People v. Montiel ( 2019 )

Filed 5/16/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A150250
v.
CARLOS HUGO MONTIEL, (Napa County
Super. Ct. No. CR175311)
Defendant and Appellant.
After he molested his niece, defendant Carlos Hugo Montiel was convicted by a
jury of one count of sexual penetration of a child 10 years of age or younger and one
count of lewd or lascivious acts with a child under 14 years old, and he was sentenced to
15 years to life in prison. He contends that his convictions must be reversed because his
trial counsel failed to object to expert testimony on Child Sexual Abuse Accommodation
Syndrome (CSAAS) that bolstered the victim’s credibility. He also claims that the trial
court erred by admitting evidence of an uncharged sex offense he committed against the
same victim, awarding the victim’s mother restitution for noneconomic losses, and
imposing victim restitution even though the sentence for the conviction on which it was
based was stayed. We are not persuaded and affirm.
In the published portion of our opinion we conclude that the trial court was
authorized to award restitution to the victim’s mother based on the mother’s own
psychological harm. In the unpublished portion of our opinion, we reject Montiel’s
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.A., B., and D.
1
remaining arguments and order the correction of an error involving the abstract of
judgment.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
At the time of the charged incident, the victim, Jane Doe, was eight years old. She
lived with her parents and her two older brothers in a two-bedroom apartment in Napa
County. In March 2015, Montiel moved in with Jane’s family. His young daughter
would visit and sometimes stay overnight as well. Montiel and his daughter slept in the
apartment’s living room.
In early April 2015, Jane’s mother asked Montiel to babysit Jane and drop her off
at cheerleading practice the next day, and he agreed to do so. The next morning, before
leaving the apartment, Jane’s mother dressed Jane in her cheerleading uniform. After her
mother left, Jane sat on the couch and waited until Montiel and his daughter woke up.
At trial, Jane testified that at some point after Montiel and his daughter woke up,
Montiel reached under Jane’s cheerleading uniform and underwear, inserted one or two
fingers into her vagina, and slid them in once or twice, hurting her. When Jane asked
Montiel what he was doing, he said he was playing with her. He then excused himself to
go to the bathroom. He later returned, got dressed, and took Jane to cheerleading
practice.
Later that day, when Jane and her mother were alone, Jane told her mother what
Montiel had done. Jane’s mother soon told Jane’s father and brothers what had
happened, but none of them reported the incident to the police, although Jane’s parents
planned to tell Montiel to leave the house. That evening, Jane, her family, and Montiel
attended a family birthday party. Jane’s parents instructed Jane and her brothers not to
say anything about the incident to anyone at the party. Montiel and his daughter left
Jane’s family’s apartment the next morning.
A couple of days later, Jane’s second-grade teacher and her cheerleading coach
both noticed that “something was off” with Jane and asked her what was wrong. Jane
2
told them what Montiel had done, and the adults notified Child Protective Services.
Jane’s teacher also filed a police report.
A few days after that, a Napa police officer interviewed Jane. During the
interview, which was recorded, Jane explained how Montiel had inserted his finger into
her vagina. She said the incident was painful and scary.
Several months later, a district attorney investigator interviewed Jane. During the
interview, Jane talked about the April 2015 incident and disclosed for the first time that
Montiel had smelled his finger afterward. She also reported for the first time an earlier
incident in which he had similarly sexually assaulted her while she was staying overnight
in his home. Over defense objections, the trial court allowed Jane and the investigator to
testify at trial about the earlier incident.
Montiel testified in his own defense. On cross-examination, he claimed to be the
“victim of a false allegation,” and he denied Jane’s accusations. He testified that Jane
was “lying” when she said he had put his finger in her vagina, directly touched the skin of
her genitals, and pulled down her cheerleading underwear, and he repeated that her
testimony at trial was “a lie.”
The jury found Montiel guilty of one count of sexual penetration of a child 10
years of age or younger and one count of lewd or lascivious acts with a child under 14
years old.1 It also found true the allegation that he engaged in substantial sexual conduct
with Jane in connection with the latter offense, making him ineligible for probation.2 The
trial court imposed a mandatory sentence of 15 years to life for the first count and the
midterm of six years for the second count. It then stayed the sentence for the second
1
The convictions were under Penal Code sections 288.7, subdivision (b) (sexual
penetration) and 288, subdivision (a) (lewd or lascivious acts). All further statutory
references are to the Penal Code unless otherwise noted.
2
The allegation was found true under section 1203.066, subdivision (a)(8).
3
count.3 The court also ordered Montiel to pay $50,000 in restitution to Jane and $20,000
in restitution to Jane’s mother.
II.
DISCUSSION
A. Montiel Is Not Entitled to Relief Based on His Trial Counsel’s Failure to
Object to Expert Testimony About the Rarity of False Reporting in Child
Sex-abuse Cases.
Montiel first contends that his trial counsel was ineffective for not objecting to
expert testimony about studies on the frequency of false reporting in child sex-abuse
cases, because the testimony constituted improper witness bolstering and exceeded the
permissible scope of CSAAS evidence. We conclude that counsel’s failure to object to
the admission of the challenged testimony was harmless.
1. Additional facts.
The prosecution called an expert on CSAAS, Dr. Anthony Urquiza, Ph.D.
Dr. Urquiza described how child victims of sexual abuse often manifest the five
components of CSAAS: secrecy, helplessness, entrapment and accommodation, delayed
and unconvincing disclosure, and recantation or retraction. He explained that children
are typically abused by someone with whom they have an ongoing relationship and who
is older, larger, more powerful, and more sophisticated. He also explained why families
may belatedly disclose abuse and why victims may act normally around their accusers.
Dr. Urquiza explained that CSAAS is not a diagnostic tool for determining whether a
child has been abused, and he acknowledged that he did not know the facts in this case
and could not render an opinion about them.
Dr. Urquiza also testified about a number of studies showing that child-abuse
victims rarely make false allegations. He stated, “The range of those twelve or so studies
is as low as about one percent of the cases that come before law enforcement or C.P.S.
3
The record contains only an indeterminate abstract of judgment, which reflects
the conviction for lewd or lascivious acts and the stay but not the term imposed. The
indeterminate abstract of judgment must be amended to omit that conviction and a
determinate abstract of judgment must be issued to include it.
4
are determined to be false allegations, as high as about six or seven percent of those cases
are determined to be cases in which [there] is a false allegation. [¶] Probably the best
study we have is a Canadian study [in] which they found four percent of cases were
determined to be false, so roughly that’s the middle of that range of one to about six or
seven. What’s interesting in that study is in none of those situations where a false
allegation was made was it the child who made allegations that were determined to be
false, which leads us to believe that the probably largest subgroup in which false
allegations are made appears to be in custodial disputes.” Dr. Urquiza testified that the
studies show that false allegations of sexual abuse by children are “very rare, uncommon,
it just doesn’t happen often.”
The trial court gave the following jury instruction based on CALCRIM No. 1193,
which addresses testimony on CSAAS: “You have heard testimony from Dr. Anthony
Urquiza regarding child sexual abuse accommodation syndrome. [¶] Dr. Anthony
Urquiza’s testimony about child sexual abuse accommodation syndrome is not evidence
that the defendant committed any of the crimes charged against him. [¶] You may
consider this evidence only in deciding whether or not [Jane’s] conduct was not
inconsistent with the conduct of someone who has been molested and in evaluating the
believability of her testimony.”
2. The governing legal standards.
The federal and state Constitutions guarantee criminal defendants the right to
adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15;
People v. Doolin (2009) 45 Cal. 4th 390, 458.) To prevail on a claim of ineffective
assistance of counsel, a defendant must show both “that counsel’s performance was
deficient,” such that “counsel was not functioning as the ‘counsel’ [constitutionally]
guaranteed,” and “that the deficient performance prejudiced the defense.” (Strickland v.
Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Centeno (2014) 60 Cal. 4th
659, 674.)
To establish the first Strickland prong, a defendant must show that “counsel’s
performance . . . fell below an objective standard of reasonableness under prevailing
5
professional norms.” (People v. Mai (2013) 57 Cal. 4th 986, 1009.) In evaluating this
prong, “a reviewing court defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable professional assistance.”
(Ibid.) Because the presumption of counsel’s competence can typically be rebutted only
with evidence outside the record, a reversal on direct appeal is not warranted unless
“(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.” (Ibid.)
Judicial scrutiny of counsel’s performance must be “highly deferential” and “consider[]
all the circumstances,” and the “ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged.” (Strickland, supra,
466 U.S. at pp. 688-689, 696.)
To establish the second Strickland prong, a defendant must demonstrate “resulting
prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.” (People v. Mai, supra, 57 Cal.4th
at p. 1009.) “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) “A defendant must prove
prejudice that is a ‘ “demonstrable reality,” not simply speculation.’ ” (People v.
Fairbank (1997) 16 Cal. 4th 1223, 1241.) “The object of an ineffectiveness claim is not
to grade counsel’s performance,” and “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, . . . that course should be followed.”
(Strickland, at p. 697.)
3. Although the challenged testimony was inadmissible, Montiel fails
to demonstrate that he was prejudiced by his trial counsel’s failure to
object to it.
Citing People v. Coffman and Marlow (2004) 34 Cal. 4th 1, Montiel argues that
Dr. Urquiza’s false-allegation testimony was inadmissible because it constituted an
6
expert opinion on the truthfulness of a witness.4 Coffman pointed out that the “[t]he
general rule is that an expert may not give an opinion whether a witness is telling the
truth, for the determination of credibility is not a subject sufficiently beyond common
experience that the expert’s opinion would assist the trier of fact.” (Coffman, at p. 82.) It
then concluded that “a psychological expert may not testify about rape trauma syndrome,
a condition analogous to battered woman syndrome, in order to prove that a rape actually
occurred, although such testimony is admissible to rehabilitate the credibility of the
complaining witness against a suggestion that her behavior after the assault—such as a
delay in reporting it—was inconsistent with her claim of having been raped.” (Ibid.,
citing People v. Bledsoe (1984) 36 Cal. 3d 236, 247-248, 251.)
Since Montiel submitted his briefing, Division Four of this court and Division Six
of the Second District Court of Appeal have held that similar testimony by Dr. Urquiza
“that studies show only a very small percentage of allegations of child sexual abuse are
false” was inadmissible. (People v. Wilson (2019) 33 Cal.App.5th 559, 561; accord
People v. Julian (Apr. 29, 2019, B289613) __ Cal.App.5th __ [pp. 1-2, 5].) We join our
colleagues and conclude that the testimony at issue should not have been admitted,
especially since it was offered before Jane’s credibility was challenged or needed
rehabilitation. (See People v. Wells (2004) 118 Cal. App. 4th 179, 188 [CSAAS evidence
“must be tailored to address the specific myth or misconception suggested by the
evidence”].) We need not determine whether the failure to object to the testimony rose to
the level of ineffective assistance under the first Strickland prong, however, because even
if we assume it did, the testimony’s admission was harmless.
The second Strickland prong requires Montiel to show a “demonstrable reality”
that if an objection had been made and sustained, it would have made a difference to the
4
Montiel also cites five decisions from appellate courts in other states holding it is
improper to admit expert testimony that children who have been sexually abused
generally do not lie. (Yount v. State (Tex.Crim.App. 1993) 872 S.W.2d 706, 710-712;
State v. Catsam (Vt. 1987) 534 A.2d 184, 187; State v. Lindsey (Ariz. 1986) 720 P.2d 73,
76; State v. Myers (Iowa 1986) 382 N.W.2d 91, 97; Commonwealth v. Seese (Pa. 1986)
517 A.2d 920, 922.)
7
verdicts. (People v. Fairbank, supra, 16 Cal.4th at p. 1241.) He claims that Jane’s
credibility was the “most important issue at trial” and Dr. Urquiza’s testimony “bore
heavily on that issue.” We agree that Jane’s credibility was important, but the strength of
her testimony minimized the impact of the improper bolstering.
In testifying about the charged incident, Jane described sexual behavior with
which an eight-year-old child would normally be unfamiliar. As the prosecutor put it in
closing argument, “What eight-year-old would say that an uncle who[m] she had
absolutely no problems with, who[m] she had zero motive to falsely implicate, slid[] his
finger . . . in and out of her privates where she goes pee, two times?” And “what eight-
year-old little girl would know to invent the fact that the defendant smelled his finger
after he put it inside of her genitals?” Even Montiel’s trial counsel acknowledged that
Jane was a compelling witness, describing her as a “gregarious . . . little girl . . . [, a]ble to
articulate very, very well on the stand.” Furthermore, the jury was instructed that
Dr. Urquiza’s testimony was “not evidence that [Montiel] committed any of the crimes
charged against him,” and the prosecutor did not highlight the challenged testimony in
closing argument.
This is in stark contrast to the record in People v. Julian, where the Court of
Appeal concluded that the inadmissible testimony was “highly prejudicial” under the
second Strickland prong and reversed the convictions. (People v. Julian, supra,
__ Cal.App.5th __ [pp. 12-13, 16].) There, the jury was “bombarded” with the statistical
evidence, on which the prosecutor relied to “claim that there is a zero percent chance
children will fabricate abuse claims,” effectively “replac[ing] the presumption of
innocence with a presumption of guilt.” (Id. at p. 14; cf. People v. Wilson, supra,
33 Cal.App.5th at p. 572 [error harmless where “Dr. Urquiza’s testimony on the
statistical evidence was brief”].) Moreover, unlike in this case, in Julian the accusing
child’s testimony had “ ‘serious inconsistencies,’ ” and there was “strong defense
8
evidence,” including testimony by the child’s sisters and other witnesses corroborating
the defendant’s denial of abuse. (Julian, at pp. 13-14, italics omitted.)
Given the strength of Jane’s testimony and the limited attention given to
Dr. Urquiza’s testimony about false reporting, we cannot conclude that the testimony
mattered much to the jury’s determination of Jane’s veracity. Accordingly, Montiel has
failed to show that he was prejudiced by his trial counsel’s failure to object to this
testimony, and his ineffective-assistance claim fails. (See Strickland, supra, 466 U.S. at
pp. 688, 694.)
B. The Trial Court Properly Exercised Its Discretion in Admitting Evidence of
the Prior Incident of Abuse.
Montiel claims that the trial court erred in admitting evidence of the prior incident
of sexual abuse of Jane. We disagree.
The prosecution moved in limine to introduce evidence that “a number of weeks
prior to the charged offense[s], when [Jane] was spending the night at [Montiel’s] home
in Napa, [Montiel] had also put his finger in her vagina.” The prosecution argued that
this prior conduct was admissible both as evidence of “intent, common plan or scheme,
and motive” under Evidence Code section 1101, subdivision (b) (emphasis omitted), and
as “propensity evidence” under Evidence Code section 1108 (section 1108). The trial
court ruled that the evidence was admissible under both provisions and denied Montiel’s
request to exclude it under Evidence Code section 352 (section 352).
Montiel does not challenge the evidence’s admission under Evidence Code
section 1101, subdivision (b), limiting his claim to the trial court’s rulings under
sections 1108 and 352. We review those rulings for an abuse of discretion. (People v.
Dejourney (2011) 192 Cal. App. 4th 1091, 1104-1105; People v. Miramontes (2010)
189 Cal. App. 4th 1085, 1097.) “We will not find that a court abuses its discretion in
admitting such other sexual acts evidence unless its ruling ‘ “falls outside the bounds of
reason.” ’ ” (Dejourney, at p. 1105.) In other words, we will not reverse a court’s
exercise of discretion unless its decision was “ ‘ “arbitrary, capricious, or patently absurd
9
[and] . . . resulted in a manifest miscarriage of justice.” ’ ” (People v. Lewis (2009)
46 Cal. 4th 1255, 1286; see also People v. Minifie (1996) 13 Cal. 4th 1055, 1070.)
Section 1108 provides: “In a criminal action in which the defendant is accused of
a sexual offense, evidence of the defendant’s commission of another sexual offense or
offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is
not inadmissible pursuant to Section 352.” (§ 1108, subd. (a).) Our state Supreme Court
has instructed trial courts that in determining whether to admit evidence of a prior sexual
offense under sections 1108 and 352, factors to consider include the prior offense’s
“nature, relevance, and possible remoteness, the degree of certainty of its commission
and the likelihood of confusing, misleading, or distracting the jurors from their main
inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors,
the burden on the defendant in defending against the uncharged offense, and the
availability of less prejudicial alternatives to its outright admission, such as admitting
some but not all of the defendant’s other sex offenses, or excluding irrelevant though
inflammatory details surrounding the offense.” (People v. Falsetta (1999) 21 Cal. 4th
903, 916-917 (Falsetta).)
Here, no abuse of discretion by the trial court appears. The prior incident involved
substantially the same conduct as the charged incident, occurred close in time, and was
no more inflammatory than the charged incident. Testimony about the prior incident was
not confusing, misleading, or time consuming. Only two witnesses testified about it:
Jane and the district attorney investigator. Jane’s testimony constitutes only a few pages
of the reporter’s transcript, and the investigator’s testimony constitutes only two pages.
