Filed 5/25/16
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                        DIVISION ONE


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A144800
v.
ARNOLD LEHMAN,                                       (Contra Costa County
                                                     Super. Ct. No. 5-131285-9)
        Defendant and Appellant.


        Defendant Arnold Lehman was found guilty of committing dozens of sex offenses
against his granddaughters, Jane Doe 1 and Jane Doe 2. In a prior appeal, we reversed
three of defendant’s convictions and affirmed the judgment in all other respects.
Defendant now appeals from an order awarding a total of $1 million in noneconomic
restitution to Jane Doe 1 and Jane Doe 2. We affirm.
                                       BACKGROUND
        Defendant was charged by information on June 28, 2013. As to Jane Doe 1,
defendant was charged with 31 counts of committing a lewd and lascivious act against a
child under the age of 14 (Pen. Code,1 § 288, subd. (a), counts 1 to 31); 12 counts of
committing a lewd and lascivious act against a child age 14 to 15 (§ 288, subd. (c)(1),
counts 32 to 43), two counts of oral copulation of a minor (§ 288a, subd. (b)(1), counts 44
& 47), and four counts of sexual penetration of a minor2 (§ 289, subd. (h), counts 45, 46,
48 & 49). As to Jane Doe 2, defendant was charged with two counts of committing a

        1
            All statutory references are to the Penal Code unless otherwise specified.
        2
         In the June 28 information, counts 46 and 49 charged defendant with sodomy of
a minor in violation of section 286, subdivision (b)(1). The charges were amended
during trial to charge sexual penetration of a minor.
lewd and lascivious act against a child under 14 (§ 288, subd. (a), counts 50 & 51). It
was further alleged that defendant was eligible for a sentencing enhancement under
section 667.61, subdivision (j)(2), because he committed an offense against more than
one victim.
       Jane Doe 1 and Jane Doe 2 are half sisters. Defendant is their grandfather.
Shortly after Jane Doe 2 was born in June 2001, her family moved to Brentwood. Jane
Doe 1 was about eight years old at the time. The family’s Brentwood home was owned
by defendant, and he visited often.
       Jane Doe 1 testified that, when she was nine or 10 years old, defendant would give
her back rubs. The back rubs occurred every time defendant visited, and they made Jane
Doe 1 uncomfortable. When Jane Doe 1 was 10 or 11, defendant began massaging Jane
Doe 1’s front and chest. After Jane Doe 1 started wearing a bra, defendant would rub
underneath the bra or push it up. Defendant would ask Jane Doe 1 if he could take off the
bra, and she would say “no.” Defendant would touch Jane Doe 1’s breasts for 20 or 30
minutes.
       When Jane Doe 1 was in seventh or eighth grade, defendant began moving his
hands toward her pant line when he touched her. He also kissed her stomach, chest area,
and lips. At defendant’s request, Jane Doe 1 would lie down as he touched her. Jane
Doe 1’s younger brother testified that he once saw defendant and Jane Doe 1 lying on the
floor kissing. When Jane Doe 1 was 14 or 15, defendant put his hands “underneath the
pant line.” Defendant would take off Jane Doe 1’s pants and underwear and put his
fingers inside her vagina. Jane Doe 1 could not recall exactly how often this happened,
but she testified it occurred “every time [defendant] was over.”
       The touching continued when Jane Doe 1 was 16 and 17 years old, but eventually
stopped towards her “later years of high school.” Jane Doe 1 did not tell anyone in her
family about defendant’s conduct while it was ongoing. She testified she was afraid her
family would not believe her. Jane Doe 1 eventually disclosed defendant’s conduct to a
college friend in 2012. Jane Doe 1 told her mother in or around December of that year,
and the matter was reported to the police in February 2013.


