People v. Lehman

• Decision Date: 25 May 2016
• Docket Number: A144800
• Citation: 247 Cal.App.4th 795,202 Cal.Rptr.3d 386
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Arnold LEHMAN, Defendant and Appellant.

247 Cal.App.4th 795

202 Cal.Rptr.3d 386

The PEOPLE, Plaintiff and Respondent

v.Arnold LEHMAN, Defendant and Appellant.

A144800

Court of Appeal, First District, Division 1, California.

Filed May 25, 2016

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.

DONDERO

, J.

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 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.

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. [¶] 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 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....