Restitution in 288, 288.7 Case Can Include New Beds

In San Bernardino County, Anthony Narro molested two of his stepdaughters and one of his stepdaughter’s friends for a period of over ten years. He was convicted of 14 sexual offenses and sentenced to 195 years to life in state prison.

On appeal to the Fourth Appellate District in Riverside, he contended that the trial court violated his Fourteenth Amendment rights to due process and a fair trial by giving CALCRIM No. 1191B, which permits a juror to find a defendant is “disposed or inclined to commit sexual offenses” if it found defendant committed any one or more of the sexual offenses and “also conclude that defendant was likely to commit the other sex offenses charged in the case.” The Fourth Appellate Court denied this ground for appeal.

Secondly, he contended the trial court erred by awarding $9,461.34 as restitution to one of the victim’s mother to purchase new beds and living room furniture (which she did buy), which she claimed caused painful memories of Mr. Narro’s sexual abuse of her daughter. The mother testified at a restitution hearing that because sexual acts were committed on or around this furniture, she stated, “every time we looked at it or sat on it; reminded us of the defendant and how he tortured us mentally, physically, emotionally and sexually.”

While Mr. Narro acknowledged that Penal Code § 1202.4(f)(3)(F) allowed a victim in a Penal Code §§ 288, 288.5 and 288.7 crime (Mr. Narro was convicted in this case of violating 288 and 288.7) to recover economic losses in restitution, he argued that his crimes did not damage or destroy the furniture. He also argued that the court could not award economic damages for noneconomic damages to the mother of a victim.

The prosecution argued that the trial court had broad discretion in awarding restitution and that the furniture, particularly two beds, could no longer be used by the victim. Further, a parent of a child was entitled to noneconomic damages such as psychological harm.

The Court of Appeal affirmed the trial court. It explained that noneconomic losses included psychological harm and were recoverable in cases involving Penal Code §§ 288 and 288.7. It explained that noneconomic losses 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.” People v. Smith (2011) 198 Cal. App. 4th 415, 431.

No fixed standard exists for deciding the amount of noneconomic damages. People v. Lehman (2016) 247 Cal. App. 4th 795, 801.

Therefore, the Fourth Appellate District only reviewed the trial court’s award for an abuse of discretion. It then explained that numerous other courts have upheld awards for noneconomic damages that were considerably higher than in this case. See People v. Lehman, supra (appeal court affirmed award of $900,000 in noneconomic restitution because of the psychological impact of defendant’s abuse); People v. McCarthy (2016) 244 Cal. App. 4th 1096, 1102, 1110-1113 (in a case involving continuous sexual abuse of a child, the appellate court upheld an award of “$100,000 per year for ten years, for a total award of $1 million”) and People v. Smith, supra (restitution award of $750,000 in noneconomic damages upheld for years of sexual abuse “does not shock the conscience or suggest passion, prejudice or corruption on part of the trial court.”).

The Fourth Appellate District then pointed out that it disagreed with Mr. Narro that the replacement cost of the furniture was purely economic in nature and since the furniture was still functional, the trial court abused its discretion. The mother of the victim states that the furniture, where the sexual abuse took place, was a constant reminder of the crimes. Moreover, the noneconomic damages that the victims were entitled to need not be tied to any specific pain and suffering and such pain and suffering could include, but need not necessarily include, the mental anguish experienced by looking at the furniture on which the crimes took place.

Therefore, the trial court did not abuse its discretion in making such an award for the replacement cost of the two beds and other furniture.