                                             2
       Jane Doe 2 was 12 years old when she appeared at trial in October 2013. She
testified that in or around 2012 her grandfather rubbed her back, and the back rub “felt
weird.” She eventually asked him to stop. Two weeks later, defendant rubbed Jane
Doe 2’s back underneath her clothes. Jane Doe 2 asked him to stop, and he did so. Jane
Doe 2 testified there may have been other incidents, but she was not sure. Jane Doe 2
said defendant “mostly” touched her neck, but sometimes he would go lower, down to
her waist.
       Jane Doe 2’s brother testified: “Every time [defendant] was around [Jane Doe 2],
he always seemed to want to put his hand on her like giving her back rubs and such. [¶]
And I remember she always acted like just disgusted every time it happened, and she
would just kind of squirm out of his touch.” Jane Doe 2’s friend Alex also witnessed one
of defendant’s back rubs. Alex stated defendant rubbed Jane Doe 2’s back as he repeated
her name softly. According to Alex, Jane Doe 2 looked “weirded out.”
       A jury found defendant not guilty of counts 1 and 7 (committing a lewd and
lascivious act against a child under the age of 14); guilty of misdemeanor battery as a
lesser offense on counts 17, 19, 22, 24, 28, 31, 46, and 49; and guilty as charged on the
remaining counts. Defendant filed a motion for a new trial, which was denied. The trial
court sentenced defendant to an indeterminate term of 40 years to life, as well as a
determinate term of 12 years.
       At the sentencing hearing, Jane Doe 1 testified as follows: “I looked up to you
[defendant] growing up, looked up to your caring nature. My trust was misused, and I
had to learn at a young age to watch my back. And likewise in response I decided to get
good grades and move away quickly. My motivation to move away from home gives me
my voice. Every day is a challenge. I have to wake up to the reality that I feel gross,
dirty, and unloveable. No matter what I do, that will not erase that pain. [¶] And I do get
to counseling weekly, but the hardest thing . . . to say is I do forgive you, but I will never
condone your actions. [¶] Currently, I’m doing great in college, which I never thought
was possible. I used to conduct a weekly Bible study, and I possess a management level
job while being a student. And I have learned how to enjoy life for the first time. [¶]


                                              3
Growing up this crippled my life, but this act will no longer stop me or hold me back
from life to enjoy what is in store for me.”
         In September 2014, the district attorney filed a brief requesting restitution for Jane
Doe 1, Jane Doe 2, and their family. The district attorney sought $931 in connection with
money spent by Jane Doe 1 as a result of the defendant’s abuse, as well as $4.9 million
for noneconomic losses—$4.7 million for Jane Doe 1 and $200,000 for Jane Doe 2. The
DA also sought $132,074 in economic damages for Jane Doe 1 and Jane Doe 2’s mother.
In the prosecution’s papers, the district attorney submitted civil “jury verdict” reports
indicating a range of noneconomic damages for child molestation victims 14 years old or
younger and similar awards to victims between four and 17 years old. The documents
reflect damage awards ranging from $12,500 to $30 million. The prosecution also
submitted court decisions awarding noneconomic damages in particular criminal
prosecutions in Contra Costa County Superior Court: in People v. Plaza-Dela Calzada,
the general damages awarded were $900,000 for Jane Doe II and $250,000 for Jane
Doe I;3 in People v. Barriere, the award was $1 million;4 and in People v. Blake, a case in
which Judge Kennedy presided, the total noneconomic damage award for four male
victims was $1.6 million.5 Defendant opposed the restitution request, arguing among
other things that noneconomic losses could not be recovered absent proof the victims
actually suffered such losses.
         After each side submitted their written briefs on the issue, the court scheduled the
hearing on restitution for February 20, 2015. When counsel appeared for the hearing, the
trial court announced the hearing procedure. “Based on our brief discussions in
chambers, my understanding is that it’s the agreement of the parties that counsel will
argue some . . . or any of the issues that they wish to argue this morning, and then I’ll
allow supplemental briefing. [¶] And then based on the supplemental briefing, I will take


3
    This was a case tried in 2011 before Judge Flinn.
4
    This was a case tried in 2011 before Judge Canepa.
5
    This was a case tried in 2014.

                                                4
the matter under submission and issue a written decision after I receive the written
briefing. [¶] If before the date we agree upon for the written briefing, either side
determines that they would like to request an additional hearing, then you can notify each
other and call and check to make arrangements to set a hearing date.” (Italics added.)
The trial judge then indicated his ruling would include the briefings along with the
following: “I have reviewed the presentence report, and of course I have the testimony
from the trial. . . . I have transcripts available and my notes from the trial that I will
review in connection with these issues.” (Italics added.) In other words, the court made
it clear to the attorneys what it was going to consider in resolving all issues of restitution,
including noneconomic damage questions. At the hearing, neither side objected to this
process nor did defendant seek further hearing before the trial court prior to submitting
the issue of restitution. The trial court eventually awarded Jane Doe 1 $931 for economic
losses and $900,000 for noneconomic losses. Jane Doe 2 was awarded $100,000 for
noneconomic losses, and the rest of the family received nothing.
                                        DISCUSSION
       Defendant argues the prosecution failed to make a prima facie case for
noneconomic restitution, the trial court’s findings were unsupported by the evidence, the
prosecutor lacked authority to request noneconomic restitution on behalf of Jane Doe 1
and Jane Doe 2, and the trial court erred by failing to state how it calculated noneconomic
restitution. We find all of these arguments unavailing.
       Pursuant to the California Constitution, victims of crime have a right to restitution
from criminal defendants: “Restitution shall be ordered from the convicted wrongdoer in
every case, regardless of the sentence or disposition imposed, in which a crime victim
suffers a loss.” (Cal. Const., art. I, § 28, subd. (b)(13)(B).) To effect this constitutional
requirement, the Legislature enacted section 1202.4, which requires the trial court to
order a defendant to pay victim restitution “in an amount established by court order,
based on the amount of loss claimed by the victim . . . or any other showing to the court.”
(§ 1202.4, subd. (f).) Recoverable losses include the value of stolen or damaged property
(§ 1202.4, subd. (f)(3)(A)), medical expenses (§ 1202.4, subd. (f)(3)(B)), mental health


