocks-the-conscience standard to the criminal restitution context, defendant contends Smith failed to follow binding precedent by not applying the abuse of discretion standard. In addition to being incorrect, defendant maintains the 9. shocks-the-conscience standard applied by Smith is unworkable to the extent it requires a reviewing court to determine whether a trial court has been swayed by passion, prejudice or corruption. According to defendant, a trial judge, unlike a jury, should be expected to choose a rational method for calculating the amount of restitution, articulate the method, and explain how it justifies the award. A panel of this court recently rejected similar arguments in Castillo. In that case, we explained the shocks-the-conscience standard adopted by Smith is meant to determine whether an award of noneconomic restitution is arbitrarily and capriciously excessive— i.e., constitutes an abuse of discretion. (Castillo, supra, 122 Cal.App.5th at p. 1162.) Indeed, Smith expressly recognized the amount of restitution ordered is reviewed for an abuse of discretion. (Smith, supra, 198 Cal.App.4th at p. 435.) Castillo found persuasive Smith’s basis for distinguishing Giordano in the context of noneconomic restitution and instead extending Seffert’s shocks-the-conscience method to the criminal restitution context. (Castillo, supra, 122 Cal.App.5th at pp. 1158–1160.) As Smith explained, unlike calculating the economic restitution for a surviving spouse— where quantifiable criteria such as the victim’s income and age play a prominent role— there is no similar quantitative metric for nonpecuniary psychological damage such as fear, anxiety attacks, nightmares, depression, and suicidal ideation. (Smith, supra, 198 Cal.App.4th at p. 436; Castillo, supra, at pp. 1157–1158.) In the civil context, juries are instructed to use their judgment to decide a reasonable amount to award for nonpecuniary loss “based on the evidence and [its] common sense.” (CACI No. 3905A.) As there is no precise quantitative method available for calculating this type of noneconomic harm, and given the subjective nature of valuing it, an appellate court assesses whether a noneconomic restitution award is arbitrarily and capriciously excessive by considering whether it shocks the conscience “or suggest[s] passion, prejudice or corruption on the part of the trial court.” (Smith, supra, at p. 436; see Seffert, supra, 56 Cal.2d at p. 507.) 10.  Defendant argues this test is unworkable because it requires an appellate court to determine whether a trial court was “‘corrupt,’ prejudiced, or excessively passionate .…” We disagree. This articulation of the shocks-the-conscience test in Seffert and extended in Smith, mirrors what is considered under the traditionally articulated abuse-of- discretion standard: “‘whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’” (Giordano, supra, 42 Cal.4th at p. 663, quoting People v. Williams (1998) 17 Cal.4th 148. 162.) Stated differently, a reviewing court considers whether an award of noneconomic restitution shocks the conscience such that it is beyond the bounds of reason. This is not a departure from the abuse of discretion standard, nor is it an unworkable measure of whether an award of noneconomic restitution is arbitrarily or capriciously excessive.4 II. No Specific Methodology to Calculate Noneconomic Restitution Defendant argues the court abused its discretion by adopting wholesale the noneconomic restitution requested by the prosecutor; the trial court did not provide any sound justification for using a formula that equated to about $50,000 per year of abuse for each victim. Defendant contends the trial court’s statement that the prosecutor’s request was not extraordinary or inappropriate does not show that the court used a rational method for calculating the amount of noneconomic restitution awarded, nor did the court explain how this method justified the amount awarded. The People contend that, although the prosecution based its request for restitution on Smith, the trial court’s order was formulated around the specific facts of this case. Specifically, the People note the trial court relied on the information contained in the prosecution’s restitution brief and the court’s own knowledge of the case—including the 4 As explained in Castillo, the abuse of discretion is not a unified standard. While a claim of excessive noneconomic restitution is measured under a shocks-the-conscience standard to test for an abuse of discretion, an abuse of discretion may also be established if there is no substantial evidence to support any amount of noneconomic restitution. (Castillo, supra, 122 Cal.App.5th at pp. 1161–1162.) 