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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
restitut ion for the noneconomic damages incurred by his victims: $50,000 for each year of abuse one of his victims w as forced to

1 S tatutory references are to the Penal Cod e.2

endure , and $25,000 for each violation of section 288 committed against two other victims

. Brians contends the se orders should
be vaca ted because the court did not specify why it chose the $25,000 and $50,000 restitution baselin e s . 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 victim s 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 h er

. Prosecutors sai d they deci ded on the se figure s 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 prese nted at sentencing when determining
the appropriate amount of restitution

. B.D. sai d that Brians subjected her to “[r] epeated sexual acts, includ[ing] masturbation, mutual masturbation, oral copulation, digital penetration, and ultimately sexual intercour se ” 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.3 K.D. was 10 or 11 when Brians abused her. Her memories
of the abuse continue to surface

— sometimes at random

— f or c ing
her to “ keep herself away from people beca use she’s afraid of

. . . having . . . [a] breakdown. ” She also no longer like s 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 pros ecutors reques ted 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 c hose $25,000 and $50,000 baselines for the noneconomic damages his victims
suffered . We disagree.
The California Constitution provid es victim s the right to
restitution for losses caused by criminal defendants. ( Smith

, supra , 198 Cal.App.4th at p. 431; se e Cal. Const., art. I, § 28, subd. (b)(13).) Pursuant to s ection 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.) R estitution is generally limited to
economic damag es ( Smith , at p. 43 1 ) , b ut may also be ordered for
noneconomic damag es stemming from a defendant’s violations of

s ection 288 (§ 1202.4, subd. (f)(3)(F))

. “ Noneconomic damages are

‘ subjective, non

- monetary losses inclu ding, 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. 43 1 .)4 We review a restitution order that includ es noneconomic damages for abuse of discretion. ( Smith

, supra , 198 Cal.App.4th at p. 43 5 .) “U nder 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 ration ally designed
to determine the . . . victim ’ s . . . loss.” ( People v. Giordano (2007) 42 Cal.4th 644, 663

- 664.) The cour t 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 th e
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. T he trial court cited

ea ch victim’s testimony and the victim impact statements read at sentencing w hen 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 the se victims continues to live in fear and experiences emotional and psychological trauma.
Brians “ruined” their childhoods, and they continue to struggle
with their person al 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 aut hority, 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 pain5

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 amou nt 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 revie w ing 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 abus e nor $25,000 per lewd act does so

. O ur sister court s 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.4 th at p p . 436

- 437 .) The court in People v. Lehman (2016) 247 Cal.App.4 th 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
baseline s here, tied solely to Brians’s years of abuse and the lewd
acts he committed , was not an abuse of discretion.6 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, A ttorney 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.