Existing law requires a court to impose a separate and additional restitution fine in each case in which a person is convicted of a crime. If the economic losses of a victim cannot be ascertained at the time of sentencing, existing law requires a court to 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. Two state appellate court decisions have held that under state law a court acts in excess of its jurisdiction by ordering restitution or modifying a restitution order after the expiration of a defendants probation.

This bill would expressly abrogate the holdings in those decisions by requiring the court, in cases in which probation has been granted, to retain jurisdiction over a defendant for purposes of imposing or modifying restitution for a period of 5 years following sentencing, or until the expiration of the period of time in which the defendant is a supervised person, probation or mandatory supervision, whichever is later.

Existing law requires a court to impose a separate and additional restitution fine in each case in which a person is convicted of a crime. If the economic losses of a victim cannot be ascertained at the time of sentencing, existing law requires a court to 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. Two state appellate court decisions have held that under state law a court acts in excess of its jurisdiction by ordering restitution or modifying a restitution order after the expiration of a defendants probation.

This bill would expressly abrogate the holdings in those decisions by requiring the court, in cases in which probation has been granted, to retain jurisdiction over a defendant for purposes of imposing or modifying restitution for a period of 5 years following the termination of probation. sentencing, or until the expiration of the period of time in which the defendant is a supervised person, whichever is later.

Existing law requires a court to impose a separate and additional restitution fine in each case in which a person is convicted of a crime. If the economic losses of a victim cannot be ascertained at the time of sentencing, existing law requires a court to 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. Two state appellate court decisions have held that under state law a court acts in excess of its jurisdiction by ordering restitution or modifying a restitution order after the expiration of a defendants probation.

This bill would expressly abrogate the holdings in those decisions by requiring the court, in cases in which probation has been granted, to retain jurisdiction over a defendant for purposes of imposing or modifying restitution for a period of 5 years following the termination of probation.

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 194 Hearing Date: June 6, 2017

Subject: Victim Restitution: Probation: Jurisdiction

HISTORY

Source: California District Attorneys Association

Prior Legislation: AB 2477 (Patterson), 2016, failed passage in the Assembly Committee on Public Safety

Support: Unknown

Opposition: American Civil Liberties Union of California; California Attorneys for Criminal Justice

Assembly Floor Vote: 71 - 4

PURPOSE

The purpose of this bill is to extend the court’s jurisdiction to impose or modify restitution for a period five years from the date of sentencing or until the expiration of probation or mandatory supervision.

Existing law establishes the right of crime victims to receive restitution directly from the persons convicted of the crimes for losses they suffer. (Cal. Const. art I, § 28, subd. (b).)

Existing law requires victim restitution from criminal defendants who have been sentenced by the court in every case in which a victim has suffered an economic loss as a result of the defendant's conduct. (Pen. Code, § 1202.4, subd. (f).)

Existing law defines probation as "the suspension of the imposition or execution of a sentence and the order of conditional release in the community under the supervision of a probation officer." (Pen. Code, § 1203, subd. (a).)

Existing law gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years. (Pen. Code, § 1203.1, subd. (a).)

Existing law gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years. (Pen. Code, § 1203a.)

Existing law authorizes the extension of probation for five years in certain misdemeanor cases, such as driving under the influence. (Veh. Code, § 23600, subd. (b)(1).)

Existing law requires a court which grants probation to make the payment of the victim restitution order a condition of probation. (Pen. Code, § 1202.4, subd. (m).)

Existing law authorizes the court to revoke, modify, extend, or terminate its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)

Existing law authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)

Existing law prohibits the court from modifying the restitution obligations due to the defendant's good conduct. (Pen. Code, § 1203.3, subd. (b)(4).)

Existing law provides that when the economic losses of a victim cannot be ascertained at the time of sentencing, the court shall retain jurisdiction for purposes of imposing or modifying restitution until such time as the losses may be determined. A victim, the district attorney, or a court on its own motion, is not prohibited from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine. (Pen. Code, § 1202.46.)

Existing law provides that a trial court acts in excess of its jurisdiction when it orders or modifies restitution after the expiration of a defendant's probationary period. (Hilton v. Superior Court (2014) 239 Cal.App.4th 766; People v. Waters (2015) 241 Cal.App.4th 822.)

