Skip to content
Name: People v. McCarthy
Case #: A141144
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 02/11/2016

A trial court may award victim restitution for noneconomic losses where a defendant’s conduct violates Penal Code section 288, even if he was not convicted under that section. Defendant was convicted of continuous sexual abuse of a child (Pen. Code, § 288.5) and other offenses. The trial court ordered him to pay the victim $1,000,000 in noneconomic losses (Pen. Code, § 1202.4, subd. (f)(3)(F)). On appeal, defendant claimed that such losses are only authorized when a defendant is convicted of violating section 288. Held: Affirmed. Direct victim restitution is generally limited to economic losses (Pen. Code, § 1202.4). There is an exception for “noneconomic losses, including, but not limited to, psychological harm, for felony violations of section 288.” (Pen. Code, § 1202.4, subd. (f)(3)(F).) Defendant was not convicted under section 288. While the plain language of section 1202.4, subdivision (f)(3)(F) is susceptible to more than one interpretation, the legislative history and text of the entire statute reflects it is intended to authorize an award of victim restitution for noneconomic losses where the defendant’s conduct constitutes a violation of section 288, even if he is not convicted under that section. This interpretation is supported by amendments to the statute. In 1994, the Legislature amended the statute to allow for noneconomic victim restitution for section 288 convictions. In 1996, the Legislature removed the word “conviction” from subdivision (f)(3)(F), allowing awards for noneconomic losses for “felony violations of Section 288.” By deleting the word “conviction” the Legislature presumably intended to remove any requirement that a defendant be convicted under section 288 before noneconomic victim restitution may be awarded.

To interpret section 1202.4, subdivision (f)(3)(F) to allow an award of noneconomic restitution only when a defendant suffers a Penal Code section 288 conviction would lead to absurd results. In construing a statute, the court must consider the consequences flowing from a given interpretation. The court rejected a construction of the statute that would allow the trial court to award noneconomic restitution to victims of a section 288 offense but not to victims of the greater offense of continuous sexual abuse of a child (Pen. Code, § 288.5).

Defendant’s conduct violated Penal Code section 288. Defendant was charged in count 1 with violating Penal Code section 288.5 by engaging in three or more acts of lewd or lascivious conduct as defined in section 288, which made clear the offense charged was based on conduct that violated section 288. Not all violations of section 288.5 will encompass violations of section 288, because a section 288.5 conviction can be based upon a course of substantial sexual conduct (Pen. Code, § 1203.066, subd. (b)), which requires no specific intent. A section 288 conviction requires specific intent. However, the record in this case reflects that the section 288.5 charge was based on defendant’s commission of lewd and lascivious acts within the meaning within section 288.

The decision in People v. Valenti (2016) 243 Cal.App.4th 1140, which held an award of noneconomic restitution inapplicable to section 288.5 convictions, is distinguishable from this case. In Valenti the defendant argued that the court’s award of noneconomic victim restitution was unauthorized as to his section 288.5 convictions. However, in Valenti the prosecution conceded this issue and the court accepted the concession. Thus, the court had no occasion to consider a statutory construction argument. Further, unlike the Valenti defendant, defendant was convicted of continuous child sexual abuse not based on three or more act of substantial sexual conduct under section 1203.066, subdivision (b), but by engaging in three or more acts of lewd or lascivious conduct as defined in section 288.

The full opinion is available on the court’s website here: