Under the former version of Penal Code section 1202.4, subdivision (f)(3)(F), restitution for noneconomic losses was proper for a Penal Code section 288.5 conviction because the underlying conduct constituted a violation of section 288. Lee pleaded no contest to a violation of section 288.5 (continuous sexual abuse of a minor) and other related crimes, and defense counsel stipulated to a factual basis for the plea. The court awarded $750,000 for noneconomic losses. Lee appealed, arguing that the court lacked authority to award damages because his no contest plea did not establish a violation of section 288. Held: Affirmed. At the time the restitution award was made in this case, section 1202.4, subdivision (f)(3)(F) authorized an award of restitution for noneconomic losses for felony violations of section 288. Section 288.5 defines continuous sexual abuse in two ways: by engaging in three or more acts of substantial sexual conduct with a child under the age of 14 or by committing three or more acts of lewd or lascivious conduct as defined by section 288 with a child under the age of 14. Here, the complaint alleged that Lee violated section 288.5 in both ways. By pleading no contest to the section 288.5 count, he admitted a violation of section 288. The Court of Appeal agreed with the reasoning in People v. McCarthy (2016) 244 Cal.App.4th 1096 and People v. Martinez (2017) 8 Cal.App.5th 298, which both held restitution for noneconomic damages is available when a defendant is convicted of a violation of section 288.5 for lewd and lascivious conduct under section 288. The court also determined that the Legislature did not change the law when it amended section 1202.4, subdivision (f)(3)(F) to expressly list section 288.5 while Lee’s appeal was pending. Instead, the Legislature intended to clarify the statute after a split of authority in the appellate courts. As a result, the court did not need to address retroactivity or ex post facto issues. [Editor’s Note: The court did not address whether the amendment to subdivision (f)(3)(F) 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, or the sexual offenses listed in section 288.7 concerning children under the age of 10.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A146214.PDF