This bill nullifies the holdings in Hilton v. Superior Court and People v. Waters.

This bill provides that the court retains jurisdiction over a defendant for purposes of imposing or modifying restitution for a period of five years following sentencing, or until the expiration of probation or mandatory supervision, whichever is later.

COMMENTS

1. Need for This Bill

According to the author:

California Constitution, (Subdivision (b)(13) of Section 28 of Article One) which requires a court to order restitution in every case, regardless of what the defendant’s sentence is: “Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a victim suffers a loss.” PC1202.4(f) codifies this principle by requiring that the court order a defendant to make restitution to a victim in an amount established by court order.

Current law, Penal Code 1202.46, provides that if economic losses of a victim cannot be ascertained at the time of sentencing, then the court is to retain jurisdiction and modify restitution until a person’s losses may be adequately determined. In two recent state appellate court decisions (Hilton v Superior Court of Los Angeles County and The People v Bufford), questions arose when it came to deciding whether or not the court had jurisdiction to impose restitution on a person who has committed a crime, after their probationary period has expired.

This is flawed because the initial court hearing and restitution hearing are totally separate from one another. Often times restitution hearings can be delayed due to extraneous circumstances. Generally restitution is not granted at the initial hearing because the court does not have the exact figure that must be paid because some costs may be ongoing, i.e. medical costs.

The expiration of time for the courts to impose restitution is contrary to the California Constitution, which requires restitution be made in every case where a victim suffers a loss a result of a crime. When a victim is denied the right to full restitution, they are denied their right to justice. The probationary period and restitution are two separate facets of the sentencing. The payment of restitution should not be predicated on the probationary period, and restitution should be paid to the victim even if when the probationary period expires. By effectively separating the two, we can then ensure that victims receive the full justice that they deserve and that the initial sentencing of a probationary period and restitution are upheld.

2. This Bill would Abrogate Recent Case Law

Two recent appellate court cases have held that a trial court acts in excess of its jurisdiction when it orders or modifies restitution after the expiration of a defendant's probationary period.

In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the Court of Appeal held that once probation expires, the judge cannot modify a restitution order. In Hilton, the defendant pled to driving under the influence and the court placed him on probation for three years. At a subsequent restitution hearing, the court ordered the defendant to pay $3,000 restitution to the victim, which he did. (Id. at pp. 769-770.) The victim then sued the defendant civilly and won $3.5 million. Probation then expired on the criminal case. One year and seven months after probation expired, the victim went back to court and requested that the court order $886,000 more in restitution, to pay for the costs of the civil suit as well as additional lost wages. The defendant objected based on lack of jurisdiction. (Id. at 770.) The Court of Appeal reversed the order, holding that once probation expires, the court loses jurisdiction to modify a restitution order and that any extension of probation was an act in excess of jurisdiction and void. (Id. at p. 772.) The court noted that termination of probation occurs by operation of law at the end of the probationary period. (Id. at p. 773.) The court also held that the language of Penal Code section 1203.3, reflects legislative intent, consistent with pre-existing law on probation, that the trial court lacks jurisdiction to impose restitution once probation expires. (Id. at pp. 775-776.)

People v. Waters (2015) 241 Cal.App.4th 822, agreed with the holding in Hilton. In that case, the court sought to order restitution two years after the probationary period expired, even though the victim impact statement seeking $20,000 was filed before the entry of the plea. (Id. at p. 825.) The court noted that Penal Code section 1202.4, subdivision (f) requires the trial court to order victim restitution unless the trial court finds compelling and extraordinary reasons for not doing so. Regarding jurisdiction, a trial court's power to modify a sentence usually expires 120 days after judgment (see Pen. Code, § 1170, subd. (d)). (Id. at p. 827.) But there is an exception where victim restitution cannot be ascertained at the time of sentencing and the trial court retains jurisdiction to order restitution. (Pen. Code, § 1202.46.) However, section 1202.46 must be harmonized with the preexisting statutory scheme concerning probation, which limits a trial court's jurisdiction to modify probation to the term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4).) (Id. at p. 830-831.) Therefore, the court concluded that the trial court lacked jurisdiction to order restitution after the expiration of the defendant's probationary period. (Id. at p. 831.)

