People v. Martinez

Filed 2/8/17
CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068746

Plaintiff and Respondent,

v. (Super. Ct. No. JCF34145)

JOSE VILLAREAL MARTINEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Imperial County,

Christopher J. Plourd, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney, Gerald A. Engler, Chief Assistant Attorney General,

Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor,

Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts III.A-C and E.
 I

INTRODUCTION

A jury convicted Jose Villareal Martinez of continuous sexual abuse of a child

under the age of 14 (Pen. Code,1 § 288.5, subd. (a); count 1).2 The court sentenced him

to twelve years in prison. The court separately ordered him to pay the victim $150,000 in

restitution for noneconomic damages (noneconomic restitution).

Martinez appeals, contending we must reverse his conviction because the court

prejudicially erred by failing to suppress his statements to police, by admitting the

recorded forensic interviews of the victim, and by declining to give the jury his entire

proposed special jury instruction on innocuous touching. He further contends we must

reverse the restitution order because the court lacked statutory authority to award the

victim noneconomic restitution.

In the published portion of the opinion we follow People v. McCarthy (2016) 244

Cal.App.4th 1096 (McCarthy) and hold the court did not err in awarding the victim

noneconomic restitution because section 1202.4, subdivision (f)(3)(F) (§ 1202.4(f)(3)(F))

authorizes such an award against a defendant convicted of violating section 288.5 if the

conduct underlying the conviction also constitutes a violation of section 288. (McCarthy,

1 Further statutory references are to the Penal Code unless otherwise stated.

2 The prosecution had alternatively charged Martinez with five counts of
committing a forcible lewd act upon a child (§ 288, subd. (b)(1); counts 2–6). The court
dismissed these charges in light of the jury's verdict on count 1.
2
supra, at p. 1109.) In the remaining portions of the opinion we explain why we are

unpersuaded by Martinez's other contentions and, consequently, we affirm the judgment.

II

BACKGROUND3

The victim lived with Martinez and his wife. Many times when his wife was

occupied or at work, Martinez took the victim to his room and had her lie on his bed with

him. He then pulled down her clothes, put his penis on her buttocks and moved his penis

up and down for about five to 10 minutes. Each time he told her not to tell anyone.

In addition, many times when Martinez and the victim were shopping together,

Martinez would condition purchases for her on her giving him "a little leg." After he

bought her something and they were in his car or a borrowed truck, he would drive

slowly and use his hand to touch her chest and buttocks area under her clothes. He would

also touch her legs and pelvic area, including her vagina, over her clothes. Each time he

told her not to tell anyone.

However, the victim eventually told Martinez's wife about Martinez's conduct and

Martinez's wife told the victim's mother about it. Martinez's wife also reported

Martinez's conduct to police.

A social worker interviewed the victim three times. The second interview was two

weeks after the first and the third interview was two months after the second. In the first

3 To preserve the confidentiality of the victim's identity our summary omits some
factual details which, while superficially relevant to the issues raised on appeal, are not
essential to our decision.
3
interview, the victim only told the social worker about the conduct in the vehicles. In the

second interview, the victim told the social worker about the conduct in Martinez's

bedroom. The victim delayed telling her mother, Martinez's wife or the social worker

about the conduct in Martinez's bedroom because Martinez had told her not to tell anyone

and she was afraid of what he might do to her.

The social worker testified child sexual abuse victims commonly do not disclose

everything during the initial interview. An expert in conducting forensic interviews of

child sexual abuse victims similarly testified delayed disclosure of childhood sexual

abuse is normal, not exceptional. The expert also testified incremental disclosure of

childhood sexual abuse is not unusual.

At the behest of a police investigator, the victim and her mother made a pretext

phone call to Martinez. During the call, which became emotional, the victim told

Martinez she did not like what happened to her in the vehicles and in Martinez's bed.

Martinez apologized for the conduct.

III

DISCUSSION

A

1

Shortly after the pretext phone call between the victim and Martinez, a police

investigator interviewed Martinez. At the outset of the interview, the investigator

provided Martinez with the advisements required by Miranda v. Arizona (1966) 384 U.S.