The testimony did not significantly stray from the main inquiry of whether Montiel
molested Jane on the charged occasion.
Montiel fails to address these Falsetta factors. And to support his argument that
the prior incident was inadmissible, he relies on cases that are either distinguishable on
their facts or were decided before the Legislature enacted section 1108. (See, e.g.,
People v. Ewoldt (1994) 7 Cal. 4th 380 [decided before § 1108 enacted]; People v. Scott
(1978) 21 Cal. 3d 284 [same]; People v. Stanley (1967) 67 Cal. 2d 812 [same]; People v.
10
Harris (1998) 60 Cal. App. 4th 727 [prior acts too inflammatory to be admitted].) We
conclude that the trial court did not abuse its discretion in admitting the evidence of the
prior incident.5
C. The Trial Court Was Authorized to Award Restitution to Jane’s Mother
Based on the Psychological Harm She Suffered.
Montiel contends that section 1202.4 did not authorize the trial court to order him
to pay victim restitution to Jane’s mother (mother) for noneconomic losses. We disagree.
In our view, the plain language of section 1202.4 establishes two separate bases—one
under subdivision (k)(3) and the other under subdivision (k)(4)—on which parents of
children who are sexually abused may qualify as victims in their own right and be
awarded restitution for noneconomic losses they sustain.
1. Additional facts.
After the verdict, the prosecution sought victim restitution under section 1202.4,
subdivision (f)(3)(F) based on noneconomic damages suffered by Jane and mother. As to
mother, the prosecution’s briefing explained that she had “felt first-hand the effects that
this crime had on her and her daughter. In response to supporting her daughter and
cooperating with the investigation and prosecution of this case, she and her family have
been shunned by their extended family, had to seek psychological counseling, and were
ultimately evicted from their home.” The prosecution requested $50,000 in restitution to
Jane and $20,000 in restitution to mother for the psychological harm they had
experienced.
At the sentencing hearing, Montiel objected to the request for victim restitution,
stating, “I’m objecting to the non-economic damages in the amount of $70,000. I would
argue it is inappropriate in this case, and there’s no sufficient factual basis for it. [¶] [The
prosecutor] presented statutory authority for . . . the Court to order this $70,000 [in] non-
5
We also reject Montiel’s cursory argument that the evidence’s admission
violated his federal due process rights. (See People v. Albarran (2007) 149 Cal. App. 4th
214, 229 [admission of evidence does not violate federal due process rights unless
“ ‘there are no permissible inferences the jury may draw from the evidence’ ” and
evidence “ ‘ “necessarily prevents a fair trial” ’ ”].)
11
economic losses, but I argue there’s no basis for it.” The trial court granted the request
and awarded $50,000 to Jane and $20,000 to mother “pursuant to . . . section 1202.4[,
subdivision ](f)(3)(F), which allows the Court to award restitution for psychological
harm.” In doing so, the court found that based on the trial testimony and a letter from
mother read at the hearing, it was “clear” that the crime “had a very serious and
significant impact on the psychological well-being of Jane Doe and her mother,” and the
amount of restitution sought for their noneconomic losses was “modest.”
The trial court also ordered that Montiel pay restitution to Jane and her family or
to the Victim Compensation Board, “in a manner to be determined,” based on five claims
for financial assistance from the Restitution Fund. These five claims consisted of a claim
on Jane’s behalf, for which Jane had already been paid $1,863, and pending claims by
mother on her own behalf, by mother on behalf of Jane’s siblings, and by Jane’s father.
2. The award of victim restitution to mother was proper.
We generally review an order of victim restitution for an abuse of discretion.
(People v. Mearns (2002) 97 Cal. App. 4th 493, 498 (Mearns).) The resolution of
Montiel’s claim, however, hinges on an issue of statutory interpretation, which we review
de novo. (See People v. Saint-Amans (2005) 131 Cal. App. 4th 1076, 1084 (Saint-
Amans).) “ ‘As in any case involving statutory interpretation, our fundamental task here
is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.]
We begin by examining the statutory language because the words of a statute are
generally the most reliable indicator of legislative intent. [Citations.] We give the words
of the statute their ordinary and usual meaning and view them in their statutory
context. . . . ‘If the statute’s text evinces an unmistakable plain meaning, we need go no
further.’ [Citation.] ‘Only when the statute’s language is ambiguous or susceptible of
more than one reasonable interpretation, may the court turn to extrinsic aids to assist in
interpretation.’ ” (In re C.H. (2011) 53 Cal. 4th 94, 100.) “ ‘ “Where the statute is clear,
courts will not ‘interpret away clear language in favor of an ambiguity that does not
exist.’ ” ’ ” (People v. Loeun (1997) 17 Cal. 4th 1, 9.)
12
The existence of a constitutional right to restitution also guides our analysis. In
adopting section 28 of the California Constitution, the electorate “established a new
constitutional right for crime victims to obtain restitution for losses suffered as a result of
a criminal act.” (Mearns, supra, 97 Cal.App.4th at p. 498; Cal. Const., art. I, § 28
(section 28).) Section 28 and various statutory provisions were amended by The Victims’
Bill of Rights Act of 2008 (also known as “Marsy’s Law”) to “recognize various rights of
victims of crime and of the people of California.” (In re Vicks (2013) 56 Cal. 4th 274,
278, 282.) Given section 28’s recognition of an expansive right to restitution, “the courts
have held that restitution statutes should be interpreted broadly and liberally.” (Saint-
Amans, supra, 131 Cal.App.4th at p. 1084; see Santos v. Brown (2015) 238 Cal. App. 4th
398, 418 [“Marsy’s Law clearly demands a broad interpretation protective of victims’
rights”].) “Specifically, this state’s Supreme Court has stated that the term ‘victim’ has a
broad and flexible meaning.” (Saint-Amans, at p. 1084.)
With these standards in mind, we examine the text of section 1202.4. The statute
provides that a restitution order “[t]o the extent possible . . . shall identify each victim and
each loss . . . and shall be of a dollar amount that is sufficient to fully reimburse the
victim or victims for every determined economic loss incurred as the result of the
defendant’s conduct, including, but not limited to, all of the following: [¶] . . . [¶]
(F) Noneconomic losses, including, but not limited to, psychological harm, for felony
violations of Section 288, 288.5, or 288.7.”6 (§ 1202.4, subd. (f)(3).) The plain language
of these provisions thus provides that an economic loss includes noneconomic losses for
purposes of awarding restitution for violations—not just some violations—of the
specified child sexual-abuse statutes. Stated another way, under section 1202.4,
“restitution orders are limited to [a] victim’s economic damages,” with the exception of
noneconomic losses suffered as a result of the specified crimes. (People v. Smith (2011)
198 Cal. App. 4th 415, 431.)
6
The references to sections 288.5 and 288.7 were added on January 1, 2018.
(Stats. 2018, ch. 101, § 1.)
13
Neither Montiel nor the dissent disagrees with the general proposition that
restitution for noneconomic losses may be awarded for felony violations of section 288.
Nor do they point to any statutory language purporting to allow only minor victims to
recover restitution for noneconomic losses under section 1202.4, subdivision (f)(3)(F).7
Instead, they rely on a subsequent subdivision—subdivision (k)—to maintain that mother
did not qualify as a “victim” under section 1202.4 who could be awarded restitution for
the noneconomic losses she sustained as a result of Montiel’s crime. This reliance is
misplaced.
Generally, of course, “[a] victim is the object of the crime. [Citations.]
‘ “Actual” ’ or ‘ “direct” ’ victims are ‘the real and immediate objects’ of the offense.
[Citation.] Thus, people or entities are entitled to restitution when the crime was
committed against them.” (Saint-Amans, supra, 131 Cal.App.4th at p. 1086.) In this
sense, Jane, not mother, was the victim because she was the object of Montiel’s crime.
But section 1202.4 has a much broader definition of victim. It does not limit recovery to
actual or direct victims, and it makes clear that parents of children who are sexually
abused may be victims in their own right for purposes of being eligible for restitution.
Under subdivision (k) of the statute, the term “victim” is defined to also “include all of
the following” people8:
(1) The immediate surviving family of the actual victim.
...
(3) A person who has sustained economic loss as the result of a crime
and who satisfies any of the following conditions:
(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
7
In this regard, we note that other provisions of section 1202.4, subdivision (f)(3)
authorize restitution for losses suffered by minor victims specifically. (See § 1202.4,
subd. (f)(3)(D) & (E).) This suggests the Legislature was capable of limiting restitution
for noneconomic losses to child victims of the specified crimes had it chosen to do so.
8
Section 1202.4, subdivision (k) also includes certain governmental and private
entities in the definition of “victim.” (See § 1202.4, subd. (k)(2) & (5).)
14
(B) At the time of the crime was living in the household of the
victim.
(C) At the time of the crime was a person who had previously
lived in the household of the victim for a period of not less than two years
in a relationship substantially similar to a relationship listed in
subparagraph (A).
(D) Is another family member of the victim, including, but not
limited to, the victim’s fiancé or fiancée, and who witnessed the crime.
(E) Is the primary caretaker of a minor victim.
(4) A person who is eligible to receive assistance from the Restitution
Fund pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of
Division 3 of Title 2 of the Government Code.
a. Mother is a “victim” under section 1202.4, subdivision (k)(3).
Throughout this appeal, the parties have focused on whether mother qualifies as a
“victim” under section 1202.4, subdivision (k)(3)(A) because of the provision’s
requirement that the person “sustained economic loss as a result of the crime.”9 Montiel
urges that interpreting “economic loss” to include noneconomic loss would involve “a
logic reminiscent of Alice in Wonderland, where up is down and down is up, and words
lose their real meaning.” We disagree. The exact same charge could be leveled at
section 1202.4, subdivision (f)(3), and Montiel does not explain how it is any more
logical to interpret “economic loss” differently depending on where in section 1202.4 the
phrase occurs. The applicable rules of statutory construction direct us to interpret the
phrase consistently. “ ‘It is presumed, in the absence of anything in the statute to the
contrary, that a repeated phrase or word in a statute is used in the same sense
9
Montiel also argues that mother could not be awarded restitution under
section 1202.4, subdivision (k)(1) because she did not qualify as part of “[t]he immediate
surviving family of the actual victim,” since Jane did not die. We need not decide
whether Montiel’s interpretation of the term “surviving” is correct because, as we will
explain, mother separately qualified as a “victim” under section 1202.4,
subdivision (k)(3) and (4). (See People v. O’Neal (2004) 122 Cal. App. 4th 817, 820-821.)
15
throughout.’ ” (People v. Jones (1988) 46 Cal. 3d 585, 595.) Furthermore, we see no
reason to interpret the category of victims who sustain economic loss (§ 1202.4,
subd. (k)(3)) more narrowly than the category of victims who are entitled to restitution
for sustaining economic loss (§ 1202.4, subd. (f)(3)), particularly given our mandate to
interpret restitution statutes broadly. The plain language and structure of the section lead
to the inexorable conclusion that parents of children who are sexually abused may be
awarded restitution for noneconomic losses.
This conclusion is consistent with and furthers the provisions of section 28 of the
California Constitution.10 Section 28, subdivision (b)(13) provides that “[i]n order to
preserve and protect a victim’s rights to justice and due process, a victim shall be entitled
. . . [¶] . . . [¶] . . . [t]o restitution. [¶] (A) It is the unequivocal intention of the People of
the State of California that all persons who suffer losses as a result of criminal activity
shall have the right to seek and secure restitution from the persons convicted of the
crimes causing the losses they suffer. [¶] (B) Restitution shall be ordered from the
convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in
which a crime victim suffers a loss.” Marsy’s Law amended section 28 to define a
“victim” as “a person who suffers direct or threatened physical, psychological, or
financial harm as a result of the commission or attempted commission of a crime or
delinquent act. The term ‘victim’ also includes the person’s spouse, parents, children,
siblings, or guardian, and includes a lawful representative of a crime victim who is
deceased, a minor, or physically or psychologically incapacitated.” (§ 28, subd. (e).)
Mother unquestionably qualifies as a victim under this provision. Interpreting
10
After oral argument, we requested and received supplemental briefing from the
parties on the impact, if any, of the legislative history of section 1202.4 and Marsy’s Law
on the statutory analysis. Montiel urged us not to consider legislative history or Marsy’s
Law because of his view that section 1202.4 is unambiguous. He also took the position
that even if section 1202.4 is ambiguous, these extrinsic sources are “not helpful” in
interpreting the statute. The Attorney General took the position that the legislative
history of section 1202.4 and its precursor, former Government Code section 13967,
support the conclusion that mother is entitled to restitution for noneconomic losses.
16
section 1202.4 to authorize compensation for her noneconomic losses better comports
with the constitutional right to restitution as expanded under Marsy’s Law.
A decision of the Second District Court of Appeal interpreting Welfare and
Institutions Code section 730.6, which governs restitution in delinquency cases, is
instructive. (In re Scott H. (2013) 221 Cal. App. 4th 515, 520.) That statute is similar in
several respects to section 1202.4, but it lacks any provision akin to section 1202.4,
subdivision (k)(3) that covers family members other than those “surviving” a victim.
Scott H. relied on the broad constitutional definition of “victim” to hold that despite the
lack of explicit statutory authorization, restitution for mental health services to derivative
family-member victims was lawful. (Scott H., at pp. 520-522.) The court explained,
“The constitutional language must prevail. To the extent the statutory language conflicts
with that in the Constitution, the constitutional provision controls.” (Id. at p. 522.)
Scott H. bolsters our rejection of Montiel’s and the dissent’s reading of section 1202.4,
subdivision (k)(3), because “a statute must be construed, if reasonably possible, in a
manner that avoids a serious constitutional question.” (People v. Engram (2010)
50 Cal. 4th 1131, 1161).
Thus, even if section 1202.4, subdivision (k)(3) can be read to be ambiguous as to
whether mother is eligible to be awarded restitution for her noneconomic losses, the
meaning of “victim” must be considered in light of section 28’s creation of a broad
constitutional right to restitution. Not only is it “a ‘cardinal principle’ of statutory
interpretation” that courts should construe an ambiguous statute to avoid doubts about its
constitutionality (People v. Gutierrez (2014) 58 Cal. 4th 1354, 1373), but courts have also
specifically recognized that section 28 requires a liberal interpretation of restitution
statutes. Although the dissent makes much of the fact that our interpretation would
permit “not just parents, but numerous other persons with far more tangential
relationships to the child victim,” to recover restitution for noneconomic losses, we
hardly think that our decision will open the floodgates to such awards. These losses can
only be awarded for violations of the specified child sexual-abuse statutes, and the fact
remains that they must be proven to a trial court’s satisfaction, a burden that becomes
17
increasingly difficult to sustain as the relationship with the child victim becomes more
attenuated.
Finally, we address the dissent’s belief that the legislative history of
section 1202.4 is determinative and requires us to reverse the trial court’s award of
restitution to mother. In our view, examining the legislative history is unwarranted given
the plain language of the statute. Indeed, Montiel himself agrees that reviewing the
legislative history is “not helpful.” But even assuming the dissent’s description of the
legislative history is complete and accurate, we would not read into it what the dissent
does.
Nothing in the legislative history, as described by the dissent, evinces any
legislative intent to preclude parents of children who are sexually abused from being
awarded restitution for their noneconomic losses. The dissent confidently proclaims that
subdivision (f)(3)’s inclusion of noneconomic losses as economic losses was merely part
of “the Legislature’s efforts to streamline this statute,” and that the relevant amendment
to subdivision (k)(3) was “designed to do one thing—to ensure that the courts could order
statutory restitution to any person who received assistance from the [Restitution] Fund,
thereby paving the way for the Fund to recoup these amounts directly from the convicted
offender.” But even if these were the principal purposes of the amendments, they do not
“conflict with or contradict our interpretation of the statute.” (Estate of Earley (2009)
173 Cal. App. 4th 369, 376.) “[T]he specific impetus for a bill does not limit its scope
when its text speaks to its subject more broadly,” and “when the Legislature has made a
deliberate choice by selecting broad and unambiguous statutory language, ‘it is
unimportant that the particular application may not have been contemplated.’ ” (Khajavi
v. Feather River Anesthesia Medical Group (2000) 84 Cal. App. 4th 32, 51.) “[S]tatutory
prohibitions often go beyond the principal evil to cover reasonably comparable evils, and
it is ultimately the provisions of our laws rather than the principal concerns of our
legislators by which we are governed.” (Oncale v. Sundowner Offshore Services, Inc.
(1998) 523 U.S. 75, 79.) In short, we cannot conclude that the legislative history’s
silence on whether parents should qualify for awards of restitution for their noneconomic
18
losses negates section 1202.4’s plain text and the broad constitutional right to restitution
or means that the Legislature intended to prohibit such awards.
b. Mother is also a “victim” under section 1202.4, subdivision (k)(4).
