People v. Lam CA1/2

Filed 9/16/16 P. v. Lam CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A144084 v. GILBERT LAM, (San Francisco County Super. Ct. No. SCN221188) Defendant and Appellant.

Gilbert Lam appeals the imposition of a $3000 victim restitution award imposed against him under Penal Code section 1202.4,1 following his conviction for possession of child pornography. We affirm. BACKGROUND On December 18, 2014, a jury convicted Lam of possessing child pornography, in violation of Penal Code section 311.11(a). The conviction was based on evidence of 49 video files depicting child pornography found on several hard drives that had been seized during a police raid on his home. Lam’s defense, rejected by the jury, was that he had downloaded the material unintentionally, while batch downloading adult pornography. Thereafter, Lam was sentenced to 16 months in state prison and, among other things, ordered to pay $3,000 in victim restitution to “Vicky,” whom the prosecution identified post-trial as one of the children depicted in the pornography.

1 All statutory references are to the Penal Code.

1

The prosecution had been contacted by Vicky’s attorney, who was requesting restitution on her behalf after learning through a notification from the National Center for Missing Exploited Children and the USDOJ’s Child Exploitation and Obscenity Section that the video series exploiting Vicky as a child had been found in the defendant’s collection. The prosecution attached to its pleading requesting restitution a copy of the request from Vicky’s attorney along with its voluminous supporting documentation. That documentation described the trauma Vicky has suffered as a result of the video of her being sexually abused as a child having been widely disseminated on the internet, and the projected financial toll it would take on her over her lifetime. It included victim impact statements from Vicky and her parents, a forensic psychological evaluation, a vocational assessment and a forensic economic analysis of lost wages. The economic losses detailed in those papers exceeded a million dollars. The prosecution requested Lam be ordered, through restitution, to contribute $5,000 toward her losses. At the sentencing hearing, defense counsel initially questioned whether there was a legal basis to award restitution to Vicky, since much of the law in this area to date has developed under federal law, but ultimately conceded that there was a basis (italics added): “THE COURT: . . . What is your position as to the restitution request? “[DEFENSE COUNSEL]: Your honor, I am a bit confused by it. I looked at the statutes and the cases involved. I didn’t see any analogous state law statutes that would make restitution in this type of case available to Vickie. It seemed that the controlling authority related to the federal statutes and there was some federal law on that. And then I also noticed in the probation report that Ms. Duenas, the probation officer, I don’t know if she had a similar read on it but there was a question as to restitution in that manner. So, with that, I object. I’m not even sure it’s appropriate in this type of case under state law and I’ve not seen it before. [¶] . . . [¶] . . . . “THE COURT: Okay. So, Mr. King, putting aside the question of whether [Paroline v. U.S. (2014) __U.S.__ [134 S.Ct. 1710] (Paroline)] applies directly here, do you dispute that Vickie is an identified victim in this case?