Filed 3/13/24 P. v. Munoz

- Garcia CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN ALBERTO MUNOZ

- GARCIA,

Defendant and Appellant. A1 6 5868

( Contra Costa County

Super. Ct. No. 04

- 200408

- 3 )

Defendant Juan Alberto Munoz

- Garcia appeals from noneconomic

restitution order s imposed after he pleaded guilty to sexual offenses involving

his niece ( Jane Doe 1 ) and his s tep daughter ( Jane Doe 2 )

. Munoz

- Garcia

contends that the trial court erred in awarding noneconomic damages of

$100,000 to each victim without a jury trial

. He also argues that the

noneconomic restitution award with respect to Jane Doe 2 must be stricken

because there was insufficient evidence that she suffered psychological harm

.

Finally, he maintains that the trial court should not have imposed a $1,000

restitution fine without determining hi s ability to pay

. We reverse the

noneconomic damages award with respect to Jane Doe 2 , but otherwise

affirm.

I. BACKGROUND

On June 28, 2021, the Contra Costa County District Attorney filed the

operative information in this case charging Munoz

- Garcia , as relevant here,2

with six felony counts of child sexual abuse. With respect to Jane Doe 1 , the

information alleged that Munoz

- Garcia committed sexual intercourse or

sodomy with a child 10 years of age or younger (Pen. Code, 1 § 288.7, subd. (a) ;

count 1 ); lewd and lascivious acts on a child under 14 (§ 288, subd. (a) ;

count 2 ); and forcible lewd and lascivious acts on a child under 14 (§ 288,

subd. (b)(1) ; count 3 ). With respect to Jane Doe 2 , the information alleged

that Munoz

- Garcia commi tted lewd and lascivious acts on a child under 14

(§ 288, subd. (a) ; count 4 ) and two counts of oral copulation or sexual

penetration of a child 10 years of age or younger (§ 288 .7 , subd. (b ) ; count s 5

and 6 ).

A. Underlying Facts

The following facts were presented at the preliminary hearing in this

matter:

1. Allegations Involving Jane Doe 1

In 2015, when Jane Doe 1 was 1 1 years old, she disclosed that Munoz

Garcia, her uncle, had sexually assaulted her when she was nine or 10 years

old

. The incident occurred when Jane Doe 1 was spending the night at her

aunt’s house after attending a family barbecue. She awoke in the middle of

the night to find Munoz

- Garcia putting her on the floor and pulling down her

pants. She tried to pull them back up, but he prevented her. Munoz

- Garcia

then i nserted his penis into her anus, pushing back and forth for about t wo

minutes. He continued even after Jane Doe 1 told him to stop. She indicated

“it hurt. ” He finally stopped after she told him she needed to use the

bathroom. On other occasion s

, when she was 10, Munoz

- Garcia wo uld grab

Jane Doe 1 by the wrist when she was trying to leave the room and place her

hand on his private area.

1 All undesignated statutory references are to the Penal Code.3

2. Allegations Involving Jane Doe 2

Jane Doe 2 , Munoz

- Garcia’s stepdaughter, reported being assaulted by

Munoz

- Garcia o n August 30, 2020. She was asleep in her bedroom when she

woke up to find Munoz

- Garcia touching her pants. She then felt him reach

inside her pants and touch her private parts, whic h she used for peeing and

called her “ ‘ puka

. ’ ” She reported being scared and nervous and that it hurt

.

Munoz

- Garcia then rolled her over and began touching inside her b utt . He

then spread her buttocks open and licked inside of her butt. He continued to

touch her until he eventually left. At that point, Jane Doe 2 got up and

reported the assault to her mother. When confronted, Munoz

- Garcia initially

denied the abuse but later stated he was still drunk, apologized, and said it

would never happen again

.

