Filed 8/27/15 P. v. Murphey 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID ALLEN MURPHEY,

Defendant and Appellant.

F068994

(Stanislaus Super. Ct. No. 1402538)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas 

Zeff, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOooINTRODUCTION

Appellant/defendant David Allen Murphey was convicted of four counts of 

committing lewd acts upon a child under the age of 14 years (Pen. Code, § 288, 

subd. (a));1 with the special allegations that defendant engaged in substantial sexual 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2.

conduct with a victim under the age of 14 years (§ 1203.066, subd. (a)(8)); one count of 

attempting to commit lewd acts on a child (§§ 664/288, subd. (a)); and one count of 

exhibiting harmful matter with intent to seduce a minor (§ 288.2, subd. (a)). The victim 

was his stepdaughter, who disclosed the molestations to her mother (defendant’s wife) 

when she was nine years old, and reported that defendant began to molest her when she 

was five years old. Defendant was sentenced to 15 years eight months in prison, and the 

court ordered defendant to pay noneconomic restitution of $250,000 to the victim.

On appeal, defendant contends the court abused its discretion when it received the 

verdicts and polled the jury, and one juror initially failed to affirm the verdicts. 

Defendant asserts the court should have immediately ordered the jury to resume 

deliberations instead of continuing to question the juror, and then concluding that the 

juror affirmed the guilty verdicts. Defendant also contends the court abused its discretion 

when it ordered him to pay noneconomic restitution of $250,000 to the victim, pursuant 

to section 1202.4, subdivision (f)(3)(F), which authorizes noneconomic restitution to 

child molestation victims under certain circumstances.2 We affirm.

FACTS

Jennifer M. (Jennifer) is the mother of “Jane Doe” (Jane), born in 1999.3 When 

Jane was about two years old, Jennifer began a relationship with defendant, and he lived 

with them.

In 2003, Jennifer and defendant were married. Jane considered defendant as her 

stepfather. In 2006, Jennifer and defendant had a son.

 

2

In his opening brief, defendant raised another issue, and argued the court 

erroneously calculated his presentence credits. In response, the People set forth the 

calculations based on defendant’s custodial periods. In his reply brief, defendant 

concedes he made a mathematical error in his opening brief, the court correctly calculated 

his presentence credits, and he withdrew the argument.

3 As in the trial proceedings, we will also refer to the victim by the name of Jane 

Doe.
3.

Starting in 2005, Jennifer attended college and worked. Defendant took care of 

the children at home.

Domestic Disputes Between Defendant and Jennifer

Jennifer testified there were domestic disputes, verbal abuse, and violence in her 

relationship with defendant. Jennifer and defendant had argued in the past, which led to 

her threats to leave. Defendant once attempted suicide and threatened that if he could not 

have the children, then she could not either.

In 2007, Jennifer and defendant separated and they lived apart. After a few 

months, they reconciled and lived together again with the children.

Officer Ron Lemings testified for the defense about an incident in September 

2008, when he responded to defendant’s house on a report of suspicious circumstances. 

Defendant was not there. Lemings spoke to Jennifer, who said she had previously left the 

house because defendant was drinking heavily. Jennifer said she took the children to her 

mother’s house and then returned to her own house. She discovered defendant was still 

drinking and other people were there. She also noticed several things were missing or 

had been broken in their house. Jennifer said defendant had grabbed her sweater sleeve,

but he did not harm her. She said defendant screamed at her and slapped the windshield 

of her car.

Officer Lemings testified that as he spoke with Jennifer in the house, someone 

threw a rock through the window, and it landed at their feet. Jennifer grabbed her child 

and ran outside. About 10 minutes later, Lemings found defendant walking toward the 

house. He was intoxicated and admitted he threw the brick. Lemings arrested defendant 

for being drunk in public; he did not charge him with any other offenses. Lemings 

conceded that based on Jennifer’s statements, defendant could have been charged with 

vandalism, possession of stolen property, criminal disturbance, assault with a deadly 

weapon, assault on an officer, and child endangerment.
4.

At trial, Jennifer testified about the September 2008 incident and explained how 

defendant threw a cinder-block brick through the window while she was talking to the 

officer. She testified defendant was arrested, and she thought he had been charged with 

14 offenses, including domestic violence, being drunk in public, and endangering an 

officer. She also believed that all the charges were eventually dropped, and defendant 

told her that “he could do anything and he would always get away with it.”

Jennifer testified that she stopped having intimate relations with defendant because 

of their fighting. After the domestic violence incident, there were four or five times when 

she was asleep and defendant “forced himself on top of me.” She tried to push him off 

and said no, but it did not work, and “I was forced to have sex with him that night.” The 

most recent incident was a few weeks before Jennifer contacted the police in this case.

In 2008, Jennifer was scared of defendant and felt she and the children were in 

danger. She did not know how to leave him and started seeing a counselor at a women’s 

center for help.

Jennifer Discovers the Websites

In 2009, defendant, Jennifer, and the two children were living on East Coolidge in 

Modesto. Jane was nine years old. They had a desktop computer, which was in the 

master bedroom.

In January or February 2009, Jane told her mother that her vagina was sore or 

itchy, and there was some blood. Jennifer took Jane to the doctor, and he prescribed an 

ointment for the irritation.

In May 2009, Jennifer was working on the desktop computer and tried to retrieve a 

document. As she checked the computer’s memory, she discovered that someone had 

deleted “a multitude” of pornographic websites from the browsing history. She was able 

to access the computer’s history, which revealed several websites had been searched 

about sexual acts between fathers and daughters, rape, incest, and foot fetishes. She was 

shocked to find that these websites had been accessed on her computer.
5.

After finding these websites, Jennifer spoke to Jane when they were alone in the 

house. She asked Jane if defendant had touched or done anything to her. Jane “just 

looked at me dumbfounded and said no.”

Jennifer and the Children Leave

Jennifer testified she was already afraid of defendant “because of how he was with 

me.” After she found the pornographic and incest websites, Jennifer was afraid “he was 

going to move” to Jane. Jennifer contacted her counselor and asked for advice about how 

to leave defendant. The counselor told her to pack her things and get ready to leave when 

she had the chance, and the counselor would place her in a safe center.

On the evening of May 12, 2009, Jennifer returned from school, and defendant left 

to work on his father’s car. As soon as he was gone, Jennifer told the children to pack 

their belongings because they were going to leave. Jennifer took the desktop computer.

