Opinion

People v. Montiel

Court: California Court of Appeal
Filed: May 16, 2019
Status: Published
Cited by: 0 cases
Authority: More cited than 7.7%

The opinion

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

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 In the unpublished portion of our opinion, we reject Montiel’s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.

remaining arguments and order the correction of an error involving the abstract of

judgment.

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

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

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.

The allegation was found true under section 1203.066, subdivision (a)(8).

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.

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.

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

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

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

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.)

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

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

[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.

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-

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” ’ ”].)

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.)

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.)

The references to sections 288.5 and 288.7 were added on January 1, 2018.

(Stats. 2018, ch. 101, § 1.)

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.

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.

Section 1202.4, subdivision (k) also includes certain governmental and private

entities in the definition of “victim.” (See § 1202.4, subd. (k)(2) & (5).)

(B) At the time of the crime was living in the household of the

victim.

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

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.)

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

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.

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

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

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

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.)

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

“ ‘[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.

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

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.

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;

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.

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.

_________________________

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

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

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.”

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).)

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:

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.)

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.

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].)

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].)

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

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

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.

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,

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.)

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

“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.)

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

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];

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

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:

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.)

“(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.

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

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.

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.

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

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

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,

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.

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

Fund as follows:

“(2) ‘Derivative victim’ means a resident of California who is one of the

following:

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)).)

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

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].)

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–

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

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.)

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

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

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.

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,

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.

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”

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.

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,

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

<https://victims.ca.gov/victims/faq/eligibility.aspx#Who> [as of May 7, 2019].)

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

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

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.”

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

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

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

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

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

“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

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.)

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

‘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).

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.

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

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

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 deriva

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