Unreported / Non-Citable
Background
Josh Paul Weise was in a relationship with the victim's mother beginning in 2014, when the victim was eight years old. After she turned nine, Weise repeatedly sexually assaulted her over several years, including digital penetration, oral copulation, and rape, sometimes using objects and force. He stopped sexually assaulting her after she turned 12 because she began menstruating, though he continued to comment on her body. In 2022 the victim confided in her father, who accompanied her to report the abuse to a school resource officer and the Vacaville Police Department.
Weise was charged with ten felony counts. On August 14, 2025, under a negotiated disposition, he pleaded no contest to two felonies: committing a lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a)) with an enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)), and willful cruelty to a child (§ 273a, subd. (a)). He also admitted special allegations that he took advantage of a position of trust. The plea waiver form set a maximum sentence of 12 years four months; Weise initialed "I give up my right of appeal," and the form did not separately list restitution.
At the September 30, 2025 sentencing, the court imposed the negotiated 12-year-four-month term. The district attorney requested $100,000 in noneconomic restitution for the victim under Penal Code section 1202.4, subdivision (f)(3)(F), relying on the victim's and her father's statements in the presentence report and at sentencing. Weise opposed, arguing the award violated the plea agreement, that he had not been advised of potential noneconomic restitution, and that the amount was arbitrary and unsupported. The court ordered the full $100,000 and permanently suspended the section 1202.4 fine.
The Court’s Holding
Weise's appointed counsel filed a Wende brief identifying no arguable issues, and Weise did not file a supplemental brief. The Court of Appeal first held that Weise's appeal was not cognizable. A defendant who pleads no contest generally may not appeal without a certificate of probable cause, except for postplea claims that do not challenge the validity of the plea. The court concluded that Weise's challenge to the nonwaivable restitution order was, in substance, a challenge to the validity of the plea because he argued the award was not part of the negotiated disposition and that he was not properly advised; because he obtained no certificate of probable cause, the appeal could not be substantively addressed.
Accepting for the sake of argument that Weise challenged only the amount of restitution, the court found no arguable issue on independent Wende review. Restitution, including noneconomic losses for felony violations of section 288, is a mandatory constitutional right of the victim, and a plea agreement's silence cannot circumscribe the trial court's duty to order full restitution. The sentencing court had inquired about restitution before the presentence report, and defense counsel did not object or suggest a legal bar.
Reviewing the amount for abuse of discretion under a shocks-the-conscience standard, the court held that the $100,000 award demonstrates no arguable issue. Other courts had upheld far higher awards for multi-year child sexual abuse, and the nearly four years of abuse here could have supported $200,000 under the per-year calculation used by the prosecution. The victim's statements describing lasting psychological harm supported the award. The judgment was affirmed.
Key Takeaways
- A defendant who waives the right to appeal in a no contest plea must obtain a certificate of probable cause before challenging a restitution order when the challenge is, in substance, a challenge to the validity of the plea; without one, the appeal is not cognizable.
- Even if cognizable, noneconomic restitution under Penal Code section 1202.4, subdivision (f)(3)(F) is mandatory for felony violations of section 288 and is not limited by a plea agreement's silence on restitution.
- A $100,000 noneconomic restitution award for nearly four years of child sexual abuse was not an abuse of discretion under the shocks-the-conscience standard and was consistent with higher awards upheld in similar cases.
- Trial courts may base noneconomic restitution on victim statements in the presentence report and at sentencing without live testimony, and defendants have no right to confront or cross-examine those speakers at a restitution hearing.
Why It Matters
The opinion clarifies that challenges to restitution orders premised on lack of advisement or absence from a plea agreement may be treated as challenges to the plea's validity, triggering the certificate-of-probable-cause requirement of Penal Code section 1237.5. It also reaffirms that victim restitution, including noneconomic losses for specified sex offenses, is a mandatory constitutional right that plea negotiations cannot waive, and it illustrates the deferential abuse-of-discretion review applied to noneconomic restitution amounts.