This bill seeks to overturn these cases.

3. Constitutional Right to Restitution

In 1982, Proposition 8 was approved by California voters to amend the California Constitution to establish the right of crime victims to receive restitution. The initiative provided that “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” (Cal. Const., art. I, sec. 28, subd. (b).)

A trial court is required to order defendant to pay full restitution to victims of a crime “unless it finds compelling and extraordinary reasons for not doing so and states them on the record.” (Pen. Code, § 1202.4, subd. (f).) If the amount of restitution cannot be ascertained at the time of sentencing, the court shall include a provision in the restitution order that the restitution amount shall be determined at a future time. (Id.) The trial court must incorporate the restitution order in the defendant's conditions of probation. (Pen. Code, § 1202.4, subd. (m).)

It has been held that a sentence is invalid where a trial court fails to issue a restitution award to the victim. (People v. Rowland (1997) 51 Cal.App.4th 1745, 1750–1752.) Generally, a valid sentence may not be changed in a way that increases the sentence. The modification of a sentence to include restitution may constitute an increase in sentence. However, a sentence that is invalid due to the omission of a restitution order may be corrected upon request of a victim, the district attorney, or by a court on its own motion. (Ibid.; see also Pen. Code, § 1202.46.)

1. Restitution as a Condition of Probation

When the court grants probation, payment of restitution must be made a condition of probation. (Pen. Code, 1202.4, subd. (m).)

When ordering restitution as a condition of probation, the court is not restricted to directing payment to only those victims as defined in the restitution statute. Additionally, the court can order restitution as a condition of probation even when the losses are not necessarily caused by the conduct underlying the defendant's conviction. Rather than having a causal connection, the restitution condition must only be reasonably related to either the defendant's crime or to the goal of deterring future criminality. (People v. Anderson (2010) 50 Cal.4th 19, 26-27; see also People v. Carbajal (1995) 10 Cal4th. 1114, 1121–1124.)

The court is expressly authorized to modify the dollar amount of restitution at any time during the term of the probation. (Pen. Code, § 1203.3, sub. (b)(5).)

If part of a restitution order has not been paid after a defendant is no longer on probation, it remains enforceable by the victim as though it were a civil judgment. (Pen. Code, 1202.4, subd. (m).) Additionally, if the defendant is unable to pay full restitution within the initial term of probation, the court can modify and extend the period of probation to allow the defendant to pay off all restitution within the probation term. (Pen. Code, §1203.3, subd. (b)(4); People v. Cookson (1991) 54 Cal.3d 1091, 1097.) Generally, the probation term may be extended up to, but not beyond, the maximum probation period allowed for the offense. (People v Medeiros (1994) 25 Cal.App.4th 1260, 1267–1268.)

1. Argument in Support

The California District Attorneys Association, the sponsor of this bill, writes in support:

The ability of the trial courts to make orders of restitution has recently been left in disarray by the holdings in People v. Ford, 61 Cal. 4^th 282 (2015), People v. Waters, 241 Cal. App. 4^th 822 (2015), and People v. Hilton, 224 Cal. App. 4^th 47 (2014). Those decisions have found that a court cannot modify or order additional restitution after a probation term has expired because the court acts in excess of its jurisdiction pursuant to Penal Code section 1203.3, absent a waiver by the defendant. Following Hilton, the court in Waters also “rejected the People’s contention that the trial court retained jurisdiction to impose restitution under section 1202.46, reasoning section 1202.46 must be harmonized with preexisting statutory and case law.” Waters, 241 Cal. App. 4^th at 829 (citing Hilton, 224 Cal. App. 4^th at 780).

Critically, the court in Hilton distinguished People v. Bufford, 146 Cal. App. 4^th 966 (2007), in which restitution was ordered pursuant to section 1202.46 after the defendant’s completion of a prison sentence. The court in Hilton concluded that “Bufford was not a probation case…Bufford concluded, inter alia, the trial court retained jurisdiction under section 1202.46. Bufford expressly acknowledged ‘[Penal Code] section 1203.3 does not apply in this case, because defendant was not placed on probation.’” Hilton, 224 Cal. App. 4^th at 782 (quoting Bufford, 146 Cal. App. 4^th at 970 n. 4).

