People v. McCarthy
198 Cal. Rptr. 3d 741
Cal. Ct. App.
2016
Check Treatment

THE PEOPLE, Plaintiff and Respondent, v. JAMES TIMOTHY McCARTHY, Defendant and Appellant.

No. A141144

First Dist., Div. Five.

Feb. 11, 2016.

244 Cal. App. 4th 1096

JONES, P. J.; Needham, J., and Bruiniers, J., concurred.

[CERTIFIED FOR PARTIAL PUBLICATION*]
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts IV. and V.

Counsel

Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, René A. Chacón and David M. Baskind, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

JONES, P. J.—Penal Code section 1202.4, subdivision (f)1 requires trial courts to order criminal defendants to make direct restitution to the victims of their crimes. Such direct victim restitution is generally limited to the economic losses victims suffer. However, section 1202.4, subdivision (f)(3)(F) (section 1202.4(f)(3)(F)) creates an exception to this general limitation and permits trial courts to order restitution for “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.” In this case, appellant James Timothy McCarthy was convicted of numerous acts of child sexual abuse, including continuous sexual abuse of a child under section 288.5. He was not convicted of violating section 288. Over the objections of defense counsel, the trial court ordered McCarthy to make direct restitution to his victim, ruling that section 1202.4(f)(3)(F) is not limited to cases in which the defendant is convicted under section 288 but also authorizes restitution for noneconomic losses whеn a defendant is convicted under section 288.5.

McCarthy has appealed from the restitution order and argues the plain language of section 1202.4(f)(3)(F) requires a conviction under section 288 before restitution for noneconomic losses may be awarded. The People disagree and contend section 1202.4(f)(3)(F) permits restitution for noneconomic losses if a defendant‘s conduct violates section 288, even if the defendant is convicted of felony child abuse under a different section of the Penal Code, such as section 288.5.

In the published portion of our opinion, we address the scope of section 1202.4(f)(3)(F) and conclude it permits trial courts to order restitution for a victim‘s noneconomic lossеs where a defendant is convicted of continuous sexual abuse of a child under section 288.5 and the conduct underlying that conviction also constitutes a violation of section 288. In the unpublished portion of our opinion, we deal with McCarthy‘s other arguments.

Factual and Procedural Background

Although this appeal concerns only the trial court‘s restitution order, a full understanding of the issues before us requires some explanation of the proceedings leading to McCarthy‘s conviction. We briefly summarize those proceedings before turning to the restitution hearing.2

Charges, Trial, and Conviction

On November 26, 2012, the Alameda County District Attorney filed an information charging McCarthy with 14 offenses: count 1 alleged continuous sexual abuse of a child (§ 288.5, subd. (a)); counts 2–12 alleged aggravated sexual assault of a child (§ 269, subd. (a)(4), (5)); count 13 alleged forcible oral copulation (§ 288a, subd. (c)(2)(A)); and count 14 alleged forcible rape (§ 261, subd. (a)(2)).

On February 5, 2013, trial proceedings began. During trial, the court granted the prosecutor‘s motion to dismiss count 2 of the information. On February 14, 2013, the parties made closing arguments, and the jury began deliberations. The following day the jury found McCarthy guilty of all the remaining counts.

On March 19, 2013, the trial court sentenced appellant to an aggregate term of 32 years plus 150 years to life. On May 16, 2013, McCarthy filed a notice of appeal in case No. A138682. On April 16, 2015, we issued an opinion affirming McCarthy‘s convictions. (See fn. 2, ante.)