Jennifer testified that she loaded the children and their belongings into the car. As 

they were about to leave the house, she again asked Jane if defendant “had ever done 

anything to her, and told her that I know how scary he can be and sometimes people will 

say stuff to scare you, but you don’t have to be scared, they can’t hurt you. I’m here to 

protect you. There are people here to protect you. If he did anything, you can tell me 

because it is okay. That’s when [Jane] had admitted that he had been doing stuff to her.” 

Jennifer testified that Jane said defendant would touch her and motioned toward her 

breast and pelvic areas. Jane was crying and scared.

Jennifer drove to a storage facility where she placed the computer and their other 

belongings. She called her mother and told her about Jane’s disclosures. During the 

telephone conversation, her mother told her to ask Jane what else had happened. Jennifer

turned to Jane and asked if defendant touched her with any of his body parts. Jane said 

he used his mouth, hands, and penis. Jennifer immediately called the police and reported 

Jane’s disclosures.
6.

First Interview with the Police

Later on the night of May 12, 2009, Officer Thomason responded to the dispatch, 

met Jennifer and the children, and escorted them to the police department. Jennifer told 

Thomason about discovering the pornographic websites on the computer, and Jane’s 

disclosure that defendant molested her. Jennifer told Thomason that defendant was very 

demeaning and controlling of Jane and herself. Thomason asked her to bring the 

computer to the police department and she agreed.

Officer Thomason conducted a tape-recorded interview with Jane, who said she 

was nine years old, and that defendant had abused her for the past four to five years. Jane 

said defendant forced her to perform sex acts and told her “in a mean way” not to tell 

anyone, or he would hurt her. Jane said he started when she was five or six years old, but 

she was not sure because she was so young. Jane thought it had happened around 40 or 

50 times. Jane said defendant forced her to lick his private areas, and he inserted two 

fingers into her front and back private areas. Jane also said she masturbated his private 

area with her hands and feet, and white stuff came out of his penis. Jane said defendant 

had penetrated her vagina “a little bit” with his penis. She found blood in her vagina and 

told her mother. Defendant told Jane to say that she had scratched herself there.

Jane said she asked defendant to stop because she wanted to be “regular” like her 

friends. Defendant was already strict with her in the house, and he threatened to be even 

harsher with house rules if she refused. Jane said defendant reassured her that all girls 

were doing what she was doing, and showed her images on the desktop computer of a 

father and daughter “doing it.” He also showed her pornographic cartoons. Jane thought 

it was wrong and disgusting, and defendant said it was not disgusting.

The police initially advised Jennifer that defendant was going to be arrested that 

night. However, they later decided to delay the arrest in order to gather more evidence. 

Jennifer and the children stayed with a friend.
7.

Jane’s Forensic Interview

On May 13, 2009, a videotaped forensic interview was conducted with Jane as 

part of the criminal investigation. Jane identified body parts from a diagram and gave 

detailed descriptions of how defendant forced her to perform acts of oral copulation on 

him; defendant performed acts of oral copulation on her; he placed his fingers in her 

vagina and anus; and he sexually penetrated her vagina. When she told defendant that 

some of the acts hurt her, he said it would only hurt for a little bit. When he digitally 

penetrated her, he told her to put a pillow over her head so she could scream since it 

would really hurt. She was bleeding after he did that act. She told her mother about the 

bleeding, and defendant told her to just say it was itching.

Jane said that when she was younger, she thought every girl did things like that. 

When she was older, she told defendant that she wanted to be “regular” and not do it 

anymore. Jane described specific websites defendant showed her on the computer, which 

depicted fathers and daughters having sex. He also showed her sexually graphic 

depictions of “Kim Possible” and other cartoon characters. Jane said defendant took her 

into the bedroom and performed the sexual acts after Jennifer left for work or school.

Jane said defendant yelled and hit her and her brother whenever they did 

something wrong. He also “forced” her mother “to do things that she doesn’t want to 

do.” Defendant spanked her brother if he did something wrong and tried to stop Jane 

from comforting him.

The interviewer asked Jane why she decided to finally tell her mother about the 

molestations. Jane said that when her mother said they were leaving defendant, Jane felt 

she could tell her mother because they were not going back to defendant’s house.

Forensic Examination of the Computer

Jennifer delivered the desktop computer to Detective Rodenburg and signed a 

search waiver. An officer conducted a forensic examination of the desktop computer and 

the hard drive. He confirmed the reports from Jennifer and Jane that the computer had 
8.

been used to access specific sexually explicit pornographic websites, videos which 

depicted incest, and pornographic cartoons of “Kim Possible” and other characters.

Jennifer Calls Defendant

Also on May 13, 2009, Detective Rodenburg asked Jennifer to call defendant so 

he could record the conversation. He told her to keep things calm and not to make him 

angry.

Jennifer called defendant twice, and both calls were recorded. During the first 

call, defendant was concerned and confused about why Jennifer and the children left the 

house. Jennifer said they were staying with a friend. She told defendant she found 

something on the computer that upset her and asked about the pornographic and incest 

websites. Jennifer told defendant she asked Jane if anything happened, and “you should 

have seen the look that came over her face. She is terrified. She actually started crying.” 

Defendant said he was frightened when he got home and discovered everyone had left, 

and he wanted to talk to her. Jennifer asked defendant if he showed Jane the 

pornographic sites on the computer. Defendant said he was afraid of being recorded and 

wanted to talk to her in person.

During the second call, Jennifer told defendant she was confused and needed to 

know what happened with Jane. Defendant said he did not want to talk on the telephone. 

She again asked if anything happened with Jane because “[t]he look on her face tells me 

it did.” Defendant replied, “And so what if I say yes? And you’re like going to keep the 

kids and I’m never going to see them?” Jennifer said no, but again said she just needed 

to know so they could work on it together. She told defendant that Jane had been 

bleeding. Defendant said, “I didn’t do anything like that.” Defendant said, “I didn’t tell 

you I didn’t do anything.”

Defendant said, “I haven’t done anything for freaking ever.” Jennifer asked 

defendant about what he meant. Defendant said, “I told you yes.” Defendant added, “[I]f 

you want to work it out, I’ll do whatever you want, and I promise to whatever. And like I 
9.

said, I haven’t done anything in like a long ass time.” Jennifer asked if it was touching. 

Defendant said yes. Jennifer said that wasn’t that bad. Defendant refused to say 

anything else on the telephone.

Jane’s Trial Testimony

Jane was 13 years old at trial. She testified defendant first touched her when she 

was five years old, but she could not remember what happened. Jane testified she was 

seven or eight years old when defendant placed his fingers in her vagina.

