People v. Cortez CA1/4

Filed 4/17/15 P. v. Cortez CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A140355 v. MARCEL CORTEZ, (San Francisco City & County Super. Ct. No. SCN220770) Defendant and Appellant.

I. INTRODUCTION Following his guilty plea to continuous sexual abuse of a child (Pen. Code, section 288.5, subd. (a))1, the trial court ordered appellant to pay $115,747.50 restitution to cover the cost for the minor victim to attend an out-of-state private therapeutic boarding school for middle and high school-aged girls. As he did below, appellant claims on appeal “the trial court’s order that appellant pay for [the victim’s] private school education in the amount of $115,747.50 exceeds the bounds of reasonableness and cannot stand.” He argues that there was no causal relationship between the need for the victim to attend the private boarding school and his sexual misconduct. We affirm, finding the court did not abuse its discretion and substantial evidence supports the trial court’s restitution order.

1 All further statutory references are to the Penal Code, unless otherwise indicated.

1

II. PROCEDURAL HISTORY On August 9, 2012, a felony complaint was filed by the San Francisco District Attorney charging appellant with continuous sexual abuse of a child (§ 288.5, subd. (a), count one), two counts of oral copulation of a minor (§ 288a, subd. (c)(1), counts two and three), two counts of sexual penetration by a foreign object (§ 289, subd. (j), counts four and five), sodomy of a minor (§ 286, subd. (c)(1), count six), lewd act on a child (§ 288, subd. (a), count seven) and using a minor for sex acts (§ 311.4, subd. (c), count eight). On July 19, 2013, appellant entered a change of plea and pleaded guilty to count one, continuous sexual abuse of a child (§ 288.5, subd. (a)). Pursuant to the agreement, appellant would receive a term of six years in prison and the remaining charges would be dismissed. The court found a factual basis for the plea, to wit: from March through the end of July 2012, appellant engaged in three or more acts of substantial sexual and lewd and lascivious conduct, within the meaning of sections 1203.66 and 288, with C.V., a child under the age of 14, while residing in the same home as the minor.2 The issue of restitution was reserved, with the court retaining jurisdiction over that issue. A sentencing hearing commenced on September 13, 2013, and a motion to continue the hearing was made by appellant. However, because C.V.’s mother was present from out of state to make a victim impact statement, the court allowed the statement to be made, and sentenced appellant to six years in state prison, consistent with the negotiated plea disposition. Jurisdiction over the issue of restitution again was retained by the court, and a hearing on restitution was scheduled for October 10. The restitution hearing actually took place on November 1, 2013. Prior to the hearing, both sides submitted written memoranda concerning the appropriate amount of restitution to be awarded. At the hearing, appellant stipulated that certain sums were proper restitution, including $72,000.00 for C.V.’s noneconomic damages, $1,625.00 as