436, 478–479 (Miranda advisements), which Martinez stated he understood perfectly.

4
 The investigator told Martinez the victim had reported several things and asked

Martinez if he knew what happened to the victim and what she reported. Martinez said

the victim's mother had told him something was wrong with the victim. The victim also

said some things to him, but he thought the victim's remarks were prompted by his wife's

bad temper.

Martinez said two to three weeks earlier he came home and found his wife angry.

She packed up and left with the victim. When the investigator asked him about his wife's

anger and the current state of their relationship, he replied, "Look, here between us, I'm

going to tell you something personal." He said he had initially loved his wife "with

delirium," but little by little their relationship was ending and, although she pressured

him, he no longer wanted to be intimate with her. He no longer found her physically

attractive and thought she was too bossy and foul-mouthed. He then asked, "All this is

between you and me, right?" He went to explain his wife had been his mistress, but she

insisted he marry her after his first wife died of cancer.

Because Martinez was becoming visibly emotional discussing his relationship

with his wife, the investigator overtly shifted the topic back to the victim's allegations.

With the topic shift, the interview intensified as the investigator began pressing Martinez

to explain what happened between him and the victim. After Martinez repeatedly denied

any inappropriate conduct, the investigator confronted him with a recording of the pretext

call. Martinez eventually admitted he had told the victim he would buy her things at the

store in exchange for her giving him some leg. However, he denied having any

inappropriate intent. He also admitted he may have touched the victim's bottom while

5
they lay in his bed, but he denied ever pulling her shorts down, touching her with his

shorts down, or touching her with any inappropriate intent.

Before trial, Martinez moved to suppress the statements he made during the

interview on the ground the investigator agreed to keep Martinez's statements between

the two of them. At a subsequent hearing on the motion, the investigator testified the

agreement to keep the conversation just between the two of them referred to Martinez's

remarks about his personal, intimate relationship with his wife. The court subsequently

determined this was the only reasonable interpretation of the exchange and denied the

motion.

2

Relying on People v. Quartermain (1997) 16 Cal.4th 600 (Quartermain), Martinez

contends the court prejudicially erred by failing to suppress his statements to police. We

review this contention de novo. (People v. Linton (2013) 56 Cal.4th 1146, 1176–1177.)

As relevant to this appeal, the Quartermain case held it is fundamentally unfair

and a violation of due process for the prosecution to use a defendant's statement at trial in

breach of an explicit promise not to do so. (Quartermain, supra, 16 Cal.4th. at pp. 620–

621.) In this case, however, there was no explicit promise to refrain from using

Martinez's statements about his conduct with the victim at trial. To the contrary, the

Miranda advisements, which Martinez stated he understood perfectly, informed him his

statements could and would be used at trial. Although Martinez twice requested

statements be kept between him and the investigator, we agree with the trial court these

6
requests can only reasonably be interpreted as applying to Martinez's statements about his

intimate relationship with his wife.

After the investigator shifted the interview away from the topic of Martinez's

relationship with his wife, Martinez neither requested nor alluded to a belief his

subsequent statements would remain confidential. In addition, as the investigator

intensified his efforts to obtain a confession, Martinez's remarks became noticeably less

frank and more self-serving. He consistently portrayed himself as the victim's loving,

devoted, doting, sometimes absent-minded caretaker and his wife as a manipulative

shrew. Although he acknowledged certain conduct, he characterized the conduct as

innocuous and repeatedly denied any lewd intent. He also repeatedly attributed the

victim's allegations to his wife's influence. By purposefully attempting to use the

interview to his best advantage, Martinez demonstrated he both understood and expected

his statements would not remain confidential. Accordingly, we conclude the court did

not err in denying Martinez's suppression motion.

B

1

Before trial, the prosecution moved under Evidence Code section 1360 for an

order allowing admission of the victim's out-of-court statements, including the recorded

forensic interviews with the social worker. Over Martinez's objection, the court allowed

admission of the first two interviews, finding the interviews met the criteria in Evidence

Code section 1360 and would assist the jury in evaluating the victim's credibility. The

court declined to allow admission of the third interview, finding it redundant.