B. Plea and Sentencing

On April 4 , 202 2

, after advisement of his rights, Munoz

- Garcia pleaded

guilty to counts 3 and 4

. In exchange for the guilty plea, the parties agreed to

a 16

- year prison term and dismissal of the remaining counts. T he trial court

then proceeded immediately to sentencing and heard a victim impact

statement from Jane Doe 1 . S he stated that, although si gnificant time had

passed since Munoz

- Garcia sexually assaulted her, she was still

psychologically scar r ed by it. She blamed herself and still “remember[ed]

everything” about the assault, despite trying to forget. She recalled that

Munoz

- Garcia had turned her family against her and that she had lost hope

anyone would ever believe her. She cried for years “ on the bedroom floor

trying not to kill [herself].” Pursuant to the plea agreement, the court

sentenced Munoz

- Garcia

— who was in his mid

- 30 ’ s at the time

— to 16 years

in prison and imposed various fines and fees, including a $1

, 000 restitution

fine.4

On July 28, 2022, the court held a hearing under section 1202.4,

subdivision (f)(3)(F) regarding victim restitut ion for noneconomic losses. The

prosecution requested noneconomic restitution of $100,000 for each victim

.

Defense counsel objected to th e requested noneconomic damages for Jane

Doe 2 , arguing that there was no factual basis. In rejecting this argument

and award ing the requested noneconomic restitution to both victims, the

court reasoned: “ Anyone who has any kind of life experience, especially

judges who have seen the results of these things following years afterwards,

knows that kind of assault causes damage. It causes physical damage. It

causes emotional damage. And it cause s rippling, reverberating problems

throughout life.” It further concluded that it could “use the record that was

established as to Jane Doe 1 in supporti ng an order for Jane [Doe] 2 because

they were victimized in very similar ways.” Munoz

- Garcia timely appealed

from the order for noneconomic restitution

.

II. DISCUSSION

A. Non e conomic Restitution

Munoz

- Garcia argues that the noneconomic damages awarded in this

case must be stricken as unauthorized. First

, he asserts that he was entitled

under the s tate and federal Constitutions to a jury trial on the amount of any

such damage award

. Second

, he maintains that the award of noneconomic

damages to Jane Doe 2 must be stricken due to insufficient evidence that she

s uffered psychological harm

. We address each contention in turn.

1. Statutory Framework and Standard of Review

“Pursuant to the California Constitution, victims of crime have a right

to restitution from criminal defendants: ‘Restitution shall be ordered from

the convicted wrongdoer in every case, regardless of the sentence or

disposition imposed, in which a crime victim suffers a loss.’ (Cal. Const.,5

art. I, § 28, subd. (b)(13)(B).) To [satisfy] this constitutional requirement, the

Legislature enacted section 1202.4, which requires the trial court to order a

defendant to pay victim restitution ‘in an amount established by court o rder,

based on the amount of loss claimed by the victim

. . . or any other showing to

the court.’ (§ 1202.4, subd. (f).)” ( People v. Lehman (2016) 247 Cal.App.4th

795, 800 ( Lehman ).)

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

economic damages.” ( People v. Smith (2011) 198 Cal.App.4th 415, 431

( Smith ).) The exception provides that restitution may be ordered for

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

felony violations of Section 2 88, 288.5, or 288.7.” (§ 1202.4, subd. (f)(3)(F).)

“Noneconomic damages are ‘subjective, non

- monetary losses including, but

not limited to, pain, suffering, inconvenience, mental suffering, emotional

distress, loss of society and companionship, loss of c onsortium, injury to

reputation and humiliation.’ (Civ. Code, § 1431.2, subd. (b)(2).)” ( Smith

, at

p. 431.)

In Apprendi v. New Jersey (2000) 530 U.S. 466 ( Apprendi ) , the United

States Supreme Court held that “ [o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt. ” ( Id. at p. 490.) “ [T]he ‘ statutory maximum ’ for Apprendi

purposes is the maximum sente nce a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the defendant. ” ( Blakely

v. Washington (2004) 542 U.S. 296, 303 ( Blakely ) , italics omitted.) The

principle of Apprendi applies to criminal fines. ( Southern Union Co. v.

United States (2012) 567 U.S. 343, 346 [fines for violating federal

environmental statutes].)6

In the context of economic restitution award ed pursuant to

section 1202.4, n umerous appellate courts have conc luded that there is no

Sixth Amendment right to a jury trial under Apprendi and its progeny

because direct victim restitution is not a criminal penalty

. ( People v. Pangan

(2013) 213 Cal.App.4th 574, 585 ( Pangan )

, citing U.S. v. Behrman (7th Cir.