The Restitution Hearing

On December 9, 2013, the trial court held a restitution hearing. It awarded $7,366.50 to the Victim Compensation Board and $4,980 to the victim‘s mother. The trial court continued the matter to consider restitution for the victim, Jane Doe, and the victim‘s minor brother, E.3

The prosecutor argued the court should award noneconomic restitution to Jane Doe in the manner discussed in (Smith). Like this case, involved acts of child molestation spanning many years. (.) The trial court in based its award of restitution, in part, on awards for molestations in civil trials. (.) Following the lead of , the prosecutor in this case submitted into evidence civil jury awards in a number of California cases arising from child molestation and sexual abuse. He discussed two cases from Alameda County and one from Contra Costa County. The prosecutor asked the trial court to award Jane $50,000 per year for 10 years for a total of $500,000.

Defense counsel argued that the only basis for awarding Jane noneconomic damages was section 1202.4(f)(3)(F). That provision authorizes restitution for “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.” (§ 1202.4(f)(3)(F).) According to defense counsel, the statute applies only to defendants convicted of violating section 288. Since McCarthy was not convicted under that section, the trial court had no jurisdiction to award noneconomic restitution.4 In response, the prosеcutor argued the Legislature had not intended section 1202.4(f)(3)(F) to apply only to defendants convicted of violating section 288. Instead, the prosecutor contended the statute applies in all child molestation cases in which the victim has suffered psychological harm.

The trial court observed “that the main argument by [defense] counsel is that there‘s no jurisdiction to order any kind of non-economic loss simply because of the way the statute is written.” It continued the hearing until January 10, 2014, but it does not appear that hearing took place. Instead, the trial court issued a written order on February 14, 2014. In that order, the trial court stated, “The legal issue in this ‍​​‌‌​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌‌​‍hearing is whether the victim is entitled to ‘non-economic losses’ under Penal Code Section 1202.4(f)(3)(F)?” “In applying the California Supreme Court‘s principles, including but [not] limited to, reading the words and giving them a common sense meaning, and in view of promoting rather that defeating the general purpose of the statute to avoid absurd consequences, this court feels that defendant is interpreting the statute too narrowly. It does not make common or legislative sense that this statute would only apply to a violation of Section 288. Here the defendant was convicted of a more aggravated sexual assault of a minor, that is 288.5. To then say that the statute applies only to the lesser offense, gives little meaning to the statute and results in an absurd consequence. Therefore, the court finds that a violation of Section 288.5 does come within the meaning of Section 1202.4(f)(3)(F).” The trial court then awarded the victim $100,000 per year for 10 years, for a total award of $1 million.

On February 26, 2014, McCarthy filed a notice of appeal from the restitution judgment.

Discussion

Reprising the argument made by defense counsel below, McCarthy contends the trial court‘s award of restitution for noneconomic loss was statutorily unauthorized because he was not convicted of violating section 288. We will address this issuе before turning to his other claims of error.

I. The Statutory Scheme and the Parties’ Contentions

“In 1982, California voters passed Proposition 8, also known as The Victims’ Bill of Rights.” ( (Giordano).) The initiative added article I, section 28, subdivision (b) to the California Constitution.5 (.) It declares that victims of crime are entitled to restitution and states, “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] . . . 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)(A), (B).) Under this section, a “victim” is “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” (Cal. Const., art. I, § 28, subd. (e).) The foregoing constitutional provision is not self-executing. (.) The Legislature has enacted a number of statutes to implement it, one of which is section 1202.4. (, ; .)

With exceptions not relevant here, section 1202.4, subdivision (f) provides that in every case in which the victim of a crime suffers an economic loss, the trial court shall require the defendant to make restitution to the victim or victims.6 It further provides that “[t]o the extent рossible, the restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant‘s criminal conduct, including, but not limited to, all of the following: [¶] . . . [¶] (F) Noneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.” (§ 1202.4(f)(3)(F).) Although section 1202.4, subdivision (f) provides for direct victim restitution “in every case” in which the victim of a crime suffers an economic loss, restitution orders are generally limited to the victim‘s economic damages. (.)