Jane testified about several incidents which occurred when they lived at the East 

Coolidge house. The incidents occurred when her mother was not home. In one 

instance, defendant placed Jane in bed with him, and he licked her vaginal area. There 

were other incidents when defendant touched her breasts, both under and over her 

clothes. Jane testified defendant made her perform acts of oral copulation on him, and 

told her what semen would look and taste like. Jane testified about incidents where 

defendant put one and then two fingers in her vagina.

Jane described another incident where she was in bed with defendant, and he tried 

to perform an act of intercourse. Defendant placed a pillow over Jane’s head “so I could 

scream as loud as I want, because he said it would hurt.” Defendant tried to perform the 

act, he partially penetrated her, but “it hurt too bad” and he stopped.4 He tried the same 

act a few times but “not very often because it hurt.”

Jane testified she was bleeding from her vagina after some of these incidents. Jane 

told her mother about the bleeding, and her mother took her to the doctor. After she saw 

the doctor, defendant told Jane “not to worry about it and just don’t say anything else.”

Jane testified she felt she could not say no to defendant because she was scared, 

and defendant told her “not to tell anyone about the incidents that happened.”

 

4 During the forensic interview, Jane said defendant told her to place the pillow 

over her head and scream when he digitally penetrated her. Defense counsel crossexamined Jane about this conflict with her prior statements.
10.

Jane testified that defendant once said he was proud of her. He made this 

statement after he had either digitally penetrated her or forced her to perform acts of oral 

copulation. However, Jane felt horrible and was not proud of herself.

Jane testified about an incident when she was in the master bedroom with 

defendant, and they were sitting by the computer. Jane told defendant that she did not 

feel normal, and “none of the girls in my class did the same thing to their fathers.” 

Defendant said other people “do the same thing,” and told her to look at something on the 

computer. Jane testified he showed her videos on the Internet where “dads and daughters 

[were] doing the same thing that we had been doing.” Jane testified she closed her eyes 

because she did not want to watch, but saw videos of fathers performing sexual acts with 

their daughters. Defendant also showed her sexually explicit videos of “Kim Possible,” 

one of her favorite cartoon characters. Jane testified defendant showed her a video on the 

computer of a man being orally copulated by a girl. After they watched it, defendant told 

Jane to do the same thing and match the video.

Jane testified that when her mother initially asked if defendant did anything to her, 

she said no. Jane was scared and did not want anything to happen to her family. She was 

afraid because of the “tone of voice [defendant] used when he said not to tell anyone.”

Jane testified it was a shock when they suddenly left their house. She was not sad 

to leave, but she did not know what was going to happen next. Jane testified that she 

finally told her mother that defendant touched her after they packed up and left their 

home. Jane was not scared anymore because “we were away, and ... she was comforting 

me, telling me it was fine, I could tell her anything” and that defendant “wouldn’t try and 

come hurt us anymore. We were fine and safe.”

DEFENSE EVIDENCE

The defense theory was that Jennifer coached Jane to claim defendant sexually 

molested her because Jennifer was involved with another man, and she wanted to end her 

marriage to defendant. Defense counsel extensively cross-examined Jennifer about her 
11.

relationship with defendant, and Jane about inconsistencies in her statements about the 

molestations.

The defense also attacked the fact that Jane did not receive a sexual assault 

examination. Detective Rodenburg testified he did not arrange for Jane to receive a 

sexual assault examination because she said the last molestation incident had occurred 

one or two months earlier. In his experience, there was a seven-to-10-day window to 

obtain evidence from such an examination. Jennifer testified she did not take Jane for a 

sexual assault examination because an officer told her it was not necessary, and she did 

not want to subject Jane to that. Defense counsel extensively cross-examined the 

investigating officers, and no one could recall having that conversation with Jennifer.

Dr. Antonio Apellanes, a pediatrician, testified that he treated Jane in April 2008 

in response to Jennifer’s report of bleeding from Jane’s vagina. There was no blood in 

her urine. He found nothing unusual to indicate she was being molested. There was 

some redness in her vaginal area and he prescribed a cream. In April 2009, he treated 

Jane because of headaches, bladder problems, and was wetting the bed. He found no 

evidence of blood in the urine, and she did not report being molested.

Defendant’s Trial Testimony

Defendant testified that he and Jennifer watched pornographic videos on the 

computer together. He never watched pornography with Jane. Shortly before Jennifer

left him, she told defendant that she needed to delete nude photographs of herself that

were on defendant’s cell phone. She also threw away sex toys that they had purchased 

and used together. Defendant asked Jennifer why she was doing these things. She said 

that she did not want defendant’s family to see the items. Defendant testified her 

responses did not make sense since his family was always at their house.

Defendant testified about his tape-recorded telephone calls with Jennifer. He was 

surprised and upset that she and the children had packed their things and left the house 

without any explanation. When Jennifer called him, he wanted to meet her and try to 
12.

save their marriage. He admitted that he made an admission during the second call, but 

he only said what she wanted to believe so she would meet with him.

On cross-examination, defendant denied watching child pornography. He did not 

recognize the website images about incest which had been recovered from the computer. 

He admitted that he watched pornographic animation and cartoons, but testified Jane 

never watched these videos with him.

Defendant was questioned about his pretrial statements to Detective Rodenburg. 

During that interview, defendant initially claimed he did not know why he was being 

questioned or what was going on. Defendant also said he was worried about jail and 

claimed it would not help him. Defendant said that people who “do these types of crimes 

need help, mental help.” Defendant admitted to Rodenburg that Jane had accidentally 

seen pornography a couple of times, and she asked questions about her sexuality. He told 

Jane to talk to her mother. Jane later told defendant she was doing the things she saw on 

the computer and it felt good. Defendant told Jane that she should not be doing that, but 

it was natural. He also told Jane masturbation was normal when they had a “fatherdaughter” talk.

Also on cross-examination, defendant admitted he received a general discharge 

from the Marine Corps after he attempted suicide in 2003; he was already married to 

Jennifer at the time. In 2007, he stole from his employer.

Rebuttal

Detective Rodenburg testified about his pretrial interview with defendant. 

Rodenburg asked defendant about Jane’s allegations and whether he made a mistake. 

Defendant said he “couldn’t go there,” and that “jail wasn’t a good place for him.” 

Rodenburg encouraged defendant to tell the truth. Defendant said “every time he was 

honest it didn’t go so well for him” and the truth would “get him in trouble.” Defendant 

admitted he looked at animated and other types of pornographic sites on the computer. 
13.

Jane walked into the room while he was looking at these sites. Defendant never talked to 

Jane about the images because it was more appropriate for Jennifer to do so.

Detective Rodenburg testified he falsely told defendant that Jane had been 

examined and there was evidence he touched her. In response, defendant said “the results 

of the medical examination must have been caused by her masturbating,” and Jane had 

told him that she masturbated.

