Filed 7/27/15 P. v. Emma 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                                  2d Crim. No. B257905
                                                                          (Super. Ct. No. 2013032491)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

PAUL EMMA,

     Defendant and Appellant.


                   Paul Emma appeals a judgment entered following his guilty plea to six
counts of lewd acts with a child, with a finding that he committed substantial sexual
conduct with a child under 14 years old (counts 1 & 4). (§§ 288, subd. (a), 1203.066,
subd. (a)(8).)1 We affirm.
                               FACTUAL AND PROCEDURAL HISTORY
                   During the summer of 2003, eight-year-old S.P. visited her grandmother
and Emma, her step-grandfather, in Thousand Oaks. On two occasions that summer,
Emma touched S.P.'s breasts, kissed her on her lips, and touched her vagina. Emma
asked S.P. to keep the molestation secret, stating: "It's not a big deal. It's just our little
secret."
                   In 2013, S.P. moved into Emma's home while she attended California
Lutheran University. On one occasion, S.P. was alone with Emma in the home. He

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    All further statutory references are to the Penal Code unless stated otherwise.
grabbed her by her waist and hips and rubbed against her. Emma asked if they could be
physically intimate because he had enjoyed touching her previously and now she was 18
years old and an adult. S.P. pulled away from Emma and went to the dorm room of a
friend. As she left, Emma asked her to "forget everything [he] said and don't tell
anyone."
              Police officers later monitored a pretext telephone call that S.P. placed to
Emma. During the conversation, Emma apologized for his behavior and acknowledged it
was wrong. In later police interviews, Emma admitted molesting S.P. as a child and
recently asking her to be intimate with him.
              On May 29, 2014, the Ventura County prosecutor filed an amended felony
complaint charging Emma with six counts of lewd acts with a child and alleging that
Emma committed substantial sexual conduct with a child under 14 years old (counts 1 &
4). (§§ 288, subd. (a), 1203.066, subd. (a)(8).) The complaint also alleged that the
prosecution was commenced prior to the victim's 28th birthday, pursuant to the
limitations period of section 801.1, subdivision (a). Emma then waived his right to a
preliminary examination, waived his constitutional rights, pleaded guilty to the six
counts, and admitted the special allegations. Orally and in writing, Emma acknowledged
that the trial court would order him to pay restitution to his victim. In writing, Emma
acknowledged that he was entitled to a judicial determination of the amount of victim
restitution, and that restitution would include noneconomic losses, including pain,
suffering, and emotional distress. (§ 1202.4, subd. (f)(3)(F).)
              In accordance with Emma's plea agreement, the trial court sentenced him to
five years in prison, consisting of three years for count 1 and two years for count 4, to be
served consecutively. The court sentenced Emma to three-year terms on the remaining
four counts, to be served concurrently. The court imposed a $300 restitution fine, a $300
parole revocation restitution fine (stayed), a $240 court security assessment, and a $180
criminal conviction assessment, and awarded Emma 284 days of presentence custody
credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.)


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                        Restitution Evidence at Sentencing Hearing
              During the sentencing hearing, S.P. and her father made statements
regarding the psychological harm caused by Emma's crimes. S.P. stated that she had
been fearful of Emma's temper and retribution since 2003. She added that when she fled
his home in 2013, she feared that he would obtain his firearm and "come after [her]."
S.P. stated that the physical and emotional stress of the prosecution forced her withdrawal
from the university's academic honors program and placed her scholarship in jeopardy.
S.P. was retaking classes and had lost her opportunity for a graduate school scholarship.
S.P. also was in counseling, no longer trusted men, felt emotionally scarred, and worried
that she could not marry and have a family.
              S.P.'s father stated that she had suffered extreme emotional distress:
"Numerous times she has been overwhelmed and ready to quit, depressed and angry."
S.P.'s parents also were struggling to cover the unanticipated costs of S.P.'s college
education and housing, including the loss of a two-year post-graduate scholarship.
              Following the statements by S.P. and her father, the prosecutor argued that
the trial court should award "$355,000" (sic) in victim restitution based upon S.P.'s loss
of scholarships, future psychological counseling, and pain and suffering. Emma's
counsel objected to the amount as unsupported by a statement of damages. Over the
defense objection, the court ordered Emma to pay $350,000 noneconomic restitution to
S.P. pursuant to section 1202.4, subdivision (f)(3)(F). (Ibid. [noneconomic losses may
include psychological harm for felony violations of section 288].) In ruling, the trial
judge stated: "I do find and award noneconomic damages to the victim in the amount of
$350,000. I do find that is reasonable for the victim's education needs. I do believe the
victim when she says that this has had a substantial toll on her and her ability to move
forward with her life. I do believe that it will impede her ability because her grades have
suffered and that will require her to pay additional costs for her education, and I think
those costs ought to be passed on to Mr. Emma."
              Emma appeals and challenges the restitution order.