Per Bufford, the court apparently still has jurisdiction to act to impose or modify a restitution order if it denies probation at the outset and imposes a state prison sentence that is not subject to section 1170(h). However, per Hilton and Waters, a court acts in excess of its jurisdiction if it orders restitution after the court’s grant of probation has expired, been revoked, or been terminated – including early termination either due to probation violations or the defendant’s good behavior. Because sentencing to local prison pursuant to section 1170(h) includes mandatory supervision that is treated like probation pursuant to section 1170(h)(5)(B) and 1203.3(a), a court arguably acts in excess of its jurisdiction when ordering restitution after the completion of a sentence pursuant to section 1170(h) as well. Thus, a victim is likely not going to be able to obtain full restitution under the current law when restitution is not definitively determined before the expiration of a period of supervision (as that term is defined in PC 1203.2(f)(3)). Likewise, a defendant faces the same uncertainty in having restitution ordered against him or her.

1. Argument in Opposition

The American Civil Liberties Union of California opposes this bill and writes:

Under existing law, a court generally only has power to modify a defendant’s sentence within 120 days after judgment.^[1] When restitution is ordered, Penal Code section 1203.3(b)(5) expressly allows the court to modify the dollar amount “at any time during the term of the probation.” However, the trial court loses jurisdiction over the defendant – including jurisdiction to impose or modify restitution – when the defendant’s term of probation ends, absent misconduct by the defendant.^[2]

These statutes and court decisions reflect California’s longstanding interest in ensuring that a defendant remain subject to the control of the criminal justice system for the period proscribed under statute, as applied in the individual case by the court, and no longer. They give victims and prosecutors incentive to exercise due diligence in promptly determining the claim for restitution. By allowing the court to retain jurisdiction to impose or modify restitution for five years after sentencing, AB 194 would subject criminal defendants – and courts, and victims – to an extended period of uncertainty as to the full requirements imposed on the defendant. For example, a defendant sentenced to a year of probation who successfully completed that term – including payment of whatever restitution was initially ordered – would then be left for four more years not knowing whether further restitution might be ordered. The effect in many cases would be to multiply several times over the amount of time that individual remained subject to the control of the criminal justice system.

In cases in which a defendant plays a role in the delay in proceedings, courts have found that a trial court retains power to order restitution after the expiration of probation.^[3] And certainly if restitution is still owing following the expiration of the probationary period, there is nothing that precludes enforcing a restitution order as a civil judgment.^[4]

-- END –

1. Penal Code §1170 (d). ↑

2. See Hilton v. Superior Court (2014) 239 Cal.App. 4^th 766; People v. Waters (2015) 241 Cal.App.4th 822. ↑

3. People v. Ford (2015) 61 Cal.4th 282, 288. ↑

4. People v. Sem (2014) 229 Cal.App.4th 1176, 1194. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 194

Author:(Patterson)

As Amended Ver:March 2, 2017

Majority vote

SUMMARY: Extends the court's jurisdiction for purposes of amending a restitution order for five years after sentencing or until the defendant is no longer on probation or mandatory supervision, whichever is longer. Specifically, this bill:

1. States legislative intent to abrogate the holdings in Hilton v. Superior Court (2014) 239 Cal.App.4th 766, and People v. Waters (2015) 241 Cal.App.4th 822.
2. Provides that the court retains jurisdiction to impose or modify restitution for a period of five years following the date of sentencing, or until termination of probation or mandatory supervision, whichever is longer.

EXISTING LAW:

1. Establishes the right of crime victims to receive restitution directly from the persons convicted of the crimes for losses they suffer.
2. Requires victim restitution from adult criminal defendants who have been sentenced by the court in every case in which a victim has suffered an economic loss as a result of the defendant's conduct.
3. Defines probation as "the suspension of the imposition or execution of a sentence and the order of conditional release in the community under the supervision of a probation officer."
4. Gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years.
5. Gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years.
6. Authorizes the extension of probation for five years in certain misdemeanor cases, such as driving under the influence.
7. Requires a court which grants probation to make the payment of the victim restitution order a condition of probation.
8. Authorizes the court to revoke, modify, extend, or terminate its order of probation.
9. Authorizes the court to modify the dollar amount of restitution at any time during the term of probation.
10. Prohibits the court from modifying the restitution obligations due to the defendant's good conduct.