McCarthy argues the trial court erred in imposing restitution under section 1202.4(f)(3)(F) because he was not conviсted of violating section 288. He contends the language of section 1202.4(f)(3)(F) is unambiguous, and thus “the exception allowing for the award of noneconomic damages applies only to . . . section 288 violations. Because [he] was not convicted of that statute, the restitution is statutorily unauthorized and must be stricken.”

The People respond by pointing out that section 1202.4(f)(3)(F) is “expansively worded” in that it permits restitution for noneconomic losses for “felony ‘violations’ of section 288” rather than for “‘convictions.‘” (Italics added; § 1202.4(f)(3)(F).) Thus, in their view, this section “applies to crimes prosecuted under other sections of the Penal Code which also qualify as violations of section 288.” McCаrthy was convicted of continuous sexual abuse of a child under section 288.5, subdivision (a), and the People contend this conviction encompasses conduct that also violates section 288.7 These

arguments raise questions of statutory interpretation we review de novo. (.)

II. Principles of Statutory Construction

In construing the statute, “our principal task is to ascertain the intent of the Legislature.” ( [construing restitution statute applicable to juvenile wardship cases].) The process of statutory interpretation may involve up to three steps. (.) First, because the statutory language is generally the most reliable indicator of legislative intent, we look to the words themselvеs, giving them their ordinary meanings and construing them in context. (.) We do not consider statutory language in isolation “but rather examine the entire substance of the statute in order to determine the scope and purpose of the provision.” (.) Although we must follow the statute‘s plain meaning if such meaning can be discerned, we will not do so if adherence to plain meaning “would lead to absurd results the Legislature could not have intended.” (.) “In such circumstances, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.‘” (, quoting .)

“If the plain language of the statute doеs not resolve the inquiry, as a second step we may turn to maxims of construction, ‘which serve as aids in the sense that they express familiar insights about conventional language usage.’ [Citations.]” (.) We may also consider other extrinsic aids to statutory construction, including the statute‘s legislative history and the historical circumstances of its enactment. (Ibid.; see [“If . . . the statutory language is susceptible of more than one reasonable construction, we can look to legislative history in aid of ascertaining legislative intent.“].) In addition, since we here construe a restitution statute, “we are guided by the broad constitutional mandate of California Constitution, article I, section 28, subdivision (b).” (

a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.”

.) “‘In keeping with the [voters‘] “unequivocal intention” that victim restitution be made, statutory provisions implementing the constitutional directive have been brоadly and liberally construed.’ [Citations.]” (.)

Finally, “[t]o the extent that uncertainty remains in interpreting statutory language, ‘consideration should be given to the consequences that will flow from a particular interpretation’ [citation] . . . .” (.) In this final step, we “‘apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable [citations].‘” (.)

III. Section 1202.4(f)(3)(F) Permits Victims to Receive Restitution for Noneconomic Losses Where the Defendant‘s Conduct Violates Section 288, Even if the Defendant Is Convicted Under Section 288.5.

To resolve the parties’ conflicting interpretations of section 1202.4(f)(3)(F), we aрply the foregoing principles of statutory construction to the case before us. As we explain, while the plain language of section 1202.4(f)(3)(F) is susceptible to more than one interpretation, the text of the entire statute and its legislative history lead us to conclude the Legislature intended ‍​​‌‌​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌‌​‍to authorize courts to impose restitution orders for a victim‘s noneconomic losses where the defendant‘s conduct constitutes a violation of section 288, even if the defendant is convicted of continuous sexual abuse of a child under section 288.5. Furthermore, an interpretation limiting restitution orders to defendants convicted of violating section 288, but not continuous sexual abuse of a child, would lead to a result the Legislature could not have intended.