7
 2

Martinez contends the court prejudicially erred in admitting the interviews because

the victim's statements lacked the indicia of reliability required for admission under

Evidence Code section 1360.4 More particularly, Martinez contends the victim's

statements were not spontaneous and the statements in her second interview contradicted

the statements in her first interview by "includ[ing] new and far more egregious

allegations, incorporat[ing] language not generally utilized by a child her age and …

made after a two-week exposure to [Martinez's wife] … who [had a] strong motive to

fabricate because she was hostile to [Martinez] and stood to gain by his conviction and

incarceration." Because the confrontation clause is not implicated in this case (see fn. 4,

ante), we review the court's decision to admit evidence under Evidence Code section

1360 for abuse of discretion. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367;

cf. People v. Eccleston (2001) 89 Cal.App.4th 436, 445–446.)

"[Evidence Code section] 1360 creates a limited exception to the hearsay rule in

criminal prosecutions for a child's statements describing acts of child abuse or neglect,

including statements describing sexual abuse. [Citations.] [Evidence Code section] 1360

safeguards the reliability of a child's hearsay statements by requiring that: (1) the court

find, in a hearing conducted outside the presence of the jury, that the time, content, and

circumstances surrounding the statement(s) provide sufficient indicia of reliability; (2)

4 In the court below, Martinez also challenged the admission of the statements on
the grounds they violated his rights under the Sixth Amendment's confrontation clause
and they were more prejudicial than probative under Evidence Code section 352. He did
not reassert these grounds on appeal.
8
the child either testifies at the proceedings, or, if the child is unavailable to testify, other

evidence corroborates the out-of-court statements; and (3) the proponent of the statement

gives notice to the adverse party sufficiently in advance of the proceeding to provide him

or her with a fair opportunity to defend against the statement." (People v. Roberto V.,

supra, 93 Cal.App.4th at p. 1367, fn. omitted.)

Martinez does not dispute the second and third requirements were met. He

disputes only whether the first requirement was met. The nonexclusive factors relevant

to determining whether the first requirement was met include: (1) the victim's mental

state; (2) whether the victim's statements were spontaneous and consistently repeated; (3)

whether the victim used terminology unexpected from a child the victim's age; and (4)

whether the victim had a motive to fabricate the statements. (In re Cindy L. (1997) 17

Cal.4th 15, 29–30; People v. Eccleston, supra, 89 Cal.App.4th at p. 445; People v. Brodit

(1998) 61 Cal.App.4th 1312, 1329–1330.)

Applying these factors in this cases, the record shows the victim first disclosed the

conduct in the vehicles to her classmates. The victim later told her mother, Martinez's

wife, police officers, and the social worker about this conduct, albeit with some variation

in her statements. After the first interview with the social worker, the victim told her

mother and Martinez's wife about the conduct in the bedroom. She repeated the

statements, again with some variation, to police officers and the social worker. Her

mental state when she made the statements was predictably fearful and upset. The

variations in her statements and the delayed disclosure of the bedroom conduct were also

predictable given her age, differences in the phrasing of the questions asked of her, the

9
need for interpreter assistance, the length of time between interviews and the nature of

conduct.

In addition, while Martinez's wife may have had a motive to harm Martinez

because of her souring relationship with him, the victim loved Martinez, she did not have

an apparent motive to lie, and there is scant evidence Martinez's wife coached or

influenced the victim's statements. Although Martinez points to certain, arguably

sophisticated terms in the victim's statements as evidence of his wife's coaching, we note

these terms were not the victim's actual words. Rather, these terms were an adult Spanish

interpreter's English translation of the victim's actual words. We have no means of

knowing from this record whether the victim's actual words were unusually sophisticated.

We, therefore, cannot infer from the translated terms the victim's statements were

coached. Accordingly, we conclude Martinez has not established the court abused its

discretion by admitting the victim's statements under Evidence Code section 1360.

C

1

a

Before deliberations, the court instructed the jury on the applicable law with

standard jury instructions, including CALCRIM Nos. 225, 252, and 1120.

i

The CALCRIM No. 225 instruction informed the jury: "The People must prove

not only that the defendant did the acts charged, but also that he acted with a particular

10
intent or mental state. The instruction for each crime explains the intent or mental state

required.