                                               5
counseling expenses (§ 1202.4, subd. (f)(3)(C)), and lost wages or profits (§ 1202.4,
subd. (f)(3)(D)–(E)). Pertinent to this case, victims may also recover “[n]oneconomic
losses, including, but not limited to, psychological harm, for felony violations of Section
288.” (§ 1202.4, subd. (f)(3)(F).)
         “A restitution order is reviewed for abuse of discretion and will not be reversed
unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found
where there is a rational and factual basis for the amount of restitution ordered. ‘ “[T]he
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.)
         In considering restitution awards for economic losses, it has been held that “a
prima facie case for restitution is made by the People based in part on a victim’s
testimony on, or other claim or statement of, the amount of his or her economic loss.”
(People v. Millard (2009) 175 Cal.App.4th 7, 26.) “Section 1202.4 does not, by its terms,
require any particular kind of proof. However, the trial court is entitled to consider the
probation report, and, as prima facie evidence of loss, may accept a property owner’s
statement made in the probation report about the value of stolen or damaged property.
[Citations.] 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. [Citation.] The defendant has the burden of
rebutting the victim’s statement of losses, and to do so, may submit evidence to prove the
amount claimed exceeds the repair or replacement cost of damaged or stolen property.”
(People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.)
         In evaluating awards of restitution for noneconomic losses, courts have looked to
civil law for guidance. (People v. Smith (2011) 198 Cal.App.4th 415, 436 (Smith).) The
Civil Code provides noneconomic damages are for “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.” (Civ. Code, § 1431.2, subd. (b)(2).) “ ‘No fixed standard exists for


                                               6
deciding the amount of these damages. [In a civil trial, a jury] must use [its] judgment to
decide a reasonable amount based on the evidence and . . . common sense.’ (CACI
No. 3905A (2009 ed.).) . . . An appellate court can interfere on the ground that the
judgment is excessive only on the ground that the verdict is so large that, at first blush, it
shocks the conscience and suggests passion, prejudice or corruption on the part of the
jury. [Citation.] [¶] The obvious difference between the review of a civil award of
noneconomic damages and a criminal restitution order for noneconomic damages is that
the trial court, not a jury, makes the determination in the first instance. Even with that
difference in mind, [there is] no reason to adopt any other standard of review.” (Smith, at
p. 436.)
       In Smith, the Third Appellate District affirmed an award of $750,000 for
noneconomic restitution after the defendant was convicted of one count of committing a
lewd act on a child under 14 and one count of continuous sexual abuse. (Smith, supra,
198 Cal.App.4th at pp. 419–420.) The defendant, who dated and then married the
victim’s mother, began molesting the victim when she was eight years old. (Id. at
p. 420.) The defendant would touch the victim’s chest, stomach, neck, and back, over
and under her clothing. (Ibid.) Doe recalled the molestation occurred “ ‘basically every
day’ ” she was alone with the defendant. (Id. at p. 421.) The defendant began orally
copulating the victim when she was 14 years old, and began penetrating her vagina with
his penis when she was 16. (Ibid.) The defendant continued having sexual relations with
the victim after she moved out of the house until she was 26 years old. (Ibid.) Evidence
introduced at the restitution hearing showed the defendant isolated the victim and took
advantage of a position of trust from the time she was eight years old. (Id. at p. 432.) It
also showed the victim still had nightmares and flashbacks concerning the abuse, was in
therapy to deal with problems associated with the abuse, had difficulty keeping jobs, had
not finished her education, and had twice attempted suicide. (Id. at p. 432.) The trial
court arrived at $750,000 in noneconomic damages by multiplying the defendant’s 15
years of abuse by $50,000 per year. (Id. at p. 433.) On appeal, the trial court rejected the
defendant’s argument that the award did not meet the requirements applied to economic


