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Name: People v. Smith
Case #: C063545
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/12/2011

Under certain circumstances, Penal Code section 803, subdivision (f), extends the statute of limitations for section 288, subdivision (a), (lewd and lascivious acts on a child under the age of 14 years). Appellant was charged in count I with section 288, subdivision (a), an offense occurring between January 1, 1987, and August 10, 1988. Despite the expiration of the six-year statute of limitations, the court ruled that sufficient evidence was presented at trial to establish that pursuant to section 803, subdivision (f), the limitations period had not expired. Section 803 provides that the complaint may be filed one year from the date of report if (A) the limitation period has expired; (B) the crime alleged involves substantial sexual conduct; and (C) independent evidence corroborates the victim’s allegation. Here, (A) the complaint, on its face, indicated that the prosecution for the offense was time-barred as more than the six-year statute of limitations had expired between the commission of the offense and filing of the complaint. (B) Although the victim’s testimony was internally inconsistent, it constituted substantial evidence that appellant’s molest of the victim when she was eight years old involved substantial sexual conduct. (C) A pretext telephone call to appellant during the course of the investigation provided corroboration of the victim’s complaint. In addition, evidence of uncharged sexual conduct by appellant had significant probative value in corroborating the victim’s complaint.

Restitution amount for noneconomic damages is not unconstitutional. Penal Code section 1202.4, subdivision (f)(3)(F), provides for noneconomic restitution, including psychological harm, for felony violations of section 288. Following a restitution hearing, appellant was ordered to pay $750,000 in noneconomic damages. The appellate court rejected appellant’s claim that his right to a jury trial was violated by the court determining restitution. The court found that restitution for noneconomic claims does not give rise to a jury trial right, as is provided for in a civil case. There is a rational reason for distinguishing the criminal restitution order established by Penal Code section 1202.4 from the constitution’s provision of the right to a civil jury trial — restitution under section 1202.4 is part of criminal sentencing. There is no equal protection violation resulting from restitution for noneconomic losses in a child molest offense, as compared to other offenses where restitution is limited to the victim’s economic damages, because child molesters are not similarly situated to other criminals. The court also ruled that damages for noneconomic loss are subjectively quantified and, as in a civil trial, the appellate court can interfere with the judgment as excessive only if the amount “shocks the conscience” and suggests “passion, prejudice or corruption on the part of the trial court.” Here the court based the award on 15 years of abuse by defendant and multiplied the 15 years by $50,000, an amount requested by the victim. Such an award for the victim’s pain and suffering does not shock the conscience. Finally, under Marsy’s Law, which added several provisions relating to victim restitution to the California Constitution, the victim is entitled to have her attorney participate in the restitution hearing.