"An intent or mental state may be proved by circumstantial evidence. [¶] Before

you may rely on circumstantial evidence to conclude that a fact necessary to find the

defendant guilty has been proved, you must be convinced that the People have proved

each fact essential to that conclusion beyond a reasonable doubt.

"Also, before you may rely on circumstantial evidence to conclude that the

defendant had the required intent or mental state, you must be convinced that the only

reasonable conclusion supported by the circumstantial evidence is that the defendant had

the required intent or mental state. If you can draw two or more reasonable conclusions

from the circumstantial evidence, and one of those reasonable conclusions supports a

finding that the defendant did have the required intent or mental state and another

reasonable conclusion supports a finding that the defendant did not, you must conclude

that the intent or mental state was not proved by the circumstantial evidence. However,

when considering circumstantial evidence, you must accept only reasonable conclusions

and reject any that are unreasonable."

ii

The CALCRIM No. 252 instruction informed the jury: "The crime[] charged in

Count[] One … require[s] proof of the union, or joint operation, of act and wrongful

intent. [¶] … [¶] The following crime[] require[s] a specific intent or mental state: …

Count one (1). [¶] For you to find a person guilty of [this] crime[] that person must not

only intentionally commit the prohibited act, but must do so with a specific intent and

11
mental state. The act and the specific intent and mental state required are explained in

the instruction for that crime."

iii

The CALCRIM No. 1120 instruction informed the jury: "The defendant is

charged in count one (1) with continuous sexual abuse of a child under the age of 14

years in violation of Penal Code section 288.5(a).

"To prove that the defendant is guilty of this crime, the People must prove that:

[¶] 1. The defendant lived in the same home with a minor child; [¶] 2. The defendant

engaged in three or more acts of substantial sexual conduct or lewd or lascivious conduct

with the child; [¶] 3. Three or more months passed between the first and last acts; [¶]

AND [¶] 4. The child was under the age of 14 years at the time of the acts[.] [¶] … [¶]

"Lewd or lascivious conduct is any willful touching of a child accomplished with

the intent to sexually arouse the perpetrator or the child. Contact with the child's bare

skin or private parts is not required. Any part of the child's body or the clothes the child

is wearing may be touched.

"Someone commits an act willfully when he or she does it willingly or on purpose.

It is not required that he or she intend to break the law, hurt someone else, or gain any

advantage. [¶] You cannot convict the defendant unless all of you agree that the

Defendant committed three or more acts over a period of at least three months, but you

do not all need to agree on which three acts were committed. [¶] Actually arousing,

appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or child

12
is not required for lewd or lascivious conduct. [¶] It is not a defense that the child may

have consented to the act."

b

Martinez also requested the court give a special jury instruction on innocuous

touching. The proposed instruction read:

"The lewd character of an activity cannot logically be determined separate and

apart from the perpetrator's intent. It is common knowledge that children are routinely

cuddled, disrobed, stroked, examined, and groomed as part of a normal and healthy

upbringing. On the other hand, any of these intimate acts may also be undertaken for the

purpose of sexual arousal. Thus, depending upon the actor's motivation, innocent or

sexual, such behavior may or may not fall within the prohibitions of lewd or lascivious

acts.

"Whether the touching is lewd or lascivious depends on whether it was committed

with the required sexual motivation and intent. An inadvertent or casual non-offensive

touching is not lewd or lascivious touching unless the touching was done with an intent to

arouse, appeal to or gratify either the lust, passions or sexual desires of the defendant or

the child. If you have a reasonable doubt as to whether the alleged lewd and lascivious

acts were committed with the required sexual motivation and intent, you must resolve

that doubt in favor of the defendant and return a verdict of not guilty."

The court agreed to give and gave the second paragraph of the instruction, but not

the first paragraph. The court found the first paragraph, while a correct statement of the

13
law, was not appropriate for a jury instruction because it was duplicative, confusing and

unnecessary.

2

Martinez contends the court prejudicially erred by failing to give the first

paragraph of the instruction because it was a correct statement of the law and consistent

with his theory of the case. We apply a de novo standard of review in determining

whether the court properly instructed the jury. (People v. Dowdell (2014) 227

Cal.App.4th 1388, 1418.)