A. The Statute‘s Plain Language Does Not Resolve the Interpretive Question.

In the first step, we must determine whether the plain language of section 1202.4(f)(3)(F) resolves the interpretive inquiry. (See .) We conclude it does not. On its face, section 1202.4(f)(3)(F) is susceptible to more than one reasonable construction. McCarthy contends the statute permits restitution for noneconomic losses only in cases in which the defendant has been convicted of violating section 288, because only that section is mentioned in section 1202.4(f)(3)(F). In contrast, the People argue the statute‘s language does not require a conviction under section 288, but only a violation of that statute. Neither interpretаtion is implausible, and thus we may look beyond the bare language

of the statute to ascertain its meaning. (.) As the People ask us to examine other indicia of legislative intent, we now consider their contentions.

B. Analysis of the Statute‘s Text and History Indicate the Legislature Intended to Make Restitution for Noneconomic Losses More Widely Available to Victims of Child Sexual Abuse.

In seeking a broader construction of the statute, the People make two basic arguments, one based on the text of the statute and the other on its history. As to the text, they observe that in section 1202.4, the Legislature separately uses the terms “violations” (§ 1202.4(f)(3)(F)), “conviction” (§ 1202.4, subd. (q)), and “convicted” (§ 1202.4, subds. (a)(1), (2), (b)(1), (2)). From this, the People contend we should infer the Legislature intended these terms to have diffеrent meanings. This argument has considerable force, because the Legislature‘s use of different words in adjoining subdivisions of statute ordinarily creates a compelling inference that different meaning was intended. (See, e.g., .) In keeping with this rule of statutory construction, one California case interpreting similar language distinguished the phrase “violations of law” from the phrase “arrests or convictions.” (.) It concluded the former phrase encompasses a broader range of conduct than the latter. (Ibid.)

Turning to the history of the statute, the People note that in 1994, the Legislature amended section 1202.4 to add noneconomic restitution for section 288 convictions. Former section 1202.4, subdivision (i) provided in relevant part: “If the conviction is for felony violation of Section 288, restitution may be ordered pursuant to subdivision (f) . . . and the court may order that the restitution be paid to the victim to cover noneconomic losses, including, but not limited to, psychological harm.” (Former § 1204, subd. (i), as amended by Stats. 1994, ch. 1106, § 3, p. 6550, italics added.) When the statute was revised in 1995, this language was carried forward. (See Stats. 1995, ch. 313, § 5, p. 1757.) In 1996, however, the Legislature removed the word “conviction” from this subdivision and amended the statute to authorize the court to award restitution for “[n]оneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.” (§ 1202.4, subd. (f)(3)(E), as amended by Stats. 1996, ch. 629, § 3, p. 3467, italics added.) According to the People, this change made it clearer the statute applied to violations of section 288 “whether the defendant was convicted of that crime or a greater included offense.”

The amendment on which the People rely was part of Senate Bill No. 1685 (1995–1996 Reg. Sess.). As initially proposed, the relevant section of

the bill contained language almost identical to the prior version of the statute.8 The removal of the word “conviction” оccurred as a result of an Assembly amendment to the Senate bill. (Assem. Amend. to Sen. Bill No. 1685 (1995–1996 Reg. Sess.) June 27, 1996, 5 Assem. J. (1995–1996 Reg. Sess.) p. 7630.) That amendment placed the language of what is now section 1202.4(f)(3)(F) into former subdivision (f)(3)(E) of section 1202.4, and this revised version was eventually enacted into law. (Stats. 1996, ch. 629, § 3, pp. 3465, 3467.)

We have found no explanation for this specific change in the committee reports and analyses of Senate Bill No. 1685 (1995–1996 Reg. Sess.). Nevertheless, several rules of statutory construction lead us to conclude it had the effect the People ascribe to it. First, in interpreting the statute we must ordinarily presume the Legislature made a conscious choice to remove the word “conviction” from this subdivision of section 1202.4. ( [“‘Changes in wording and phraseology are presumed to have been deliberately made . . . .‘“].) Second, “every word excluded from a statute must be presumed to have been excluded for a purpose.” (.) Third, it is clear the deletion of particular terms can effect a substantive change in the meaning of a statute. (E.g., .) Thus, by deleting the word “conviction” the Legislature presumably intended to remove any requirement that defendants actually be convicted of a charge under section 288 before restitution for noneconomic losses could be awarded.

