People v. Weece

• Decision Date: 17 December 2021
• Docket Number: F081703
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOHN EDWARD WEECE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
JOHN EDWARD WEECE, Defendant and Appellant.

F081703

California Court of Appeals, Fifth District

December 17, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County. No. VCF353288, Juliet L. Boccone, Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Darren K. Indermill, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT^[*]

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INTRODUCTION

Defendant John Edward Weece previously appealed his convictions of sexual abuse of three female minors, including 41 convictions for abuse of the youngest victim, Doe 3, two convictions for committing lewd acts upon a child, Doe 2, and one conviction for using a minor, Doe 1, for sexual acts. (Pen. Code, §§ 288, 288.7, 311.4. Further undesignated statutory references are to the Penal Code.) We previously affirmed his convictions.

He now appeals the court's restitution order, arguing the court erred in awarding Doe 1 noneconomic damages because she was not the victim of a section 288, 288.5, or 288.7 offense, and the court abused its discretion in awarding Doe 2 $100, 000 in noneconomic damages.

We affirm the restitution order.

FACTUAL BACKGROUND

Defendant was charged with 53 counts of sexual abuse of three female minors, Doe 1, Doe 2, and Doe 3.

At trial, Doe 2 testified defendant had touched and squeezed her breasts and put his hands down her pants and touched her vagina more than five times. She testified he touched her for the first time when she was nine years old. She recounted an incident during which she went to the shop behind defendant's house with him and her sister, Doe 1. Doe 2 took off her clothes and sat down on an orange lift at defendant's direction. Defendant then handed her a vibrator and had her put it in her vagina. He handed Doe 1 his phone and told her to take pictures of Doe 2 putting the vibrator in her vagina. Doe 2 also testified regarding other incidents when defendant would touch her thigh. She alleged defendant touched her vagina while masturbating and that he had sex with her.

A jury convicted defendant of 41 counts of abuse committed against the youngest victim, Doe 3, two counts of committing a lewd act upon a child related to Doe 2 (§ 288, subd. (a)), and one count of using a minor, Doe 1, for sexual acts (§ 311.4, subd. (c)).

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One of defendant's section 288, subdivision (a) convictions for committing a lewd act upon a child arose from the incident during which he had Doe 2 use a vibrator on herself while her sister, Doe 1, took pictures at his direction. Defendant's conviction for using a minor for sex acts in violation of section 311.4 also arose from that incident. Defendant's other section 288, subdivision (a) conviction against Doe 2 related to his touching of Doe 2' s thigh. The jury acquitted defendant of nine counts that related to certain other acts alleged to have been committed against Doe 2.

The probation report included victim impact statements from Doe 1, Doe 2, their mother, defendant's former wife, and two of her sisters.^[1] A statement attributed to Doe 2 states, "I want you to realize what you did to me, you put me in the dark. I was depressed, suicidal, I would even cut myself because that was the only way to slightly take the pain away but it just wasn't enough. I was never able to take away the pain you have caused because you burned a hole so deep into my soul that anything I ever did could never seal that hole shut. I went to therapy thinking that it would help me but it didn't.… [¶] … [¶] [Y]ou destroyed my life and my innocence. [¶] Because of you I have a hard time trusting people in my life, I am afraid of loving again because of you."^[2]

The victims' great aunt reported the three minor victims' "outlook on life has dramatically changed. One child felt the need to move across the country to feel safe …."

Following the trial, the People filed a motion "seeking an order for restitution to include noneconomic damages for the psychological harm suffered" by the three victims. They argued restitution is mandatory to direct victims for psychological harm resulting

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from defendant's violations of section 288 for engaging in lewd and lascivious acts upon a child. The People requested $250, 000 for each victim "[g]iven the extent of psychological harm described by each child."