Even if mother were ineligible for restitution for her noneconomic losses under
section 1202.4, subdivision (k)(3) because of its reference to “economic loss,” she is
nonetheless eligible for restitution based on subdivision (k)(4), which contains no similar
reference. Parents of children who are sexually abused qualify as victims under
subdivision (k)(4) so long as they sustained emotional injuries that may result in
pecuniary loss compensable from the Restitution Fund.11
Under section 1202.4, subdivision (k)(4), “victim” is defined to include “[a]
person who is eligible to receive assistance from the Restitution Fund pursuant to Chapter
5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government
Code.” In turn, Government Code section 13955 specifies that “a person shall be eligible
for compensation” from the Restitution Fund when he or she timely submits an
application, the crime has a tie to California, and several other requirements are met.
These other requirements include the following: First, “[t]he person for whom
compensation is being sought” must be “[a] victim” or “[a] derivative victim.” (Gov.
Code, § 13955, subd. (a)(1)-(2).) For purposes of the specified chapter of the
Government Code, “ ‘[v]ictim’ means an individual who sustains injury or death as a
direct result of a crime.” (Id., § 13951, subd. (g).) Second, “the injury or death was a
11
Mother’s separate qualification as a “victim” under section 1202.4,
subdivision (k)(4) became apparent in considering the supplemental briefing. The record
shows that no one in the trial court identified any specific statutory basis for mother’s
claim (except for the prosecutor’s general reference to section 1202.4, subdivision
(f)(3)(F)) because there was no need for it: Montiel conceded there was “statutory
authority” for awarding restitution for noneconomic losses, and he objected only on the
ground that there was “no sufficient factual basis for” the $70,000 award. In the interest
of not delaying the resolution of this case any further, we have elected not to ask the
parties to submit yet another round of supplemental briefing. If either party wishes to
address the application of section 1202.4, subdivision (k)(4), it may petition for
rehearing. (Gov. Code, § 68081.)
19
direct result of a crime.” (Id., § 13955, subd. (e)(1).) Third, “[a]s a direct result of the
crime, the victim or derivative victim sustained one or more of the following: [¶]
(1) Physical injury. . . . [¶] (2) Emotional injury and a threat of physical injury. [¶]
(3) Emotional injury, where the crime was a violation of . . . [¶] (a) . . . [section 288].”
(Id., § 13955, subd. (f)(1)-(3).) And fourth, “[t]he injury or death has resulted or may
result in pecuniary loss within the scope of compensation” that may be obtained from the
Restitution Fund. (Id., § 13955, subd. (g).)
Because mother is a “victim” under these provisions, we need not decide whether
she is also a “derivative victim.”12 For purposes of compensation by the Restitution
Fund, “victims” (as opposed to “derivative victims”) plainly include people, such as
mother, who were not the object of the defendant’s crime yet suffered their own injuries
as a result. As we have said, under Government Code section 13951, subdivision (g),
“ ‘[v]ictim’ means an individual who sustains injury or death as a direct result of a
crime.” In turn, Government Code section 13955 makes clear that “injury” refers to both
“physical injury” and “emotional injury,” as well as that a “derivative victim” may
12
“ ‘[D]erivative victim’ means an individual who sustains pecuniary loss as a
result of injury or death to a victim.” (Gov. Code, § 13951, subd. (c).) “If compensation
is being sought for a derivative victim,” an additional requirement applies. (Id., § 13955,
subd. (c).) Such a person must be a resident of California and be related to the victim in
one of the same five ways that are specified in section 1202.4, subdivision (k)(3), such as
by being the victim’s parent. Thus, a person who qualifies as a “victim” under
section 1202.4, subdivision (k)(3) based on having sustained economic loss and having a
particular relationship to the victim is akin to a “derivative victim” who is eligible for
compensation through the Restitution Fund.
Based on its conclusion that section 1202.4, subdivision (k)(3) “replicates the
definitional language of the state Restitution Fund,” the dissent charges us with “adopting
a reading of subdivision (k)(4) that effectively reads subdivision (k)(4) out of the statute,
as all of the persons identified in (k)(3) are ‘eligible’ for assistance from the Restitution
Fund.” But it is the dissent’s interpretation of section 1202.4, not ours, that renders
subdivision (k)(3) surplusage. A “derivative victim” under the Restitution Fund statutes
must have sustained a “pecuniary loss”—which is not defined to include noneconomic
losses—whereas a “victim” under subdivision (k)(3) must have sustained an “economic
loss”—which, as we have explained, is defined to include certain noneconomic losses.
20
sustain injury “[a]s a direct result of the crime” even though he or she was not the crime’s
object. (Gov. Code, § 13955, subd. (f)(1)-(3); see also § 1202.4, subd. (f)(4)(A) [“If, as a
result of the defendant’s conduct, the Restitution Fund has provided assistance to or on
behalf of a victim or derivative victim . . . , the amount of assistance provided shall be
presumed to be a direct result of the defendant’s criminal conduct”].) Thus, mother
sustained a qualifying injury within the meaning of these provisions—emotional injury
from a violation of section 288—as a direct result of Montiel’s crime. She therefore
satisfies the first three of the four additional requirements of eligibility as a victim under
Government Code section 13955 that we have discussed.13
The fourth and final requirement relevant to mother is that “[t]he injury or death
has resulted or may result in pecuniary loss within the scope of compensation” that may
be obtained from the Restitution Fund. (Gov. Code, § 13955, subd. (g).) The trial court
did not make a finding that mother had sustained a pecuniary loss because it was not
asked to award a specific amount in restitution for such loss, but it did order Montiel to
pay restitution for any amount ultimately found owing based on Jane and her family’s
pending claims for assistance from the Restitution Fund. Given mother’s pending claim,
we have no trouble concluding that the emotional injury she sustained “has resulted or
may result in pecuniary loss” for which she would be entitled to recovery from the
13
In challenging the conclusion that mother is a victim under the Restitution Fund
statutes, the dissent claims that “a ‘victim’ for purposes of the Restitution Fund is the
person against whom, or upon whom, the criminal act is perpetrated, and a ‘derivative
victim’ is a person who, in turn, sustains injury (physical or mental) because of the
trauma and injury inflicted upon the victim of the crime.” In our view, the dissent’s
conclusion that the term “victim” refers only to the actual object of a crime is too
constricted. The language defining a “victim” as “an individual who sustains injury or
death as a direct result of a crime” (Gov. Code, § 13951, subd. (g)) does not exclude
people, like mother, whose own physical or emotional injuries were caused by the crime
even though they were not the crime’s target.
21
Restitution Fund, such as the cost of mental health services.14 (Gov. Code, § 13955,
subd. (g), italics added; see id., § 13957, subd. (a)(2).) Thus, she qualifies as a “victim”
for purposes of section 1202.4 not only under subdivision (k)(3) but also under
subdivision (k)(4), because she is eligible for assistance from the Restitution Fund, and
the trial court was authorized to award her restitution for her noneconomic losses under
subdivision (f)(3)(F).
D. Victim Restitution to Jane and Her Mother Was Proper Even Though the
Trial Court Stayed the Sentence for the Section 288 Conviction.
Finally, Montiel argues that the trial court exceeded its authority in awarding
victim restitution based on the conviction of lewd and lascivious acts because the
sentence for that conviction was stayed. This argument is meritless because victim
restitution is a civil remedy, not punishment precluded by section 654.
Section 654 prohibits punishment “under more than one provision” for “[a]n act or
omission that is punishable in different ways by different provisions of law.” (§ 654,
subd. (a); People v. Jones (2012) 54 Cal. 4th 350, 355-356.) “[O]ur [state] Supreme
Court has established the general rule that section 654 ‘prohibits the use of a conviction
for any punitive purpose if the sentence on that conviction is stayed.’ ” (People v. Le
(2006) 136 Cal. App. 4th 925, 933, quoting People v. Pearson (1986) 42 Cal. 3d 351, 361.)
It is true that restitution fines are considered punishment and cannot be imposed
based on a conviction whose sentence has been stayed. (People v. Le, supra,
136 Cal.App.4th at p. 934; accord People v. Sencion (2012) 211 Cal. App. 4th 480, 483;
14
The dissent suggests that the record lacks sufficient documentation of the
pending Restitution Fund claims to support an award of restitution based upon them. The
claims were set forth in the probation report, however, including claim numbers. In
awarding restitution under section 1202.4, “the trial court is entitled to consider the
probation report, and, as prima facie evidence of loss, may accept a property owner’s
statement made in the probation report about the value of stolen or damaged property.”
(People v. Gemelli (2008) 161 Cal. App. 4th 1539, 1542-1543.) We think that mother’s
submission of a claim to the Restitution Fund is, at the very least, prima facie evidence
that she had or will have a pecuniary loss making her eligible for assistance from the
Fund.
22
People v. Carlson (2011) 200 Cal. App. 4th 695, 710; see People v. Hanson (2000)
23 Cal. 4th 355, 361 [restitution fines intended as punishment].) But victim restitution is
“enforceable as if the order were a civil judgment” (§ 1202.4, subd. (a)(3)(B)), and courts
have concluded in a variety of contexts that it is not punishment. (See, e.g., People v.
Pangan (2013) 213 Cal. App. 4th 574, 585 [victim restitution not criminal penalty for
purposes of right to jury trial on finding increasing sentence beyond statutory maximum];
People v. Harvest (2000) 84 Cal. App. 4th 641, 645, 650 [victim restitution not
punishment for double jeopardy purposes].) The stay pertained to Montiel’s criminal
sentence for the conviction under section 288, and we conclude that it did not affect his
civil obligation to pay victim restitution under section 1202.4.
In arguing otherwise, Montiel relies on People v. Zito (1992) 8 Cal. App. 4th 736,
which he claims “characterized [victim restitution] as punishment.” In Zito, the Sixth
District Court of Appeal addressed whether restitution under former Government Code
section 13967, which covered both victim restitution and restitution fines, was
punishment for purposes of “the rule against ex post facto legislation.” (Zito, at pp. 740-
741.) In answering in the affirmative, the court relied on authority establishing that
restitution fines are punishment, but it did not provide any analysis as to victim restitution
or otherwise distinguish between the two forms of restitution. (See id. at p. 741.) Thus,
even though Zito includes the general statement that “restitution constitutes punishment”
(ibid.), the decision does not support Montiel’s position.
III.
DISPOSITION
The matter is remanded for the indeterminate abstract of judgment to be amended
to omit reference to Montiel’s conviction under Penal Code section 288, subdivision (a),
and for a determinate abstract of judgment to be issued reflecting that conviction,
including the length of the term imposed. The clerk of the superior court shall forward
certified copies of both abstracts of judgment to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
23
_________________________
Humes, P.J.
I concur:
_________________________
Kelly, J.*
*Judge of the Superior Court of the City and County of San Francisco, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
People v. Montiel A150250
24
DISSENTING OPINION OF BANKE, J.
I join the majority on all issues except restitution for “noneconomic losses” to the
child victim’s mother (Mother).
Let me make clear at the outset that I entirely agree that if Mother has incurred
expenses for counseling or other treatment for emotional trauma due to the sexual assault
of her child, she is entitled to assistance from the state Restitution Fund as a “derivative”
victim (Gov. Code, §§ 13950, subd. (a), 13951, subd. (c), (e), 13955, subd. (a)(2), (c),
(f),15 13957, subd. (a)(2)16) and also is entitled to statutory restitution for these economic
losses as a “victim” as defined by the restitution statute (Pen. Code, § 1202.4, subd.
(k)(3)(A)).17 The majority observes there is a reference in the record to several claims for
15
Government Code section 13955, subdivisions (a)(2) and (c)(1) state in
pertinent part: “. . . . [A] person shall be eligible for compensation when all of the
following requirements are met: (a) The person for whom compensation is sought is any
of the following: [¶] . . . [¶] (2) A derivative victim. [¶] . . . [¶] (c) If compensation is
being sought for a derivative victim, the derivative victim is a resident of California, or
any other state, who is: . . . [¶] (1) At the time of the crime was the parent, grandparent,
sibling, spouse, child, or grandparent of the victim.”
16
Government Code section 13957, subdivision (a)(2) states in relevant part: “(a)
The board may grant for pecuniary loss, when the board determines it will best aid the
person seeking compensation, as follows: [¶] . . . [¶] (2) Subject to the limitations set
forth in Section 13957.2, reimburse the amount of outpatient psychiatric, psychological,
or other mental health counseling-related expenses incurred by the victim or derivative
victim, including peer counseling services provided by a rape crisis center . . . , and
including family psychiatric, psychological, or mental health counseling for the
successful treatment of the victim provided to family members of the victim in the
presence of the victim, whether or not the family member relationship existed at the time
of the crime, that became necessary as a direct result of the crime.” The statute sets forth
additional limits on assistance for “outpatient mental health counseling” expenses (Gov.
Code, § 13957, subd. (a)(2)(A) & (B)), and also allows the board to exceed these limits in
“dire or exceptional circumstances.” (Id., § 13957, subd. (a)(2)(C).)
17
Penal Code section 1202.4, subdivision (k) provides in pertinent part:
“(k) For purposes of this section, ‘victim’ shall include all of the following:
[¶] . . . [¶]
“(3) A person who has sustained economic loss as the result of a crime and who
satisfies any of the following conditions:
1
assistance having been submitted to the Restitution Fund. It acknowledges, however,
neither a copy of these claims, nor any information as to the kind and amount of
assistance they request, are in the record. A sentencing court cannot, of course, order
statutory restitution without at least some showing as to the nature and amount of loss.
(See In re Travis J. (2013) 222 Cal. App. 4th 187, 204 [no “evidence in the record”
supported claimed economic loss]; People v. Harvest (2000) 84 Cal. App. 4th 641, 653
[claim for burial expenses not supported with documentation or testimony; while
“mention” of such claim in probation report provided notice to defendant of a potential
claim, that did not “take the place of evidence”].18) In any case, since assistance from the
Restitution Fund is limited to economic losses, the claims presumably seek assistance for
such losses, which I agree are compensable losses recoverable through statutory
restitution. The issue before us, however, concerns restitution for noneconomic losses.
The majority recognizes Mother cannot receive assistance from the state
Restitution Fund for noneconomic losses. (Gov. Code, §§ 13950, subd. (a), 13957,
subd. (a).) It concludes, however, that she is entitled to restitution for such loss under the
“plain language” of the restitution statute. I do not agree the plain language secures such
“(A) At the time of the crime was the parent, grandparent, sibling, spouse, child, or
grandchild of the victim.
“(B) At the time of the crime was living in the household of the victim.
“(C) At the time of the crime was a person who had previously lived in the
household of the victim for a period of not less than two years in a relationship
substantially similar to a relationship listed in subparagraph (A).
“(D) Is another family member of the victim, including, but not limited to, the
victim’s fiancé or fiancée, and who witnessed the crime.
“(E) Is the primary caretaker of a minor victim.
“(4) A person who is eligible to receive assistance from the Restitution Fund
pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of
Title 2 of the Government Code.” (Pen. Code, § 1202.4, subd. (k)(3)(A)–(E), (4),
italics and boldface added.)
18
The majority also notes a victim’s own valuation of property set forth in a
probation report can support restitution of such economic loss. (Maj. opn., at p. 11, fn.
8.) Here, however, the probation report does not specify either the nature, or the amount,
of the loss for which assistance has been sought from the Restitution Fund.
2
entitlement. Moreover, in my view, the statutory language and legislative history of the
provisions with which we are concerned show otherwise. While the majority cites to
article I, section 28 of the California Constitution as bolstering its reading of the
restitution statute, I do not agree that its amendment through what is commonly known as
“Marsy’s Law” overturned the state’s long-standing law on restitution, and particularly
the well-established principle that restitution is generally limited to economic losses.
Thus, while I agree that our restitution statutes are to be liberally construed,19 in
my view it is telling that no case has ever considered, let alone endorsed, the majority’s
view that noneconomic loss can be relabeled as economic loss and thereby awarded as
statutory restitution. Indeed, under the majority’s construction, not just parents, but
numerous other persons with far more tangential relationships to the child victim, can
recover emotional distress damages as statutory restitution in child molestation cases—a
result that far exceeds the bounds of recovery of such noneconomic losses even in civil
suits based on sexual assault crimes. Accordingly, for reasons I now explain, I conclude
there is no basis for restitution for noneconomic loss to Mother.
Statutory Restitution
The majority implicitly acknowledges that if one looks first to the definition of
“victim” set forth in subdivision (k)(3) of section 1202.4 of the Penal Code, Mother does
not come within any of the enumerated categories, as she has not sustained “economic
loss” as that term is commonly understood and as it has been applied in restitution cases.
(Pen. Code, § 1202.4, subd. (k)(3)(A); see, e.g., People v. Lehman (2016)
247 Cal. App. 4th 795, 801–802 [discussing “economic” and “noneconomic” losses];
People v. Smith (2011) 198 Cal. App. 4th 415, 431 (Smith) [same]; People v. Fulton
(2003) 109 Cal. App. 4th 876, 883–884 (Fulton) [same].)
19
The principle of liberal construction has been articulated and developed in cases
involving differing forms of economic loss. (E.g., People v. Keichler (2005)
129 Cal. App. 4th 1039, 1046–1047 [costs incurred in traditional Hmong healing
ceremonies].)
