Filed 1/14/20
                    CERTIFIED FOR PARTIAL PUBLICATION*



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                   E070658

v.                                                  (Super.Ct.No. RIF1506320)

HIPOLITO OSORIO MORALES,                            OPINION

        Defendant and Appellant.




        APPEAL from the Superior Court of Riverside County. Thomas Kelly, Judge.

(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

        Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and

Appellant.




*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.B. and II.C.


                                             1
           Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Craig H. Russell,

and Helen H. Hong, Deputy Attorneys General, for Plaintiff and Respondent.

           Defendant and appellant Hipolito Osorio Morales was charged with two counts of

oral copulation or sexual penetration of a child under 10 (Pen. Code, § 288.7, subd. (b))1

and seven counts of committing a lewd or lascivious act on a child under 14 (§ 288, subd.

(a)). During his trial, the trial court admitted into evidence, after jury deliberations began

and without any limiting instructions, a video and transcript of Morales’s police

interrogation. In a pre-Miranda2 portion of that interrogation, an officer made statements

to the effect that children had informed law enforcement that Morales had molested them;

he (the officer) knew Morales was lying; he could tell Morales was lying from his

experience as an investigator; and Morales committed the crimes. Although the officer

testified at trial, the parties had agreed to limit questioning to the post-Miranda portion of

the interrogation only. The jury found Morales guilty, and he was sentenced to 175 years

to life.

           In the published portion of this opinion, we address Morales’s contention that

admission of the officer’s statements from the pre-Miranda portion of the interrogation

violated the confrontation clause. According to Morales, because the full interrogation

was admitted only after the officer was excused and the jury began its deliberations, he

           1   All further undesignated statutory references are to the Penal Code.

           2   Miranda v. Arizona (1966) 384 U.S. 436.


                                                  2
was deprived of the right to confront the officer about the pre-Miranda statements

described above, none of which were repeated after Morales was read his Miranda rights.

We find no confrontation clause violation. In order to implicate the confrontation clause,

a statement must be testimonial, meaning that it must be made with sufficient formality

and with the primary purpose of creating a substitute for trial testimony. Accusatory

statements made by law enforcement in an interrogation will, absent unusual

circumstances, satisfy neither of these requirements.

       We address Morales’s other contentions in the unpublished portion of this opinion.

We find them unmeritorious and therefore affirm.

                 I. FACTUAL AND PROCEDURAL BACKGROUND

       In 2012, Morales and his wife3 moved into a house in Perris. A.C., her brother

G.C., and their parents also lived in the house.

       A.C., who was born in 2007, testified that after Morales moved in, he began to

touch her in inappropriate ways, such as by rubbing and touching her rear, kissing her,

and pulling down her shorts. Morales would also touch and put his tongue inside A.C.’s

mouth and vagina and touch her breasts underneath her clothes. Although A.C. would

tell Morales to stop, he would not listen. Neither A.C.’s parents nor Morales’s wife

would be around when this occurred. According to A.C., Morales would promise to give

A.C. money and make her a dollhouse. A.C. did not tell her parents about Morales’s


       3 Morales stated during his interrogation that he and his wife have never been
married, although Morales and other witnesses at trial referred to the woman as his wife.


                                              3
actions because she was afraid they would think she was “nasty” and would not love her

anymore.

       G.C., A.C.’s younger brother, testified that he would see Morales kiss A.C. and

make her touch Morales’s “private part.” G.C. stated that Morales would also fondle

G.C.’s penis and digitally penetrate G.C.’s anus. A.C. had observed Morales touch

G.C.’s “private part” as well. A.C. did not want to tell their mother because, as with her,

A.C. was afraid that their mother would think G.C. was “nasty” and no longer love him.

G.C. stated that he was scared at the time and remains embarrassed about what happened.

       S.M., a friend of A.C., lived next door. S.M. testified that on various occasions

Morales had touched her anus and vagina, pulled down her skirt, and kissed her rear. On

one occasion, S.M. observed Morales attempt to enter a closed room while A.C. was

changing inside and that Morales did not stop after A.C. told him to. S.M. was scared to

tell her mom about what Morales did because she was afraid that she would get in trouble

for not telling her before. S.M. also stated that what Morales did was embarrassing to

think about and that when she begins to remember it, she gets sad and tries to stop

remembering.

