People v. Lee, 24 Cal. App. 5th 50

Background

Defendant Franklin Lee pled no contest to multiple felony sexual-offense counts, including continuous sexual abuse of a child under Penal Code § 288.5 (count alleged both "substantial sexual conduct" and lewd and lascivious acts). Two production/possession counts were dismissed; Lee was sentenced to 14 years.
The victim sought $768,000 in direct restitution for noneconomic losses (psychological harm); the trial court awarded $750,000 under former Pen. Code § 1202.4(f)(3)(F) (which, before 2018, authorized noneconomic restitution for "felony violations of Section 288").
Lee appealed, arguing the trial court lacked statutory authority because he was not convicted under § 288 (lewd and lascivious acts) but under § 288.5 (continuous sexual abuse), so § 1202.4(f)(3)(F) did not apply.
The core legal question: whether noneconomic restitution authorized for felony violations of § 288 also covers convictions under § 288.5 when the § 288.5 predicate acts constitute violations of § 288.
While the appeal was pending, the Legislature amended § 1202.4(f)(3)(F) (Sen. Bill No. 756, eff. Jan. 1, 2018) to expressly add §§ 288.5 and 288.7 to the list of offenses eligible for noneconomic restitution; the court considered whether that amendment was clarifying or substantive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether former §1202.4(f)(3)(F) authorized noneconomic restitution for victims when defendant was convicted under §288.5 (continuous sexual abuse) rather than §288	The People: restitution available where §288.5 conviction rests on acts that constitute §288 lewd and lascivious conduct	Lee: §1202.4(f)(3)(F) applies only to convictions under §288; his plea to §288.5 did not establish a §288 conviction, so noneconomic restitution was unauthorized	Affirmed: restitution permissible because the §288.5 count alleged and the plea admitted lewd and lascivious acts in violation of §288, so former §1202.4(f)(3)(F) applied
Whether appellate precedent required a different result	People relied on McCarthy and Martinez to support restitution availability	Lee urged following Valenti, which limited restitution where §288 not charged/convicted	Court followed McCarthy/Martinez; distinguished Valenti as not addressing the same facts
Effect of 2018 amendment (Sen. Bill No. 756) that added §§288.5 and 288.7 to §1202.4(f)(3)(F)	People: amendment was a legislative clarification of existing law resolving split in authorities	Lee: amendment shows prior law did not authorize restitution for §288.5 victims, so retroactive application would be improper	Court held amendment was clarifying (at least as to §288.5 convictions based on §288 acts) and did not change the law in this case
Whether lack of objection below forfeited appellate review	People: statutory-authority challenge is purely legal and not forfeited	Lee: did not raise statutory-authority objection at trial	Court: reviewable on appeal because it is a purely legal question about unauthorized sentence/restoration of statutory authority	Court considered and decided the claim on the merits

Key Cases Cited

People v. McCarthy, 244 Cal.App.4th 1096 (Cal. Ct. App.) (held noneconomic restitution available where §288.5 conviction was predicated on §288 lewd acts)
People v. Martinez, 8 Cal.App.5th 298 (Cal. Ct. App.) (agreed with McCarthy; resolved split against Valenti)
People v. Valenti, 243 Cal.App.4th 1140 (Cal. Ct. App.) (concluded noneconomic restitution unavailable when §288.5 conviction did not allege §288 violations)
People v. Frausto, 36 Cal.App.4th 712 (Cal. Ct. App.) (plea to a count alleging alternate theories admits each alleged theory for collateral statutory consequences)
Carter v. California Department of Veterans Affairs, 38 Cal.4th 914 (Cal.) (discusses using subsequent legislative amendments as interpretive aid)
Western Security Bank v. Superior Court, 15 Cal.4th 232 (Cal.) (same; legislative expressions may inform statutory interpretation)