People v. Flaherty

Opinion

BENKE, J. Appellant Colby Watson Flaherty was charged with 52 counts of various sex offenses stemming from repeated sexual abuse of Kristi C. between September 1986 and July 1988. He pled guilty to one count of child molestation (Pen. Code, § 288, subd. (a)), and six counts of inducing a minor to pose for photographs involving sexual conduct (Pen. Code, § 311.4, subd. (c)). It is significant for our purposes that four of the offenses to which appellant pled guilty occurred in 1986 and three occurred in 1987. Appellant was sentenced to the aggravated term of eight years’ imprisonment on the molestation charge and to consecutive eight-month terms on the remaining six counts for a total term of twelve years. In addition, he was ordered to pay a restitution fine of $500 pursuant to Government Code section 13967. Later, pursuant to Government Code section 13967, subdivision (c), a restitution hearing was held, and appellant was ordered to pay $10,000 directly to the victim. This amount covered $4,465 in medical care received and the balance covered anticipated medical care.

Appellant’s contentions are confined to the matter of restitution. He argues requiring direct restitution to the victim in this case violates the constitutional prohibition against ex post facto laws. He also urges there was insufficient evidence to support a restitution order of $10,000. In the published portion of this opinion we reject appellant’s ex post facto claim, but in the unpublished portion we remand for a new restitution hearing.

Discussion

I

Ex Post Facto Application of Government Code Section 13967

Appellant notes four of the seven counts to which he pled guilty, and on which, in part, the order of direct restitution was based, charged offenses occurring in 1986. In 1986 Government Code section 13967, subdivision (a), required the payment of restitution of between $100 and $10,000 to the [1142]state restitution fund. No provision was made for the payment of direct restitution to a victim. (Stats. 1983, ch. 1092, § 135.2, p. 3998.)2

In 1986 the Legislature added subdivision (c) to Government Code section 13967. That subdivision required that, beginning in 1987 in appropriate circumstances, direct payment of restitution must be paid to the victim for economic loss up to $10,000.3 Such restitution is in lieu of imposing all or a portion of the restitution fine required by subdivision (a). (Stats. 1986, ch. 1438, § 1, pp. 5140-5141.)4