       On October 7, 2015, A.C. was at S.M.’s house, and the two went to A.C.’s house

to get dolls. At some point after the two arrived at A.C.’s house, Morales touched A.C.’s

rear over her shorts for two to three minutes. It is not clear whether Morales touched

S.M. as well. According to the girls, Morales gave A.C. a handwritten letter and told her

not to show anybody. The letter read: “I promise your little house in three weeks. This



                                             4
is a real promise because I love you so much. You are my good girl, my better girl, my

favorite girl, my beautiful girl. You are so nice. You are so nice [A.C.]. Remember your

little house will be delivered 10 – 23 – 15.” Later that day, A.C. informed S.M.’s mother

that Morales had touched her, at which point S.M.’s mother called the police.

       Morales was interrogated by Deputy Sheriff Manuel Campos at the Perris police

station that same day. At the beginning of the videotaped interrogation, which was

conducted in Spanish and later transcribed, Campos repeatedly informed Morales that he

was not under arrest. After some initial questions about Morales and his relationship to

the girls and their families generally, Campos relayed A.C.’s and S.M.’s claims that

Morales had been “touching them on their bodies.”4 Morales denied the claims, but as

the interrogation continued, Campos began to accuse Morales, telling him that he

(Campos) knew Morales was lying about whether he molested the girls. For example,

Campos variously stated that: “[Y]ou lied,” “I don’t believe you,” “I noticed that you

went from lying to telling me the truth,” “I know when someone is lying to me and I

know when someone is telling me the truth,” “I know that you pulled down those – those

girls’ pants,” “I already know that you did it,” “these girls – all boys and girls speak the

truth,” and “I’m telling you right now that I know the truth.” At one point, Campos

stated that he could tell, based on professional experience, that he knew Morales was

lying: “I’ve been almost – almost 20 – 20 years doing this job. [¶] . . . [¶] And I have

       4 At the time, neither the parents nor law enforcement appeared to know whether
G.C. had been molested. G.C. did not disclose what Morales had done to him until some
weeks later.


                                              5
spoken to a lot of people, and I can look at you now and I can tell you that I know that

you’re not telling me the truth.” Campos also stated that there was additional evidence

that Campos would not reveal to Morales: “When – when all of this goes to court they’ll

know that you’re lying to me. Because I also have proof I’m not showing you. Okay?”

In addition, Campos relayed statements from A.C. and S.M. about how Morales had

touched them, such as Campos’s statement that “one girl . . . says that you pulled down

her – you pulled down her pants and that you – that you gave her a kiss down there.” In

response to Campos’s questioning, Morales admitted that he had touched A.C. and S.M.,

although not sexually, and that he wrote the letter to A.C.

       At a point in the interrogation after Campos made all of the above statements,

Campos arrested Morales and read him his Miranda rights. (See Miranda v. Arizona,

supra, 384 U.S. 436.) The interrogation then continued with Morales denying that he

ever touched A.C. or S.M. sexually.

       At trial, both Morales and Campos testified, as did the three children and a handful

of other witnesses. Before either Morales or Campos took the stand, the People indicated

on the record that they intended “to only cover the portions of [Morales’s interrogation]

that was discussed with [Morales] post-Miranda.” Campos testified before Morales, and

the questions focused only on the post-Miranda portion of the interrogation. When

Morales later took the stand, however, he testified that he had lied to Campos during the

interrogation about touching the girls and writing the letter, saying he did so because he

felt confused, scared, and threatened by Campos. Morales stated that he lied to Campos



                                             6
because he did not know what Campos was accusing him of, because Campos was

threatening him by asking “strong” questions and standing “too close,” and because he

(Morales) was raised in a small town in Mexico “where there’s a lot of abuse in

authority” and was therefore afraid of what Campos might do.

       To the People, Morales had opened the door to the entire interrogation by

characterizing it as coercive. However, the People did not seek to offer the full

interrogation into evidence immediately following Morales’s testimony. Rather, after

both sides rested their case and delivered closing arguments, and after the jury was given

instructions and retired to deliberate, the People, in a final “housekeeping” discussion

with the trial court, requested that the full interrogation be admitted into evidence.

