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People v. Lee

California Court of Appeals, First District, Second Division

May 31, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
FRANKLIN LEE, Defendant and Appellant.

          Sonoma County Superior Court No. SCR647876 Hon. Robert M. LaForge Trial Judge

          Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

          Patrick Morgan Ford for California Appellate Defense Counsel, Stephen K. Dunkle and John T. Philipsborn for California Attorneys for Criminal Justice as Amici Curiae on behalf of Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan and Catherine A. Rivlin, Supervising Deputy Attorneys General, Gregg E. Zywicke, Deputy Attorney General, for Plaintiff and Respondent.

          Li & Lozada Law Group, Michael C. Li for Victim C.R.

          STEWART, J.

         At issue in this case is the availability of restitution for noneconomic losses to certain victims of child sex abuse, under a prior version of Penal Code section 1202.4, subdivision (f)(3)(F) that was effective until December 31, 2017.[1]

         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 oral copulation with a minor under the age of 16, over the course of a two-year period beginning when his victim was nearly age 14 (counts II and III) (§ 288a, subd. (b)(2)); two counts of sodomy with a minor under the age of 16, during the same two-year period (§ 286, subd. (b)(2)) (counts IV and V); one count of using a minor to engage in prohibited sexual acts (oral copulation and sodomy) in connection with the production of obscene matter, during a four-year period beginning when his victim was nearly 12 years old (§§ 311.4, subd. (a), 311.2) (count VI); and one count of possessing child pornography (§ 311.11, subd. (a)) (count VII). He was not charged with a separate count alleging a violation of section 288.

         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 the request as seeking only noneconomic damages, resulting from the psychological impact of defendant's abuse, which was documented in a lengthy court filing. Defense counsel's sole objection was to the amount of noneconomic damages ...


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