California Court of Appeals, First District, Second Division
County Superior Court No. SCR647876 Hon. Robert M. LaForge
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.
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.
& Lozada Law Group, Michael C. Li for Victim C.R.
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,
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).)
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.
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.
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
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.
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 ...