Morales objected, contending that admission of the full interrogation constituted

“evidence that is presented to the jury after the close of evidence” and that admission

would violate his Sixth Amendment right to confront witnesses against him. The trial

court disagreed and allowed the full interrogation to go to the jury.

       The jury found Morales guilty on all counts. At sentencing, the trial court

sentenced Morales to a term of 175 years to life. The trial court also imposed $40,000 in

direct victim restitution ($25,000 to A.C., $10,000 to G.C., and $5,000 to S.M.), among

other fines and fees. The trial court arrived at $40,000 by awarding $5,000 to each child

for each year of abuse they suffered. The trial court noted that the People had requested

$50,000 per year per child pursuant to People v. Smith (2011) 198 Cal.App.4th 415,

which had upheld such a formula. After discussing the issue with the parties, however,



                                              7
the trial court reduced the amount to $5,000 per year per child. The trial court stated:

“These children have suffered greatly. Their innocence has been taken away. They’ve

witnessed things that no child should ever witness. It’s going to cause, I’m sure, lasting

damage, and they need all the help that they can get for their recovery, so these are very

modest figures when you consider the gravity of what’s been done to them, so that will

be imposed.”

                                      II. ANALYSIS

A. Confrontation Clause

       The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him . . . .” This confrontation clause is made applicable to the states via

the Fourteenth Amendment. (Pointer v. Texas (1965) 380 U.S. 400, 403.)

       In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States

Supreme Court held that the confrontation clause bars “admission of testimonial

statements of a witness who did not appear at trial unless he was unavailable to testify,

and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53-54.)5

       5  Here, Campos did appear at trial. Nevertheless, Morales contends that the fact
that the full interrogation was admitted into evidence as late as it was effectively made
Campos “a witness who did not appear at trial” (Crawford, supra, 541 U.S. at p. 54) with
regard to the pre-Miranda statements for confrontation clause purposes. We agree.
Contrary to what the People argue, the mere fact that Campos testified at trial does not
render the confrontation clause inapplicable here. (See United States v. Wilmore (9th Cir.
2004) 381 F.3d 868, 872, fn. 6 [finding confrontation clause violation under Crawford in
case where “it was only after the evidence was admitted that [the witness] became
unavailable . . . .”].) Because Campos was not recalled and cross-examined after the


                                              8
Only statements that are testimonial “cause the declarant to be a ‘witness’ within the

meaning of the Confrontation Clause.” (Davis v. Washington (2006) 547 U.S. 813, 821.)

Citing Webster’s, Crawford defined “testimony” as “‘[a] solemn declaration or

affirmation made for the purpose of establishing or proving some fact.’” (Crawford,

supra, at p. 51.) The court, however, declined to “spell out a comprehensive definition”

of when a statement is or is not testimonial. (Id. at p. 68.)

        Since then, our Supreme Court has concluded that “a statement is testimonial

when two critical components are present.” (People v. Lopez (2012) 55 Cal.4th 569, 581

(Lopez); see also People v. Dungo (2012) 55 Cal.4th 608, 619.)

        “First, to be testimonial the out-of-court statement must have been made with

some degree of formality or solemnity.” (Lopez, supra, 55 Cal.4th at p. 581.) For

instance, in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, the United States

Supreme Court held that “‘certificates of analysis’ showing the results of . . . forensic

analysis” were testimonial because they were “‘declaration[s] of facts written down and

sworn to by the declarant before an officer authorized to administer oaths’” and were

therefore “incontrovertibly a ‘“solemn declaration or affirmation made for the purpose of

establishing or proving some fact.”’” (Id. at pp. 307-308, 310.) Similarly, in Bullcoming

v. New Mexico (2011) 564 U.S. 647, the court held that “the formalities attending the



[footnote continued from previous page]
[footnote continued from previous page]
purportedly testimonial statements were offered into evidence, we conclude that, for
confrontation clause purposes here, he was not a witness who appeared at trial.


                                              9
‘report of blood alcohol analysis’” at issue were “more than adequate to qualify [the

assigned forensic analyst’s] assertions as testimonial” where the report was “‘formalized’

in a signed document.” (Id. at p. 665.) Conversely, in Lopez, where no one “signed,

certified, or swore to the truth of the contents” of a report, our Supreme Court held that

the report was “not prepared with the formality required . . . for testimonial statements.”