" '[I]n appropriate circumstances' a trial court may be required to give a requested

jury instruction that pinpoints a defense theory of the case by, among other things,

relating the reasonable doubt standard of proof to particular elements of the crime

charged. [Citations.] But a trial court need not give a pinpoint instruction if it is

argumentative [citation], merely duplicates other instructions [citation], or is not

supported by substantial evidence [citation]. An instruction that does no more than

affirm that the prosecution must prove a particular element of a charged offense beyond a

reasonable doubt merely duplicates the standard instructions defining the charged offense

and explaining the prosecution's burden to prove guilt beyond a reasonable doubt.

Accordingly, a trial court is required to give a requested instruction relating the

reasonable doubt standard of proof to a particular element of the crime charged only

when the point of the instruction would not be readily apparent to the jury from the

remaining instructions." (People v. Bolden (2002) 29 Cal.4th 515, 558–559.)

14
 Here, the chief purpose of the first paragraph of the special instruction was to

explain that whether a touching is lewd or lascivious depends on the intent of the person

doing the touching, not the touch itself. The standard instructions the court gave

accurately and completely covered this point. The second paragraph of the special

instruction further emphasized this point. The particular circumstances of this case did

not suggest a need for additional clarification because the touchings at issue, if the jury

believed they occurred and were not fabricated at the behest of Martinez's wife, could

never reasonably be considered innocuous. Regardless, the proposed special instruction

added nothing substantive to the standard instructions. Therefore, the court did not err in

declining to give the first paragraph of the special instruction. (People v. Bolden, supra,

29 Cal.4th at p. 559.)

The fact the first paragraph of the special instruction is derived from language in

People v. Martinez (1995) 11 Cal.4th 434, at page 450, does not alter our conclusion. A

court may properly decline to give a special instruction derived from language in a

California Supreme Court case when, as here, the concepts expressed in the language are

generally incorporated into and, therefore, duplicative of the concepts expressed in other

applicable instructions. (See People v. Moon (2005) 37 Cal.4th 1, 30–31.)

D

1

At the sentencing hearing, the court noted there had been no request for economic

restitution, but section 1202.4(f)(3)(F) allowed the court to award noneconomic

restitution to victims of section 288 offenses. The court stated it believed the victim

15
would require counseling in the future and "it's the constitutional right of the victim to be

compensated for that under the statute." The court tentatively decided to award the

victim $150,000, subject to a hearing and briefing by the parties.

In subsequent briefing, Martinez argued the availability of noneconomic

restitution under section 1202.4(f)(3)(F) is limited to convictions under section 288 and

does not apply to convictions under section 288.5. The prosecution argued the statute

applied to all felony convictions for child molestation. After considering these

arguments, the court confirmed its tentative decision and awarded the victim

noneconomic restitution of $150,000.

2

With exceptions not applicable here, section 1202.4, subdivision (f), provides in

part: "[I]n 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 the

victim … in an amount established by court order, based on the amount of loss claimed

by the victim … or any other showing to the court. … [¶] … [¶] (3) To the extent

possible, the restitution order shall be … of a dollar amount that is sufficient to fully

reimburse the victim … for every determined economic loss incurred as the result of the

defendant's criminal 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." (Italics added.)

Martinez contends we must reverse the restitution order because, according to its

plain language, section 1202.4(f)(3)(F) only authorizes noneconomic restitution for

16
violations of section 288. It does not authorize noneconomic restitution for violations of

section 288.5.

3

We review questions of statutory interpretation de novo. (McCarthy, supra, 244

Cal.App.4th at pp. 1103–1104.) "In construing the statute, 'our principal task is to

ascertain the intent of the Legislature.' [Citation.] The process of statutory interpretation

may involve up to three steps. [Citation.] First, because the statutory language is

generally the most reliable indicator of legislative intent, we look to the words

themselves, giving them their ordinary meanings and construing them in context.