3
The majority therefore looks to another subdivision of the statute, specifically
Penal Code section 1202.4, subdivision (f)(3), which lists, nonexclusively, categories of
losses for which a convicted offender must make restitution. (People v. Giordano (2007)
42 Cal. 4th 644, 656 (Giordano) [“[s]ince its amendment in 1996, the list of categories of
compensable loss in Penal Code section 1202.4 has been nonexclusive”].) As the
majority observes, all of the listed categories are forms of economic loss, with the
exception of Penal Code section 1202.4, subdivision (f)(3) category (F). At the time
defendant committed his offenses, category (F) required restitution for “[n]oneconomic
losses, including, but not limited to, psychological harm, for felony violations of Sections
288” (lewd or lascivious acts involving children). (Stats. 2012, ch. 873, § 1.) The
subdivision has since been amended to also expressly include violations of Penal Code
sections 288.5 (continuous sexual abuse of a child) and 288.7 (sexual acts with a child 10
years old or younger)—an amendment that “clarify[ed] existing law.” (People v. Lee
(2018) 24 Cal.App.5th 50, 60.)
The majority concludes that the “noneconomic losses” for which restitution must
be made in felony child molestation cases under category (F) are, in fact, “economic
losses” for purposes of Penal Code section 1202.4. It reaches this conclusion despite the
fact category (F) expressly uses the terminology “noneconomic losses,” and despite the
fact the courts, including the Supreme Court, have repeatedly declared category (F) is an
“exception” to the general rule that restitution is limited to “economic losses.”
(Giordano, supra, 42 Cal.4th at p. 656; see People v. McCarthy (2016) 244 Cal. App. 4th
1096, 1099 (McCarthy) [“direct victim restitution is generally limited to economic
losses”; Pen. Code, § 1202.4, subd. (f)(3)(F) “creates an exception to this general
limitation”]; Fulton, supra, 109 Cal.App.4th at p. 884, fn. 5 [Legislature “made an
express policy determination that noneconomic damages are not recoverable as
restitution,” “the sole exception” being “the Legislature’s determination that
noneconomic losses would be recoverable” in felony Penal Code section 288 cases];
Smith, supra, 198 Cal.App.4th at p. 431 [with “one exception, restitution orders are
4
limited to the victim’s economic damages”; the “exception is for ‘[n]oneconomic losses
. . . for felony violations of Section 288’ ”].)
The majority arrives at this conclusion by way of the language in Penal Code
section 1202.4, subdivision (f)(3) that precedes the nonexclusive list of losses for which
restitution must be made. This language instructs sentencing courts to order restitution
“of a dollar amount . . . sufficient to fully reimburse the victim or victims for every
determined economic loss incurred . . . including, but not limited to, all of the following”
enumerated categories. (Pen. Code, § 1202.4, subd (f)(3).) By virtue of this prefatory
language, the majority concludes “[t]he plain language of these provisions thus provides
that an economic loss includes noneconomic losses for purposes of awarding restitution
for violations––not just some violations––of the specified child sexual-abuse statutes.”20
(Maj. opn., at p. 12.)
Armed with its conclusion that the “noneconomic losses” for which restitution
must be made under Penal Code section 1202.4, subdivision (f)(3) category (F) are
actually “economic losses” for purposes of this particular statute, the majority returns to
the statutory definition of “victim” and concludes Mother is a “person who has sustained
economic loss as the result of a crime” (Pen. Code, § 1202.4, subd. (k)(3)(A))—because
she sought restitution for the “noneconomic losses” compensable under Penal Code
section 1202.4, subdivision (f)(3)(F), which according to the majority are, uniquely for
purposes of this statute, “economic losses.”
In my view, the majority has effectively rewritten the statute and excised both the
explicit “noneconomic loss” language out of Penal Code section 1202.4 subdivision
(f)(3)(F) and the explicit “economic loss” language out of the statutory definition of
“victim” in subdivision (k)(3), and in doing so, has disregarded the Legislature’s intent
20
While the majority appears to view the fact category (F) speaks in terms of
“violations” as significant and supporting its view that the “plain language” of the statute
allows not only child victims, but also parents (and other adults identified in Pen. Code,
§ 1202.4, subd. (k)(3)) to recover restitution for noneconomic losses, I fail to see how this
is so, given that the “violations” referenced by category (F) are for child molestation.
5
both in authorizing restitution for noneconomic losses in felony child molestation cases
and in expanding the statutory definition of “victim” to include numerous persons,
including parents, who have sustained economic loss.
The statutory language with which we are concerned has its genesis in former
Government Code section 13967, subdivision (c). That subdivision was enacted in 1986
“to plug the gap that remained after 1983, when . . . the Legislature attempted to comply
with the [then newly enacted] constitutional mandate that it enact legislation requiring
restitution in every criminal case.” (People v. Broussard (1993) 5 Cal. 4th 1067, 1075
(Broussard).) While the Legislature had enacted statutory provisions applicable to
offenders granted probation, it had not enacted provisions applicable to those denied
probation. Subdivision (c) of former Government Code section 13967 corrected that
oversight.21 (Broussard, at pp. 1073–1074.)
As of 1990, former Government Code section 13967, subdivision (c) provided, in
relevant part:
“In cases in which a victim has suffered economic loss as a result of the
defendant’s criminal conduct, and the defendant is denied probation, . . . the court
shall order restitution to be paid to the victim. . . . A restitution order imposed
pursuant to this subdivision shall identify all losses to which it pertains. . . . [¶]
Restitution ordered pursuant to this subdivision shall, to the extent possible, be of
a dollar amount that is sufficient to fully reimburse the victim, or victims, for all
determined economic losses incurred as the result of the defendant’s conduct.”
(Former Gov. Code, § 13967, subd. (c), Stats. 1990, ch. 45, § 2, italics added.)
Thus, by 1990, the restitution statute contained language directing sentencing
courts to fully reimburse victims for “all determined economic losses” (Stats. 1990,
21
Why the Legislature placed these provisions in the Government Code, rather
than in the Penal Code, is unclear. The restitution statute pertaining to offenders granted
probation was codified in the Penal Code (former Pen. Code, § 1203.4), as was the statute
requiring felons to pay a restitution fine (Pen. Code, § 1202.4, Stats. 1990, ch. 45, § 2).
(See Broussard, supra, 5 Cal.4th at p. 1073.) The other Government Code provisions
associated with the new legislation pertained to the state Restitution Fund (formerly
called the Victims of Crime Program). (See id., at pp. 1072–1074.)
6
ch. 45, § 2)—language nearly identical to the language the majority now states makes
“plain” that “economic loss” for purposes of Penal Code section 1202.4 “includes
noneconomic losses for purposes of awarding restitution” in felony child molestation
cases. (Maj. opn., at p. 12.) Government Code section 13967, subdivision (c), however,
contained no exemplar categories of compensable loss, let alone, a category of
“noneconomic loss.” Nor did the statute contain, at this juncture, any definition of
“victim.”22
The following year, in 1991, the Legislature amended former Government Code
section 13967, subdivision (c) to read as follows:
“In cases in which a victim has suffered economic loss as a result of the
defendant’s criminal conduct, and the defendant is denied probation, . . . the court
shall order restitution to be paid to the victim. If a defendant has been convicted of
a felony violation of Section 288 of the Penal Code, restitution to the victim may
be ordered whether or not the defendant is denied probation. Notwithstanding
subdivision (a) [pertaining to a restitution fine], restitution shall be imposed in the
amount of the losses, as determined. . . . A restitution order imposed pursuant to
this subdivision shall identify the losses to which it pertains. . . . [¶] Restitution
ordered pursuant to this subdivision shall, to the extent possible, be of a dollar
amount that is sufficient to fully reimburse the victim, or victims, for all
determined economic losses incurred as the result of the defendant’s conduct. If
the conviction is for felony violation of Section 288 of the Penal Code, the court
may also order that the restitution be paid to the victim to cover noneconomic
losses, including, but not limited to, psychological harm.” (Former Gov. Code,
§ 13967, subd. (c), Stats. 1991, ch. 657, § 1, italics added.)
Thus, it was at this point, that the authorization for restitution of “noneconomic
losses” in felony child molestation cases was added to the restitution statute applicable to
offenders denied probation. As a result, the statute now contained language directing
sentencing courts to fully reimburse victims for “all determined economic losses” and
language authorizing restitution for “noneconomic losses” in felony child molestation
22
“Victim” was defined in the statute requiring restitution by offenders granted
probation, as follows: “For purposes of this section, ‘victim’ shall include the immediate
surviving family of the actual victim in homicide cases.” (Former Pen. Code, §1203.04,
subd. (a)(1), Stats. 1990, ch. 45, § 5.)
7
cases. The Legislature clearly did not equate the two—as the directive to order
restitution for “all determined economic losses” and the authorization to also order
restitution for “noneconomic losses” in felony child molestation cases, were set forth in
two separate sentences. Rather, what seems plain to me is that the Legislature employed
the terms “economic losses” and “noneconomic losses” in accordance with their usual
and customary meaning.
The statute still remained without a definition of the term “victim.” (Stats. 1991,
ch. 657, § 1.) However, as the Supreme Court discussed in People v. Birkett (1999)
21 Cal. 4th 226 (Birkett), by this time, the term had a well-established meaning in the
restitution context—“ ‘[a] “victim” is a “person who is the object of a crime.” ’ ” (Id. at
p. 232, quoting People v. Crow (1993) 6 Cal. 4th 952, 957.)
Given this legal landscape, the legislative history of the new provision authorizing
restitution for “noneconomic losses” in felony child molestation cases is highly
informative as to the Legislature’s intent in adding this singular exception to the general
rule that restitution is limited to economic losses. (See People v. Scott (2014) 58 Cal. 4th
1415, 1424 [“Legislature ‘ “is deemed to be aware of statutes and judicial decisions
already in existence, and to have enacted or amended a statute in light thereof.” ’ ”].)
The legislation, Senate Bill No. 736 (1991–1992 Reg. Sess.), started out as an
effort to parlay the holding in J.C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal. 3d
1009 (J.C. Penney), into a statutory requirement that courts take judicial notice of felony
convictions and use such a conviction to establish a “presumption” that the offender acted
“ ‘intentionally,’ ” thereby foreclosing coverage under any general liability insurance
policy insuring the wrongdoer. (Sen. Bill No. 736 (1991–1992 Reg. Sess.) as introduced
Mar. 6, 1991; Sen. Com. on Judiciary Rep., com. on Sen. Bill No. 736 (1991–1992 Reg.
Sess.) May 7, 1991, pp. 2–3.) J.C. Penney dealt specifically with a felony Penal Code
section 288 conviction and foreclosed the use of liability insurance proceeds as
compensation, holding that “insurers are not required to indemnify their insureds for
damages caused by an insured’s sexual molestation of a child.” (J.C. Penney, at p. 1014.)
The proponents of the legislation claimed the courts were repeatedly having to try the
8
issue of “intentional” wrong in civil cases in which crime victims sought to recover
damages from offenders. (Sen. Com. on Judiciary Rep., com. on Sen. Bill No. 736
(1991–1992 Reg. Sess.) May 7, 19991, pp. 2–3.)
After concerns were raised about the legality of mandating such “presumptions,”
the legislation was retooled to focus on providing the minor child victims of molesters
with additional sources of compensation. The Senate Committee on Judiciary Report
explained: “In lieu of making insurance benefits available to victims of an insured’s
criminal conduct, proponents instead propose several other ideas to compensate the
victim for the injuries.” (Sen. Com. on Judiciary Rep., com. on Sen. Bill No. 736 (1991–
1992 Reg. Sess.), May 21, 1991, p. 4, italics added.) These were: (1) “[i]nvading the
homestead exemption of the defendant”; (2) “[i]ncreasing State assistance to child victims
of sexual abuse”; and (3) “[i]ncreasing restitution payments to the child molestation
victim to also cover psychological damages and noneconomic losses.” (Id., at pp. 4–5,
italics added, underscoring omitted.)
Thereafter, the amended legislation focused on two means of providing
compensation to the child victims of these crimes––increasing state Restitution Fund
assistance to the “child victim of sexual assault” and empowering sentencing courts “to
require the convicted defendant in a child molestation case to pay restitution to the victim
which would cover non-economic losses, including psychological harm.” (Sen. Rules
Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 736 (1991–1992
Reg. Sess.), May 30, 1991, pp. 1–2, italics added; see Board of Control, analysis of Sen.
Bill No. 736 (1991–1992 Reg. Sess.) as amended May 30, 1991, p. 1 [bill “would
increase the maximum Victim of Crime Program [] reimbursement to minor victims of
sexual assault,” and “would also provide that a court may order a convicted child
molester to pay restitution, including compensation for noneconomic losses, to the
victim,” italics added]; Assem. Ways and Means Com., analysis of Sen. Bill No. 736
(1991–1992 Reg. Sess.) as amended Aug. 20, 1991, p. 1 [“bill would increase the
maximum award from the Board of Control’s Victims of Crimes program . . . for
uncompensated costs . . . for minors who are victims of sexual assault,” italics added];
9
Assem. Ways and Means Com., Republican Caucus analysis of Sen. Bill No. 736 (1991–
1992 Reg. Sess.) Aug. 21, 1991, p. 1 [“The purpose of this bill is to increase
compensation to child victims of sexual assault from Board of Control by ordering
increased restitution payments by the defendant.”].)
The enrolled bill report prepared by the Office of Criminal Justice Planning thus
summarized the features of the bill, in pertinent part, as follows: “Child victims of sexual
assault would be positively impacted by allowing them to receive compensation for
damages not currently covered. . . . [The bill] would raise the amount of state assistance
in paying for ongoing treatment. . . . Finally, the court would be allowed to order
restitution to the victim for not only pecuniary losses, but also for non-economic losses
This bill could possibly assist the child victim of sexual assault by opening a variety of
avenues of compensation for damages, both economic and non-economic.” (Off.
Criminal Justice Planning, Enrolled Bill Rep., Sen. Bill No. 736 (1991–1992 Reg. Sess.)
as amended Aug. 28, 1991, pp. 1–2, italics added.)
The amended bill also increased the dollar amount of assistance the state
Restitution Fund could provide to persons eligible to receive assistance from the Fund.
(Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 736
(1991–1992 Reg. Sess.), May 30, 1991, p. 1.) The Restitution Fund, as pointed out,
provides assistance to both direct and “derivative” victims (Gov. Code, §§ 13951,
subd. (c), 13955, subd. (a)(1) & (2)) for specified economic losses. (Gov. Code,
§§ 13950, subd. (a), 13951, subd. (e), 13957, subd. (a).) The enrolled bill report prepared
by the Office of Criminal Justice Planning thus explained the legislation additionally
“would raise the amount of state assistance in paying for ongoing treatment. This is
significant in that it allows for the victim and their family to receive the kind of extensive
ongoing therapy often times required in the recovery process of this particular
victimization.” (Off. of Criminal Justice Planning, Enrolled Bill Rep., Sen. Bill No. 736
(1991–1992 Reg. Sess.) as amended Aug. 28, 1991, pp. 1–2, italics added.)
Thus, it seems apparent from the legislative history, particularly given the well-
established meaning of the term “victim” in the case law, that the Legislature’s
10
authorization for statutory restitution for “noneconomic losses” in felony child
molestation cases was intended to provide recompense to the persons who are the objects
of such crimes––the child victims.23 (See Birkett, supra, 21 Cal.4th at p. 232.)
There is no suggestion in either the statutory language as enacted, or in the
legislative history, that persons other than the child victim could recover restitution for
such “noneconomic losses.” Rather, it seems clear the Legislature contemplated that
persons other than the child victim, such as the victim’s family, would benefit from other
provisions of the legislation that increased the levels of state Restitution Fund assistance
for economic losses, such as the expenses of counseling or on-going therapy.
The next relevant amendments to former Government Code section 13967,
subdivision (c), occurred in 1994. At this point, Government Code section 13967,
subdivision (c) was eliminated, and former section 13967 was reduced to a single
paragraph pertaining solely to the state Restitution Fund. (Stats. 1994, ch. 1106, § 2.)
The substance of Government Code section 13967, subdivision (c) was moved into Penal
Code section 1202.4, which, until this juncture, pertained to restitution fines and also
allowed restitution to be stayed when imposed as a condition of probation (former Pen.
Code, § 1202.4, Stats. 1990, ch. 45, § 4). (See Stats. 1994, ch. 1106, § 3; State and
Consumer Services Agency Enrolled Bill Rep., Assem. Bill No. 3169 (1993–1994 Reg.
Sess.) p. 1 [“bill would move the provisions for imposition of restitution fines and
restitution orders from the Government Code to the Penal Code”].)
With respect to restitution, Penal Code section 1202.4 now provided in pertinent
part:
23
In People v. Martinez, the Court of Appeal discussed the legislative history of
the 1991 amendments to former Government Code section 13976, subdivision (c) in
some detail, concluding restitution for “noneconomic losses” was not limited to felony
“section 288” cases, as it showed the Legislature’s intent was to authorize such restitution
to “child molest victims” in “ ‘child molestation’ ” cases, which include Penal Code
section 288.5 and 288.7 cases. (People v. Martinez (2017) 8 Cal.App.5th 298, 306–307.)
