Filed 6/21/23 P. v. Brians CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

MICHAEL ANTHONY 

BRIANS,

 Defendant and Appellant.

2d Crim. No. B323941

(Super. Ct. No. 19F-07233)

(San Luis Obispo County)

Michael Anthony Brians molested several young girls in his 

family over a period of nearly three decades. After a jury 

convicted him of seven counts of committing lewd acts on a child 

under 14 years old (Pen. Code,1 § 288, subd. (a)) and one count of 

sexually penetrating a child under 14 with a foreign object (§ 289, 

subd. (j)), the trial court ordered Brians to pay $475,000 in 

restitution for the noneconomic damages incurred by his victims: 

$50,000 for each year of abuse one of his victims was forced to 

1 Statutory references are to the Penal Code.
2

endure, and $25,000 for each violation of section 288 committed 

against two other victims. Brians contends these orders should 

be vacated because the court did not specify why it chose the

$25,000 and $50,000 restitution baselines. We affirm. 

FACTUAL AND PROCEDURAL HISTORY

At the restitution hearing, prosecutors moved the trial 

court to order Brians to pay $475,000 to his three victims for 

their “past and future psychological harm”: $400,000 to B.D., or 

$50,000 per year of sexual abuse she endured; $50,000 to J.D., or 

$25,000 for each lewd act Brians committed against her; and 

$25,000 to K.D. for the lewd act Brians committed against her. 

Prosecutors said they decided on these figures based on the 

analysis in People v. Smith (2011) 198 Cal.App.4th 415 (Smith). 

They noted the restitution ordered in that case included losses 

the victim endured in the years after the defendant abused her. 

Here, in contrast, the requested restitution was based on the 

years during which Brians committed his crimes, even though 

“the sexual abuse did go on much longer.” 

The trial court considered the victims’ trial testimony and 

the impact statements presented at sentencing when determining 

the appropriate amount of restitution. B.D. said that Brians 

subjected her to “[r]epeated sexual acts, includ[ing]

masturbation, mutual masturbation, oral copulation, digital 

penetration, and ultimately sexual intercourse” for more than 10 

years. He threatened to harm her, her family, or himself if she 

did not comply with his demands, and would “frequently 

brandish a weapon.”

Brians started abusing J.D. when she was just eight or 

nine years old. At the time of trial J.D. still “[didn’t] think [she] 

ever really did” deal with the trauma caused by Brians’s abuse.
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K.D. was 10 or 11 when Brians abused her. Her memories 

of the abuse continue to surface—sometimes at random—forcing 

her to “keep herself away from people because she’s afraid of . . .

having . . . [a] breakdown.” She also no longer likes to be touched 

physically. 

Based on these statements, and “recognizing how difficult it 

is to quantify psychological harm,” the trial court concluded that 

the restitution prosecutors requested was “not an overestimate.” 

It ordered Brians to pay $400,000 in restitution to B.D., $50,000 

to J.D., and $25,000 to K.D.

DISCUSSION

Brians contends the restitution orders must be vacated 

because the trial court did not explain why it chose $25,000 and 

$50,000 baselines for the noneconomic damages his victims 

suffered. We disagree.

The California Constitution provides victims the right to 

restitution for losses caused by criminal defendants. (Smith, 

supra, 198 Cal.App.4th at p. 431; see Cal. Const., art. I, § 28, 

subd. (b)(13).) Pursuant to section 1202.4, subdivision (f), trial 

courts must order restitution “based on the amount of loss 

claimed by the victim or victims or any other showing to the 

court.” (Italics added.) Restitution is generally limited to 

economic damages (Smith, at p. 431), but may also be ordered for 

noneconomic damages stemming from a defendant’s violations of 

section 288 (§ 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 consortium, 

injury to reputation and humiliation.’ ” (Smith, at p. 431.) 
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We review a restitution order that includes noneconomic

damages for abuse of discretion. (Smith, supra, 198 Cal.App.4th 

at p. 435.) “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 . . . victim’s . . . loss.” (People v. Giordano (2007) 

42 Cal.4th 644, 663-664.) The court must also “make a clear 

statement of the calculation method used and how that method 

justifies the amount ordered.” (Id. at p. 664.) We will affirm the 

amount so long as it “does not, at first blush, shock the conscience 

or suggest passion, prejudice[,] or corruption on the part of the 

trial court.” (Smith, at p. 436.)

There was no abuse of discretion here. The trial court cited 

each victim’s testimony and the victim impact statements read at 

sentencing when determining restitution. Brians molested B.D. 

for nearly a decade, from the age of five or six through high 

school. He molested J.D. when she was eight to 10 years old, and 

K.D. when she was 10 to 13. Each of these victims continues to 

live in fear and experiences emotional and psychological trauma. 

Brians “ruined” their childhoods, and they continue to struggle 

with their personal relationships. Ordering restitution of $50,000 

for each year of abuse B.D. endured and $25,000 for each lewd act 

committed against J.D. and K.D. would help compensate these 

victims for the psychological harm caused by Brians. The 

Giordano “clear statement” standard is met. 

Without citing any authority, Brians complains that the 

trial court did not explain why it chose the restitution baselines it 

did, and that it instead should have connected “[t]he amount of 

restitution for noneconomic damages . . . to the cost of therapy, 

lost work, lost school, or any other type of treatment for the pain 
5

and suffering, so that a reviewing court can determine whether 

the subjective reasoning of the trial court was reasonable.” That 

is not the law. Section 1202.4 does not provide guidelines for 

setting the amount of noneconomic damages from sexual abuse, 

but instead permits them to be based on “any other showing” 

made to the court—such as a victim’s testimony. Moreover, as 

the Smith court explained, because “ ‘[n]o fixed standard exists 

for deciding the amount of these damages,’ ” a reviewing court 

must examine the restitution ordered and determine whether it 

“ ‘shocks the conscience and suggests passion, prejudice[,] or 

corruption.’ ” (Smith, supra, 198 Cal.App.4th at p. 436.) Neither 

$50,000 per year of abuse nor $25,000 per lewd act does so.

Our sister courts have upheld restitution orders with

similar or even greater baselines for calculating noneconomic 

damages. In Smith, for example, the Court of Appeal upheld a 

restitution order requiring the defendant to pay $750,000 in 

noneconomic damages, concluding that it was a reasonable 

calculation based on the defendant’s seven years of abuse and the 

years of psychological trauma that followed. (Smith, supra, 198 

Cal.App.4th at pp. 436-437.) The court in People v. Lehman

(2016) 247 Cal.App.4th 795, 803-804, upheld restitution orders 

with even greater baselines—nearly $100,000 per year of abuse 

each victim endured—based on the victims’ testimony at trial, 

their impact statements, and probation report. The use of lower 

baselines here, tied solely to Brians’s years of abuse and the lewd 

acts he committed, was not an abuse of discretion.
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DISPOSITION

The trial court’s restitution orders, entered September 12, 

2022, are affirmed.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Jolene Larimore, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Heidi Salerno, Deputy 

Attorneys General, for Plaintiff and Respondent.