Verdict and Sentence

Defendant was charged with five counts of committing lewd acts upon a child 

under the age of 14 years (§ 288, subd. (a)) based on the following incidents: count I, 

oral copulation of defendant, between March 1 and May 13, 2009; count II, oral 

copulation of the victim, between January 1, 2007, and May 13, 2009; count III, digital 

penetration, between January 1, 2007, and May 13, 2009; count IV, sexual penetration, 

between January 1, 2007, and May 13, 2009; and count V, masturbation of defendant, 

between January 1, 2007, and May 13, 2009, with special allegations that he engaged in 

substantial sexual conduct with a victim under the age of 14 years (§ 1203.066, subd. 

(a)(8)). In count VI, he was charged with exhibiting harmful matter with intent to seduce 

a minor, between February 1, 2007, and May 13, 2009.

The jury found him guilty of counts I, II, III, V, and VI. He was found not guilty 

of count IV, but convicted of the lesser included felony offense of attempted lewd act 

upon a child, based on the act of sexual penetration (§§ 664/288, subd. (a)). The special 

allegations were found true. He was sentenced to 15 years eight months: the upper term 

of eight years for count I, plus consecutive sentences (one-third the midterms) of two 

years for counts II, III, and V; one year for count IV; and eight months for count V.

DISCUSSION

I. The Court did not Abuse its Discretion when it Polled the Jury

Defendant contends the court abused its discretion and violated his right to jury 

trial during the polling of the jury. Defendant asserts that Juror No. 1 failed to affirm the 
14.

guilty verdicts while being polled, the court improperly continued to question Juror 

No. 1, and it should have instead immediately ordered the jury to resume deliberations as 

required by section 1163, which states:

“When a verdict is rendered, and before it is recorded, the jury may be 

polled, at the request of either party, in which case they must be severally 

asked whether it is their verdict, and if anyone answer in the negative, the 

jury must be sent out for further deliberation.” (§ 1163.)

In order to address this issue, we will review the deliberations and the return of the 

verdicts, and find the court did not abuse its discretion under the circumstances of this 

case.

A. Jury deliberations

On May 16, 2013, the parties finished their closing arguments, and the jury began 

deliberations at 3:19 p.m. The jury was excused at 4:28 p.m.

At 8:05 a.m. on May 17, 2013, the jury resumed deliberations.

B. The verdicts

At 8:32 a.m. on May 17, 2013, the jury returned to the courtroom with the 

verdicts, which were signed by the foreperson. The clerk read the verdicts. As noted 

above, defendant was found guilty of all offenses except count IV, but he was convicted 

of the lesser included offense as to that charge.

C. Polling the jury

After the verdicts were read, defense counsel asked the court to poll the jury as to 

each count. The clerk asked Juror No. 1 if the verdict which was read as to count I was 

that juror’s verdict. Juror No. 1 responded:

“[JUROR NO. 1]: Go.

“THE COURT: We have to ask each one of you ....”

The reporter’s transcript states that Juror No. 1 was “crying.” The court directed 

the clerk to skip Juror No. 1 and poll the other jurors on all counts. The 11 jurors 

affirmed their verdicts on all counts.
15.

The court directed the clerk to return to Juror No. 1.

“THE CLERK: Juror Number 1, are the verdicts as read your verdict 

as to Count I?

“[JUROR NO. 1]: Ah, can you change your mind?

“THE COURT: All right. We’re going to send the jurors back into the 

jury deliberation room. You are not prepared to affirm that those are your 

verdicts.

“[JUROR NO. 1]: Okay. Do it again.

“THE COURT: No, you need to answer my question.

“[JUROR NO. 1]: Okay. What?

“THE COURT: Are you prepared to affirm those verdicts as your own 

verdict?

“[DEFENSE COUNSEL]: Your Honor, I would object. The juror said can 

she change her mind.

“THE COURT: Yes, and I’m asking her another question to follow up 

on it ...

“[DEFENSE COUNSEL]: I think they should be allowed to continue 

deliberation.

“[JUROR NO. 1]: Yes.

“THE COURT: ... [D]o you want to continue to deliberate the 

verdicts?

“[JUROR NO. 1]: No. No—the others—” (Italics added.)

At this point, the transcript states that Juror No. 1 was crying.

“THE COURT: That’s not the question. Do you wish to continue 

deliberating on the verdicts?

“[JUROR NO. 1]: No.

“THE COURT: All right. Are you prepared to affirm the verdicts are 

yours?

“[JUROR NO. 1]: Yes.
16.

“THE COURT: All right. You are going to need to please answer my 

clerk’s questions. Okay?

“[JUROR NO. 1]: Okay.

“THE COURT: Thank you.”

The clerk again asked Juror No. 1 if the verdicts as read “are your verdicts as to 

Count I?” Defense counsel interrupted before Juror No. 1 could answer:

“[DEFENSE COUNSEL]: Your Honor, I believe the jurors should be 

admonished and reminded that the defendant is entitled to her individual 

deliberation.

“THE COURT: [W]e’re polling her.

“[DEFENSE COUNSEL]: I understand. [¶] She stated that she doesn’t 

believe that the others are going to give. I believe she needs to be reminded 

that [defendant] is entitled to her individual deliberation, regardless what 

the others do.

“THE COURT: I’ll handle this. Do you understand me?

“[DEFENSE COUNSEL]: I’m just stating my position, your Honor.” (RT 

588-589)

The court turned to Juror No. 1 and the following exchange occurred:

“THE COURT: All right. You stated. [Juror No. 1], you do not have 

to decide—

“[JUROR NO. 1]: I know that.

“THE COURT: --to vote what the rest of the People voted. If you 

believe that you want to vote against those verdicts, regardless of what the 

other 11 people did.

“[JUROR NO. 1]: I know that.

“THE COURT: Do you understand that?”

The transcript states Juror No. 1 nodded her head “up and down” and she was 

again crying.

“THE COURT: Okay. Are you prepared to – do you want another 

chance to deliberate and talk to the rest of the jurors?
17.

“[JUROR NO. 1]: No.

“THE COURT: All right. And are you prepared to affirm the verdicts 

as they were announced by my clerk?

“[JUROR NO. 1]: Yes.

“THE COURT: All right. And you are clear that you don’t have to 

side with the rest of the jury simply because you think that they are not 

going to change your mind?

“[JUROR NO. 1]: I know that.

“THE COURT: And you know that; is that correct?

“[JUROR NO. 1]: Yes.” (Italics added.)