                                               7
damages, reasoning: “The standard for awarding economic damages, which by their
nature are more definite, cannot be used to challenge an award of noneconomic
damages.” (Id. at p. 435.)
       In this case, the trial court found Jane Doe 1 was entitled to $900,000 in
noneconomic restitution because of the psychological impact of defendant’s abuse. The
court explained: “Even after she was able to free herself of repeated severe abuse, Jane
Doe I has had to carry the memories, the betrayal from her grandfather, and the resulting
scars for the rest of her life. In her testimony at trial and her statements at sentencing,
Jane Doe I described the emotional pain she suffered at the hands of the Defendant and
its impact on her life through the present. The pain she endured in reliving these events
was palpable. It is clear that Jane Doe I has found the courage to move on with her life
despite the memory of these events. Her success in doing so does not diminish the
psychological harm she suffered at the hands of the Defendant . . . . [¶] Although it is
impossible to know the extent to which the defendant’s abuse of Jane Doe I has impacted
the remainder of her life, no one can reasonably contest that the defendant’s long-term
and extensive molestation of Jane Doe I caused her immeasurable psychological harm.
Jane Doe I has suffered the effects of the defendant’s abuse for her entire life, and will
continue to suffer for the remainder of her life.”
       The trial court found Jane Doe 2 was entitled to $100,000 for psychological harm,
explaining: “Jane Doe II suffered only the early stages of the Defendant’s grooming
behavior before he was stopped by Jane Doe I’s revelation of his conduct. Even as a
young child, Jane Doe II knew the Defendant’s conduct was ‘weird’ and ‘creepy’ and
made her uncomfortable. Jane Doe II also now knows . . . that the Defendant’s
unwelcomed touching was motivated by his sexual interest in her. She is aware that the
Defendant began molesting her older sister the same way and was likely grooming her for
years of abuse. [¶] In her testimony, Jane Doe II was visibly distraught. She attributed
her emotional breakdown to the fact that the Defendant had abused her sister in the same
way and that she had to discuss the harm her family had suffered as a result of the
Defendant’s conduct. These are manifestation of the psychological harm the Defendant


                                               8
caused Jane Doe II to suffer because of his conduct against her, his conduct against her
sister, and the resulting devastation to the family.”
       Defendant now argues the prosecution failed to make a prima facie showing of
Jane Doe 1’s and Jane Doe 2’s noneconomic losses. Neither victim submitted a
declaration or testified at the restitution hearing. Nor did the prosecution present expert
testimony at the hearing concerning the impact of defendant’s abuse. Instead, the
prosecution presented restitution orders from other cases. Defendant argues the trial
court must have inferred the victim’s pain and suffering from the nature of their injuries,
and it was improper to do so. According to defendant, the restitution award for
noneconomic damages was based solely on his criminal conviction and therefore
constituted unauthorized punitive damages.
       We agree that more evidence could have been provided concerning the victims’
noneconomic losses. Nevertheless, we cannot conclude the trial court abused its
discretion or that the noneconomic restitution awarded in this case shocks the conscience.
Contrary to defendant’s arguments, the prosecution was not required to present victim
testimony or affidavits or expert declarations in connection with the restitution hearing.
As discussed above, section 1202.4 does not require any particular kind of proof to
establish a victim’s losses. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.) Here,
the trial court’s restitution award was evidently based on Jane Doe 1’s and Jane Doe 2’s
testimony at trial, Jane Doe 1’s statements at the sentencing hearing, and a probation
report. This evidence constituted sufficient support for the restitution award, and there is
no indication the trial court considered restitution awards from other cases in reaching its
decision.
       At the sentencing hearing, Jane Doe 1 stated defendant misused her trust and as a
result of his actions “[e]very day is a challenge” and she has had to attend weekly
counseling. Jane Doe 1 also stated defendant “crippled” her life growing up, she cannot
“erase that pain,” and she feels “gross, dirty, and unloveable.” Moreover, the probation
officer reported Jane Doe 1 was working with two different counselors to come to terms
with defendant’s abuse. Based on this, along with Jane Doe 1’s trial testimony and the