(Lopez, supra, 55 Cal.4th at p. 584; see also People v. Sanchez (2016) 63 Cal.4th 665,

696-697 [notice that was “part of an official police form containing the officer’s sworn

attestation that he issued the notice on a given date and that it accurately reflected the

attendant circumstances, including defendant’s statements,” was sufficiently formal].)6

       Second, a statement is testimonial if it was “given with the ‘primary purpose of

creating an out-of-court substitute for trial testimony’” or “made with the primary

purpose of creating evidence for [the defendant’s] prosecution.” (Ohio v. Clark (2015)

576 U.S. __ [135 S.Ct. 2173, 2181, 2183] (Clark); see also People v. Rangel (2016) 62

Cal.4th 1192, 1214-1215, 1232.) In conducting a primary purpose analysis, courts

consider both whom the statement was made by as well as whom it was made to.

“Statements made to someone who is not principally charged with uncovering and

prosecuting criminal behavior are significantly less likely to be testimonial than

statements given to law enforcement officers.” (Clark, supra, at p. 2182, italics added;

see also ibid. [“Statements by very young children will rarely, if ever, implicate the

       6 Although formality is required, the precise “degree of formality . . . remains a
subject of dispute in the United States Supreme Court.” (Lopez, supra, 55 Cal.4th at p.
582.)


                                              10
Confrontation Clause.”], italics added; Giles v. California (2008) 554 U.S. 353, 376

[“Statements to friends and neighbors about [an abused woman’s] abuse and intimidation

and statements to physicians in the course of receiving treatment would be excluded, if at

all, only by hearsay rules . . . .”].) Moreover, in considering primary purpose, courts must

“objectively evaluate the circumstances in which the encounter occurs and the statements

and actions of the parties.” (Michigan v. Bryant (2011) 562 U.S. 344, 359.) The primary

purpose “must be objectively assessed from the perspective of the parties to the

interrogation at the time, not with the benefit of hindsight.” (Id. at p. 361, fn. 8.)

       Of course, a testimonial statement must be offered to the jury for its truth: The

confrontation clause “does not bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted.” (Crawford, supra, 541 U.S. at p. 59,

fn. 9, citing Tennessee v. Street (1985) 471 U.S. 409, 414.)

       Thus, to summarize, in order for the confrontation clause’s bar to apply, a

statement must (1) be offered for its truth, (2) have a sufficient degree of formality, and

(3) be made with the primary purpose of at least “creating evidence for [the defendant’s]

prosecution” or “‘creating an out-of-court substitute for trial testimony.’” (Clark, supra,

576 U.S. at p. __ [135 S.Ct. at pp. 2181, 2183].) Here, Campos’s pre-Miranda statements

lacked sufficient formality and were not made for the primary purpose of creating

evidence for Morales’s prosecution or an out-of-court substitute for trial testimony. As a

result, the confrontation clause does not bar their admission.




                                              11
       The People contend that Campos’s pre-Miranda statements were not offered for

their truth. Importantly, although the People sought at trial to introduce the full

interrogation to rebut Morales’s coercion claim, the jury was never told that it may not

consider the statements for their truth. In situations such as this—where evidence

challenged on confrontation grounds has been admitted for a not-for-the-truth purpose

but the jury is never instructed as such—the controlling case law appears to be in tension.

In People v. Hopson (2017) 3 Cal.5th 424, our Supreme Court considered whether an

accomplice’s “un-cross-examined confession” was offered for its truth. (Id. at p. 432.)

In holding that it was, and that its use therefore violated the confrontation clause (id. at p.

443), the court relied in part on the “fundamental” fact that “the jury was never informed

of the limited nonhearsay purpose for which [the accomplice’s] confession was

ostensibly admitted” (id. at p. 433; see also id. at p. 430 [“defense counsel did not request

a limiting instruction, and none was given”]). More recently, however, our Supreme

Court found the lack of a limiting instruction insignificant in People v. Bell (2019) 7

Cal.5th 70. In Bell, the court held that the statement in question raised no confrontation

clause concerns because it was not offered for its truth. (Id. at p. 100.) The statement

was admissible in part to rebut the defendant’s claim, first raised during his case-in-chief,

that law enforcement’s forensic “investigation was sloppy.” (Ibid.) “Accordingly, there

was no confrontation clause violation” even though no limiting instruction was given.