2000) 235 F.3d 1049, 1054 [“ d irect victim restitution is a substitute for a civil

remedy so that victims of crime do not need to file separate civil suits. It is

not increased ‘ punishment’ ” ]; People v. Chappelone ( 2010) 183 Cal.App.4th

1159, 1183

– 1184 ( Chappelone ) [ rejecting argument that victim restitution

under § 1202.4 is increased punishment for a crime; instead, “ ‘ “ the primary

purpose of victim restitution is to provide monetary compensation to an

individual injured by crime ” ’ ” ]; accord, People v. Millard (2009) 175

Cal.App.4t h 7, 35

– 36 ( Millard ) ; see also § 1202.4, subd. (a)(3)(B) [ a victim

restitution award “shall be enforceable as if the order were a civil

judgment ” ].)

In Smith

, supra

, 198 Cal.App.4th 415, t he Third Appellate District

concluded by analogy that there is no constitutional right to a jury trial with

respect to a restitution order for noneconomic damages awarded pursuant to

section 1202.4

. ( Smith

, at p. 433.) Specifically, Smith reasoned : “[T] here is

no basis for distinguishing jury trial rights, or lack thereof, for restitution

orders for economic damages and restitution orders for noneconomic

damages. In both cases, the trial court is performing a task that, in a civil

case, a jury would perform. ” ( Ibid. )

“ ‘ “ A restitution order is reviewed for abuse of discretion and will not

be reversed unless it is arbitrary or capricious. [Citation.] No abuse of

discretion will be found where there is a rational and factual basis for the

amount of restitution ordered. ” ’ [Citation .] ‘ The court “ must demonstrate a7

rational basis for its award

, and ensure that the record is sufficient to permit

meaningful review. The burden is on the party seeking restitution to provide

an adequate factual basis for the claim. ” ’ ” ( People v. Gomez (2023)

97 Cal.App.5t h 111, 116 ( Gomez ) ; accord, People v. Giordano (2007)

42 Cal.4th 644, 655 .) “However, a restitution order ‘resting upon a

“ ‘demonstrable error of law’ ” constitutes an abuse of the court’s discretion.’ ”

( Millard

, supra

, 175 Cal.App.4th at p. 26.)

2

. N o Right to a Jury Trial on Noneconomic Restitution

As mentioned above, t he trial court here awarded noneconomic

restitution of $ 100,000 to each victim

. (See § 1202.4, subd. (f)(3)(F)

. ) Munoz

Garcia contends the se awards were improper because he was entitled to a

jury trial to determine the amount of the se n oneconomic loss es based on proof

beyond a reasonable doubt. 2 Acknowledging the case law to the contrary set

forth above

, Munoz

- Garcia maintains that Smith was wrongly decided. And

he attempts to distinguish the other cases by arguing they involved economic

rather than noneconomic restitution

. Munoz

- Garcia then asserts a string of

reasons why noneconomic restitution should be treated differently than

economic restitution with respect to jury trial rights, none of which we find

persuasive.

To begin with

, we disagree with Munoz

- Garcia ’s general premise

— that

nonec onomic restitution constitutes increased punishment, while economic

restitution does not. Both are forms of direct victim restitution under

section 1202.4 , the primary purpose of which “ ‘ “is to provide monetary

compensation to an individual injured by crime” ’ ” ( Chappelone

, supra

,

2 The Attorney General argues in passing that Munoz

- Garcia has

forfeited this c laim by failing to request a jury trial with respect to restitution

in the trial court. Because we conclude that no such right exists, we do not

reach th e issue.8

183 Cal.App.4th at p. 1184 ; see Pangan

, supra

, 213 Cal.App.4th at p. 585

[“ d irect victim restitution is a substitute for a civil remedy so that victims of

crime do not need to file separate civil suits ” ] .) 

### Moreover, “[t]o the extent a

victim restitution order has the secondary purposes of rehabilita tion of a

defendant and/or deterrence of the defendant and others from committing

future crimes, those purposes do not constitute increased punishment of

the defendant.” (

Millard

, supra

, 175 Cal.App.4th at pp. 35

– 36.)