11. preliminary hearing testimony, which provided evidence about the victims’ abuse—and the arguments of the parties. This evidence constituted a factual and rational basis to order noneconomic restitution to the victims, and the restitution ordered was not an abuse of discretion.5 In Castillo, we emphasized that the extent of noneconomic injury that results from sexual abuse is highly fact-specific and will vary from victim to victim—not all sexual abuse victims will suffer the same degree of psychological injury, even where the details and duration of the molestation suffered may be similar. (Castillo, supra, 122 Cal.App.5th at p. 1163 [“not all victims experience the same degree of trauma from molestation, and how it affects a victim can vary dramatically”].) The degree (or years) of harm inflicted does not necessarily dictate the severity (or even the existence) of any noneconomic injury suffered. (See People v. Valenti (2016) 243 Cal.App.4th 1140, 1182–1184 [parents’ statements regarding offenses did not provide evidence of any noneconomic injury suffered by victims—noneconomic restitution unsupported].) To the extent the prosecution suggested the fact of abuse and its duration was sufficient on its own to justify an award of noneconomic restitution, that is incorrect. (People v. Gomez (2023) 97 Cal.App.5th 111, 119 [an award of noneconomic restitution may be awarded only when there is nonpecuniary injury actually incurred by the victim].) As explained in Gomez, “it is insufficient that the average victim would suffer injury from a particular type of crime, or that generally victims of such crimes suffer injury.” (Gomez, supra, 97 Cal.App.5th at p. 118.) While focusing on the length and nature of the abuse may be relevant considerations in ordering noneconomic restitution, 5 The People contend defendant forfeited his argument the trial court was required to set forth a specific method for calculating an award of noneconomic restitution because this objection was not raised at the restitution hearing. However, defendant objected to the application of Smith’s formula for calculating the noneconomic restitution amounts, and his argument overlaps with the appropriate standard of review on appeal, which is not an issue that could be resolved by objection at the restitution hearing. 12. the prosecution’s restitution brief gave very little consideration to the individual victims’ specific noneconomic injuries, which is what noneconomic restitution is meant to compensate. (Id. at p. 119 [where there was no evidence of the impact of the crimes on the victim, the trial court’s award of noneconomic restitution based on “experience and common sense regarding similar incidents” was an abuse of discretion].) Nevertheless, the trial court did not simply adopt the prosecution’s arguments wholesale, as defendant argues, or blindly apply Smith’s per-year-of-abuse calculation without consideration of the specific victims here and their particular noneconomic injuries. The restitution order reflects the trial court considered not only the degree and duration of the victims’ abuse, but it also considered that the abuse “significantly affected all of [the victims] negatively .…” Distinct from Gomez, the trial court did not simply assume the victims suffered noneconomic injury based solely on the evidence of molestation; rather, there was evidence of the victims’ psychological injuries that arose because of the molestation, which the court indicated it considered. (Cf. ibid.) Moreover, although the trial court could have set forth more detailed findings and reasoning, its statements in awarding restitution do not reflect indiscriminate importation of Smith’s quantification of noneconomic loss without appropriate and due consideration of the specific noneconomic injuries evidenced here. In sum, there was evidence of the victims’ particular noneconomic injuries, which the trial court indicated it had considered, and the restitution order, therefore, did not lack an underlying factual basis of the victims’ specific noneconomic injury. (Compare People v. Lehman (2016) 247 Cal.App.4th 795, 805 [no abuse of discretion where the trial court set forth its assessment of the psychological distress suffered by the victims— nothing further needed to explain the basis for noneconomic restitution award] with Gomez, supra, 97 Cal.App.5th at p. 119 [abuse of discretion to order any noneconomic restitution where no evidence supported noneconomic injury incurred by the victim].) Defendant does not argue there is no substantial evidence of noneconomic damage as to 13. one or more of the victims, nor has defendant demonstrated that, in view of the harm suffered and the noneconomic injuries incurred by the victims, the noneconomic restitution amounts are so excessive as to shock the conscience and suggest the award is outside the bounds of reason. DISPOSITION The trial court’s restitution order is affirmed. 14.