Trial court did not err by awarding noneconomic restitution to victim of continuous sexual abuse (Pen. Code, § 288.5) under section 1202.4, subdivision (f)(3)(F). After his conviction for continuous sexual abuse of a child under the age of 14, the trial court imposed $150,000 in noneconomic restitution that the victim had not requested. On appeal, Martinez challenged the restitution award, asserting that the restitution provision that permitted the court to award noneconomic restitutionsection 1202.4, subdivision (f)(3)(F)only applied to victims of section 288 offenses, not section 288.5. Held: Affirmed. Section 1202.4, subdivision (f)(3)(F) provides, in pertinent part, that a victim restitution order shall include, to the extent possible, reimbursement for every determined economic loss that was the result of the defendant’s criminal conduct, including “[n]oneconomic losses, including, but not limited to psychological harm, for felony violations of Section 288.” There is a split of authority concerning whether section 1202.4, subdivision (f)(3)(F) applies to convictions for continuous sexual abuse under section 288.5. (Compare People v. Valenti (2016) 243 Cal.App.4th 1140 [no], and People v. McCarthy (2016) 244 Cal.App.4th 1096 [yes].) Agreeing with McCarthy, the Court of Appeal held that section 1202.4, subdivision (f)(3)(F) applies to section 288.5 convictions. McCarthy reasoned that it would be absurd for the provision to apply to violations of section 288 but not the more serious violation of section 288.5. The legislative history of section 1202.4, subdivision (f)(3)(F) supports this construction. Committee analyses indicates that the provision was intended to increase civil restitution awards to victims of child molestation generally. Applying section 1202.4, subdivision (f)(3)(F) to a conviction for continuous sexual abuse was not error.
Apprendi does not apply to direct victim restitution awards. Martinez’s argument that the restitution award violated his Sixth Amendment right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466, fails because Apprendi only requires a jury determination of any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory maximum and direct victim restitution is not a criminal penalty. (See People v. Foalima (2015) 239 Cal.App.4th 1376, 1398; People v. Smith (2011) 198 Cal.App.4th 415, 433.)
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068746.PDF