Although an award of restitution to crime victims ordinarily must be limited to economic losses, former section 1202.4, subdivision (f)(3)(F) required an award of restitution for noneconomic losses "for felony violations of Section 288." (Stats. 2012, ch. 873, § 1.) Section 288 criminalizes lewd and lascivious conduct toward children under the age of 14 and, in some instances, under the age of 16. (See § 288, subds. (a), (c)(1).)
In this case, defendant Franklin Lee pled no contest to multiple felony counts stemming from his sexual exploitation of a minor over a period of many years. There was no separate count alleging a violation of section 288. There was, however, a charge he engaged in continuous sexual abuse of a child in violation of Penal Code section 288.5. That statute makes it a felony for certain persons, over a period of at least three months, to engage in three or more acts of lewd and lascivious conduct prohibited by section 288 with a child under the age of 14, or three or more acts of substantial sexual conduct. ( § 288.5, subd. (a) ; see also § 1203.066, subd. (b) [defining "substantial sexual conduct"].) Following defendant's no contest plea, the trial court awarded his victim restitution in the amount of $750,000 for noneconomic damages.
Defendant now challenges the restitution award, contending that former section 1202.4, subdivision (f)(3)(F) does not apply because he was not convicted under section 288. We disagree, and we affirm the restitution award.
BACKGROUND
In April 2014, defendant was charged with seven felony counts alleging sexual offenses against his victim, John Doe, over a four-year period. The continuous sexual abuse charge, count I, alleged that over the course of a two-year period beginning when his victim was nearly 12, defendant violated section 288.5 by engaging in "three and more acts of 'substantial sexual conduct,' as defined in Penal Code Section 1203.066 [, subdivision] (b), and three and more lewd and lascivious acts, as defined in Penal Code Section 288." (Italics added.) In addition, defendant was charged with two counts of
Shortly thereafter, defendant entered a no contest plea to all of the charges except the production of obscene matter and child pornography charges (counts VI and VII) which were dismissed, with defense counsel stipulating to a factual basis for the plea. He was sentenced to state prison for 14 years.
Thereafter, the People sought $768,000 in direct restitution, payable to the victim who was represented by private counsel and participated in the restitution proceedings. The victim's counsel characterized
This timely appeal followed.
DISCUSSION
At the time the restitution award in this case was made, section 1202.4, subdivision (f)(3)(F) authorized an award of restitution for "[n]onecomic losses, including, but not limited to, psychological harm, for felony violations of Section 288 ." (Stats. 2012, ch. 873, § 1, italics added.) Defendant argues the trial court lacked statutory authority to award noneconomic damages under this provision because his no contest plea did not establish a violation of section 288. We review this statutory interpretation question de novo.
Before turning to the statute's scope, however, we first address the legal significance of defendant's no contest plea. His plea was the equivalent of a plea of guilty. (See § 1016.) But guilty of exactly what? As noted, section 288.5 defines continual sexual abuse of a child in two ways. The statute may be violated by "[a]ny person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration" either "engages in three of more acts of substantial sexual conduct with a child under the age of 14 at the time of the commission of the offense as defined in subdivision (b) of Section 1203.066,[
Thus, the narrow question we face is whether restitution for noneconomic damages is available under former section 1202.4, subdivision (f)(3)(F), when a defendant has been convicted not under section 288, but for continuous sexual abuse under section 288.5 for lewd and lascivious conduct that violates section 288. Two decisions have addressed this issue and both held that it is. (See McCarthy , supra ,
Defendant urges us instead to follow People v. Valenti (2016)
Ordinarily, we would stop there. But the wrinkle is that while this appeal was pending the Legislature amended section 1202.4 through the
Although a legislative declaration of an existing statute's meaning is neither binding nor conclusive, because ultimately the task of statutory interpretation is a judicial function, the Legislature's views are entitled to consideration "and we cannot disregard them." ( Western Security Bank v. Superior Court (1997)
We conclude that such is the case here. Senate Bill No. 756 was introduced on February 17, 2017. (See 27 Sen. Daily J. (2017-2018 Reg. Sess.) (Feb. 17, 2017), p. 236.) This was barely a year after the decision in McCarthy , in which our colleagues in Division Five discussed and distinguished Valenti. (See McCarthy , supra , 244 Cal.App.4th at pp. 1110-1111,
A report by the Senate Committee on Appropriations contains similar comments about the statute's ambiguity. It states: "The meaning of the term 'felony violations of Penal Code section 288 ' is a question of statutory interpretation that various courts of appeal have applied differently. Some have allowed for the inclusion of noneconomic losses in the restitution order for victims of continuous sexual child abuse (see People v. McCarthy (2016)
Defendant concedes the amendment was enacted "in direct response to" the case law but contends it did "much more" than clarify existing law. Citing a portion of the Legislative Counsel's Digest, defendant argues the amendment
Defendant also cites an analysis by the Senate Rules Committee, which states the amendment "adds the crimes of continuous sexual abuse of a child and sexual acts with a child 10 years of age or younger to the statute authorizing noneconomic restitution for lewd and lascivious acts against a child under the age of 14." (Sen. Rules. Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill. No. 756 (2017-2018 Reg. Sess.), as introduced Feb. 17, 2017, p.1, italics added.) But this comment sheds no light on the Legislature's intent either. There is no question the amendment "added" offenses "to the statute." The question is whether in doing so, the Legislature's purpose was to expand the statute's scope with respect to lewd and lascivious conduct that violates section 288 but is not charged as a section 288 offense, or merely put to rest all debate about the meaning of the Legislature's original choice of words.
We express no view as to whether Senate Bill No. 756 merely clarified existing law or effectuated a change in the law in other ways, such as with respect to the offense of continuous child sexual abuse by means of engaging in substantial sexual conduct with a child younger than 14 (i.e., the Valenti scenario) (see § 288.5 ), or the sexual offenses listed in section 288.7 concerning children under the age of 10. Those issues are not before us. (See, e.g., Western Security Bank v. Security Bank , supra ,
We conclude that the passage of Senate Bill No. 756 did not change the law by providing noneconomic restitution to previously ineligible victims of that child sex offense. The parties have cited nothing in the legislative history indicating the Legislature sought to enlarge or expand or change existing law at all, much less in that narrow regard. And while the legislative
Because the amendment merely clarifies existing law it " 'has no retrospective effect because the true meaning of the statute remains the same.' " ( Carter v. California Department of Veterans Affairs , supra ,
DISPOSITION
The restitution award is affirmed.
We concur.
KLINE, P.J.
RICHMAN, J.
Notes
Unless otherwise noted all further statutory references are to the Penal Code.
This purely legal issue has not been forfeited despite the lack of an objection below. "Factual issues may be subject to the waiver rule, but an objection may be raised for the first time on appeal where it concerns an 'unauthorized' sentence, i.e., one that 'could not lawfully be imposed under any circumstance in the particular case.' " (People v. Percelle (2005)
That provision defines "substantial sexual conduct" as "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 1203.66, subd. (b).)
The distinctive feature of lewd and lascivious conduct under section 288 is its intent requirement. The statute applies to "any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child...." (§ 288, subd. (a).)
Our conclusion makes it unnecessary to address the People's contention that the contents of the probation report also demonstrate a violation of section 288.
Section 288.7 makes it a felony for an adult to engage in sexual intercourse, sodomy, oral copulation, or sexual penetration with a child under the age of 10.
We previously granted the People's request for judicial notice of all of the committee reports cited by the parties.