Restitution for victim can be ascertained and imposed even after probation terminated

THE PEOPLE, Plaintiff and Respondent, v. SCOTLANE McCUNE, Defendant and Appellant. (Cal., Aug. 8, 2024, No. S276303) 2024 WL 3736802, at *1–2

Summary: California law mandates that individuals who are convicted of a crime must be ordered to make full restitution to their victims “in every case, regardless of the sentence or disposition imposed.” (Cal. Const., art. I, § 28, subd. (b)(13)(B); see Pen. Code, § 1202.4.) When a victim’s losses are not ascertainable at the time the defendant is sentenced, the sentencing court must issue a restitution order providing “that the amount shall be determined at the direction of the court.” (Pen. Code, § 1202.4, subd. (f).) The court then “shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined.” (Id., § 1202.46.)

Here, McCune was placed on felony probation for five years and ordered at sentencing to pay victim restitution in an amount to be determined. McCune’s probation period was shortened by new legislation capping felony probation at two years. The trial court then fixed the amount of victim restitution.  McCune argues the order came too late because, under the probation statute, the trial court’s authority to modify the order of probation ended once his term of probation had expired. (Pen. Code, § 1203.3.)

The Court of Appeal rejected McCune’s argument as inconsistent with the clear instructions in Penal Code section 1202.46, which provides that the sentencing court retains jurisdiction to fix the amount of restitution until the amount of the victim’s losses can be determined. The California Supreme Court agreed and affirmed the judgment.

Background: In June 2017, McCune crashed a vehicle head-on into a tree while driving without a license. McCune was charged with felony hit and run with injury (Veh. Code, § 20001, subd. (a)) and misdemeanor driving without a license (id., § 12500, subd. (a)). He pleaded no contest to the felony hit and run and the trial court dismissed the misdemeanor charge. At sentencing in June 2018, the trial court placed McCune on five years’ formal probation and required McCune to “[p]ay restitution to Miguel Villa and/or the California Victim Compensation & Government Claims Board in an amount to be determined by the Probation Officer and the Court.” On December 31, 2020, the probation department filed a restitution investigation report stating that Villa sought $30,166.23 in restitution for medical losses.

The day after that filing, on January 1, 2021, new legislation took effect that capped the maximum term of felony probation to two years (Assembly Bill 1950).) because McCune had already served about two and a half years on probation — more than the maximum two-year term allowed by the new law — the trial court terminated McCune’s probation on January 14, 2021. One week later, the District Attorney moved for a restitution hearing. McCune objected that once his probation had terminated, the court no longer had the authority to fix an amount of victim restitution. The trial court disagreed, concluding that it had the power to set the amount of victim restitution under Penal

On appeal, McCune renewed his objection to the trial court’s authority to set the amount of victim restitution after probation had terminated. The Court of Appeal rejected the argument, citing sections 1202.4 and 1202.46. (McCune, supra, 81 Cal.App.5th 648, 653.) While “[s]ection 1203.3 grants courts authority and jurisdiction to revoke, modify, or change probation conditions generally, including restitution orders, during the term of probation,” sections 1202.4 and 1202.46 grant “additional authority to address the specific situation in which ‘the amount of loss cannot be ascertained at the time of sentencing.’ ” (McCune, at pp. 654–655.) “When a court follows this process, section 1202.46 grants the court jurisdiction ‘for purposes of imposing or modifying restitution until such time as the losses may be determined’ (§ 1202.46), even if that occurs after probation has ended.” (Id. at p. 655.)

Law Governing Victim Restitution.

Under the California Constitution, as amended in 1982 by Proposition 8 every crime victim has a right to be compensated by the defendant for losses incurred as a result of the defendant’s crime. In passing Proposition 8, the electorate expanded victims’ access to compensation. Proposition 8 required that restitution be ordered “in every case, regardless of the sentence or disposition imposed,” absent “compelling and extraordinary reasons.”

In 1996, the Legislature amended section 1202.4 to provide that “[i]f the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution.” A few years later, the Legislature then passed a related provision concerning jurisdiction in section 1202.46, establishing that the trial court “shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined.”

The law has been clear that a court’s power to fix the amount of victim restitution once it becomes ascertainable does not terminate with the completion of a term of imprisonment. There is no evidence that this rule has led to unreasonable delays in fixing restitution amounts.

Section 1203.3 does not set a strict statutory deadline for specifying the amount of victim restitution does not mean that there are no timing limitations at all. The statutory framework permits a trial court to retain jurisdiction to fix the restitution amount only if losses “cannot be ascertained at the time of sentencing,” and only “until such time as the losses may be determined.” (§ 1202.46.) This constitutional scheme is designed to ensure that victims of crime are fully compensated for their losses, and compensation must be made without needless delay.

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