The court directed the clerk to poll Juror No. 1 on the verdicts. Juror No. 1 

affirmed “the verdicts as read [are] your verdicts” for all counts. Thereafter, the court 

thanked and excused the jurors. After the jury left, defense counsel asked the court for 

the transcript of the entire trial to prepare a motion for new trial.

D. Postverdict Statements by Juror No. 1

About two hours after the court received the verdicts and excused the jury, the 

court reconvened because the prosecutor wanted to make a record about speaking to Juror 

No. 1. The prosecutor stated that immediately after the trial was over, she was in the 

hallway and several jurors greeted her, but they did not discuss the case.

“Juror Number 1 then approached and said, Can I please tell you? 

Can I please tell you? I’m sorry. It’s just some things came up from the 

past. [¶] And, at that point, I was actually trying to walk away ... because 

I did not want to engage in conversation with her. [¶] I said, Ma’am, the 

defense attorney may have contact with you. [¶] At that point, [Juror 

No. 1] said, What? [¶] I just want you on notice that he may have contact 

with you.”

Defense counsel noted that when the clerk initially started to poll the jury, Juror 

No. 1 was “sobbing” for “two to four minutes at my recollection” before the clerk moved 

onto polling the other jurors.
18.

There is no indication in the record that defendant requested juror contact 

information, filed a motion for new trial, or filed any posttrial motions regarding Juror 

No. 1’s statements, which were made during the polling or outside of the courtroom. 

Defendant did not discuss the matter at the subsequent sentencing hearing.

E. Section 1163

Every criminal defendant is entitled to a unanimous jury verdict, and the verdict 

must express the independent judgment of each juror. (Cal. Const., art. I, § 16; Chipman 

v. Superior Court (1982) 131 Cal.App.3d 263, 266 (Chipman).) The trial court must 

determine whether the jury has reached a unanimous verdict before it discharges the 

panel. (People v. Wattier (1996) 51 Cal.App.4th 948, 955.)

To assure that the verdict expresses the unanimous judgment of all jurors, any 

juror is empowered to declare, up to the last moment, that he or she dissents from the 

verdict. (Chipman, supra, 131 Cal.App.3d at p. 266; People v. Thornton (1984) 155 

Cal.App.3d 845, 858–859 (Thornton).)

Accordingly, section 1163 states that after a written verdict is announced, either 

party may request a polling of each juror to determine whether the verdict is his or her 

verdict. If any juror answers “in the negative, the jury must be sent out for further 

deliberations.” (§ 1163.) The polling procedure allows the court to determine whether 

the written verdict form “represents the ‘true verdict,’ i.e., the verdict that each and every 

juror is willing to hold to under the eyes of the world, or whether it is a product of 

mistake or unduly precipitous judgment.” (Thornton, supra, 155 Cal.App.3d at p. 859.)

However, “not every expression of uncertainty during polling requires that 

recordation of the verdict be withheld while the jury is sent back for further 

deliberations.” (Chipman, supra, 131 Cal.App.3d at p. 267.) The trial court’s decision 

whether or not to order further deliberations pursuant to section 1163 is reviewed for an 

abuse of discretion. (People v. Superior Court (Thomas) (1967) 67 Cal.2d 929, 933

(Thomas); People v. Wattier, supra, 51 Cal.App.4th at pp. 955–956.)
19.

For example, in Thomas, supra, 67 Cal.2d 929, the jury returned with a guilty 

verdict and the defendant requested to poll the jury. One juror expressed doubt about his 

decision. The court asked the juror a series of questions, and the juror indicated that he 

did not believe in the verdict, but he went along “with the majority of the jury.” The 

court declared a mistrial. (Id. at pp. 930–932.) The People filed a writ petition and 

argued the court should have ordered the jury to continue deliberations in response to the 

juror’s statements. Thomas held the court did not abuse its discretion when it ordered the 

mistrial:

“Where, as here, a juror makes equivocal or conflicting statements 

as to whether he has assented to the verdict freely and voluntarily, a direct 

question of fact within the determination of the trial judge is presented. 

The trial judge has the opportunity to observe the subtle factors of 

demeanor and tone of voice which mark the distinction between 

acquiescence and evasion of individual choice. The trial judge can 

determine whether returning the jury for further deliberation is likely to 

secure a real verdict, or whether the juror has really disagreed so that the 

verdict is not unanimous and not likely to become so.

“Here on the polling of the jury [the juror] first announced that he 

had not voted on the verdict. His later answers seemed to indicate that he 

did not individually agree with the verdict but finally agreed to go along 

with the majority. Then he stated that the verdict reflected his individual 

opinion but subsequently seemed to indicate that this merely represented 

his prior decision to go along with the majority, not his individual belief 

based on the evidence. Under such circumstances it was the function of the 

trial court to determine the state of mind of [the juror]. The determination 

of the matter rested largely within the discretion of the trial judge.” (Id. at 

pp. 932–933, italics added.)

In People v. Burnett (1962) 204 Cal.App.2d 453 (Burnett), the clerk read the 

jury’s guilty verdicts and then polled each juror. When asked whether it was her verdict, 

a juror replied, “ ‘How do you do that when you are in doubt? I guess you say “Yes.’ ” 

(Id. at p. 457.) The court asked the juror what she meant: “ ‘[Y]ou guess you say “Yes”? 

You mean you don’t know whether it is your verdict or not?’ ” The juror said it was her 

verdict. The court again asked if it was her verdict, and the juror again said yes. (Ibid.) 
20.

On appeal, the defendant argued that the jury should have been ordered to resume 

deliberations because of the juror’s equivocation when being polled.

Burnett held that when a juror “ ‘at first answers evasively or in the negative, if he 

[or she] finally acquiesces in the verdict, it must be sustained.’ ” (Burnett, supra, 204 

Cal.App.2d at p. 458.) In such a case, a juror’s “ ‘preliminary remark was unimportant’ ” 

if the juror directly answers the court’s question and stated the verdict was her verdict. 

(Ibid.) “At bar, the trial court having determined, and rightly so, that the particular juror 

in question had concurred in the general verdict, the purpose of the poll (and of the 

governing statute) had been fulfilled and there was no need for further deliberations.” 

(Ibid.)

In re Chapman (1976) 64 Cal.App.3d 806 (Chapman) dealt with a situation where 

the jury’s written verdict found the defendant not guilty. The court polled the jury, and 

several jurors stated it was not their verdict and they did not understand. The court 

questioned the foreperson, who stated that “it was not unanimous, either way,” but he 

signed the not guilty form because “we didn’t find him guilty.” The court asked 

additional questions, and the foreperson said the vote was 10 to 2, it was not unanimous, 

and the jury was hopelessly deadlocked. The court declared a mistrial. (Id. at pp. 810–

812.)