Furthermorе, as the People point out, the overall history of the amendments to section 1202.4 reflects a legislative intent to enlarge, not restrict, the availability of restitution. The California Supreme Court has specifically remarked that the 1996 amendments generally expanded the categories of loss for which restitution was available.9 (.) Such an interpretation comports with the broad and liberal construction courts have given to the restitution statutes so as to effectuate the voters’ intention

that victim restitution be made. (.) The legislative history therefore indicates that a conviction under section 288 is not a prerequisite to an award of restitution for noneconomic losses.

everything said in the court‘s opinion but only “for the points actually involved and actually decided.” [Citation.]” (.)

C. McCarthy‘s Proposed Construction Would Lead to an Absurd Result.

We also agree with the People that McCarthy‘s proposed construction of the statute would lead to an absurd ‍​​‌‌​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌‌​‍result. McCarthy argued below that the prosecution had made a choice between charging him under section 288, a charge that carried the possibility of obtaining victim restitution, or charging him with “a much more serious violation” “at their cost to ask for restitution for psychological harm at the end.”

McCarthy offers no rationale for why the Legislature would have wanted prosecutors to choose between restitution and greater punishment. Perhaps more significantly, McCarthy fails to explain why the Legislature would have chosen to grant restitution to victims of lewd and lascivious acts (§ 288) while simultaneously denying it to victims of continuous sexual abuse (§ 288.5). It is well recognized that “‘child sexual abuse results in long-term emotional and psychological damage to the child victim if left untreated.‘” (, quoting Stats. 1992, ch. 1008, § 1, p. 4705.) And such abuse “is not the kind of act that results in emotional and psychological harm only occasionally.” (.) Why would the Legislature hаve chosen to permit restitution for the psychological harm caused by lewd and lascivious acts but not for the psychological harm caused by the very same conduct when charged as continuous child sexual abuse? (§ 1202.4(f)(3)(F) [noneconomic losses specifically include “psychological harm“].) McCarthy offers no answer to this question.

In construing the statute, we must consider the consequences flowing from a given interpretation. (.) Having considered those consequences, we refuse to adopt a construction that would grant restitution for noneconomic loss to victims of lewd and lascivious аcts but not to victims of what McCarthy agrees are “much more serious” violations of the Penal Code. “We can think of no explanation why the

Legislature could have desired such an unlikely result, and [McCarthy] advances none.”10 (.)

We therefore hold that where, as here, a defendant is convicted of acts of continuous sexual abuse of a child under section 288.5, the trial court may award the victim restitution for noneconomic losses if the conduct of which the defendant was convicted also constitutes a violation of section 288, even if the defendant was not convicted under the latter section.

D. McCarthy‘s Conduct Violated Section 288.

The remaining question is whеther McCarthy‘s conduct violated section 288. Based on the record before us, we have no trouble concluding it did. McCarthy was charged in count 1 with violating section 288.5, subdivision (a) by engaging “in three [or] more acts of ‘substantial sexual conduct‘, as defined in . . . 1203.066(b), and three [or] more acts in violation of Section 288.” (Italics added.) The information therefore made clear that the offense charged in that count was based on conduct that violated section 288. Moreover, in closing argument, the prosecutor made it even clearer count 1 involved acts that violated section 288. He explained to the jury that to convict on this count, “[y]ou are going to hаve to find that [McCarthy] committed a lewd act.” After telling the jury McCarthy had engaged in three or more acts of lewd and lascivious conduct, the prosecutor defined such conduct as “the wilful touching of a child accomplished with the intent to sexually arouse him.” The instructions also told the jury that to prove McCarthy was guilty of the section 288.5 charge, “the People must prove that; [¶] . . . The defendant engaged in three or more acts of lewd or lascivious conduct with the child.”