Defendant opposed the motion, arguing there was "no reliable evidence that the children suffered nightmares or flashbacks, that they were having trouble in school or problems making friends." Alternatively, he asked the court to award "a reduced amount aligning more accurately to the facts of the instant case." Citing People v. Valenti (2016) 243 Cal.App.4th 1140, defendant argued the trial court must demonstrate a rational basis for its restitution award and explain and cite reliable evidence it relied upon to arrive at the amount of restitution awarded to each victim. He also challenged the evidence in support of his convictions arguing, in part, the evidence presented at trial undermined the complainants' credibility. Additionally, he argued there were no facts or reliable evidence relating to the complaining witnesses' actions or behaviors to support restitution. He noted Doe 3 did not draft an impact statement and there was no way to authenticate who drafted the other statements because they were unsigned. Accordingly, he argued the impact statements attributed to Doe 1 and Doe 2 should be disregarded; thus, there were no impact statements prepared by any of the victims. He argued the testimony of the victims was "questionable on its face" and "does not reflect current pain and suffering." Accordingly, the court should deny the People's request for restitution or "limit the imposed restitution to a minimum."

The court held a restitution hearing during which Doe 1 and Doe 2's mother (Ms. D.), and Doe 3's mother (Ms. M.) all testified. Doe 3, who was 12 at the time of the restitution hearing, was also present. The prosecutor notified the court Doe 3 was "hesitant to come into the courtroom and talk, but if necessary … [the prosecutor thought] she would be able to do so."

Doe 1, who was 21 at the time of the restitution hearing, recounted the incident giving rise to two of defendant's convictions, one for a violation of section 288 (lewd and

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lascivious acts against a child) and the other for a violation of section 311.4, subdivision (c) (using a minor for sex acts). When Doe 1 was nine years old defendant made her and her sister, Doe 2, "go into the shop in the very back and he made [Doe 2] pull down her underwear and her shorts, and he gave [Doe 1] his phone and he made [her] take pictures of [Doe 2] while she was using a vibrator on herself." Doe 1 felt "[d]isgusted and sad" after the incident. She continued to feel disgusted almost every day after from the time she was nine until the present. She still gets anxious. She would try not to think about it but it would come to her mind at least two or three times a month. She would get scared and stop eating for a few days. She did not tell anyone about the incident until she was 15 or 16 when she told her mother. Since then she tried to attend therapy with three different counselors, but she did not feel like she was getting feedback or help. Doe 1 testified what she went through when she was nine changed her life "dramatically." She gets "anxious" and starts to panic when she sees older people at her fast food job. She does not "know how to cope with it."

Doe 1 and Doe 2's mother, Ms. D., testified Doe 2 was stone-faced or walled-off when Ms. D. initially tried to talk to her about the abuse. Ms. D. explained there are things that "have been brought up that cause[] [Doe 1 and Doe 2] to go in[to] rages, anger. They break down. They cry. There's times where [sic] they don't eat." She explained certain things like songs and items "trigger" Doe 1 and Doe 2. Doe 2 moved to the east coast recently. She had "been through a few therapists." But one of the therapists made her "feel like it was her fault," so Doe 2 backed away from therapy. Doe 2 then "went into a deep depression again. She came back home for a while." She then moved back east." [W]hen COVID hit, [Doe 2] started to seek therapy again, but she hasn't been able to because of all this." Ms. D. reported that both Doe 1 and Doe 2 have reported they do not "want to live." Even after defendant was gone, Doe 2 and Doe 1 have nightmares. Doe 2 would text Ms. D. that she "can't do this anymore."

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Ms. M. testified she started Doe 3 in therapy when Doe 3 was six years old because Ms. M. noticed a change in Doe 3 's attitude. Doe 3 was "irritable" and "[t]hings would agitate her, like, even putting clothing on, her socks, her underwear, combing her hair"; she had "aggression." Ms. M. did not think it was normal so she sought professional help for Doe 3. Doe 3 went to therapy inconsistently for two years, between the ages of six and eight and then stopped going for a while because "she kind of hit a stump" according to the therapist. Doe 3 disclosed the sexual abuse by defendant when she was eight years old after her cousin Doe 2 reported abuse. Doe 3 did not tell her whole side of the story until she started going to therapy again; details came out over a six-month period. Doe 3 "had to learn to trust her therapist and talk about these things. She had a lot of rage, a lot of anger. She would lash out. [They] saw fire in her eyes." According to Ms. M., Doe 3 continues to go to therapy. Until the pandemic, Doe 3 would go to therapy every week; she was in individual counseling, group counseling, and a mother/daughter group....