Chapman denied the defendant’s writ petition to enter the not guilty verdict, and 

held the court was not required to order the jury to continue deliberations. Chapman

explained “the principle that returning the jury for further deliberations” was a 

“permissible procedure” and not mandatory. (Chapman, supra, 64 Cal.App.3d at p. 814.)

“[W]e observe that section 1163 must be construed in conjunction with ... 

section 1140. The latter section authorizes the trial court to discharge the 

jury when ‘at the expiration of such time as the court may deem proper, it 

satisfactorily appears that there is no reasonable probability that the jury 

can agree.’ To reconcile the two sections into a harmonious whole, it must 

be concluded that if at the time the jury is polled a negative or equivocal 

response is received to the poll the trial judge has the discretion to 

interrogate the jurors further as to whether they are able to reach an 
21.

agreement under ... section 1140. [¶] Based on the foregoing, we believe 

that the conclusion is inescapable that the trial court properly exercised its 

discretion to consider the application of ... section 1140 under the 

circumstances of the case before it.” (Id. at p. 814, italics added.)

In Chipman, supra, 131 Cal.App.3d 263, the jury returned the written verdict form 

finding the defendant guilty. While being polled, 11 jurors said yes when asked if it was 

their true verdict. The 12th juror said no. The court asked the juror if the she voted yes 

in the jury room. The juror said she did. The court asked if the juror had changed her 

vote. The juror said yes. The court asked if the juror had changed her mind after coming 

back into the courtroom. The juror said: “ ‘No, I didn’t change my mind, I wasn’t sure 

in the jury room.’ ” The court again asked if she voted yes “in the jury room,” and the 

juror said yes. The court accepted the guilty verdict as unanimous, and denied 

defendant’s motion for a mistrial. (Id. at pp. 264–266.)

Chipman held the court improperly accepted the guilty verdict based on the juror’s 

vote in the jury room. Chipman distinguished the situation from Burnett since the juror 

advised the court that she had not been sure and she was changing her vote. “The court 

failed to establish that the juror’s present verdict was anything other than the ‘No’ with 

which she had responded to the poll. The court thus did not give effect to the right of a 

juror to change his verdict at any time up to the time that it is finally recorded.” 

(Chipman, supra, 131 Cal.App.3d at p. 267.)

In People v. Carrasco (2008) 163 Cal.App.4th 978 (Carrasco), the written verdict 

form stated the jury found defendant guilty. While polling the jury, one juror initially 

gave no response to the court’s question as to whether it was the juror’s verdict. The 

court again asked, and the juror paused and said yes. The court excused the other jurors, 

and asked the juror a lengthy series of questions. The juror said it was not her verdict, 

she felt compelled to vote guilty because of the other jurors, no one put pressure on her, 

but she had reasonable doubt when she learned the offense was a felony. Upon further 

questioning, the juror said she concluded the defendant was guilty beyond a reasonable 

doubt, but she became equivocal about the vote when she learned the charge was a 
22.

felony. The court reminded the juror about the instruction that the jury could not 

consider punishment or penalty, and again asked if she concluded the defendant was 

guilty beyond a reasonable doubt of the charged offenses. The juror said yes, and the 

court recorded the guilty verdict. (Id. at pp. 987–989.)

Carrasco addressed the defendant’s motion to obtain the juror’s contact 

information, and held the trial court properly denied the request. (Carrasco, supra, 163 

Cal.App.4th at p. 911.) In doing so, Carrasco also held the court had the discretion under 

Thomas, supra, 67 Cal.2d 929 to question the juror instead of ordering further 

deliberations:

“Considering the equivocal nature of the juror’s statements up to that

point, we cannot say that the trial court erred in asking additional questions. 

Ultimately, whether the jury’s announced guilty verdict truly reflected Juror 

No. 2’s individual verdict was a factual question that the trial judge was 

required to decide....

“The trial court’s continued inquiry elicited information about 

whether other jurors had pressured Juror No. 2 – she said that they had 

not – and that Juror No. 2 was concerned that the offense was a felony, a 

factor that was legally irrelevant in light of the jury instruction to ignore 

penalty and punishment [citation]. The trial judge then reminded the juror 

of that instruction and asked whether the prosecution had proved the 

charges beyond a reasonable doubt. Juror No. 2 answered, ‘Yes.’ Under 

these circumstances, the trial court properly accepted the juror’s last 

answer. [Citation.]” (Carrasco, supra, 163 Cal.App.4th at pp. 991–992, 

italics added.)

F. Analysis

Defendant contends the court abused its discretion and violated section 1163 

because it should have immediately ordered the jury to resume deliberations in reaction 

to Juror No. 1’s initial response when she was polled. Defendant further argues the court 

lacked discretion to question Juror No. 1 because she never gave any equivocal 

statements and she wanted to continue deliberations. Defendant asserts that “[s]omething 

was clearly amiss” with Juror No. 1 because she was crying and asked to change her 
23.

mind. Defendant concludes that Juror No. 1 never acquiesced in the guilty verdicts and 

they must be reversed.

Defendant’s argument is based on the premise that the court must immediately 

order the resumption of deliberations if a juror gives a negative response during polling. 

As explained above, however, a trial court is not required under section 1163 to order the 

jury to resume deliberations if a juror makes “equivocal or conflicting statements” 

(Thomas, supra, 67 Cal.2d at p. 932), “ ‘at first answers evasively or in the negative’ ” 

(Burnett, supra, 204 Cal.App.2d at p. 458, italics added), or give a “negative or equivocal 

response” (Chapman, supra, 63 Cal.App.3d at p. 814, italics added) when asked to affirm 

the verdict during polling. Instead, the court “has the discretion to interrogate the jurors 

further...” (Ibid.) In such a situation, the court is presented with “a direct question of 

fact” to determine “the state of mind of [the juror]” as to whether deliberations should be 

resumed or the juror “has really disagreed so that the verdict is not unanimous and not 

likely to become so.” (Thomas, supra, 67 Cal.2d at pp. 932–933.) The court’s 

determination rests “largely within the discretion of the trial judge.” (Ibid.; Carrasco, 

supra, 163 Cal.App.4th at pp. 991–992.)