We recognize that not all violations of section 288.5 will encompass violations of section 288. Section 288 requires the specific intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of the defendant or of the child, whereas a conviction for violating section 288.5 could be based upon a course of substantial sexual conduct within the meaning of section 1203.066, subdivision (b), which requires no specific intent. (.) Here, however, the charging document, the prosecutor‘s closing argument, and the instructions all explained that the section 288.5 charge was based on McCarthy‘s commission of lewd and lascivious acts. Furthermore, the evidence at trial, including McCarthy‘s own testimony, showed the element of sexual arousal or gratification was present. McCarthy conceded he had been sexually aroused during an admitted sexual contact with the victim. And in closing argument, the prosecutor repeatedly mentioned that McCarthy was sexually attracted to the victim and had become aroused during their encounters. In these circumstances, it is inconceivable that the jury could have found McCarthy guilty of violating section 288.5 without also finding he possessed the specific “intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of” himself or the victim. (§ 288, subd. (a).) As the conduct underlying McCarthy‘s conviction for continuous sexual abuse of a child under section 288.5 encompassed a violation of section 288, the trial court was statutorily authorized to award restitution for the victim‘s noneconomic losses.

E. People v. Valenti

On January 21, 2016, the Attorney General informed us of the recent opinion by Division Three of the Second District in (Valenti). (See Cal. Rules of Court, rule 8.254.) We have examined that case and find it distinguishable from the one before us.

The defendant in was convicted of continuous sexual abuse, lewd acts on a child, child molestation, and other offenses, all relating to his sexual abuse of 15 different children over a period of 30 years. (

On appeal, argued that “as to the section 288.5 counts, noneconomic ‍​​‌‌​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌‌​‍restitution is not authorized by statute.” (.) Significantly, in contrast to the case before us, in the People conceded section 1202.4(f)(3)(F) did not authorize noneconomic damage awards to the section 288.5 victims. (.) Apparently accepting that concession, the court agreed with the defendant, holding, “The plain language of section 1202.4, subdivision (f)(3)(F) limits noneconomic restitution awards to ‘felony violations of Section 288.’ It does not include section 288.5.” (.) The court noted sections 288 and 288.5 are not interchangeable. (.) Because the defendant had been charged and convicted of continuous sexual abuse under section 288.5, rather than of lewd or lascivious acts under section 288, the court reversed the awards of noneconomic restitution to the five minor victims. (.)

is distinguishable from the рresent case on both legal and factual grounds. Perhaps most importantly, in the People conceded the trial court had erred in awarding noneconomic restitution to the victims of continuous sexual abuse under section 288.5. (.) Since the People did not dispute the defendant‘s argument on this issue, the court had no occasion to consider the statutory construction argument the People make here. Opinions are not authority for propositions not considered. (E.g., .) simply does not address the issue before us.

Moreover, the facts of the underlying cases are significantly different. Unlike the defendant in , McCarthy was convicted of continuous sexual abuse of a child based not on “three or more acts of substantial sexual conduct . . . as defined in subdivision (b) of Section 1203.066,” but rather based on “three or more acts of lewd or lascivious conduct, as defined in Section 288.” (§ 288.5, subd. (a).) As we explained more fully above, unlike the defendant in , McCarthy‘s section 288.5 conviction was therefore based on the jury‘s finding that he had engaged in conduct that violated section 288. Thus, in this case, the jury actually determined McCarthy had violated section 288, even though he was not convicted under that section.

In short, did not address the question of statutory construction the People have raised here, because in that case the People conceded noneconomic restitution was not authorized by statute. is also distinguishable on its facts. For these reasons, it does not alter our conclusion regarding the proper interpretation of section 1202.4(f)(3)(F).

IV., V.*

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disposition

The judgment is affirmed.

Needham, J., and Bruiniers, J., concurred.

