In People v. McCune, the Supreme Court today holds that a superior court might be able to determine the amount of restitution convicted defendants owe even after their probation terms have ended. The court rejects an argument that the ability to set a restitution amount expires with the probation.
The court’s unanimous opinion by Justice Leondra Kruger interprets a constitutional provision and statutes that, on the one hand, govern restitution, and court jurisdiction in probation matters on the other. It concludes the prevailing law is in Penal Code section 1202.46, which states, “when the economic losses of a victim cannot be ascertained at the time of sentencing . . . , 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.”
The court does warn, however, the statutory scheme “does not mean that there are no timing limitations at all.” Quoting section 1202.46, the court says that a superior court can “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.)
Justices Goodwin Liu and Kelli Evans join the court’s opinion, but Justice Liu issues a short concurring opinion, which Justice Evans signs. He writes to “underscore” the point that the power to set a restitution amount is not open-ended. He says, “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.”
The defendant might still have an avenue of relief, however. Although affirming a $21,365.94 restitution award against the jurisdictional challenge, the court suggests the defendant might have better luck with a “collateral” attack on grounds the award improperly includes compensation for non-criminal actions (negligent driving) instead of just for injuries related to his conviction (for leaving the scene of an injury accident). (People v. Martinez (2017) 2 Cal.5th 1093 (see here).)
The court affirms the First District, Division Five, published opinion. It also disapproves the First District, Division One, opinion in People v. Waters (2015) 241 Cal.App.4th 822 and the Second District, Division Three, opinion in Hilton v. Superior Court (2014) 239 Cal.App.4th 766. The Supreme Court granted-and-held in Hilton, dismissed review after the lead case was decided, and later granted a request to republish the appellate court’s opinion. (This was before the Supreme Court changed the rule that a grant of review automatically depublished the Court of Appeal opinion.) There was no petition for review in Waters.