(Ibid.) The court noted that “[a]lthough a limiting instruction was not given, defendant is




                                              12
in no position to complain. He failed to make a hearsay objection and, despite the

court’s invitation, failed to propose a limiting instruction.” (Ibid.)

       However, we need not attempt to distinguish either case or make a choice between

the two (see Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57

Cal.2d 450, 456) because whether or not Campos’s pre-Miranda statements were offered

for their truth, they fell short of the formality required to deem them testimonial. Lopez

noted that the “degree of formality required . . . remains a subject of dispute in the United

States Supreme Court” (Lopez, supra, 55 Cal.4th at p. 582), but an interrogating officer’s

statements would fall short of any articulated standard under any normal circumstances.

Unlike in Melendez-Diaz, Campos’s statements were not “‘sworn to by the declarant

before an officer authorized to administer oaths.’” (Melendez-Diaz v. Massachusetts,

supra, 557 U.S. at p. 310; see also id. at p. 308.) And unlike in either Melendez-Diaz or

Bullcoming, Campos’s statements were not written down or formalized in any document

signed by him. (Melendez-Diaz v. Massachusetts, supra, at pp. 308, 310; Bullcoming v.

New Mexico, supra, 564 U.S. at pp. 653, 665; see also People v. Sanchez, supra, 63

Cal.4th at pp. 696-697 [notice that was part of form containing “officer’s sworn

attestation” that defendant’s recorded statements were accurate was sufficiently formal].)

Rather, like Lopez, where no one “signed, certified, or swore to the truth of the contents”

of a report, Campos’s statements lacked the formality required to invoke Morales’s

confrontation right.




                                              13
       Nor are Campos’s pre-Miranda statements, or generally any statements made by

law enforcement in questioning a witness, made with the necessary primary purpose.

Statements by law enforcement during an interrogation are rarely, if ever, meant to

function as a substitute for trial testimony, because an officer would not expect that such

statements be used as evidence at trial. Whatever Campos’s subjective intentions could

have been, the objective circumstances surrounding Morales’s interrogation show that

only Morales’s statements were intended to create evidence for his prosecution. (See

Michigan v. Bryant, supra, 562 U.S. at pp. 360-361, fn. 8.) Moreover, the fact that the

statement was made to Morales, who is not a law enforcement officer, is meaningful, as

“such statements are much less likely to be testimonial than statements to law

enforcement officers.” (Clark, supra, 576 U.S. at p. __ [135 S.Ct. at p. 2181], italics

added.)

       In one sense, statements made by an interrogating officer are often made for the

purpose of “creating evidence for [the defendant’s] prosecution.” (Clark, supra, 576 U.S.

at p. __ [135 S.Ct. at p. 2181].) A question or statement in an interrogation, for instance,

is generally intended to elicit a response, and such response can constitute evidence.

Applying the primary purpose test in this fashion, however, would sweep too broadly, as

it would make everything uttered by law enforcement in questioning a witness

susceptible to confrontation clause challenges. The cases, if anything, point the opposite

way. (See, e.g., Davis v. Washington, supra, 547 U.S. at p. 822, fn. 1 [“And of course




                                             14
even when interrogation exists, it is in the final analysis the declarant’s statements, not

the interrogator’s questions, that the Confrontation Clause requires us to evaluate.”].)

        In short, none of Campos’s statements made during the pre-Miranda portion of

Morales’s interrogation were testimonial, no matter how accusatory they appeared.7

B. Due Process

        Morales contends that the introduction of the full interrogation after closing

arguments deprived him of due process, as section 1093, subdivision (e) provides that

closing arguments may commence “[w]hen the evidence is concluded.”

        For present purposes, we presume that the introduction of evidence after closing

arguments can so distort “the basic right of the accused to make his defense” (Herring v.

New York (1975) 422 U.S. 853, 859) that it violates due process, even when, as here, the

party objecting to the late evidence does not request to reopen the case to amend its

closing argument. (See id. at p. 862 [“[F]or the defense, closing argument is the last clear

chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s

guilt.”].)

        Even so, the record shows that Morales did in fact address the full interrogation

during his closing arguments. He was thus “in a position to present [his] respective

version[] of the case as a whole” to the jury. (Herring v. New York, supra, 422 U.S. at p.