In this case, the court did not abuse its discretion in response to Juror No. 1’s 

statements. Indeed, the court’s initial reaction was to order the jury to resume 

deliberations. Juror No. 1 interrupted and asked the court to “[d]o it again,” presumably 

referring to the clerk’s question about whether the juror affirmed the verdict. At that 

point, the court attempted to ask the juror the appropriate questions, as in the cases 

discussed above, to determine whether the juror disagreed with the verdict or further 

deliberations were required. When the juror made an equivocal reference to “the others,” 

the court asked additional questions and reminded the juror that she did not have to vote 

along with the rest of the jurors, and she could vote against the verdicts “regardless of 

what the other 11 people did.” The juror replied that she knew and understood, and 

declined the court’s order to resume deliberations. The court again explained that the 
24.

juror did not “have to side with the rest of the jury simply because you think they are not 

going to change your mind,” and she said that she knew that. At that point, the juror 

affirmed the guilty verdicts.

Defendant complains that the court ignored Juror No. 1’s request to resume 

deliberations and instead engaged in a “heated” and “testy exchange” with defense 

counsel, after which Juror No. 1 finally affirmed the verdicts. While there was a brief 

exchange between the court and defense counsel, there is no indication these comments 

influenced the juror as the court continued to question her. Defendant further argues that 

Juror No. 1’s statements showed she was “clearly uncomfortable with being the lone 

holdout juror, and did not appear comfortable with the idea of further discussions with 

her fellow jurors.” However, the court twice explained to the juror that she was entitled 

to her own opinion and did not have to acquiesce to the other 11 jurors. Juror No. 1 

replied that she knew and understood the principle, and she was ready to affirm the 

verdicts.

We find the court did not abuse its discretion when it questioned Juror No. 1. The 

court repeatedly explained that the juror did not have to acquiesce in the verdicts or to the 

other jurors. Juror No. 1 replied that she knew and understood; she was given repeated 

opportunities to explain that she had changed her mind or disagreed with the verdict; and 

she instead affirmed the verdicts.5

II. Noneconomic Restitution

Section 1202.4, subdivision (f)(3)(F) provides for an award of restitution for 

“[n]oneconomic losses, including, but not limited to, psychological harm, for felony 

violations of Section 288.” In this case, defendant was convicted of four counts of 

violating section 288, subdivision (a), and one count for the attempted violation of that 

 

5 We reach this conclusion without relying on the prosecutor’s statements to the 

court about her brief postverdict conversation with Juror No. 1. We note, however, that 

defendant never moved for disclosure of juror identification information or filed a motion 

for new trial based on this incident.
25.

statute, based on Jane’s testimony that he sexually molested her from the ages of five to 

nine years old. At the sentencing hearing, the court granted the prosecutor’s motion and 

ordered defendant to pay $250,000 in noneconomic restitution to Jane.

Defendant contends the court abused its discretion when it imposed this order 

without making any findings or comments.

A. Restitution Motion

The prosecution filed a motion for the court to issue a restitution order for 

defendant to reimburse the Victim Compensation and Government Claims Board for 

$900, based on mental health counseling for Jane; and for direct restitution to Jane and 

her mother for their total economic losses pursuant to proof.

The prosecution also moved for the court to order defendant to pay noneconomic 

restitution to Jane of $250,000, based on People v. Smith (2011) 198 Cal.App.4th 415 

(Smith). As we will discuss below, Smith held that a court did not abuse its discretion 

when it ordered the defendant to pay noneconomic restitution of $750,000 to a victim 

who had been sexually molested and suffered psychological harm from the ages of eight

to 23 years, based on the formula of multiplying $50,000 by 15 years.

As related to Jane, the prosecution cited the trial evidence that defendant molested 

her for approximately five years, until her mother took the children and left the house. 

Defendant was Jane’s stepfather; he took advantage of a position of trust and confidence;

he inflicted physical injury and emotional trauma; and she was unable to defend herself. 

The probation officer had contacted Jane’s mother in June 2013, who reported that Jane

had attended counseling, but she did not want to go anymore. Jennifer wanted her to 

return to counseling because she was worried Jane may try to hurt herself, and Jane was 

not doing well either mentally or emotionally. The prosecution asked the court to use 

Smith’s formula and order noneconomic restitution of $250,000, based on multiplying 

$50,000 by five years.

Defendant did not file written opposition to the restitution motions.
26.

B. The Sentencing Hearing

At the sentencing hearing, the court asked the defendant to respond to the 

restitution motions. Defense counsel said the motion for $250,000 was “way out of line 

here.” Counsel noted that he appeared in a similar case the previous day, where a 

defendant pleaded to molesting a child “over many periods of years,” and the court 

ordered restitution of $10,000, “equivalent with the amount that was submitted to the 

board.”

The prosecutor explained there were two separate restitution motions. One motion 

was for $900 for economic losses based on counseling expenses. The second motion was 

for noneconomic restitution based on section 1202.4 and Smith, supra, 198 Cal.App.4th 

415, and evidence of the victim’s severe psychological damage.

“She has forfeited many big events in her life as a child, facing things that 

she should have never even known about; having to watch pornographic 

movies with her step dad and being molested by him. I think such damage 

should be compensated to her by $250,000. [¶] And that is also to have, 

perhaps, some type of fund for her to seek advancement in schooling. She 

was a straight A student and had perfect attendance. She’s on the right path 

in life, even though she had a stepfather that took – completely violated 

her.”

Defense counsel objected because there was “not one shred of evidence that was 

submitted by a psychologist talking about psychological effect on the victim in this case. 

[¶] Additionally, I just think there’s no basis for coming up with a figure of anything 

close to $250,000.”

Thereafter, the court sentenced defendant to 15 years eight months in prison. The 

court ordered defendant to pay $900 to the Victim’s Compensation Government Claims 

Board as requested by the prosecution.

“And for restitution for the victim ... as requested by the People, on behalf 

of the victim, the Court will order the amount of $250,000, which is 

$50,000 a year for a period of five years.”
27.

C. Noneconomic Restitution

Defendant asserts the court abused its discretion when it ordered him to pay 

$250,000 in noneconomic restitution to Jane because it failed to make any findings or cite 

any evidence of Jane’s alleged psychological damage in support of its order. To resolve 

these contentions, we turn to Smith, supra, 198 Cal.App.4th 415, which extensively 

addressed the determination of noneconomic restitution to child sexual abuse victims 

under section 1202.4, subdivision (f)(3)(F).

In California, persons found guilty of a crime are normally responsible for two 

types of restitution. (People v. Giordano (2007) 42 Cal.4th 644, 651 (Giordano).) First,

absent “compelling and extraordinary reasons,” all convicted defendants must pay a 

restitution fine pursuant to section 1202.4, subdivision (b), based on the statutorily 

authorized amounts, “set at the discretion of the court and commensurate with the 

seriousness of the offense.” (§ 1202.4, subd. (b)(1).)