11
“(f) In every case in which a victim has suffered economic loss as a result of the
defendant’s conduct, and the defendant is denied probation, . . . the court shall
require that the defendant make restitution to the victim or victims. . . .
“(g) Restitution ordered pursuant to subdivision (f) shall be imposed in the
amount of the losses, as determined. . . . Restitution shall, to the extent possible,
be of a dollar amount that is sufficient to fully reimburse the victim or victims, for
every determined economic loss incurred as the result of the defendant’s criminal
conduct, including all of the following:
(1) Full or partial payment for the value of stolen or damaged property.
The value . . . shall be the replacement cost of like property, or the actual
cost of repairing the property when repair is possible.
(2) Medical expenses.
(3) Wages or profits lost due to injury incurred by the victim, and if the
victim is a minor, wages or profits lost by the minor’s parent, parents,
guardian, or guardians, while caring for the injured minor.
(4) Wages or profits lost by the victim, and if the victim is a minor, wages
or profits lost by the minor’s parent, parents, guardian, or guardians due to
time spent as a witness or in assisting the police or prosecution. [¶] . . . [¶]
“(i) If the conviction is for felony violation of Section 288, restitution may be
ordered pursuant to subdivision (f) regardless of whether or not the defendant is
denied probation and the court may order that the restitution be paid to the victim
to cover noneconomic losses, including, but not limited to, psychological harm.
[¶] . . . [¶]
“(k) For purposes of this section, ‘victim’ shall include the immediate surviving
family of the actual victim. [¶] . . . [¶]
“(p) Nothing in this section shall prevent a court from ordering restitution to any
corporation, business trust, estate, trust, partnership, association, joint venture,
government, governmental subdivision, agency, or instrumentality, or any other
legal or commercial entity when that entity is a direct victim of a crime.” (Stats.
1994, ch. 1106, § 3, italics added.)
Thus, like former Government Code section 13967, subdivision (c), Penal Code
section 1202.4 now contained language directing sentencing courts to fully reimburse
victims for their “determined economic loss[es],” with the additional proviso, “including
all of the following” preceding four newly enumerated categories of loss. (See State and
Consumer Services Agency Enrolled Bill Rep., Assem. Bill No. 3169 (1993–1994 Reg.
12
Sess.) p. 2 [“bill would clarify types of losses to be reimbursed by direct restitution”].)
And, like former Government Code section 13967, subdivision (c), Penal Code section
1202.4 now contained language authorizing restitution for “noneconomic losses” in
felony child molestation cases. As in former Government Code section 13967,
subdivision (c), it is also apparent the Legislature, in Penal Code section 1202.4, did not
conflate the “economic losses” for which restitution was required in all cases and the
“noneconomic losses” for which restitution could also be required in felony child
molestation cases. On the contrary, the directive that sentencing courts order restitution
for all “economic losses,” and the authority to also order restitution for “noneconomic
losses” in felony child molestation cases, were placed in different subdivisions.
Accordingly, in my view, the plain language of the statute continued to reflect that the
Legislature employed the terms “economic losses” and “noneconomic losses” in
accordance with their usual and customary meaning.
One additional subdivision in the newly expanded statute is also pertinent to the
issue before us. New Penal Code section 1202.4, subdivision (k) defined “victim” as
follows: “For purposes of this section, ‘victim’ shall include the immediate surviving
family of the actual victim.” (Stats. 1994, ch. 1106, § 3.) This reflects that the
Legislature understood that, without further definitional language, the term “victim” had
the meaning developed in the case law, i.e., the person who was the object of the crime.
(See Birkett, supra, 21 Cal.4th at pp. 232–233, 236–243 [canvassing history of term
“victim” in case law and restitution statutes].) It further reflects that by including
“immediate surviving family” as “victims,” the Legislature aligned this restitutionary
statute with the statute requiring restitution by offenders granted probation (former Pen.
Code, § 1203.04, subd. (a)(1), Stats. 1990, ch. 45, § 5).
The Legislature made no further changes to the statutory provisions with which we
are concerned until 1996. As then amended by Senate Bill No. 1685 (1995–1996 Reg.
Sess.), Penal Code section 1202.4 provided in pertinent part:
“(f) In every case in which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant make restitution to
13
the victim or victims in an amount established by court order, based on the amount
of loss claimed by the victim or victims or any other showing to the court. . . . The
court shall order full restitution unless it finds compelling and extraordinary
reasons for not doing so. . . . [¶] . . . [¶]
(3) To the extent possible, the restitution order shall be prepared by the
sentencing court, shall identify each victim and each loss to which it pertains, and
shall be of a dollar amount that is sufficient to fully reimburse the victim or
victims for every determined economic loss incurred as the result of the
defendant’s criminal conduct, including, but not limited to the following:
(A) Full or partial payment for the value of stolen or damaged property.
The value . . . shall be the replacement cost of like property, or the actual
cost of repairing the property when repair is possible.
(B) Medical expenses.
(C) Wages or profits lost due to injury incurred by the victim, and if the
victim is a minor, wages or profits lost by the minor’s parent, parents,
guardian, or guardians, while caring for the injured minor.
(D) Wages or profits lost by the victim, and if the victim is a minor, wages
or profits lost by the minor’s parent, parents, guardian, or guardians, due to
time spent as a witness or in assisting the police or prosecution.
(E) Noneconomic losses, including, but not limited to, psychological harm,
for felony violations of Section 288.
(F) Interest, at the rate of 10 percent per annum, that accrues as of the date
of sentencing or loss, as determined by the court.
(G) Actual and reasonable attorney’s fees and other costs of collection
accrued by a private entity on behalf of the victim.
“(g) The court shall order full restitution unless it finds compelling and
extraordinary reasons for not doing so, and states those reasons on the record. A
defendant’s inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution order, nor shall inability to pay be a
consideration in determining the amount of a restitution order. [¶] . . . [¶]
“(k) For purposes of this section, ‘victim’ shall include the immediate surviving
family of the actual victim. ‘Victim’ shall also include any corporation, business
trust, estate, trust, partnership, association, joint venture, government,
governmental subdivision, agency, or instrumentality, or any other legal or
commercial entity when that entity is a direct victim of a crime.” (Stats. 1996,
ch. 629, § 3, italics added.)
Thus, it was at this point, that the authorization for restitution for “noneconomic
losses” in felony child molestation cases moved from a separate subdivision into the list
of exemplar compensable losses.
14
In my view, it too greatly strains the Legislature’s efforts to streamline this statute
to say, as the majority does, that despite continuing to use the same language it had used
in all preceding versions of the statute, and despite continuing to use the express
terminology “noneconomic losses” in connection with felony child molestation cases, the
Legislature suddenly redefined these “noneconomic losses” as “economic losses” for
purposes of this particular statute, and did so, moreover, without any language that
actually says the “noneconomic losses” compensable in felony child molestation cases
are, for purposes of this particular statute, “economic losses.”
Given the history of these statutory provisions, as well as the legislative history of
Senate Bill No. 1685 (1995–1996 Reg. Sess.) specifically, it seems far more plausible to
me that the Legislature folded the authorization for restitution for “noneconomic losses”
in felony child molestation cases (that had previously been set forth in Pen. Code,
§ 1202.4, subd. (i)) into the growing list of compensable losses (that had previously been
set forth in subdivision (g) and now appeared in new Pen. Code, § 1202.4, subd. (f)(3)),
for the same reason it consolidated the two formerly separate provisions pertaining to the
definition of “victim” (that had appeared in Pen. Code, § 1202.4, subds. (k) & (p))—
namely, in an effort to tighten the statute.
Nothing in the legislative history of Senate Bill No. 1685 (1995–1996 Reg. Sess.)
supports the view that in creating a new subdivision to contain the ever burgeoning list of
compensable losses and moving the authorization for restitution of “noneconomic losses”
in felony child molestation cases from a separate subdivision into that list, the
Legislature, despite retaining the express terminology “economic loss” and
“noneconomic loss,” intended to redefine these “noneconomic losses” as “economic
losses” for purposes of this particular statute. Yet, this is the lynchpin of the majority’s
assertion that the “plain language” of the statute “provides that an economic loss includes
noneconomic losses” in felony child molestation cases. (Maj. opn., at p. 12.)
The list of categories of compensable economic losses previously set forth in
Penal Code section 1202.4, subdivision (g), was not moved into a new subdivision (Pen.
Code. § 1202.4, subd. (f)(3)) until the third round of amendments to the legislation. At
15
the same time, two new categories of compensable loss were added—“[i]nterest . . . that
accrues as of the date of sentencing or loss, as determined by the court” (designated at
that point as new category (F)) and “[a]ctual and reasonable attorney’s fees and other
costs of collection” (designated at that point as new category (G)). These two new
additional categories of compensable loss were pointed out in floor analyses and
committee reports. (E.g., Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Sen. Bill No. 1685 (1995–1996 Reg. Sess.) as amended May 7, 1996, p. 3
[“[i]nterest on economic losses is also added to the list of items to be included in
determining restitution”]; Assem. Com. on Public Safety Rep., bill analysis on Sen. Bill
No. 1685 (1995–1996 Reg. Sess.) July 2, 1996, p. 4 [“[t]his bill adds various provisions
relative to the imposition of restitution orders, including the following: specify that a
restitution order is to include 10% interest to accrue per annum, attorney’s fees and other
costs relating to the collection of restitution obligations”].)
The authorization for restitution of “noneconomic losses” in felony child
molestation cases previously set forth in Penal Code section 1202.4, subdivision (i), was
not folded into the expanded list of compensable losses until the fourth, and next to last,
round of amendments to the legislation. (Sen. Bill No. 1685 (1995–1996 Reg. Sess.) as
amended June 27, 1996.) Floor analyses and committee reports continued to refer only to
the new categories of loss, namely interest, and attorney fees and costs incurred in
collecting restitution. (E.g., Sen. Rules Com. Rep. on Unfinished Business, Sen. Bill. No.
1685 (1995–1996 Reg. Sess.) Aug. 5, 1996, p. 3. [“bill requires that courts impose a
specific dollar amount of restitution . . . and the courts may include interest, attorney’s
fees and costs”]; Assem. Com. on Public Safety Rep., bill analysis on Sen. Bill No. 1685
(1995–1996 Reg. Sess.) Aug. 5, 1996, p. 1 [“[d]efines ‘losses’ for purposes of a
restitution order as including interest at the rate of 10% per annum that accrues as of the
date of sentencing or loss, as determined by the court, and attorney’s fees and other costs
of collection accrued by a private entity on behalf of the victim”].) No mention, in any
floor analysis or committee report, was made of the relocation of the language
authorizing restitution expressly for “noneconomic losses” in felony child molestation
16
cases, into the expanded list of compensable losses now set forth in newly created Penal
Code section 1202.4 subdivision (f)(3).24
The only mention of the elimination of former Penal Code section 1202.4,
subdivision (i) appears in a memo prepared for the bill’s author by staff of staff
suggestions of “possible” additional amendments “to clarify the intent of the Legislature
and to remove redundancy and unnecessary language.” (Jim Ho, memo to Quentin Kopp,
author of Sen. Bill No. 1685 (1995–1996 Reg. Sess.) June 14, 1996, pp. 2–3.) These staff
suggestions also included combining former Penal Code section 1202.4, subdivision (k)
and former subdivision (p) into a single subdivision defining “victim.” (Ibid.) Both the
relocation of the “noneconomic loss” provisions of former Penal Code section 1202.4
subdivision (i) into new subdivision (f)(3)(E), and the relocation of the “victim”
provisions of former subdivision (p) into subdivision (k), occurred shortly after the date
of this staff memo. (Sen. Bill No. 1685 (1995–1996 Reg. Sess.) as amended June 27,
1996.) There is not the faintest indication that the reshuffling and consolidation of the
statutory language that temporally followed this memo wrought the profound substantive
change in the meaning of this statutory language, that the majority claims, and did so,
24
In McCarthy, supra, 244 Cal.App.4th at pp. 1106–1107, the Court of Appeal
observed that when the Legislature moved the substance of former Penal Code section
1202.4, subdivision (i) into new subdivision (f)(3), it changed the wording somewhat and
eliminated the word “ ‘conviction’ ” and, instead, used the term “ ‘violations’ ” of section
288. The court found “no explanation for this specific change” in the legislative history.
(McCarthy, at p. 1107.) However, applying rules of statutory construction, the court
concluded the change from “conviction” to “violation” must have had some significance,
and posited it reflected an intent “to remove any requirement that defendants actually be
convicted of a charge under section 288 before restitution for noneconomic losses could
be awarded.” (Ibid.) The court therefore concluded that restitution for “noneconomic
losses” was also allowable where the defendant, although convicted of a felony child
molestation offense under another statute, engaged in conduct that also violated Penal
Code section 288. (McCarthy, at pp. 1099, 1108–1109.) As noted above, the Court of
Appeal in People v. Martinez, supra, 8 Cal.App.5th at pp. 306–307, reached the same
conclusion, but did so by examining the legislative history of the 1991 legislation that
first added the language authorizing restitution of “noneconomic losses” in felony child
molestation cases.
17
moreover, without so much as a passing reference in any floor analysis or committee
report.
The Legislature continued to amend Penal Code section 1202.4, but only
amendments in 1999 and 2004 are germane to the issue before us.
The 1999 amendments, among other things, further expanded the nonexclusive list
of categories of compensable losses set forth in Penal Code section 1202.4, subdivision
(f)(3). With this amendment, the authorization for restitution of “noneconomic losses” in
felony child molestation cases appeared as category (F), rather than as category (E),
because “[m]ental health counseling expenses” was added as a new category of
compensable loss. (Stats. 1999, ch. 584, § 4.)
The more significant 1999 amendment, for our purposes, was the expansion of the
definition of “victim” in Penal Code section 1202.4, subdivision (k) to include
“derivative” victims, as defined for purposes of the state Restitution Fund, so that the
subdivision read as follows:
“(k) For purposes of this section, ‘victim’ shall include all of the following:
“(1) The immediate surviving family of the actual victim.
“(2) Any corporation, business trust, estate, trust, partnership, association, joint
venture, government, governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity when that entity is a direct victim of a crime.
“(3) ‘Derivative victims’ as defined in Section 13960 of the Government Code.”
(Stats. 1999, ch. 584, § 4, italics added.)
Since the state Restitution Fund provides assistance solely for economic loss (Gov.
Code, § 13950, subd. (a)), the Legislature, by expressly incorporating this Restitution
Fund definition, added a category of individuals sustaining economic loss. (Id., § 13951,
subd. (c) [“ ‘Derivative victim’ means an individual who sustains pecuniary loss as a
result of injury or death to a victim.”].)25
“Derivative victim” was further defined for purposes of the state Restitution
25
Fund as follows:
“(2) ‘Derivative victim’ means a resident of California who is one of the
following:
18
In 2004, the Legislature made this even more explicit by further amending the
definition of “victim” in Penal Code section 1202.4, subdivision (k)(3) to read as follows
and as it does in pertinent part today:
“(k) For purposes of this section, ‘victim’ shall include all of the following:
“(1) The immediate surviving family of the actual victim.
“(2) Any corporation, business trust, estate, trust, partnership, association, joint
venture, government, governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity when that entity is a direct victim of a crime.
“(3) Any person who has sustained economic loss as the result of a crime and
who satisfies any of the following conditions:
“(A) At the time of the crime was the parent, grandparent, sibling, spouse, child,
or grandchild of the victim.
“(B) At the time of the crime was living in the household of the victim.
“(C) At the time of the crime was a person who had previously lived in the
household of the victim for a period of not less than two years in a relationship
substantially similar to a relationship listed in subparagraph (A).
“(D) Is another family member of the victim, including, but not limited to, the
victim’s fiancé or fiancée, and who witnessed the crime.
“(E) Is the primary caretaker of a minor victim.
“(4) Any person who is eligible to receive assistance from the Restitution Fund
pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of
Title 2 of the Government Code.” (Former Pen. Code, § 1202.4, subd. (k)(1)–(4),
Stats. 2004, ch. 223, § 2, italics added; see Pen. Code, § 1202.4, subd. (k)(1)–(4).)
The language added to Penal Code section 1202.4, subdivision (k)(3) could not, in
my view, be any plainer. Subdivision (k) states that it defines victim “[f]or purposes of
“(A) At the time of the crime was the parent, sibling, spouse, or child of the
victim.
“(B) At the time of the crime was living in the household of the victim.
“(C) A person who had previously lived in the household of the victim for a
period of not less than two years in a relationship substantially similar to a
relationship listed in subparagraph (A).
“(D) Is another family member of the victim, including the victim’s fiancé, and
witnessed the crime.
“(E) Is the primary caretaker of a minor victim, but was not the primary caretaker
at the time of the crime.” (Former Gov. Code, § 13960, subd. (a)(2)(A)–(e), Stats.