                                              9
severity and prolonged nature of defendant’s crimes, the trial court reasonably concluded
Jane Doe 1 suffered a significant noneconomic loss.
       Likewise, trial testimony and the probation report provided a sufficient basis for
the trial court’s award of noneconomic restitution for Jane Doe 2. As the trial court
stated in the restitution order, Jane Doe 2 recognized defendant’s conduct was “weird”
and “creepy,” and it eventually became clear to Jane Doe 2 defendant’s actions were
motivated by a base intent. The trial court also found Jane Doe 2 experienced an
emotional breakdown at trial and, based on her statements, concluded her distress was
attributable to defendant’s conduct and his devastation of her family. As a reviewing
court, we are in no position to second-guess the trial court’s factual findings on this point.
Moreover, the probation report concluded Jane Doe 2 “is very emotional and just started
counseling on her own.”
       Defendant asserts substantial evidence does not support the trial court’s
conclusions regarding the emotional pain and psychological harm suffered by the victims
and the extent to which defendant’s abuse has affected their lives. Defendant appears to
suggest any noneconomic restitution award was improper absent expert testimony
concerning Jane Doe 1’s mental state. Defendant also takes issue with the trial court’s
references to Jane Doe 1’s expression and demeanor at trial, arguing we cannot review
findings based on observations that are not part of the record on appeal. As to Jane
Doe 2, defendant argues the trial court erred in finding her emotional distress at trial was
a manifestation of the psychological harm caused by defendant.
       “ ‘Substantial evidence’ means that evidence which, when viewed in light of the
entire record, is of solid probative value, maintains its credibility and inspires confidence
that the ultimate fact it addresses has been justly determined.” (People v. Conner (1983)
34 Cal.3d 141, 149.) In this case, Jane Doe 1’s statement at sentencing, her demeanor at
trial, the probation report, and evidence concerning her attempts to seek treatment were
sufficient to establish her psychological distress, especially considering the extent and
severity of defendant’s abuse and the fact that defendant did not present any contrary
evidence. Expert testimony was not required and the trial court, as the finder of fact,


                                             10
properly considered the demeanor of Jane Doe 1 in rendering its decision. (C.f. People v.
Scott (2011) 52 Cal.4th 452, 493 [“witness’s ‘demeanor is always relevant to
credibility.’ ”].) The trial court also had ample grounds for concluding Jane Doe 2’s
distress at trial reflected the harm caused by defendant’s conduct.
       Defendant further argues the prosecutor failed to show she had authority to request
noneconomic restitution on behalf of the victims. At the restitution hearing, the
prosecutor explained: “I had requested documentation from the family a number of times
. . . , and what the Court has is what we were able to receive from them.” According to
defendant, this suggests the victims decided not to seek noneconomic restitution.
Defendant reasons that since the victims only submitted information supporting the
recovery of economic restitution, that is all they wanted. We are not convinced. That the
victims declined to submit a demand for a specific amount of noneconomic restitution
does not mean they did not wish to seek such restitution. Nor does the law require
victims to formally submit such a demand. Pursuant to section 1202.4, a court shall order
restitution “in every case” in which a defendant has suffered a loss. (§ 1202.4, subd. (f).)
The award must be “based on the amount of loss claimed by the victim or victims or any
other showing to the court.” (Ibid., italics added.) We also observe there is a significant
difference between economic losses, which can be readily calculated by a victim, and
noneconomic losses, for which no fixed standard exists.
       Finally, defendant argues the trial court erred by failing to state how it calculated
the amount of noneconomic restitution. In one of the cases cited by defendant, People v.
Frey (1989) 209 Cal.App.3d 139, a restitution order was reversed where the trial court
failed to specify the exact amount of the restitution fine and did not identify the losses to
which the fine pertained. (Id. at p. 142.) The same cannot be said here. The two other
cases cited by defendant, People v. Giordano (2007) 42 Cal.4th 644, and People v. Jones
(2010) 187 Cal.App.4th 418, relate to the calculation of economic losses. But there are
significant differences between economic and noneconomic losses, as the latter “require
more subjective considerations.” (Smith, supra, 198 Cal.App.4th at p. 436.) Here, the
trial court set forth its assessment of the psychological distress suffered by both Jane Doe


                                             11
1 and Jane Doe 2. As there is no fixed standard for calculating noneconomic losses, it is
unclear exactly what more the trial court could have done to explain the basis for the
noneconomic restitution award.
                                     DISPOSITION
       The restitution award is affirmed.



                                                 _________________________
                                                 DONDERO, J.


We concur:


_________________________
HUMES, P. J.


_________________________
MARGULIES, J.




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Trial Court                                 Contra Costa County Superior Court

Trial Judge                                 Hon. John Kennedy

Counsel for Defendant and Appellant         Beles & Beles
                                            Robert J. Beles
                                            Anne C. Beles
                                            Paul McCarthy

Counsel for Plaintiff and Respondent        Kamala D. Harris, Attorney General,
                                            Gerald A. Engler and Jeffrey M. Laurence,
                                            Assistant Attorneys General,
                                            Laurence K. Sullivan and Moona Nandi,
                                            Deputy Attorneys General




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