[Citation.] We do not consider statutory language in isolation 'but rather examine the

entire substance of the statute in order to determine the scope and purpose of the

provision.' [Citation.] Although we must follow the statute's plain meaning if such

meaning can be discerned, we will not do so if adherence to plain meaning 'would lead to

absurd results the Legislature could not have intended.' [Citation.] 'In such

circumstances, "[t]he intent prevails over the letter, and the letter will, if possible, be so

read as to conform to the spirit of the act." ' [Citations.]

" 'If the plain language of the statute does not resolve the inquiry, as a second step

we may turn to maxims of construction, " 'which serve as aids in the sense that they

express familiar insights about conventional language usage.' " [Citations.]' [Citation.]

We may also consider other extrinsic aids to statutory construction, including the statute's

legislative history and the historical circumstances of its enactment. [Citation.] In

addition, since we here construe a restitution statute, 'we are guided by the broad

17
constitutional mandate of California Constitution, article I, section 28, subdivision (b).'

[Citation.] ' "In keeping with the [voters'] 'unequivocal intention' that victim restitution

be made, statutory provisions implementing the constitutional directive have been

broadly and liberally construed." [Citations.]' [Citation.]

"Finally, '[t]o the extent that uncertainty remains in interpreting statutory

language, "consideration should be given to the consequences that will flow from a

particular interpretation" [citation] … .' [Citation.] In this final step, we ' "apply reason,

practicality, and common sense to the language at hand. If possible, the words should be

interpreted to make them workable and reasonable [citations]." ' " (McCarthy, supra, 244

Cal.App.4th at pp. 1104–1105.)

4

a

Two appellate courts have recently considered and reached differing conclusions

on whether section 1202.4(f)(3)(F) applies to convictions under section 288.5. In the first

case, People v. Valenti (2016) 243 Cal.App.4th 1140 (Valenti), the People conceded

victims of the crime of continuous sexual abuse under section 288.5 are not eligible for

noneconomic restitution under section 1202.4(f)(3)(F). (Valenti, supra, at p. 1181.) The

appellate court agreed, concluding "[t]he plain language of section 1202.4[(f)(3)(F)]

limits noneconomic restitution awards to 'felony violations of Section 288.' It does not

include section 288.5. … 'Sections 288 and 288.5 are not … interchangeable statutes.'

[Citation.] Therefore, contrary to the prosecutor's representations below, the court was

not 'allowed to award restitution to victims in [section] 288[-]type cases.' 'It is not our job

18
to insert language in a statute which is not there. Had the Legislature wanted to include

section 288.5' in the restitution statute, 'it was capable of doing so. It did not. The

People's remedy lies with the Legislature and that body's power to amend the law, not

with us, because we are charged with enforcing statutes as they are written,' not as the

prosecutor wishes they were written." (Id. at pp. 1181–1182.)

b

A month later, in McCarthy, supra, 244 Cal.App.4th 1096, another appellate court

concluded section 1202.4(f)(3)(F) applies to convictions for continuous sexual abuse of a

child under section 288.5 "if the conduct of which the defendant was convicted also

constitutes a violation of section 288, even if the defendant was not convicted under

[section 288]." (McCarthy, at p. 1109)

In reaching this conclusion, the McCarthy court first determined the plain

language of section 1202.4(f)(3)(F) is reasonably susceptible to an interpretation either

limiting it to convictions under section 288 or expanding it to convictions for conduct

violating section 288, even if the conviction is not under section 288. (McCarthy, supra,

244 Cal.App.4th at pp.1105–1106.)

The court then determined the Legislature's use of the terms "conviction" and

"convicted" in some provisions of section 1202.4 (e.g., § 1202.4, subds. (a)(1), (2),

(b)(1), (2) & (q)) and its use of the term "violations" in section 1202.4(f)(3)(F) indicates

the Legislature intended the terms to have different meanings. (McCarthy, supra, 244

Cal.App.4th at p. 1106.) Supporting this determination, the court noted that, when the

provision for noneconomic restitution was first added to section 1202.4, it expressly

19
applied to a "conviction" for a felony violation of section 288. However, the Legislature

later amended the provision to drop the word "conviction." "[B]y deleting the word

'conviction' the Legislature presumably intended to remove any requirement that

defendants actually be convicted of a charge under section 288 before restitution for

noneconomic losses could be awarded." (McCarthy, at p. 1107.) "Such an interpretation

comports with the broad and liberal construction courts have given to the restitution

statutes so as to effectuate the voters' intention that victim restitution be made." (Id. at

pp. 1107–1108.)