“Second, when a defendant is convicted of a crime involving a victim who ‘has 

suffered economic loss as a result of defendant’s conduct[,]’ the court must require the 

defendant to pay full restitution directly to the victim or victims of the crime....” 

(Giordano, supra, 42 Cal.4th at pp. 651–652, quoting § 1202.4, subd. (f).)

“With one exception, restitution orders are limited to the victim's economic 

damages.” (Smith, supra, 198 Cal.App.4th at p. 431.) “Economic damages are 

‘objectively verifiable monetary losses including medical expenses, loss of earnings, 

burial costs, loss of use of property, costs of repair or replacement, costs of obtaining 

substitute domestic services, loss of employment and loss of business or employment 

opportunities.’ [Citation.]” (Ibid.)

As noted above, the one exception to this rule is stated in section 1202.4, 

subdivision (f)(3)(F), which provides for the court to order the defendant to pay 

restitution for “[n]oneconomic losses, including, but not limited to, psychological harm, 

for felony violations of Section 288,” which prohibits the commission of lewd or 
28.

lascivious acts upon minors. (Smith, supra, 198 Cal.App.4th at p. 431, italics added.) 

Smith further defined noneconomic damages as “ ‘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.’ [Citation.]” (Id. at pp. 931–932.)

On an appeal from an order of restitution for economic loss, the reviewing court 

ordinarily looks for a “ ‘factual and rational basis for the amount of restitution ordered by 

the trial court.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 499.) In those 

situations, the trial court must employ an objectively reasonable and discernable 

methodology rather than simply basing the award on its subjective beliefs regarding the 

appropriate amount of compensation. (People v. Carbajal (1995) 10 Cal.4th 1114, 

1125.)

In contrast, Smith explained this standard was not applicable to review orders for 

noneconomic restitution because “[u]nlike restitution for economic loss ... loss for 

noneconomic [harm] is subjectively quantified.” (Smith, supra, 198 Cal.App.4th at 

p. 436.) In light of the fundamental difference between the two types of loss, Smith held 

that a different standard of review must be applied to orders of noneconomic restitution to 

allow for the subjective considerations of the trial court judge. (Ibid.) “We are guided in 

this matter by the civil jury instruction concerning noneconomic loss: ‘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.’ [Citation.]” (Ibid.)

“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.
29.

“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.” (Id. at pp. 436–437.)

D. Smith’s Calculation of Noneconomic Restitution

Smith, supra, relied on these standards to affirm a trial court’s order for 

noneconomic restitution in that case. The defendant was convicted of violating section 

288 and section 288.5 (continuous sexual abuse), based on repeatedly molesting his 

stepdaughter from the time she was eight years old to when she was 15 years old. The 

sexual abuse included almost daily acts of oral copulation, digital penetration, and sexual 

intercourse. He continued to force her to have sex with him until she was 23 years old, 

but he was not convicted of committing any offenses after she was an adult. (Smith, 

supra, 198 Cal.App.4th at pp. 419-422, 433.) At the restitution hearing, the victim’s 

attorney filed a motion for noneconomic restitution under section 1202.4, subdivision 

(f)(3)(F), and requested $750,000. The victim’s attorney stated that the defendant 

“isolated her and took advantage of a position of trust from the time she was eight years 

old until she left the home as an adult. She was still having nightmares and flashbacks 

concerning the abuse. And she had been in therapy to deal with the problems caused by 

the abuse. She was having difficulty keeping jobs, and, at age 30 at the time of the 

hearing, had not finished her education .... She twice attempted suicide by overdosing on 

ibuprofen.” (Id. at p. 432.) The defendant objected and argued there was no independent 

evidence to support a restitution order for psychological harm. (Id. at p. 433.)

The trial court in Smith “agreed that it was in the ‘unenviable’ position of 

quantifying [the victim’s] psychological harm in dollars. Searching for a way to proceed, 

the court noted that defendant’s acts against [the victim] occurred over a 15-year period, 

from age eight to age 23. The court multiplied that 15 years by $50,000 per year, thus 
30.

arriving at the $750,000 requested by [the victim]. The court therefore awarded $750,000 

in noneconomic damages.” (Smith, supra, 198 Cal.App.4th at p. 433.)

Smith concluded that based on the subjective standards it had delineated for the 

calculation of noneconomic restitution, the court’s order for $750,000 “for years of 

sexual abuse does not shock the conscience or suggest passion, prejudice or corruption on 

the part of the trial court. [Citation.]” (Smith, supra, 198 Cal.App.4th at pp. 436–437.) 

The defendant argued the court abused its discretion by using 15 years as the multiplier 

because he was convicted of “only seven years of abuse.” (Id. at p. 437.) Smith rejected 

this argument: “We are not concerned by the court’s statements in making the award. As 

would a jury, the court was searching for some way to quantify [the victim’s] pain and 

suffering. And there is no credible argument, especially on the facts of this case, that [the 

victim’s] psychological harm ended when she was 15 years old.” (Id. at p. 437.)

E. Analysis

As applied to this case, the court had discretion to order noneconomic restitution 

under section 1202.4, subdivision (f)(3)(F) given defendant’s convictions for four counts 

of violating section 288, subdivision (a), based on sexually molesting Jane from the age 

of five to nine years old. In contrast to Smith, the court’s order was limited to the actual 

five-year period that defendant molested Jane.

Defendant complains there was no evidence of psychological trauma to support 

the order. However, this argument ignores the fact that the court presided over 

defendant’s trial and heard Jane Doe’s detailed and stark testimony about defendant’s 

sexual molestation of her, which included threats of strict punishment if she disclosed the 

molestation, assurances that other fathers engaged in similar conduct with their 

daughters, and forcing her to watch pornography on the Internet and directing her to 

duplicate the sexual acts. Jane’s mother advised the probation officer that Jane was not 

doing well either mentally or emotionally, and she was worried Jane might try to hurt 

herself. When the court sentenced defendant, it found Jane was vulnerable, he inflicted 
31.

physical and emotional trauma on her, and he took advantage of a position of trust and 

confidence. The court also found substantial evidence of defendant’s planning, 

sophistication, and premeditation in the commission of the sexual assaults.

Based on Smith’s analysis and review of noneconomic restitution orders, we 

cannot say the court abused its discretion when it ordered defendant to pay noneconomic 

restitution of $250,000 to Jane because the order 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. 437.)

DISPOSITION

The judgment is affirmed.

_________________________

 Poochigian, J.

WE CONCUR:

_________________________

Levy, Acting P. J.

_________________________

Peña, J.