1998, ch. 697, § 1; see Gov. Code, § 13955, subd. (c)).)
19
this section.”26 (Pen. Code, § 1202.4, subd. (k).) Penal Code section 1202.4, subdivision
(k)(3), in turn, expressly limits the five categories of persons it embraces to persons who
have “sustained economic loss as the result of a crime.” (Italics added.) Indeed, in
replacing the general reference to “derivative victims” with these five enumerated
categories of persons, the Legislature replicated in the restitution statute the state
Restitution Fund’s more specific definition of “derivative victims.” (See ante, fn. 10; see
also Gov. Code, § 13955, subd. (c).) The Legislature thus aligned the victim definitional
provisions of Penal Code section 1202.4, subdivision (k)(3) with the “derivative victim”
definitional provisions of the state Restitution Fund.
The legislative history makes this abundantly clear. The legislation was sponsored
by the state Restitution Fund (Sen. Appropriations Comm. Fiscal summary, Sen. Bill No.
631, as amended Apr. 30, 2003, p. 1), and its purpose was “to recoup more restitution for
the Restitution Fund.” (Sen. Com. on Public Safety, Sen. Bill No. 631 (2003–2004 Reg.
Sess.) as amended Apr. 30, 2003, p. 1; see, e.g., Sen. Rules Com., Off. of Sen. Floor
Analysis, 3d reading of Sen. Bill No. 631 (2003–2004 Reg. Sess.) as amended Apr. 30,
2003, p. 1 [bill makes a number of changes to Penal Code “in order to recoup more
restitution fines for the Restitution Fund”]; Assem. Com. on Public Safety, Sen. Bill No.
631 (2003–2004 Reg. Sess.) July 1, 2008, as amended Apr. 30, 2003, p. 1 [bill makes
“various changes” to Penal Code “in order to recoup more restitution fines and increase
26
Thus, I find the majority’s criticism of “rely[ing]” on this “subsequent” subdivision
(maj. opn., at p. 13) baffling. That the Legislature placed the definition of “victim” for
purposes of the statute in Penal Code section 1202.4, subdivision (k), rather than in a
subdivision preceding the list of compensable losses set forth in subdivision (f)(3), cannot
mean, as the majority seems to suggest, that one should not look first at this express
definition in determining whether a person is a “victim” for purposes of statutory
restitution. (See, e.g., People v. Runyan (2012) 54 Cal. 4th 849, 864 (Runyan) [Penal
Code “[s]ection 1202.4 limits eligibility for mandatory restitution to carefully defined
crime ‘victims’ (id., subd. (k),” and looking to the definition to conclude estate of
deceased victim is not a “victim” for purposes of statutory restitution]; Giordano, supra,
42 Cal.4th at pp. 656–657 [looking to definition to conclude decedent’s wife was a
“victim” for purposes of statutory restitution].)
20
revenue to the Restitution Fund”]; Assem. Com. on Appropriations, Sen. Bill No. 631
(2003–2004 Reg. Sess.) Aug. 20, 2003, as amended Aug. 18, 2003 [same].)
Committee reports explained the Fund was suffering a severe “structural
imbalance” from increased assistance to crime victims, resulting in a dire need for
additional resources. The bill was, thus, intended to “strengthen the Board’s ability to
collect revenue” and would “make clarifying and technical changes to existing law” to
achieve that end. (Sen. Com. on Public Safety, Sen. Bill No. 631 (2003–2004 Reg. Sess.)
as amended Apr. 30, 2003, p. 4; see, e.g., Sen. Rules Com., Off. of Sen. Floor Analysis,
3d reading of Sen. Bill No. 631 (2003–2004 Reg. Sess.) as amended Apr. 30, 2003, p. 5
[“bill will strengthen the Board’s ability to collect revenue and make clarifying and
technical changes to existing law”]; Assem. Com. on Public Safety, Sen. Bill No. 631
(2003–2004 Reg. Sess.) as amended Apr. 30, 2003, pp. 4–9 [same and chronicling
legislation expanding Restitution Fund’s authority to reimburse victims, including
expanding the definition of “derivative” victim, and expanding reimbursement of
pecuniary losses suffered by sexual assault victims].)
Notably, the legislative history repeatedly described the “[e]xisting law”
pertaining to the definition of “victim” by summarizing and citing the Government Code
provisions pertaining to the state Restitution Fund. (E.g., Sen. Com. on Public Safety,
Sen. Bill No. 631 (2003–2004 Reg. Sess.) May 6, 2003, as amended Apr. 30, 2003, p.
2;27 Sen. Rules Com., Off. of Sen. Floor Analysis, 3d reading of Sen. Bill No. 631 (2003–
27
For example, the Senate Committee on Public Safety stated: “Existing law
provides for the reimbursement of victims—both direct victims and specified derivative
victims—of specified types of crimes for specified types of expenses with limits on those
expenses (both dollar amounts and time limits on treatment). Included are expenses for
outpatient psychiatric, psychological, or other mental health counseling related expenses
that became necessary as a direct result of the crime. These counseling services may only
be reimbursed if provided by specified individuals. Payments may also be made to
private nonprofit agencies and for rape crisis center peer counseling. (Government Code
§ 13957.) [¶] Existing law states that ‘derivative victim’ means an individual who
sustains pecuniary loss as a result of injury or death to a victim. (Government Code
§ 13951(c).) [¶] Existing law provides that if compensation is being sought for a
derivative victim, the derivative victim is a resident of California, or resident of another
21
2004 Reg. Sess.) as amended Apr. 30, 2003, pp. 2–3; Assem. Com. on Public Safety,
Sen. Bill No. 631 (2003–2004 Reg. Sess.) as amended Apr. 30, 2003, p. 3.)
The expansion of Penal Code section 1202.4, subdivision (k)(3) so that it
replicates the definitional language of the state Restitution Fund was, thus, designed to do
one thing—to ensure that the courts could order statutory restitution to any person who
received assistance from the Fund, thereby paving the way for the Fund to recoup these
amounts directly from the convicted offender. (E.g., Dept. of Finance Bill Analysis, Sen.
Bill No. 631 (2003–2004 Reg. Sess.) as amended Mar. 30, 2004, p. 1 [bill would “Clarify
that victims, including ‘derivative victims’ who are eligible for compensation from the
Board are also entitled to specified criminal restitution orders”].) The Legislative
Counsel thus explained the purpose of the amendments to Penal Code section 1202.4,
subdivision (k) as follows: “This bill would delete the language that adds ‘derivative
victims’ to the definition of ‘victims’ for purposes of adult restitution fines and orders,
and instead add specified persons who have sustained economic loss as the result of a
crime, and persons eligible for awards to victims of crime to those deemed ‘victims’ for
these purposes.” (Stats. 2004, ch. 223, Dig., subd. (4), italics added.)
Because the Restitution Fund is authorized to provide assistance only for
economic loss, the only crime victims through which the Fund can recoup reimbursement
from convicted offenders, are victims who have sustained economic loss. It therefore
makes abundant sense that the expanded victim definitional provisions added to Penal
Code section 1202.4, subdivision (k)(3) at the behest of the Restitution Fund—to enhance
the Fund’s ability to obtain reimbursement—focus on, and are limited to, enumerated
persons who have suffered economic loss.
Neither the statutory language nor the legislative history remotely suggests that,
despite explicitly stating Penal Code section 1202.4, subdivision (k)(3) is limited, as a
state, who is any of the following: (1) At the time of the crime was the parent,
grandparent, sibling, child, or grandchild of the victim . . . . (Government Code,
§ 13955(c).)” (Sen. Com. on Public Safety, Sen. Bill No. 631 (2003–2004 Reg. Sess.)
May 6, 2003, as amended Apr. 30, 2003, p. 2.)
22
threshold matter, to a “person who has sustained economic loss,” the Legislature actually
meant “a person who has sustained either economic loss or has sustained ‘noneconomic
loss’ in a case where the defendant has committed felony child molestation”—as the
majority reads the statute. The Legislature, of course, could have included such language
in Penal Code section 1202.4, subdivision (k)(3), since the authorization for restitution
for “noneconomic losses” in felony child molestation cases had, by then, been part of
section 1202.4 for more than a decade. The Legislature did not, however, include such
language. Nor is that surprising, given the Legislature’s purpose in amending the
subdivision—to ensure that the Restitution Fund has the ability to recoup through
statutory restitution, assistance it provides to crime victims for economic losses.
The majority does not disagree that in amending Penal Code section 1202.4,
subdivision (k)(3) the Legislature replicated the Restitution Fund’s definition of
“derivative victim.” Nor does it disagree that the Legislature’s stated purpose in doing so
was to ensure that the Restitution Fund can recoup directly from convicted offenders the
assistance it provides victims for economic losses. The majority asserts, however, that
while this may have been the “ ‘specific impetus’ ” for the legislation, that intent is
“ ‘ “unimportant” ’ ” given what it views as “ ‘broad and unambiguous statutory
language’ ” authorizing Mother to recover restitution for noneconomic losses. (Maj.
opn., at p. 17.) Thus, the majority states, it “cannot conclude that the legislative history’s
silence on whether parents should qualify for awards of restitution for their noneconomic
losses negates [Penal Code] section 1202.4’s plain text and the broad constitutional right
to restitution or means that the Legislature intended to prohibit such awards.” (Maj. opn.,
at p. 18.)
In my view, the “plain” text of the statute says no such thing. Nor, in my view, is
the legislative history silent. Rather, the legislative history seems quite clear—and shows
that the Legislature authorized restitution for noneconomic losses in felony child
molestation cases to afford child victims an additional avenue (besides a civil suit) to
obtain redress for their emotional distress damages, and has addressed the emotional
needs of other family members through expanded assistance from the state Restitution
23
Fund and correlative expansion of statutory restitution to ensure that it is convicted
offenders who ultimately bear the cost of this assistance.28
The majority goes on to state that even if Mother is not a “victim” under Penal
Code section 1202.4, subdivision (k)(3) given its “reference” to “economic loss,” she is
nevertheless a “victim” under subdivision (k)(4). (Maj. opn., at p. 18.) That subdivision
defines “victim” as, “Any person who is eligible to receive assistance from the
Restitution Fund pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of
Division 3 of Title 2 of the Government Code.” (Pen. Code, § 1202.4, subd. (k)(4).) The
majority concludes that “[p]arents of children who are sexually abused qualify as victims
under subdivision (k)(4) so long as they sustained emotional distress injuries that may
result in pecuniary loss compensable from the Restitution Fund.” (Maj. opn., at p. 18.)
Again, I completely agree that a parent who has sustained pecuniary loss for which
the Restitution Fund can provide assistance is entitled to statutory restitution for such
economic loss. Indeed, Penal Code section 1202.4, subdivision (k)(4) was also added to
the statute in 1994, along with subdivision (k)(3), at the request of the Restitution Fund to
ensure that it can recoup directly from convicted offenders the assistance it provides to
crime victims. (E.g., Dept. of Finance Bill Analysis, Sen. Bill No. 631 (2003–2004 Reg.
Sess.) as amended Mar. 30, 2004, p. 1 [bill is “intended to assist the Board with
Restitution Fund revenue collections” and, among other things, will “[c]larify that
victims, including ‘derivative victims’ who are eligible for compensation from the Board
are also entitled to specified criminal restitution orders”]; Assem. Com. on Public Safety,
Sen. Bill No. 631 (2003–2004 Reg. Sess.) as amended April 30, 2003, p. 1 [amendments
28
Indeed, the majority’s repeated response to the extensive—and I believe highly
illuminating—legislative history is that it is immaterial because the statutory language
“plainly” and “unambiguously” entitles Mother to restitution for noneconomic losses. I
cannot share this view, given the “plain” language of both the definition of “victim” in
Penal Code section 1202.4, subdivision (k)(3) requiring “economic loss” and the
authorization for restitution of “noneconomic losses” in child molestation cases, which
the majority reads as constituting “economic losses” for purposes of this particular
statute.
24
are being made “in order to recoup more restitution fines and increase revenue to the
Restitution Fund,” and the bill “[s]pecifically . . .[¶] . . . [¶] 4) clarifies that the VCP [the
Fund] can be reimbursed from restitution fines for payments to all categories of
derivative victims, as specified, and any other person eligible to receive benefits from the
Restitution Fund”].) Given the stated purpose of this subdivision, I do not see how it can
be read as defining “victim” to include persons who sustain noneconomic loss, as the
Restitution Fund does not provide assistance for such losses and, thus, it cannot seek
reimbursement of such through statutory restitution.29
Moreover, the majority has looked to Penal Code section 1202.4, subdivision
(k)(4) in order to disregard the express language of the definitional provision that pertains
specifically to parents and other enumerated persons. In other words, the majority is
adopting a reading of subdivision (k)(4) that effectively reads subdivision (k)(3) out of
the statute, as all of the persons identified in (k)(3) are “eligible” for assistance from the
Restitution Fund (indeed, that subdivision replicates the “derivative” victim definitional
language in the Restitution Fund statutes (see Gov. Code, § 13955, subd. (c)(1)–(5)) and,
thus, under the majority’s construction, these persons also come within (k)(4)—rendering
subdivision (k)(3) superfluous. It is a fundamental maxim of statutory interpretation,
29
The inclusion of Penal Code section 1202.4, subdivision (k)(4), in addition to
subdivision (k)(3), was also necessary to ensure that all persons or entities entitled to
receive assistance from the Restitution Fund can recover statutory restitution, thereby
ensuring the Fund’s ability to be reimbursed directly from convicted offenders. As
discussed, subdivision (k)(3) replicates the Fund’s elaborated definition of “derivative
victim.” The direct “victim,” of course, can also receive assistance from the Fund, as can
a person “who is entitled to reimbursement for funeral, burial, or crime scene cleanup
expenses.” (Gov. Code, § 13955, subd. (a)(1)–(3).) The victim of the crime is not among
the persons enumerated in Penal Code section 1202.4, subdivision (k)(3). Nor is a person
who bears funeral or burial, or cleanup, expenses necessarily among the persons
enumerated in subdivision (k)(3). Penal Code section 1202.4, subdivision (k)(4),
however, ensures that these latter persons or entities can also recover statutory restitution
and the Restitution Fund, in turn, can be reimbursed for such assistance. Subdivision
(k)(4) also ensures that, should the Legislature further expand who can receive assistance
from the Fund, those persons or entities will also be eligible for statutory restitution,
enabling the Fund to seek reimbursement.
25
however, that “every part of a statute be presumed to have some effect and not be treated
as meaningless unless absolutely necessary,” and it certainly is not absolutely necessary
in this case.30 (People v. Arias (2008) 45 Cal. 4th 169, 180.)
In addition, in contending that Mother is a “victim” in “her own right” as defined
by the Restitution Fund statutes, and therefore the definition of “derivative victim” in the
Restitution Fund statutes (and its reference to economic loss) can be ignored, the majority
overlooks that the fundamental requirement for any person seeking assistance from the
Restitution Fund—whether denominated a “victim,” “derivative victim,” or otherwise—
is economic loss. Absent economic loss, no assistance can be provided by the Fund.
(Gov. Code, §§ 13950, subd. (a), 13951, subds. (c) & (e), 13957, subd. (a).) Thus, the
fact that the Restitution Fund statutes define “injury” to either a “victim” or “derivative
victim” as including physical and emotional injury (id., § 13955, subd. (f)) is not the
salient point. Rather, what is significant is that any person seeking assistance from the
Fund must have sustained economic loss as a result of those injuries. Thus, in my view,
the majority’s attempt to craft from the Restitution Fund statutes, a definition of “victim”
30
The majority states its interpretation of Penal Code section 1202.4, subdivision
(k)(4) does not effectively render subdivision (k)(3) a nullity. While acknowledging that
Penal Code section 1202.4, subd. (k)(3)(A)–(E) employs the same definitional language
that appears in the Restitution Fund statutes pertaining to “derivative victims” (Gov.
Code, § 13955, subd. (c)(1)–(5)), it notes that the Restitution Fund statutes also generally
define “derivative victim” as a person who “sustains pecuniary loss as a result of injury
or death to a victim” (id., § 13951, subd. (c)), whereas Penal Code section 1202.4,
subdivision (k)(3) requires that these persons have “sustained economic loss as the result
of a crime.” The majority then reiterates its conclusion that by virtue of the prefatory
language of Penal Code section 1202.4, subdivision (f)(3), “an ‘economic loss’ . . . is
defined [for purposes of Penal Code section 1202.4] to include certain noneconomic
losses.” (Maj. opn., at p. 19, fn. 12.) To begin with, the majority overlooks that the
Restitution Fund statues also expressly define “pecuniary loss” as “an economic loss or
expense” (Gov. Code, § 13951, subd. (e)), so I fail to see how the choice of terminology,
“pecuniary loss” or “economic loss,” has any significance. It is also apparent that the
majority’s alternative reliance on the definition of victim in Penal Code section 1202.4,
subdivision (k)(4), like its reading of subdivision (k)(3), is ultimately grounded on its
view that, uniquely for purposes of this statute, “noneconomic loss” actually means
“economic loss,” a view I cannot share.