The court next determined a construction permitting noneconomic restitution for

violations for section 288, but not for violations of section 288.5, would produce an

absurd result. (McCarthy, supra, 244 Cal.App.4th at p. 1108.) "It is well recognized that

' "child sexual abuse results in long-term emotional and psychological damage to the

child victim if left untreated." ' [Citations.] And such abuse 'is not the kind of act that

results in emotional and psychological harm only occasionally.' [Citation.] Why would

the Legislature have chosen to permit restitution for the psychological harm caused by

lewd and lascivious acts but not for the psychological harm caused by the very same

conduct when charged as continuous child sexual abuse?" (Ibid.) "In construing the

statute, we must consider the consequences flowing from a given interpretation.

[Citation.] Having considered those consequences, we refuse to adopt a construction that

would grant restitution for noneconomic loss to victims of lewd and lascivious acts but

not to victims of what [the defendant] agrees are 'much more serious' violations of the

20
Penal Code. 'We can think of no explanation why the Legislature could have desired

such an unlikely result." (Id. at pp. 1108–1109.)

Lastly, the court distinguished the Valenti decision on two bases. First, the Valenti

court had limited occasion to address the proper construction of section 1202.4 (f)(3)(F)

because the People in Valenti conceded the statute did not apply to a conviction under

section 288.5. (McCarthy, supra, 244 Cal.App.4th at p. 1111.) Second, unlike the

defendant's conviction in McCarthy, the defendant's conviction in Valenti was not based

on the theory the defendant committed three or more lewd and lascivious acts violating

section 288. Rather, it was based on the alternative theory the defendant committed three

or more acts of substantial sexual conduct under section 1203.066, subdivision (b).

(McCarthy, at p. 1111.)

We agree with the holding in the McCarthy decision. We, therefore, conclude the

trial court did not err in awarding noneconomic restitution to the victim under section

1202.4(f)(3)(F).

c

Although not addressed by the parties or in the McCarthy decision, we note other

legislative history supports the McCarthy court's holding. The authority to award

noneconomic damages to child molest victims first originated in Government Code

section 13967, the predecessor to section 1202.4. In 1991, Government Code section

13967, subdivision (c), was amended to include two sentences. The first sentence

provided: "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

21
denied probation." The second sentence provided: "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, as amended by Stats. 1991, c. 657,

§ 1.)

The Legislative Counsel's Digest provides a somewhat vague summary of the

amendments' import. It states, "This bill would provide that if a defendant has been

convicted of felony child molestation, as specified, restitution to the victim may be

ordered whether or not the defendant is denied probation, and the restitution may cover

noneconomic losses, including, but not limited to, psychological harm." (Legis.

Counsel's Dig., Sen. Bill No. 736 (1991–1992 Reg. Sess.) Summary Dig., p. 275, italics

added.)

However, other legislative history indicates the amendments were intended to

provide an alternative avenue of compensation for child sexual molestation victims in

light of the California Supreme Court's decision in J. C. Penney Casualty Ins. Co. v.

M. K. (1991) 52 Cal.3d 1009 (J. C. Penney). (Sen. Com. on Judiciary, Analysis of Sen.

Bill No. 736 (1991–1992 Reg. Sess.) as amended May 15, 1991, pp. 4–5.) The J. C.

Penney decision foreclosed the use of liability insurance proceeds as compensation by

holding "insurers are not required to indemnify their insureds for damages caused by an

insured's sexual molestation of a child." (J. C. Penney, supra, at p. 1014, italics added.)

While the court decided the case in the context of a conviction under section 288, nothing

in the decision limited its holding to this context. Rather, throughout the decision the

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court used the term "sexual molestation" interchangeably with "child molestation" to

broadly encompass "sexual fondlings, penetration, and oral copulation" as well as

conduct against a child whose "essence" is the "gratification of sexual desire." (J. C.

