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Jurisdiction to Set Restitution Survives End of Probationary Term—S.C.
Kruger Says Award is Proper if Losses Are Not Ascertainable Before End of Period
By a MetNews Staff Writer
The California Supreme Court held yesterday that a sentencing court retains jurisdiction under the Penal Code to set the amount of restitution until the time at which a victim’s losses are reasonably ascertainable, regardless of whether a defendant’s probation term is completed before the final award is ordered.
The question arose in a case where the defendant, Scotlane McCune, pled no contest to a felony hit-and-run charge relating to a June 2017 incident in which he drove head-on into a tree, injuring his passenger, Miguel Villa. In June 2018, he was ordered to pay restitution to Villa “in an amount to be determined by the Probation Officer and the Court” as a term of his supervision.
The sentencing court terminated his probation on Jan. 14, 2021—shortening the initial grant of five years due to the enactment of legislation limiting the maximum term of felony probation to two years—approximately one week before the prosecution moved for a restitution hearing following the submission of a probation report indicating that Villa was seeking $30,166.23 for his medical losses.
Exact Amount Ordered
Napa Superior Court Judge Elia Ortiz ordered McCune to pay $21,365 in restitution. Div. Five of the First District Court of Appeal, in an opinion by Justice Gordon B. Burns, affirmed the order, rejecting McCune’s argument that the court’s jurisdiction to fix the amount of restitution ended once his probation had terminated.
Justice Leondra Kruger wrote the opinion for the unanimous court affirming the judgment of the Court of Appeal.
Kruger explained that the high court’s conclusion is consistent with the only other Court of Appeal case directly on point—the 2022 decision of the Fourth District’s Div. One in People v. Zuniga—but resolves a “tension” due to some appellate decisions finding that a court may not impose a new restitution order once the period of probation has lapsed.
Justice Goodwin H. Liu, joined by Justice Kelli Evans, wrote separately to emphasize that the jurisdiction to fix the amount of restitution is not without limit and ends when the amount of damages becomes available or reasonably discoverable.
Statutory Scheme
Art. I, §28(b)(13)(b) of the California Constitution provides 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.” Penal Code §1202.4(f) sets forth that, in cases where the restitution amount is unknown at the time of sentencing, the court must issue a restitution order providing “that the amount shall be determined at the direction of the court.”
Sec. 1202.46 elaborates:
“Notwithstanding Section 1170, when the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the 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.”
McCune argues that §1202.46, by its own terms, does not apply to probation cases and points to the opening language of §1202.46, which says “[n]otwithstanding Section 1170.” Sec. 1170, at the time of the enactment of §1202.46, provided that a court has 120 days after imposing a sentence of imprisonment to vacate or modify the sentence.
The defendant asserts that the inclusion of the “notwithstanding” language indicates that the Legislature only meant to extend jurisdiction in cases where custodial sentences are ordered.
Probation Versus Prison
Kruger was unpersuaded. She looked to the statutory language of §1202.46 and wrote:
“Not only does the operative language of section 1202.46 draw no explicit distinction between probation and nonprobation cases, but it also cross-references and works in tandem with a provision, section 1202.4(f), that was drawn to eliminate any such distinction. We are not convinced…that the Legislature intended to smuggle in that very same distinction through a prefatory specification that section 1202.46 jurisdiction exists ‘[n]otwithstanding Section 1170.’….The more likely explanation is that the Legislature saw potential for confusion about the relationship between the provisions of section 1202.46 and former section 1170…but perceived no such potential for confusion with respect to the relationship between section 1202.46 and the probation statute.”
She added:
“Nothing in the operative language of this provision supports the restrictive reading McCune asks us to adopt. The provision is broadly worded, stating that a court retains jurisdiction ‘over a person subject to a restitution order’ until losses become ascertainable….A person who has been ordered to make restitution and who has been placed on probation is no less ‘a person subject to a restitution order’ than if the same person had been sentenced to prison. Thus, by its terms, section 1202.46 confers jurisdiction in probation cases and nonprobation cases alike.”
Probation Statute
McCune maintains that such a statutory interpretation would create a conflict with §1203.3 which limits a trial court’s jurisdiction to modify an order of probation to the duration of the term of supervision.
Kruger said that “[e]ven assuming” that an order fixing the amount of restitution once the victim’s losses become ascertainable counts as a modification of a condition of probation under §1203.3, no statutory conflict exists. She explained:
“Section 1203.3 does not purport to set an across-the-board limit on the exercise of jurisdiction granted elsewhere. Thus, while the limited nature of section 1203.3 jurisdiction means that a trial court loses jurisdiction to modify a probation order after probation terminates…, it does not limit the more specific, ‘additional’ grant of authority in section 1202.46 to set the amount of victim restitution once the victim’s losses can be ascertained….There is no statutory conflict here….”
She continued:
“It is difficult to understand why a Legislature attempting to craft a uniform set of obligations to ensure full victim restitution in every case…would have created a system that works this way….Nor does McCune explain why the Legislature would choose to disfavor victims in cases where defendants are sentenced to probation.”
The justice added:
“[W]e make clear that our holding…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.’ ”
She acknowledged that two Court of Appeal cases—the 2014 Second District decision of Hilton v. Superior Court and the 2015 First District opinion in People v. Waters—contain language “about the interplay between the relevant statutes that lend support to the argument McCune raises.”
The jurist declared that the court “disapprove[s]” of both cases “to the extent they express views on the meaning of sections 1202.4, 1202.46, and 1203.3 that are inconsistent with our opinion in this case.”
Liu’s Concurrence
Liu wrote to “underscore” that an expiration date does exist for a court’s ability to set the amount of restitution, saying:
“Implicit in the scheme is the notion that the court does not have jurisdiction to fix restitution after the point when a victim’s losses become reasonably ascertainable. Neither section 1202.4, subdivision (f) nor section 1202.46 of the Penal Code, singly or together, gives a sentencing court unbounded time to set post-probation restitution.”
He concluded that “[i]f the victim, prosecution, or court produces or entertains such information beyond the time it became available or reasonably discoverable, it is doubtful that the court’s jurisdiction would extend that far.”
The case is People v. McCune, 2024 S.O.S. 2721.
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