People v. Smith, — Cal. Rptr. 3d —, Nos. C062191, C063545, 2011 WL 3556922 (Cal. Ct. App. Aug.12, 2011).

Defendant was convicted of one count of committing a lewd act on a child under 14 and one count of continuous sexual abuse, relating to the sexual abuse of his step-daughter when she was between the ages of eight and 15.  The trial court sentenced defendant to 18 years in state prison and ordered him to pay restitution, which included $750,000 in noneconomic losses for psychological harm pursuant to a state statute allowing for such awards against those convicted of felony child sexual abuse.  Defendant appealed from the trial court’s restitution order, arguing, inter alia, that (1) the participation of the victim’s counsel in the restitution hearing was improper; (2) the order violated his jury trial rights because civil jury trials require a jury determination on the issue of noneconomic damages and this requirement should apply in the criminal restitution context; (3) the order violated his equal protection rights because the differential treatment of child molesters under the statute allowing for noneconomic damages is not rationally related to a legitimate public purpose; and (4) the court abused its discretion in setting the amount of restitution.  The court rejected these arguments, first holding that state constitutional victim rights’ provisions gave the victim “the right to have her attorney participate in the restitution hearing.”  The court explained that victims in California have a number of rights, including the right to be notified of, present at, and heard regarding restitution matters, and that victims are also “entitle[d] to have counsel represent [them] in being heard”; thus “neither defendant nor the trial court could have lawfully prevented the participation of [the victim’s] attorney in the restitution hearing.”  The court also rejected defendant’s argument that his jury trial rights were violated, finding that restitution orders are part of criminal sentencing, with protections and requirements different from civil trials.  The court similarly held that defendant’s equal protection rights were not violated because the differential treatment accorded to those convicted of felony sexual abuse of a child is rationally related to protecting child victims of sexual abuse and that differentiating between child victims and other victims is rational based on the vulnerability of children in general and society’s interest in protecting children.  Lastly, the court held that the trial court did not abuse its discretion in setting the amount of restitution, because a restitution order that includes $750,000 in noneconomic damages for years of sexual abuse does not shock the conscience or suggest passion, prejudice or corruption on the part of the trial court.  The court then affirmed the trial court’s restitution order, subject to a correction to the writ of execution to reflect defendant’s partial satisfaction of the order.