Penney, at pp. 1014, 1019, 1021.) We would typically expect the Legislature to intend

for any responding legislation to be of comparable scope.

Consistent with this expectation, none of the analyses prepared during the

legislative process specifically referred to section 288 and all of them described the

amendments' import broadly. For example, the Legislative Analyst's analysis of the

amendments stated the bill increased "potential civil restitution awards to victims of child

molestation," authorized "restitution judgments against child molesters regardless of

probation decisions," and allowed "the court to order convicted child molesters to pay for

noneconomic losses, such as psychological harm." (Legis. Analyst, analysis of Sen. Bill

No. 736 (1991–1992 Reg. Sess.) Aug. 13, 1991, p. 1, italics added.)

Other analyses were in accord. (Sen. Com. on Judiciary, Analysis of Sen. Bill No.

736 (1991-1992 Reg. Sess.) as amended May 15, 1991, p. 5 [the amendments increase

"restitution payments to the child molestation victim to also cover psychological damages

and noneconomic losses," italics added]; Assem. Ways and Means Com., Republican

Analysis of Sen. Bill No. 736 (1991–1992 Reg. Sess.) as amended Aug. 20, 1991, p. 1

["Upon conviction of felony child sexual assault, even if the defendant is denied

probation, a court may award a victim restitution for non-economic losses including

psychological harm," italics added]; Dept. of Finance, analysis of Sen. Bill No. 736

(1991–1992 Reg. Sess.) as amended Aug. 28, 1991, p. 2 ["[Sen. Bill. No.] 736, would

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authorize the court to order that restitution be paid to the victim by convicted child

molesters, regardless of whether probation is denied. It would also authorize courts to

order restitution to cover non-economic losses (e.g. psychological harm). By expanding

the civil liability of child molesters, the provisions of [Sen. Bill No.] 736 could increase

the amount of restitution available to victims of child abuse or assault, through civil

awards " italics added].)

We did not locate any analyses expressing an intent for the amendments to benefit

a smaller subset of victims than those impacted by the J. C. Penney decision.

Accordingly, we conclude the Legislature intended for section 1202.4(f)(3)(F) to apply at

least as broadly as interpreted in the McCarthy decision.

E

Lastly, Martinez contends the award of noneconomic damages violated his Sixth

Amendment right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466 [120

S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) and its progeny. Martinez acknowledges this

argument was rejected in People v. Smith (2011) 198 Cal.App.4th 415 (Smith), but he

contends the Smith case was wrongly decided.

The Smith court held "a restitution order for noneconomic damages does not give

rise to a jury trial right." (Smith, supra, 198 Cal.App.4th at p. 433.) Although the

defendant in Smith acknowledged a court may award economic restitution at sentencing

without a jury determination, he argued that "because the determination of the amount of

noneconomic damages is subjective, the jury must make that determination." (Ibid.) The

court rejected the argument, stating "this claim has no merit because there is no basis for

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distinguishing jury trial rights, or lack thereof, for restitution orders for economic

damages and restitution orders for noneconomic damages. In both cases, the trial court is

performing a task that, in a civil case, a jury would perform." (Ibid.)

We agree with the Smith court's conclusion. The Apprendi decision requires a jury

determination of any fact, other than the fact of a prior conviction, that increases the

penalty for a crime beyond the statutory maximum. (Apprendi, supra, 530 U.S. at

p. 490.) However, this rule does not apply to direct victim restitution because direct

victim restitution is not a criminal penalty. (People v. Foalima (2015) 239 Cal.App.4th

1376, 1398; People v. Pangan (2013) 213 Cal.Ap.4th 574, 585.) "[D]irect victim

restitution is a substitute for a civil remedy so that victims of crime do not need to file

separate civil suits. It is not increased 'punishment.' " (People v. Pangan, supra, at

p. 585; accord, People v. Foalima, supra, at p. 1398.) The subjective nature of

calculating the amount of a noneconomic restitution award does not alter the award's

character. The award remains compensatory, not punitive.

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 IV

DISPOSITION

The judgment is affirmed.

MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

HUFFMAN, J.

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