Munoz

- Garcia nevertheless argues that noneconomic restitution must

be viewed as primarily punitive because subdivision (f)(3)(F) of

section 1202.4

— the provision authorizing noneconomic restitution

— applies

only to defendants convicted of certain sex ual offenses against children

,

singl ing them out for disp arate treatment

. To the contrary, t he l egislat ive

history underlying the adoption of th is provision reflects a n entirely

nonpunitive purpose. In 1991

, the Supreme Court held that insurers under

general liability policies “ are not required to indemnify their insureds for

damages caused by an insured’s sexual molestation of a child

. ” ( J. C. Penn e y

Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1014 ( J.C. Penn e y )

. ) The

case dealt specifically with a fe lony conviction under section 288 and

“foreclosed the use of liability insurance proceeds as compensation” for

victims of such abuse. ( People v. Montiel (2019) 35 Cal.App.5th 312, 333 (dis.

opn. of Banke, J.) .) The Legislature responded by adopting legis lation

focused “ on providing the minor child victims of molesters with additional

sources of compensation. The Senate Committee on Judiciary report

explained: ‘ In lieu of making insurance benefits available to victims of an

insured ’ s criminal conduct, proponents instead propose several other ideas to

compensate the victim for the injuries. ’ [Citation.] These were:

(1) ‘ [i]nvading the homestead exemption of the defendant ’ ; (2) ‘ [i]ncreasing9

State assistance to child victims of sexual abuse ’ ; a nd (3) ‘ [i]ncreasing

restitution payments to the child molestation victim to also cover

psychological damages and noneconomic losses. ’ ” ( Id. at pp. 333

– 334 , italics

omitted .) T he Legislature ’s aim, in other words, was not to punish child sex

offenders, but to create a substitute for a civil remedy so that these particular

victims of crime need not file separate civil suits.

Munoz

- Garcia additional ly conten ds that noneconomic restitution is

punitive because the amount of restitution “ necessarily ” turns on factors such

as the duration or severity of the crime. Munoz

- Garcia provides no authority

for the proposition that a restit ut ion award based on such factors is

necessarily punitive . To the contrary , to the extent the duration and severity

of the crime corroborate a victim ’ s claim of psychological harm, their

consideration fully comports with the compensatory nature of the award.

Munoz

- Garcia also complains t here is “ literally no limit ” to the amount

of noneconomic restitution a trial court may impose. We a cknowledge that

the task of translating nonpecuniary injuries into dollars and cents is

“ difficult ” and “ ‘ not a process of measurement. ’ ” ( Beagle v. Vasold (1966)

65 Cal.2d 166, 172.) But the subjective nature of this determination does not

change the compensatory nature of noneconomic restitution. (See

Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1332 [noneconomic

damages “ compensate ” injured p laintiff for nonpecuniary injuries such as

pain and suffering].) Nor does it mean that noneconomic restitution does not

compensate a victim for his or her actual loss. And it is simply incorrect to

say there is no limiting principle to awards of nonecono mic restitution. As

stated above , case law cautions that a court must have a rational and factual

basis for the noneconomic restitution ordered and it may not be arbitrary or

capricious. ( Gomez

, supra

, 97 Cal.App.5th at p. 116 .)10

Finally, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 ( Dueñas )

,

Munoz

- Garcia contends that the noneconomic restitution award is punitive

because he does not have the ability to pay it. However, Dueñas is of no

assistance to Munoz

- Garcia

. There, the court held that an indigent

defendant has a due process right to a determination of ability to pay before

the imposition of court operations assessments (§ 1465.8) and court facilities

assessments (Gov. Code, § 70373) and the execution of restitution fines

(§ 1202.4, subd. (b)). ( Dueñas , at pp. 1164, 1169.) Dueñas expressly did not

address direct victim restitution ( id . at pp. 1169

– 1170), and several courts

have since held that the Dueñas rule does not apply to victim restitution (see,

e.g

. , People v. Pack

- Ramirez ( 2020) 56 Cal.App.5th 851, 860; People v.

Abrahamian (2020) 45 Cal.App.5th 314, 338; People v. Evans (2019)

39 Cal.App.5th 771, 776

– 777) . Thus

, Dueñas does not suggest that

noneconomic victim restitution constitutes increased punishment for

purposes of Apprendi simply because a defendant does not have the ability to

pay it

.