Appellant‘s petition for review by the Supreme Court was denied May 25, 2016, S233221.

* See footnote, ante, page 1096.

Notes

1
All further undesignated statutory references are to the Penal Code.
2
McCarthy has requested that we take judicial notice of our records in case No. A138682, the prior appeal in which we affirmed his convictions. (.) The People join in that request. We note the parties have not complied with the procedures of the California Rules of Court regarding requests for judiсial notice. (Cal. Rules of Court, rule 8.252(a)(1) [“To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order.“].) We will nevertheless grant the request. ( [in appeal from sentence, reviewing court took judicial notice of record in defendant‘s prior appeal from judgment of conviction], citing Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, subd. (a).) Our statement of the facts relating to the charges, trial, and sentencing is based on the record in the prior appeal.
3
E. requested $20,000. Defense counsel opposed E.‘s request, and the trial court tentatively ruled against it. No further оrder regarding E.‘s request appears in the record.
4
Defense counsel also asked to preserve two objections for the record. Counsel contended McCarthy had a right to jury trial on restitution and also contended the award violated his client‘s right to equal protection. Counsel acknowledged both of those contentions had been rejected in Smith.
5
In November 2008, the voters of California adopted Proposition 9, popularly known as “Marsy‘s Law,” which amended article I, section 28 of the California Constitution. (.) The current language is the result of that amendment.
6
Section 1202.4, subdivision (f) states in relevant part: “Except as provided in subdivisions (q) and (r), in every case in which a victim has suffered economic loss as a result of the defendant‘s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so and states them on the record.”
7
Section 288, subdivision (a) provides that: “any person who willfully and lewdly commits any lewd or lasсivious 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, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
Section 288.5, subdivision (a) provides: “Any 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, engages in three or more acts of substantial sexual conduсt with
8
As introduced on February 21, 1996, the relevant provision of the proposed bill would have added only the word “a” to former section 1202.4, subdivision (i): “If the conviction is for a felony violation of Section 288, restitution may be ordered pursuant to subdivision (f) regardless of whether or not the defendant is denied probation and the court may order that the restitution be paid to the victim to cover noneconomic losses, including, but not limited to, psychological harm.” (Sen. Bill No. 1685 (1995–1996 Reg. Sess.) § 2.)
9
Although Giordano stated in passing that restitution for noneconomic losses is limited to “orders relating to felony convictions for lewd or lascivious acts” (, italics аdded), that case was concerned with other issues and did not purport to define the scope of section 1202.4(f)(3)(F). ‘“An appellate decision is not authority for
10
We find support for our conclusion in (Adames). That case addressed a similar issue under section 1202.1, a statute mandating AIDS testing for defendants convicted of crimes listed in subdivision (e) of the statute. The defendant in that case was charged with and convicted of continuous sexual abuse of a child under section 288.5, which was not listed in section 1202.1, subdivision (e), although section 288 was a listed offense. (.) The court considered whether AIDS testing could be ordered only when a defendant was convicted of a listed offense or whether testing could be ordered if the conduct of which the defendant was convicted encompassed a listed offense. (Ibid.) The court concluded that an “interpretation that restricts AIDS testing only to convictions under section 288 leads to a patently absurd result. Logically, the Legislature did not intend to require AIDS testing where a defendant violated section 288 under some circumstances, e.g., where he was charged with a violation of and convicted under ‍​​‌‌​​​‌​​‌​‌‌‌‌‌​‌‌​‌‌​‌‌​‌​​‌‌‌‌​​​‌‌​​‌‌​‌‌‌​‍section 288, but not under other circumstances, e.g., where he was convicted of section 288.5 based on multiple violations of section 288. We therefore adopt the . . . interpretation requiring the AIDS testing mandate of section 1202.1 to apply to a conviction which necessarily encompasses a violation of section 288. [Citation.]” (.)
Read the detailed case summary