862.) During his closing argument, Morales contended that the full interrogation was

        7 Campos’s statements relaying what A.C. and G.C. told law enforcement raise no
confrontation clause violation for the additional reason that Morales had an opportunity
to, and did, cross-examine the children about molestation at trial.


                                              15
coercive. As counsel stated: “He’s literally in a corner. His entire world, the access to it,

is cut off. The only way out is through that deputy. The only way you get through that

deputy is compliance. [¶] . . . [¶] He told you what his fears were. He told you that his

fears were based on law enforcement in his homeland. How can he compare or how

could he not compare law enforcement with this homeland and law enforcement here?

He had no experience with law enforcement here. All he knows is what he observed in

Mexico.” Although a defendant would generally be surprised if the prosecution

introduces new evidence after closing arguments have been given, the surprise is less

dramatic, and less problematic, when the defendant’s closing argument itself refers to that

evidence.

       Other portions of the record indicate an awareness that the full interrogation would

be offered, or at least that the People intended to do so. During rebuttal, the People

informed the jury that it would receive “a copy of defendant’s interview[,] [t]he full

thing, and a transcript to go with that.” Moreover, during the “housekeeping” discussion

where the People offered the full interrogation into evidence, Morales appeared to

acknowledge that his closing argument addressed coerciveness because he expected that

the full interrogation would be admitted. The trial transcript has the following exchange:

       “THE COURT: Well, you opened the door. You made a big point in your final

argument about the interview techniques, and how the distance and all the ways they put

pressure on someone to elicit a statement, and how your client came from another culture.

And so the whole process was called into question in your case. So the exhibit speaks for



                                             16
itself. The whole interview with your client was videotaped. The jury can watch it and

draw their own conclusions. So it’s just fair play.

       “[DEFENSE COUNSEL]: I understand that.

       “THE COURT: It was kept out of the People’s case in chief.

       “[DEFENSE COUNSEL]: I understand that, your Honor. Our objection was

made after the Court determined that the substantive video and transcript will be

admitted.[8] So that’s when our closing argument began to encompass that. Nonetheless

. . . .” (Italics added.)

       Thus, by the time Morales made his closing argument, he knew, or at least based

on the content of his closing argument should have known, that the full interrogation

would likely be part of the evidence, even if it had not formally been admitted at that

point. Under these circumstances, the trial court’s formal admission of the full

interrogation was not an abuse of discretion. (See § 1094 [order of trial “prescribed in

Section 1093 may be departed from” “for good reasons, and in the sound discretion of the

court . . . .”].) He therefore fails to establish a due process violation here. 9

       8 It is not clear whether this refers to some earlier determination that the full
interrogation would be admitted or, for example, a tentative indication. The on-the-
record admission of the full interrogation did not occur until the end of this exchange. It
is also not clear when the trial court made the determination referenced here, except that
it was logically sometime before Morales’s closing argument.

       9 Accordingly, Morales’s reliance on United States v. Noushfar (9th Cir. 1996) 78
F.3d 1442 is misplaced. There, the federal Ninth Circuit held that allowing the jury to
play 14 tapes, never played in open court, during deliberations was a structural error
requiring automatic reversal. (Id. at pp. 1444-1445.) Noushfar would only apply,
however, if we found a due process violation in the first instance. In any event, since


                                               17
C. Direct Victim Restitution

         Generally, crime victims are not entitled to restitution for noneconomic losses.

(§ 1202.4, subd. (f)(3); Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438, 445.)

However, section 1202.4, subdivision (f)(3)(F) provides an exception for “[n]oneconomic

losses, including, but not limited to, psychological harm, for felony violations of Section

288, 288.5, or 288.7,” which includes the sections Morales was convicted under.

Morales argues that the $40,000 ordered as direct victim restitution ($25,000 to A.C.,

$10,000 to G.C., and $5,000 to S.M.) lacked adequate factual basis and was therefore an

abuse of discretion. “We review the amount ordered for restitution using the abuse of

discretion standard” (People v. Smith, supra, 198 Cal.App.4th at p. 435) and find no

error.