3

. Ins ufficient Evidence Supporting Restitution Award for

Jane Doe 2

Munoz

- Garcia next challenges the award of noneconomic restitution to

Jane Doe 2 as not supported by the record because no evidence was presented

that she suffered psychological harm. The Attorney General disagrees,

contending that the $100,000 award was supported by the parties’ stipulation

that Jane Doe 2 was particularly vulnerable, caselaw describing the

psychological harm generally suffered by victims of child abuse, Jane Doe 2 ’s

statement when initially interviewed that Munoz

- Garcia “hurt” her an d she

was “scared and nervous” during the abuse, and the court’s conclusion that

because both victims suffered similar “horrific and violent” assaults, similar11

restitution awards were appropriate. We conclude Munoz

- Garcia has the

better argument

. 3

Secti on 1202.4 requires the trial court to order a defendant to pay

victim restitution “ in an amount established by court order, based on the

amount of loss claimed by the victim

. . . or any other showing to the court .”

( § 1202.4, subd. (f) , italics added .) Thus, we agree with the Attorney General

that the statute “does not require any particular kind of proof to establish a

victim’s losses.” ( Lehman

, supra

, 247 Cal.App.4th at p. 803.) For instance , a

court may consider the trial testimony of the victims, statements made at the

sentencing hearing, and the contents of the probation report. ( Id. at pp. 801,

803.) But while there is no specific type of proof required, some showing of

noneconomic loss related to the actual victim must still be made to the court

to justify the dam ages award

.

It is no d oubt true that the nature of the sexual crimes committed by

Mun o z

- Garcia renders it very likely that Jane Doe 2 was psychologically

harmed. (See J.C. Penn e y

, supra , 52 Cal.3d at p. 1026 [“ Some acts are so

inherently harmful that the intent to commit the act and the intent to harm

3 Smith and Lehman applied the standard of review from the civil

damages context in reviewing the amount of a restitution award for

noneconomic damages under section 1202.4

, hold ing: “ ‘An appellate court

can interfere on the ground that the judgment is excessive only on th e ground

that the verdict is so large that, at first blush, it shocks the conscience and

suggests passion, prejudice or corruption on the part of the jury.’ ” ( Smith

,

supra

, 198 Cal.App.4th at p. 436; accord, Lehman

, supra

, 247 Cal.App.4th at

p. 801 .) However, b ecause Munoz

- Garcia ’ s challenge is not that the award is

excessive, but rather that it lacks an adequate factual basis, th e shocks

- the

conscience standard is in applicable here

. (See Gomez

, supra , 97 Cal.App.5th

at p. 116, fn. 4.) W e will thus apply the traditional abuse of discretion

standard

.12

are one and the same. The act is the harm. Child molestation is not the kind

of act that results in emotional and psychological harm only occasionally.” ] .)

However, a s our colleagues in Division Five of this District recently

explained: “ ‘ [A] crime victim may recover only for losses personally incurred

by that victim

. ’ ( People v. Runyan (2012) 54 Cal.4th 849, 859 ; see also Cal.

Const., art. I, § 28, subd. (b)(13)(A) [ ‘ all persons who suffer losses as a result

of criminal activity shall have the right to seek and secure restitution from

the persons convicted of the crimes causing the losses they suffer ’ ( italics

add ed) ].) In other words, 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.5t h at p. 118 ; see also

People v. Valenti (2016) 243 Cal.App.4th 1140, 1182

– 1184 [ noneconomic

restitution awards reversed where no facts or reliable evidence supported

them]

, superseded by statute on other grounds as stated in People v. Brooks

(2018) 23 Cal.App.5th 932, 946 & fn. 17 .)

In this c ase

, Jane Doe 2 did not testify at the preliminary hearing or

sentencing hearing, and no statement was provided by any knowledgeable

party regarding the impact of Munoz

- Garcia’s crimes on her. Rather, the

only evidence even arguably relevant to the claim that Jane Doe 2 suffered

psychological damage or other noneconomic losses as the result of the abuse

was a statement from her forensic interview that she felt “scared and

nervous” at the time of the molestation when Munoz

- Garcia “hurt” her

, and a

stipulation by the parties (in or der to allow impos ition of an aggravated term)

that Jane Doe 2 was a “particularly vulnerable” victim

.

We agree with the Gomez court that the “ evidentiary bar is a low one”

in this context. ( Gomez

, supra

, 97 Cal.App.5th at p. 119.) We also

acknowledge the difficulty in this case in providing such evidence because the13

victim is a minor and her mother was not cooperative and did not want to

pursue a restitution request. However, the prosecution could have atte mpted

to obtain statements or testimony from others with personal knowledge of the

impact on the victim, such as her biological father or a treating physician or

therapist. Instead, there is no evidence of the impact of Munoz

- Garcia’s

crimes on Jane Doe 2 , and the trial court relied exclusively on its experience

and common sense regarding similar incidents in awarding restitution

.