26
for purposes of the Restitution Fund that does not include economic loss, wholly misses
the forest for the trees.
Finally, in focusing minutely on the definition of “victim” in the Restitution Fund
statutes, the majority overlooks numerous other statutory provisions that, in my view,
make it clear that a “victim” for purposes of the Restitution Fund is the person against
whom, or upon whom, the criminal act is perpetrated, and a “derivative victim” is a
person who, in turn, sustains injury (physical or mental) because of the trauma and injury
inflicted upon the victim of the crime. (E.g., Gov. Code, §§ 13955, subd. (c)(1)
[derivative victim includes “parent, grandparent, sibling, spouse, child, or grandchild of
the victim,” italics added]; 13957, subd. (a)(2) [authorizing reimbursement for
“counseling for the successful treatment of the victim provided to family members of the
victim in the presence of the victim,” italics added], id., subd. (a)(2)(B)(i) [specifying
circumstances in which assistance to derivative victim is limited to counseling “necessary
for the treatment of the victim”]; Cal. Code Regs. tit. 2, § 649.7, subd. (a)(3) [applicant
who is not “the actual victim or derivative victim,” must identify basis for request], id.,
subd. (a)(8) [“the victim, the victim’s survivors, or the derivative victim” must state
whether he or she intends to file a civil lawsuit], italics added; id., § 649.13 [requirements
for certain derivative victims who lived in “the victim’s household”], italics added.31)
This is also the way in which prior cases have referred to persons seeking
assistance from the Restitution Fund and persons requesting statutory restitution. (E.g.,
In re Scott H. (2013) 221 Cal. App. 4th 515, 520–524 (Scott H.) [for statutory restitution
purposes, referring to minor victim’s parents as “derivative victims”]; Cano v. State Bd.
of Control (1992) 7 Cal. App. 4th 1162, 1163–1164 [for Restitution Fund purposes,
31
Even the materials published by the Restitution Fund to assist individuals in
applying for assistance, in my view, make clear that the “victim” is the person against
whom the crime is perpetrated and “derivative victims” are those who, in turn, sustain
loss as a result of the injury and trauma inflicted on the victim. (California Victim
Compensation Board, CalVCM FAQ: Eligibility
[as of May 7, 2019].)
27
referring to person who was murdered as the “direct victim” of the crime, and to his
sister, who sought assistance for her own mental health costs, as a “derivative victim”].)
For all of these reasons, I cannot agree Mother “separately qualifies” as a “victim”
in “her own right” for purposes of the Restitution Fund (maj. opn. at p. 19, fn. 12) and
therefore Penal Code section 1202.4, subdivision (k)(4) can be read as dispensing with
the “economic loss” requirement of subdivision (k)(3).
It is not just the statutory language and its legislative history that convince me the
majority’s interpretation of Penal Code section 1202.4 is untenable. Under the majority’s
reasoning, persons in all five categories of Penal Code section 1202.4, subdivision (k)(3)
can seek restitution for noneconomic losses in a felony child molestation case. That
means any of the following persons could recover emotional distress damages based on
criminal conduct directed at, and injury inflicted on, the child victim—parents,
grandparents, and siblings (Pen. Code, § 1202.4, subd. (k)(3)(A)), a person living in the
household at the time of the crime (id., subd. (k)(3)(B)), a person who had previously
lived in the household of the victim for a period of not less than two years in a
relationship substantially similar to that of a parent, grandparent, or sibling (id., subd.
(k)(3)(C)), a person who is another family member of the victim and who witnessed the
crime (id., subd. (k)(3)(D)), and a primary caretaker of the minor victim (id., subd.
(k)(3)(E)). There is not the faintest suggestion in either the language of the statute or the
legislative history, and particularly the legislative history of the provision authorizing
restitution for noneconomic losses in child molestation cases, that the Legislature
intended that anyone “living in the household,” for example, can seek restitution for such
noneconomic losses. Thus, while the majority repeatedly states it sees no reason why the
“parents” of child molestation victims should not recover for their own emotional
distress, the reasoning it employs is by no means limited to parents.32
32
The majority does not dispute that its analysis extends to all such persons, but
dismisses this because such persons would have to show they suffered distress and
sentencing courts can ably distinguish between legitimate and far-fetched claims of
emotional distress. (Maj. opn., pp. 16–17.) But that does not obscure the fundamental
28
Furthermore, as discussed above, the Legislature authorized restitution for
“noneconomic losses” in felony child molestation cases to provide child victims with an
additional means, besides a civil lawsuit, to recover emotional distress damages. (Off. of
Criminal Justice Planning, Enrolled Bill Rep., Sen. Bill No. 736 (1991–1992 Reg. Sess.)
as amended Aug. 28, 1991, pp. 1–2.; cf. Runyan, supra, 54 Cal.4th at p. 865 [“the
primary purpose of mandatory restitution, as of civil damage recovery, is reimbursement
for the economic loss and disruption caused to the crime victim”].) The California courts
have consistently refused, however, to allow the recovery of emotional distress damages
based solely on the “foreseeability” of emotional distress to third parties. Rather, the
courts have allowed the recovery of emotional distress only in the following
circumstances: (a) in cases of intentional and outrageous conduct, if the wrongful
conduct was “directed at the plaintiff” or occurred “in the presence of a plaintiff of whom
the defendant is aware” (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903; id. at
pp. 902–905 [defendant’s mishandling of remains, while egregious, was not “directed at”
surviving family members]), and (b) in cases of negligence, if the plaintiff was a
“ ‘bystander’ ” and observed the defendant’s wrongful conduct, or if the plaintiff was a
“ ‘direct victim’ ” of the defendant’s wrongful conduct (Huggins v. Longs Drug Stores
California, Inc. (1993) 6 Cal. 4th 124, 126–127, 129–130 (Huggins) [parents were not
“ ‘direct victim[s]’ ” of pharmacist’s negligence in filling child’s prescription]; Thing v.
La Chusa (1989) 48 Cal. 3d 644, 667–669 [mother who did not see accident involving her
child could not recover emotional distress damages as “bystander”]).
These limitations apply in sexual assault cases. In Marlene F. v. Affiliated
Psychiatric Medical Clinic, Inc. (1989) 48 Cal. 3d 583 (Marlene F.), for example, the
Supreme Court considered whether two mothers could recover emotional distress
problem with the majority’s analysis––that it allows all such persons to seek restitution
for noneconomic losses and puts the criminal courts to the task of considering such
emotional distress claims. This cannot be what the Legislature intended either in
authorizing restitution for noneconomic losses in child molestation cases or in adding the
derivative victim provisions to the definition of “victim.”
29
damages based on the molestation of their children by a therapist. The court concluded
the mothers could recover as “direct victims” of the molester because they “explicitly and
expressly alleged” that they, as well as their children, “were patients of the therapist.”
(Id. at p. 590.) “In other words, the counselling was not directed simply at each mother
and son as individuals, but to both in the context of the family relationship.” (Ibid.)
Thus, the therapist’s “abuse of the therapeutic relationship and molestation of the boys
breached his duty of care to the mothers as well as to the children.” (Id. at p. 591.) The
court closed by “repeating that the mothers here were the patients of the therapist along
with their sons, and the therapist’s tortious conduct was accordingly directed against
both.” (Ibid., italics added; see Huggins, supra, 6 Cal.4th at p. 131 [“[i]t was only
because the parents in . . . Marlene F., . . . qualified as the patients of the defendant
caregivers that they could recover emotional distress as the defendants’ direct victims”].)
Subsequent Court of Appeal decisions, in turn, have refused to allow the recovery
of emotional distress damages in the absence of the predicate requirements laid down by
our Supreme Court, including in cases where family members sought emotional distress
damages based on the molestation or sexual assault of another family member. (See, e.g.,
Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal. App. 4th 904, 906, 911
[parents could not recover emotional distress damages against school district for teacher’s
sexual relationship with their daughter]; Ess v. Eskaton Properties, Inc. (2002)
97 Cal. App. 4th 120, 127–131 [sister could not recover emotional distress damages
against care facility as either “bystander” or “direct victim” based on sexual molestation
of her sister while a patient in the facility]; Evan F. v. Hughson United Methodist Church
(1992) 8 Cal. App. 4th 828, 838–840 [sister could not recover emotional distress damages
against church as “bystander” or “direct victim” based on the molestation of her
brother].)
As the majority construes Penal Code section 1202.4, however, the plaintiff family
members in every one of these cases, as well as persons with far more attenuated
relationships with the child victim, would be entitled to recover these same emotional
distress damages in the form of statutory restitution. Nothing in the language of Penal
30
Code section 1202.4, or its legislative history, remotely suggests that the Legislature
intended the expansive recovery of emotional distress damages through the criminal
courts that the majority’s construction allows. This additional difficulty with the
majority’s construction of the restitution statute is, of course, eliminated if one respects
the express “noneconomic loss” language of Penal Code section 1202.4, subdivision
(f)(3)(F) and heeds the express “economic loss” requirement of subdivision (k)(3).
Constitutional Right to Restitution
The majority also cites to “Marsy’s Law” as support for its reading of Penal Code
section 1202.4, but I do not perceive anything in this amendment to article I, section 28,
of our state constitution that does so.
The right of crime victims to restitution from convicted offenders was added to
our state constitution in 1982, when “California voters passed Proposition 8, also known
as The Victims’ Bill of Rights. At the time this initiative was passed, victims had some
access to compensation through the [state] Restitution Fund, and trial courts had
discretion to impose restitution as a condition of probation.” (Giordano, supra,
42 Cal.4th at p. 652.) “Proposition 8 established the right of crime victims to receive
restitution directly ‘from the persons convicted of the crimes for losses they suffer’ ” and
added “article I, section 28, subdivision (b) to the California Constitution.” (Giordano, at
p. 652.)
As enacted, article I, section 28, subdivision (b) provided: “It is the unequivocal
intention of the People of the State of California that all persons who suffer losses as a
result of criminal activity shall have the right to restitution from the persons convicted of
the crimes for losses they suffer. Restitution shall be ordered from the convicted persons
in every case, regardless of the sentence or disposition imposed, in which a crime victim
suffers a loss, unless compelling and extraordinary reasons exist to the contrary.”
(Former Cal. Const., art. I, § 28, subd. (b).)
This new constitutional provision was not self-executing and directed the
Legislature to adopt implementing legislation. (People v. Martinez (2017) 2 Cal.5th
1093, 1100, fn. 1.) Not surprisingly, the Legislature’s efforts resulted in a number of
31
restitution cases finding their way to the high court. Three of the cases discussing article
I, section 28, subdivision (b) of the California Constitution, as originally enacted, bear
mention.
In Broussard, the court considered whether the Legislature could authorize
sentencing courts to order restitution to victims who suffered economic loss but not
physical injury. (Broussard, supra, 5 Cal.4th at p. 1069.) Historically, some statutes, and
specifically those pertaining to the state Restitution Fund, authorized restitution where the
victim sustained injury or death. (Id. at p. 1072.) However, the new constitutional right
to restitution, as the high court explained, broadly stated “ ‘all persons who suffer losses
as a result of criminal activity shall have the right to restitution from the persons
convicted of the crimes for losses they suffer.’ ” (Id. at p. 1073, quoting Cal. Const., art.
I, § 28, subd. (b).) The Legislature’s efforts to implement this mandate, in turn, were
replete with expressions of intent to empower sentencing courts to order restitution for
“economic losses” regardless of any physical injury. (Broussard, at pp. 1073–1074,
italics omitted.) The court therefore had little difficulty concluding the Legislature
“intended the word ‘victim,’ as used in subdivision (c) of [former Government Code]
section 13967, to include anyone who has not suffered physical injury but has sustained
economic loss resulting from a defendant’s criminal acts.” (Id. at p. 1075, italics added.)
In Birkett, the high court considered whether insurance carriers that had
reimbursed crime victims for losses resulting from the theft of their vehicles were entitled
to statutory restitution. (Birkett, supra, 21 Cal.4th at pp. 229–230.) The trial court and
Court of Appeal concluded the insurers had “assumed the status of direct victims” and
were therefore entitled to restitution. (Id., at p. 230.) The Supreme Court reversed.
In concluding the insurers had no right to statutory restitution, the court
exhaustively discussed article I, section 28, subdivision (b) of the California Constitution
and the array of statutes implementing it. (Birkett, supra, 21 Cal.4th at pp. 231–242.) In
1994, when the defendant committed his offenses, former Penal Code section 1203.04
governed restitution by offenders granted probation (as the defendant had been) and
required restitution to “victims” except in an exceptional case. (Id. at pp. 230–231.) The
32
statute further specified this mandate did not preclude restitution to an entity that was “ ‘a
direct victim of a crime.’ ” (Id. at p. 231, italics omitted.)
The court first observed that “in the context of the restitution statutes,” “ ‘[a]
“victim” is a “person who is the object of a crime.” ’ ” (Birkett, supra, 21 Cal.4th at
p. 232, quoting People v. Crow, supra, 6 Cal.4th at p. 957.) The court further observed
that, since its enactment in 1983, former Penal Code section 1203.04 had never defined
“victim,” “except to note that ‘ “victim” shall include the immediate surviving family of
the actual victim in homicide cases.’ ” (Birkett, at pp. 234–235.) Thus, in the years
preceding the 1994 iteration of the statute, the appellate courts had issued conflicting
opinions as to whether “indirect” victims were entitled to restitution, and the Supreme
Court had granted review in a number of cases to decide the issue. (Id. at pp. 239–240.)
Before it could do so, the Legislature amended the restitution statutes again. The
court concluded that by consistently using the term “victim,” rather than “person,” in its
most recent legislative efforts, the Legislature made it clear it intended to limit restitution
to direct victims. (Birkett, supra, 21 Cal.4th at pp. 240–241; id. at pp. 241–242 [by
specifying restitution was “confined to ‘actual’ and ‘direct’ ‘victim[s]’ rather than all
‘persons[s]’ who had incurred crime-related losses, the 1994 Legislature clearly sought to
resolve the uncertainties” as to whether indirect victims were entitled to statutory
restitution].)
The Supreme Court recognized that cogent policy arguments could be made for
extending the right to restitution to any person or entity sustaining economic loss as a
result of a defendant’s criminal conduct. (Birkett, supra, 21 Cal.4th at p. 242.) But, said
the court, the Legislature had made a policy choice “to grant only ‘direct’ crime victims
and their immediate [surviving] families a right to restitution . . . and otherwise to
foreclose such entitlement by persons whose losses arose only as a result of crimes
committed against others.” (Id. at p. 243.)
The court then circled back to the language of the Constitution, which broadly
declared that “ ‘all persons who suffer losses as a result of criminal activity’ ” are entitled
to restitution. (Birkett, supra, 21 Cal.4th at p. 243.) Given “the generality” of this
33
language, and the fact the voter materials had repeatedly used the term “victim,” the court
concluded the electorate had not been concerned “with anything other than victims as
ordinarily understood, i.e., those against whom crimes had been committed.” (Ibid.) It
was also “well settled,” said the court, “that when the Legislature is charged with
implementing an unclear constitutional provision, the Legislature’s interpretation of the
measure deserves great deference.” (Id. at p. 244.) And “[i]n limiting” the right to
restitution “to ‘direct victim[s]’ of crime, the Legislature [had] adopted a plausible
interpretation of the constitutional provision.” (Ibid.)
In Giordano, the Supreme Court considered the extent to which the deceased
victim’s wife was entitled to statutory restitution. (Giordano, supra, 42 Cal.4th at
p. 649.) The court again took an excursion through the history of the restitution statutes
implementing article I, section 28, subdivision (b) of the California Constitution—both
those pertaining to defendants granted probation and defendants who are not. (Giordano,
at pp. 652–654.) In doing so, the court observed that in 1994, “[Penal Code] section
1202.4, subdivision (k) defined ‘victim’ to ‘include the immediate surviving family of the
actual victim’ ” (Stats. 1994, ch. 1106, § 3, pp. 6549, 6549, eff. Sept. 29, 1994), and in
1999, “the Legislature amended the definition of ‘victim’ in Penal Code section 1202.4,
subdivision (k)(3) to include ‘ “[d]erivative victims” as defined in Section 13960 of the
Government Code’ ” (which defined “victim” for purposes of the state Restitution Fund).
(Giordano, at p. 653.)
The court also, and separately, chronicled the expansion of the “categories” of
compensable losses, which, by then, were set forth in Penal Code section 1202.4,
subdivision (f)(3). (Giordano, supra, 42 Cal.4th at p. 654.) The court reiterated that “the
scope of the losses that must be compensated” under article I, section 28, subdivision (b)
of the California Constitution “is not clear from the text of this constitutional provision,”
and therefore the courts must “look to the statutes the Legislature has enacted to
implement this constitutional provision.” (Giordano, at p. 655, italics added.) A review
of those statutes showed, said the court, that the Legislature had “limited” restitution to
34
“economic losses,” with only one “exception,” that being “noneconomic losses” in felony
child molestation cases. (Id. at p. 656, italics omitted.)