         In Smith, the trial court awarded a molestation victim $750,000 in noneconomic

restitution, which it reached by multiplying $50,000 by 15, the years of abuse the victim

suffered. (People v. Smith, supra, 198 Cal.App.4th at p. 437.) On review, the Court of

Appeal held that the award was not an abuse of discretion. (Ibid.) Here, the People

sought to follow Smith, requesting $50,000 per child per year of abuse suffered. At the

sentencing hearing, after hearing from the parties on the issue, the trial court reduced the


[footnote continued from previous page]
[footnote continued from previous page]
Noushfar, the Ninth Circuit has held that the jury’s consideration of a single tape not in
evidence should be reviewed for harmless error, largely limiting Noushfar’s holding to its
facts. (Eslaminia v. White (9th Cir. 1998) 136 F.3d 1234, 1236-1237 & fn. 1; see also
People v. Gamache (2010) 48 Cal.4th 347, 397 [discussing Noushfar and Eslaminia and
rejecting structural error analysis].)


                                              18
amount to $5,000 per child per year, stating that what they have witnessed was “going to

cause, I’m sure, lasting damage,” and that “these are very modest figures when you

consider the gravity of what’s been done to them.”

       In contending that the reduced amount was an abuse of discretion, Morales relies

on People v. Valenti (2016) 243 Cal.App.4th 1140, where the Court of Appeal rejected

restitution awards, also calculated at $50,000 per child per year, to three children.

Valenti, however, is distinguishable. There, the parents of each of the victims disputed

the fact that their sons had been abused in the first instance. (See id. at p. 1182

[“Jeremy’s mother . . . ‘thanked God her son . . . did not sustain actual child abuse.’”]; id.

at pp. 1182-1183 [Bradley’s mother “believes the defendant never committed sexual

abuse on him . . . .”]; id. at p. 1183 [noting that “all three families were relieved that their

sons had not ‘actually’ been abused.”].) Moreover, the parents in Valenti were less than

clear about what harm their sons suffered from the defendant, if any. (See id. at p. 1182

[Jeremy’s mother “believed that ultimately learning defendant had a sexual interest in

him was confusing to Jeremy, and made him feel betrayed and embarrassed. . . . At

sentencing, Jeremy’s mother suggested Jeremy ‘will suffer ramifications’ from his

parents’ poor judgment, but did not expand on that belief.”]; id. at p. 1183 [Bradley’s

father “did not know how defendant’s actions would impact Bradley . . . .”]; ibid.

[“Justin’s mother said her son was ‘excellent,’ and defendant had not succeeded in

destroying him or their family.”].) (The opinion does not recite any of the children’s

direct testimony on these issues.) Valenti therefore concluded that, based on the record



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before it, the trial court’s “only apparent basis” for its award was the formula upheld in

Smith and held that the award lacked any rational basis. (People v. Valenti, supra, at pp.

1183-1184.) Here, in contrast, neither the children nor their parents dispute that Morales

abused and molested A.C., G.C., and S.M., and the children’s own testimony at trial

reveals the psychological harm they suffered from Morales. Moreover, the trial court

considered such evidence, and in doing so modified and reduced the restitution award

that Smith would have produced. Accordingly, Valenti does not benefit Morales here.

       Morales notes that A.C. and G.C.’s mother requested no restitution and that S.M.’s

mother could not be reached when the probation officer prepared the sentencing

recommendation. Neither circumstance, however, constituted a reason for the trial court

to neglect its duty to award what it considered full restitution to each of the children.

(§ 1202.4, subd. (f) [“The court shall order full restitution.”], italics added.) Here, the

trial court considered the evidence, heard arguments, and awarded each child $5,000 per

year of abuse they suffered from Morales. We discern no abuse of discretion.10

                                     III. DISPOSITION

       The judgment of conviction is affirmed.

       CERTIFIED FOR PARTIAL PUBLICATION




       10  We note that the People requested, and the trial court awarded, restitution for
A.C. for five years of harm, despite the fact that the molestation lasted no more than four
years. But as in Smith, “there is no credible argument, especially on the facts of this case,
that [A.C.’s] psychological harm ended when” Morales was arrested. (People v. Smith,
supra, 198 Cal.App.4th at p. 437.)


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                          RAPHAEL
                                    J.

We concur:



CODRINGTON
      Acting P. J.



SLOUGH
                J.




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