P v. McCarthy (1 Dist., Div.5) PC 1202.4(f)(3)(F) Which Allows Noneconomic Restitution for "Violations" of PC 288 Is Not Limited to "Convictions"

Mr. McCarthy was convicted of PC 288.5, continuous sexual abuse of a child, along with 12 other counts involving sexual abuse.  He was sentenced to 150-to-life plus 32 years.  Additionally, the trial court ordered McCarthy to pay restitution to the victim for noneconomic losses in the amount of 1 million dollars.  It is from this restitution order that McCarthy appeals.

In most criminal cases, once a defendant is convicted, the court must order him to pay restitution to the victim for all economic damages.  Noneconomic damages are usually not recoverable, with an exception found in Penal Code section 1202.4(f)(3)(F), which permits restitution for “[n]oneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288.”

McCarthy points out he was not convicted for Penal Code Section 288.  The riposte from the government is "true, you were not convicted of PC 288, but that is not what the statute requires; it requires a violation of PC 288, and you did violate PC288".  This sets the table for the statutory analysis the First District panel must perform.

The panel comes down on the side of the government.  First, the panel observes that the code appears to use "violation" and "conviction" for different purposes.  Second the legislative history shows that originally the word "conviction" was used, but it was replaced by "violations", indicating a desire to expand those eligible for noneconomic damages.  The third observation is rather weak and the opinion would have been better without it.  The panel finds it an "absurd" consequence if "violation" were to be held synonymous with "conviction".  The "absurd consequence" doctrine is a horse that disciplined judges should not ride with frequency.  It is no more absurd to exclude noneonomic damages for PC 288.5 convictions than it would be to exclude noneconomic damages for 187 convictions, 261 convictions, etc.  The "absurd consequences" should really be an inverse "rational basis" test.

But with that niggling criticism, the opinion is solid.  The remaining portion of the opinion analyzes McCarthy's 288.5 conviction and finds that, within that conviction, McCarthy did violate PC 288.