Under such circumstances

, the trial court ’ s restitution award to Jane Doe 2

was an abuse of discretion. 4 We will therefore reverse the award and issue a

limited remand . On remand, the prosecution may again , if desired, seek

noneconomic restitution for Jane Doe 2 based on more robust evidence.

B

. Restitution Fine

As part of his plea agreement, Munoz

- Garcia acknowledged in writing

that he would be required to pay a restitution fine of not less than $200 or

more than $10,000 and gave up his right to appeal his sentence in exchange

for the negotiated disposition. At sentencing on April 4, 2022, defense

counsel asked to address fines and fees under Dueñas

, supra , 30 Cal.App.5th

1157. After the trial court allowed him to do so, counsel argued that Munoz

Garcia did not have the ability to pay the fines and fees because he was

embarking on a lengthy prison sentence, had no assets, and would not be

employed in prison. The court questioned how defense counsel knew that

Munoz

- Garcia would not be employed in prison. Counsel then changed

tactics, asserting that any “meager i ncome” he would receive in prison would

likely go to direct victim restitution. The prosecutor argued that Munoz

4 Because Munoz

- Garcia does not contest the factual basis for the

noneconomic restitution award to Jane Doe 1 and we reverse the award to

Jane Doe 2 , we need not determine the adequacy of any waiver pursuant to

People v. Harvey (1979) 25 Cal.3d 754 made in this case.14

Garcia had the ability to pay the restitution fine given his long prison

sentence. Determining it could not find an inability to pay on the r ecord

before it, the court imposed the $1

, 000 restitution fine but agreed to suspend

the court operations and criminal conviction assessments.

C iting D ueñas and its progeny , Munoz

- Garcia finally argues on appeal

that imposing the restitution fine without a hearing on his ability to pay

violated his state and federal constitution al rights to due process

, equal

protection , and protection from excessive fines

. It appears that the court

conducted a hearing and simply foun d insufficient evidence to stay the fine.

However, we do not reach th is issue on its merits because we have no

jurisdiction to do so. “ ‘ In a criminal case, judgment is rendered when the

trial court orally pronounces sentence. ’ ” ( People v. Montes ( 2021 )

70 Cal.App.5th 35, 47, quoting People v. Karaman (1992) 4 Cal.4th 335, 344,

fn. 9 .) Here, judgment was rendered on April 4, 2022, and Mun o z

- Garcia did

not timely appeal

. ( Cal. Rules of Court, rule 8.308(a) [notice of appeal must

b e filed within 60 days after the rendition of the judgment] .) Rather, his

notice of appeal in this case was from the July 28, 2022 victim restitution

order and was filed that same day

.

“ ‘ A timely notice of appeal, as a general matter, is “ essential to

appellate jurisdiction.” ’ [Citation.] ‘ An untimely notice of appeal is “ wholly

ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc

order, and the appellate court has no power to give relief, but must dismiss

the ap peal on motion or on its own motion. ” [Citation.] The purpose of the

requirement of a timely notice of appeal is, self

- evidently, to further the

finality of judgments by causing the [party] to take an appeal expeditiously or

not at all. ’ [Citation.] As a consequence, ‘ “ ‘ an unappealed [judgment] is

final and binding and may not be attacked on an appeal from a later15

appealable order. ’ ” ’ ” ( In re G.C. ( 2020 ) 8 Cal.5th 1119, 1127.) Because

Munoz

- Garcia’s notice of appeal cannot be deemed timely with r espect to the

imposition of the restitution fine, we can not consider its propriety

.

III. DISPOSITION

The $100,00 0 award of noneconomic restitution to Jane Doe 2 is

reversed and the matter is remanded for further proceedings regarding

whether Munoz

- Garcia owes noneconomic restitution to Jane Doe 2 . The

judgment is otherwise affirmed.16 C ASTRO

, J. *

WE CONCUR:

B ANKE

, A CTING P. J.

L ANGHORNE W ILSON

, J.

A 165868

People v. Munoz

- Garcia

* Judge of the Alameda County Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.