Remanding Restitution Order for Noneconomic Losses

Anthony Salvador Gomez pleaded guilty in Contra Costa Superior Court to two counts of lewd act upon a child under the age of 14 (Penal Code § 288(a)).  The victim was his own son.

Prior to his plea, the probation office prepared a probation report for the case, but it did not include any information about the victim’s damages.

At the sentencing hearing, the following victim impact statement from the victim was read by the prosecutor: “I am many things, but a victim I am not.  I am a survivor.  Realizing this was a spontaneous reaction to my realization that my father was not the leading, loving, supportive father that I deserved, but the piece of shit that he is today.  As you all see him sitting in court today realized that he will not feel devastated to be sentenced to prison.  He landed in the best place possible.  He will be fed daily, given vaccines, sleep peacefully and be surrounded by many other pedophiles like himself.”

“Know that while you’re in prison, I will continue to strive in my own life reaching my goals faster than ever as all you ever were to me was a setback.”

No additional evidence was presented in advance of or at the restitution hearing.  Instead, the People argued noneconomic damages could be inferred from the nature of the crime; discussed child molestation cases awarding $50,000 and $100,000 per year of abuse; and requested a total of $100,000, or $50,000 per count.  Mr. Gomez’s attorney argued there was insufficient evidence to support the requested award.

The judge found that common sense supported such a noneconomic damage award and granted the People’s request for restation of $100,000.

The reader of this summary may regard this award as too low for such a crime.

Indeed, Mr. Gomez curiously then appealed the restitution award to the First Appellate District Court in San Francisco, arguing that the award was not rationally based and that the burden is on the party seeking restitution to provide a factual basis for it.  Moreover, a crime victim may only recover for losses personally incurred by the defendant and some evidence of the harm incurred is required to support a restitution award.

The First Appellate District agreed.  It first explained that “[w]ith one exception, “restitution orders are limited to the victim’s economic damages.”  People v. Smith (2011) 198 Cal. App. 4th 415, 431.  The exception is restitution may be ordered for “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288, 288.5, or 288.”  Penal Code § 1202.4(f)(3)(F).  “Noneconomic damages are ‘subjective, non-monetary losses, including, but not limited to, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.’ Civil Code § 1431.2(b)(2). 

Where there are no evidence or facts to support a restitution order for noneconomic damages or the record is insufficient to permit meaningful review, a restitution order must be reversed.

Here, Mr. Gomez’s son did not testify at his father’s preliminary hearing, sentencing or restitution hearing, and there was no other evidence of the impact his father’s crimes had on him.  Although his son did not need to testify to satisfy the low evidentiary bar required to support a restitution order, the record was bereft of any evidence regarding the losses he personally suffered.  As a result, the restitution order was not rationally based, so the matter had to be remanded for further proceedings.

This appeal by Mr. Gomez, we think, exemplifies the adage, “be careful what you ask for – you might just get it.”  Here, the restitution award that will be made after remand will most likely be many multiples of $100,000.  The prosecution will send Mr. Gomez’s son to a psychiatrist or psychologist (if he has not already been to one or more), who will diagnose him with multiple mental conditions and recommend a rigorous rehabilitation program costing a significant amount. 

The prosecution also will spend time with Mr. Gomez’s son to elicit testimony that may be evidence of pain and suffering, mental distress, loss of society, humiliation, etc., and the judge will order Mr. Gomez to pay a restitution amount many multiples of $100,000.