The court then turned to the specifics of the case before it. It first rejected the
defendant’s claim that the victim’s wife was not a “victim” entitled to statutory
restitution. (Giordano, supra, 42 Cal.4th at pp. 656–657.) In doing so, the court looked
to the definitional provisions of Penal Code section 1202.4, set forth in subdivision (k).
As the court pointed out, the wife qualified as a “victim” under three of these
provisions—she was part of the “immediate surviving family of the actual victim” (Pen.
Code, § 1202.4, subd. (k)(1)), she had “sustained economic loss” as a result of the crime
(id., § 1202.4, subd. (k)(3)(A)), and she was a “derivative victim” as defined by the
statutes governing the state Restitution Fund (id., § 1202.4, subd. (k)(4)) because she had
sustained “ ‘pecuniary loss’ ” as a result of the victim’s death. (Giordano, at p. 657.)
But, said the court, the wife could recover restitution only for the “economic losses that . .
. she incurred personally”; she could not recover “losses on behalf of [the] deceased
victim.” (Id. at p. 657.) That said, the court went on to explain that the wife had, as a
surviving spouse, sustained “economic loss.” (Id. at pp. 658; id. at p. 659 [“when [the
Legislature] enacted Penal Code 1202.4, requiring that victims receive restitution for all
economic losses, it did so with the presumed knowledge that courts have long understood
that a surviving spouse incurs an economic loss upon the death of his or her spouse”].)
In 2008, California voters amended article I, section 28, subdivision (b) of the
California Constitution by way of Proposition 9 (i.e., Marsy’s Law). Article I, section 28
now accords crime victims numerous notification and participation rights, for example,
the right to receive notice of “all public proceedings” at which “the defendant and the
prosecutor are entitled to be present,” including “parole or other post-conviction
proceedings,” and the right to be heard at any bail, sentencing or “post conviction release
decision.” (Cal. Const., article I, § 28, subd. (b)(7), (8).)
The enumerated list of rights includes the right “[t]o restitution” and states, in the
same language as originally enacted, “It is the unequivocal intention of the People of the
State of California that all persons who suffer losses as a result of criminal activity shall
35
have the right to seek and secure restitution from the persons convicted of the crimes
casing the losses they suffer.” (Cal. Const., article I, § 28, subd. (b)(13)(A).) The
amendment eliminated the provision that had allowed sentencing courts to decline to
order restitution for “compelling and extraordinary” reasons, and added a directive that
restitution must “be ordered from the convicted wrongdoer in every case, . . . in which a
crime victim suffers a loss.” (Id., subd. (b)(13)(B).)
Proposition 9 also added a provision defining “victim,” as follows: “As used in
this section, a ‘victim’ is a person who suffers direct or threatened physical,
psychological, or financial harm as a result of the commission or attempted commission
of a crime or delinquent act. The term ‘victim’ also includes the person’s spouse,
parents, children, siblings, or guardian, and includes a lawful representative of a crime
victim who is deceased, a minor, or physically or psychologically incapacitated. The
term ‘victim’ does not include a person in custody for an offense, the accused, or a person
whom the court finds would not act in the best interest of a minor victim.” (Cal. Const.,
article I, section 28, subd. (e).)
Since the amendment of the article I, section 28 of the California Constitution the
Supreme Court has decided several restitution cases, including Runyan, supra, 54 Cal. 4th
849, wherein the court considered the extent to which a deceased victim’s estate is
entitled to statutory restitution. The court commenced its analysis by looking to the
definition of “victim” set forth in Penal Code section 1202.4, subdivision (k). (Runyan,
at p. 856.) “Victim” was then defined, as it is now, “to include, among others, the actual
victim’s immediate surviving family ([Pen. Code, § 1202.4,] subd. (k)(1)), as well as
specified relatives of the actual victim, and present and certain former members of the
victim’s household, who sustained economic loss as a result of the crime (id., subd.
(k)(3)(A)–(D)). A ‘victim’ also include[d, as it does now,] ‘[a]ny corporation, business
trust, estate, trust, partnership, association, joint venture, government, governmental
subdivision, agency, or instrumentality, or any other legal or commercial entity when that
entity is a direct victim of a crime.’ (Id., subd. (k)(2). . . .)” (Runyan, supra, 54 Cal.4th
at p. 856.)
36
As the court again pointed out, “[t]he case law has ascribed a precise meaning to
the phrase ‘direct victim,’ ” as that phrase has been used in several restitution statutes,
and, as pertinent to the case before the court, an entity that was “ ‘the “immediate object[]
of the [defendant’s] offenses.” ’ ” (Runyan, supra, 54 Cal.4th at p. 856, quoting People
v. Martinez, supra, 36 Cal.4th at p. 393, quoting Birkett, supra, 21 Cal.4th at pp. 232–
233.) The court thus concluded the victim’s estate, itself, was not a direct victim and
therefore was not entitled to statutory restitution for its own economic losses (which
included net losses in value of a rare coin collection, of fencing equipment, and of the
contents of the deceased victim’s household goods, and various death and probate related
costs). (Runyan, at pp. 855–856; id. at p. 857 [the estate was not “directly targeted and
victimized by the defendant’s crimes”].)
An estate may, however, as the representative of the deceased victim, recover
restitution for any compensable losses incurred by the victim prior to death. (Runyan,
supra, 54 Cal.4th at p. 857 [an estate “is a proper recipient, on the decedent’s behalf, of
restitution owed to the decedent”].) The court went on to discuss the extent of
compensable loss an estate may recover as the personal representative of a deceased
victim, namely “personal losses” that accrued before the victim died. (Id. at pp. 859–
867.) None of the economic losses for which the estate in question sought restitution,
however, qualified. Accordingly, the estate was not entitled to statutory restitution. (Id.
at p. 867.)
In the course of reaching this conclusion, the high court emphasized two points.
First, “under the terms of both Marsy’s Law and [Penal Code] section 1202.4, a crime
victim may recover only for losses personally incurred by that victim.” (Runyan, supra,
54 Cal.4th at p. 859; id. at p. 860 [Penal Code “section 1202.4 and the Victims’ Bill of
Rights allow each defined victim to seek and obtain restitution only for that person’s or
entity’s own personally incurred loss”].) Second, Penal Code “[s]ection 1202.4 limits
eligibility for mandatory restitution to carefully defined crime ‘victims’ (id., subd. (k))”
and “makes clear that those eligible . . . must be the crime’s ‘direct’ or ‘actual’ victims.”
(Runyan, at p. 864; id. at p. 860 [the statute “defines and limits the categories of
37
‘victim[s]’ that are entitled to recover for the losses they have accrued,” and these include
“certain other persons who sustained economic loss as a result of the crime, including a
parent, grandparent, spouse, child, or grandchild”].) “Similarly, article I, section 28 of
the California Constitution, as amended by Marsy’s Law, provides that a ‘victim’ . . . is
‘a person who suffers direct or threatened physical, psychological, or financial harm as a
result of . . . a crime.’ . . . Here again, the implication is that a defined victim, and only a
defined victim, is entitled to restitution on his or her own personal behalf. . . .”33
(Runyan, at p. 860.)
Turning to the case before us, the salient question, it seems to me, is whether
Proposition 9 invalidated the statutory definition of “victim” set forth in Penal Code
section 1202.4, subdivision (k)(3) to the extent it requires persons enumerated therein to
“have sustained economic loss,” because the constitutional definition of “victim” does
not include this qualifier. While the majority does not view its construction of the statute
as eliminating the threshold “economic loss” requirement of Penal Code section 1202.4,
subdivision (k), in my view the majority has done exactly that by turning to the prefatory
language of Penal Code section 1202.4, subdivision section (f)(3) and pronouncing that
that language defines the “noneconomic losses” recoverable in felony child molestation
cases under Penal Code section 1202.4, subdivision (f)(3)(F) to be a requisite “economic
loss” under Penal Code section 1202.4, subdivision (k)(3).
33
Given the analytical approach our Supreme Court has taken both before and after
Marsy’s Law, it seems to me that the majority, in stating it sees nothing in the language
of the statute or its legislative history indicating the Legislature “intended to prohibit”
restitution to “parents” for noneconomic losses (maj. opn., at pp. 17–18), is looking at the
issue through the wrong end of the telescope. The restitution statutes are not a recitation
of prohibitions on restitution. Rather, as the Supreme Court has repeatedly stated, these
statutes implement the constitutional right to restitution through specific authorizations
and specific definitions. Accordingly, in my view, we must look at these specific
authorizations and specific definitions and not rely, as the majority does, on the
Legislature’s “silence on whether parents should qualify for awards of restitution for their
noneconomic losses” and failure to “prohibit such awards.” (Maj. opn., at pp. 17–18.) In
any case, as I have discussed, I do not agree the Legislature has been “silent” this point.
38
In answering the question, as I see it, guidance may be drawn from the Supreme
Court’s decisions discussing article I, section 28 of the California Constitution since its
enactment. This is so for two reasons. First, the substantive right to restitution as set
forth in the Constitution by Proposition 8 remained unchanged by Proposition 9 (with the
exception that restitution is now mandatory in every case). (Compare former Cal. Const.,
art. I, § 28, subd. (b) & Cal. Const., art. I, § 28, subd. (b)(13).) Second, there is no
indication in the electoral materials that passage of Proposition 9 would countermand any
appellate decision or restitution statute, except to the extent any decision had discussed,
and any statute had allowed, discretion to not order restitution. Rather, the electoral
materials indicate the electorate was focused on eliminating the discretion sentencing
courts had to decline to order restitution in an exceptional case. (See Voter’s Information
Guide, Gen. Elec. (Nov. 4, 2008) official title and summary analysis of Prop. 9, p. 58; see
also, Birkett, supra, 21 Cal.4th at pp 243–244 [examining voter materials].)
Accordingly, in approving Proposition 9, the electorate must be understood to
have done so in the context of the existing law. (See Professional Engineers in
California Government v. Kempton (2007) 40 Cal. 4th 1016, 1048 [“voters are presumed
to have been aware of existing laws at the time the initiative was enacted”].)
This law established, among other things, that the constitutional right to restitution
is not self-executing (e.g., Giordano, supra, 42 Cal.4th at p. 652) and that the Legislature
is charged with enacting legislation implementing this right. (E.g., Ibid.) It further
established that the constitutional language is general in character (e.g., Birkett, supra,
21 Cal.4th at p. 243), that the language setting forth the right to restitution is
“ambiguous” (ibid.) and, specifically, that “ ‘the scope of the losses that must be
compensated’ ” under article I, section 28, subdivision (b) of the Californian Constitution
“ ‘is not clear from the text of this constitutional provision’ ” and therefore the courts
must “look to the statutes the Legislature has enacted to implement this constitutional
provision.” (Giordano, at p. 655, italics added.) Finally, this law established that, given
the generality of the constitutional language and its ambiguity, “the Legislature’s
interpretation of the measure deserves great deference” and will be upheld if the
39
Legislature has “adopted a plausible interpretation of the constitutional provision.”
(Birkett, at p. 244.)
In my view, these pronouncements by our Supreme Court compel the conclusion
that Proposition 9 did not invalidate the requirement of Penal Code section 1202.4,
subdivision (k)(3) that the persons enumerated therein have sustained “economic loss” as
that term is commonly understood. As discussed above, the Legislature amended the
statutory definition of “victim” in 2004 to add Penal Code section 1202.4, subdivision
(k)(3) specifically to enable the state Restitution Fund to recoup directly from convicted
offenders the assistance it provides to crime victims for economic loss. The “victim”
definitional language added to article I, section 28 of the California Constitution by
Proposition 9 four years later is completely silent as to the kind of losses for which any of
the persons listed therein can recover restitution. In other words, while the constitutional
definition specifies that a “person who suffers direct or threatened physical,
psychological, or financial harm” is a “victim,” it does not specify whether such a person,
or any of the other persons identified in the definition, in addition to obtaining restitution
for economic losses (for example, for the cost of counseling or psychological or
psychiatric treatment), can also obtain restitution for noneconomic losses. The voter
materials for Proposition 9 are, likewise, silent on this point. (Voter’s Information Guide,
Gen. Elec. (Nov. 4, 2008) official title and summary analysis of Prop. 9, p. 61.)
Accordingly, the constitutional definition of “victim,” like the constitutional language
setting forth the right to restitution, is ambiguous in this regard.
We must therefore “look to the statutes the Legislature has enacted to implement
this constitutional provision.” (Giordano, supra, 42 Cal.4th at p. 655.) We must also
accord the Legislature’s interpretation of the right to restitution “great deference,” and
uphold the implementing legislation if the Legislature has “adopted a plausible
interpretation of the constitutional provision.” (Birkett, supra, 21 Cal.4th at p. 244.)
Given that there is no indication the electorate intended to alter the established law that
restitution is generally limited to “economic losses,” in my view we must conclude that
40
Penal Code section 1202.4, subdivision (k)(3) continues to be a “plausible interpretation”
of the provisions setting forth the constitutional right to restitution.
The majority cites Scott H., supra, 221 Cal.App.4th at p. 515 as further support for
its view that article I, section 28 of the California Constitution as amended supports its
construction of Penal Code section 1202.4. However, the court in Scott H. addressed an
issue entirely different than that before us. In that case, the minor defendant was
convicted of committing a lewd act on another minor, and the prosecution sought
restitution for the “fees incurred for mental health services” for both the minor victim and
his family. (Scott H., at pp. 518–519.) Because they sought restitution for economic
losses, the family members were clearly “victims” as defined by Penal Code section
1202.4, subdivision (k)(3)(A). However, they were not “victims” as defined by the
restitution statute applicable to juvenile offenders, Welfare and Institutions Code section
730.6. (Scott H., at p. 518 [while “Penal Code section 1202.4 contains derivative victims
in its definition of victim[,] [Welfare and Institutions Code] section 730.6 does not”].)34
Accordingly, the Court of Appeal concluded the family members were not entitled to
restitution under the controlling statute. (Id. at p. 518.) The Supreme Court granted
review on its own motion and remanded for the court to reconsider the case in light of the
amendments to the constitutional right to restitution made by Proposition 9. (Ibid.)
Taking another look at the case, the Court of Appeal concluded it was
“constrained by the Constitution to interpret [Welfare and Institutions Code] section
730.6 to include family members.” (Scott H., supra, 221 Cal.App.4th at p. 520.) In the
course of reaching this conclusion, the court contrasted the definition of “victim” in
Welfare and Institutions Code section 730.6, subdivision (j), with the definition of
“victim” in Penal Code section 1202.4, subdivision (k)(3). The definition of “victim” in
Welfare and Institutions Code section 730.6, subdivision (j) included only “[t]he
immediate surviving family of the victim” and governmental entities which incurred
34
Notably, the Scott H. court referred to the minor victim’s parents, as “derivative
victims.” (Scott H., supra, 221 Cal.App.4th at pp. 518–519.)
41
costs in cleaning up graffiti. (Former Welf. & Inst. Code, §730.6, subd. (j)(1), (2), Stats.
2014, ch. 760, § 7.) In short, the juvenile statute had never been expanded, as had the
definition of “victim” in Penal Code section 1202.4, to include “derivative victims.”
(Scott H., at p. 521.) Given that the constitutional definition of “victim” includes “ ‘the
person’s’ ” “ ‘parents’ ” and “ ‘siblings,’ ” and also refers to a “person” who is the victim
of a “ ‘delinquent act,’ ” the court concluded this language “prevail[ed]” over Welfare
and Institutions Code section 730.6’s limited definition and therefore “derivative
victims,” like the victim’s family members, were entitled to statutory restitution. (Scott
H., at p. 522, italics omitted.)
Thus, the Scott H. court had no occasion to, nor did it, discuss the issue before us,
which concerns the “scope of the losses” which “derivative” victims, such as Mother, can
recover as statutory restitution. And specifically, the Scott H. court did not consider
whether Mother, by seeking restitution for “noneconomic losses” under Penal Code
section 1202.4, subdivision (f)(3)(F), has thereby sustained “economic loss” under Penal
Code section 1202.4, subdivision (k)(3), which thereby qualifies her as a “victim” under
that subdivision and entitles her to restitution for “noneconomic losses” under Penal Code
section 1202.4, subdivision (f)(3)(F). For all the reasons I have discussed, I cannot
subscribe to this circular reasoning which, in my view, disregards both the language and
the Legislature’s intent in enacting the statutory provisions with which we are concerned.
42
_________________________
Banke, J.
A150250, People v. Montiel
43
Trial Court:
Napa County Superior Court
Trial Judge:
Hon. Diane M. Price
Counsel for Defendant and Appellant:
William J. Capriola, under appointment by the Court of Appeal
Counsel for Plaintiff and Respondent:
Xavier Becerra, Attorney General
Gerald A. Engler, Chief Assistant Attorney General
Jeffrey M. Laurence, Senior Assistant Attorney General
René A. Chacón, Supervising Deputy Attorney General
Ashley Harlan, Deputy Attorney General
People v. Montiel A150250
1