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                                       DISCUSSION
              Emma argues that imposition of the $350,000 victim restitution order
denied him due process of law because the probation officer did not recommend a
specific restitution amount and the probation report stated that the victim's father would
submit a written restitution request. Emma points out that the letters from the victim and
her family members (attached to the probation report) also did not claim a specific
amount of damages. He adds that the oral statements of S.P. and her father made at
sentencing were not made under oath. In sum, Emma claims that he had neither notice of
the $350,000 amount nor an opportunity to challenge the restitution order.
              Emma also claims that the trial court abused its discretion in determining
the amount of restitution. He asserts that there is insufficient factual support for the
amount awarded.
                                              I.
              The California Constitution provides crime victims with the right to
restitution and, consequently, requires the trial court to order a convicted defendant to
pay restitution in every case in which a crime victim suffers a loss. (Cal. Const., art. 1,
§ 28, subd. (b)(13)(B).) To implement this requirement, section 1202.4, subdivision (f)
generally provides that in every case in which a victim has suffered economic loss as a
result of the defendant's misconduct, the court shall require that the defendant make
restitution to the victim in an amount established by court order, based upon the amount
of loss claimed by the victim or upon any other showing to the court. (People v.
Giordano (2007) 42 Cal.4th 644, 651-652.)
              Section 1202.4, subdivision (f)(3) requires the restitution to be "a dollar
amount that is sufficient to fully reimburse the victim or victims for every determined
economic loss incurred as the result of the defendant's criminal conduct." Pursuant to
subdivision (f)(3)(F), a victim of child molestation also may recover restitution for
noneconomic losses, including psychological harm. (People v. Smith (2011) 198
Cal.App.4th 415, 431 [noneconomic losses are subjective, nonmonetary losses that
include emotional distress, pain, suffering, and humiliation].)

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              A defendant has the right to a hearing in the trial court to dispute the
amount of restitution. (§ 1202.4, subd. (f)(1).) The standard of proof at a restitution
hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.
(People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) Moreover, section 1202.4 does
not require a particular type of proof. (Id. at pp. 1542-1543.) "Once the victim makes a
prima facie showing of economic losses incurred as a result of the defendant's criminal
acts, the burden shifts to the defendant to disprove the amount of losses claimed by the
victim." (Id. at p. 1543.) On appeal, we review the court's restitution order for an abuse
of discretion. (People v. Giordano, supra, 42 Cal.4th 644, 663 [the deferential abuse of
discretion standard considers whether the challenged order is reasonable].)
                                             II.
              Emma was not denied due process of law by the trial court's restitution
order. Although he had the right to a restitution hearing to rebut S.P.'s noneconomic
losses, he did not demand an evidentiary hearing nor did he present any rebuttal evidence.
As part of his plea agreement, Emma acknowledged in writing that noneconomic
damages would be awarded in victim restitution and that he knew that he had a right to an
evidentiary hearing. Prior to sentencing, he also received copies of the letters attached to
the probation report describing the emotional distress that S.P. suffered. Emma has
forfeited this argument on appeal.
              All is not lost, however. Section 1202.4, subdivision (f)(1) permits a
defendant to move for modification of a restitution order, and sets forth the procedure for
doing so. Emma thus has an opportunity for an evidentiary hearing to readdress the
amount of restitution.
                                             III.
              The $350,000 restitution awarded for noneconomic losses rests upon a
sufficient factual basis. S.P. stated that she had been fearful of Emma's retribution since
2003 and was worried that he might "come after [her]" after she rebuffed his advances in
2013. S.P. and her father described the emotional stresses that caused S.P.'s academic
decline and loss of a graduate school scholarship. S.P. had received psychological

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counseling and would continue to do so. Noneconomic damages require "subjective
considerations." (People v. Smith, supra, 198 Cal.App.4th 415, 436.) "We are guided in
this matter [noneconomic restitution] by the civil jury instruction concerning
noneconomic loss: 'No fixed standard exists for deciding the amount of these damages.
You must use your judgment to decide a reasonable amount based on the evidence and
your common sense.' (CACI No. 3905A (2009 ed.).)" (Ibid. [$750,000 noneconomic
damages awarded for "years of sexual abuse"].) The trial court did not abuse its
discretion in view of the emotional anguish that S.P. has experienced and will continue to
experience as a result of Emma's crimes.
              It matters not that the prosecutor and the trial court also referred to specific
items of economic damage, i.e., loss of scholarships, counseling expenses, and college
housing. The $350,000 noneconomic restitution rests upon a reasonable factual basis and
is neither arbitrary nor capricious.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           GILBERT, P.J.

We concur:



              YEGAN, J.



              PERREN, J.




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                                 Ryan J. Wright, Judge

                            Superior Court County of Ventura

                           ______________________________


             Dunn & Haney, Philip Dunn, William Haney; Andrew M. Wolf for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney
General, for Plaintiff and Respondent.




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