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill will not have a fiscal impact on the courts.

COMMENTS: According to the author,

AB 194 is an important measure which will clarify that the courts retain jurisdiction over a case in order to require payment of restitution even after the probationary period expires. This will ensure that the Constitutional right of crime victims to receive the restitution that they deserve is upheld.

In two recent state appellate court decisions, questions arose when it came to deciding whether or not the court had jurisdiction to impose restitution on a person who has committed a crime, after their probationary period has expired. This is problematic because the initial court hearing and the restitution hearing are completely separate from one another. Often times, restitution hearings can be delayed due to extraneous circumstances. Generally restitution is not granted at the initial hearing because the court does not have the exact figure that must be paid at that time because some costs may be ongoing or not yet determined, such as medical bills.

AB 194 clarifies that the court will retain jurisdiction over a case for purposes of restitution for five years after probation is sentenced, or for the duration of the probationary period, whichever is longer. This will ensure that victims receive the just restitution that they are owed and that they are provided with the correct amount to compensate their losses and be made whole once again.

Analysis Prepared by: Sandy Uribe / PUB. S. / (916- 319-3744) FN: 0000083

Date of Hearing: April 5, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 194

Author:(Patterson) – As Amended Ver:March 2, 2017

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill extends the court's jurisdiction for purposes of amending a restitution order for five years after sentencing or until the defendant is no longer on probation or mandatory supervision, whichever is longer.

FISCAL EFFECT:

This bill will not have a fiscal impact on the courts.

COMMENTS:

1. Background. Current law establishes the right of crime victims to receive restitution for the losses they suffer directly from the persons convicted of the crimes. Current law also requires a court, which grants probation, to make the payment of the victim restitution order a condition of probation and also authorizes the court to modify the dollar amount of restitution at any time during the term of probation.
2. Recent Case Law: Two recent appellate court cases (Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the Court of Appeal and People v. Waters (2015) 241 Cal.App.4th 822) have recently held that a trial court acts in excess of its jurisdiction when it orders or modifies restitution after the expiration of a defendant's probationary period.
3. Purpose. According to the author, "AB 194 is an important measure which will clarify that the courts retain jurisdiction over a case in order to require payment of restitution even after the probationary period expires. This will ensure that the Constitutional right of crime victims to receive the restitution that they deserve is upheld.”

Effectively, AB 194 will abrogate the Appellate Court decisions and allow the courts to continue the current practice. AB 194 will ensure that victims receive the just restitution that they are owed and that they are provided with the correct amount to compensate their losses and be made whole once again, even after probation has ended. This is necessary because sometimes a victim’s true losses are not known at the time of the trial, or when probation is granted. The bill effectively imposes a five-year, post-sentence statute of limitations upon the ability to obtain restitution when it is not determined at the time of sentencing, unless the court has otherwise retained jurisdiction beyond the five years because of a longer supervision period.

1. Support. The California District Attorneys Association argues that how the court sentences a defendant should not limit a victim’s ability to get a restitution order at a later time. The unfairness is more apparent for crimes involving great bodily injury, where the monetary cost of treatment and rehabilitation can be indeterminate at the time of sentencing; and in cases of massive financial fraud, where all victims of the crime have not yet been identified at the time of sentencing.
2. Opposition. The American Civil Liberties Union argues that this bill multiplies several times the amount of time an individual could remain subject to the control of the criminal system, particularly in those cases where the probation was only for one year.
3. Related Legislation:
   

AB 596 (Choi) provides that drug diversion qualifies as a conviction for purposes of obtaining victim restitution. AB 596 is currently in the Assembly Public Safety Committee.

AB 1257 (Baker) makes restitution payments to victims of crimes the first priority for debt collected by the Franchise Tax Board. AB 1257 is in the Assembly Revenue and Taxation Committee.

1. Prior Legislation:
   

AB 2477 (Patterson) of the 2015-16 Legislative Session, would have extended the court’s jurisdiction for purposes of amending a restitution order indefinitely. AB 2477 failed passage in the Assembly Public Safety Committee.

AB 2645 (Dababneh), Chapter 111, Statutes of 2014, requires a court transferring a probation or mandatory supervision case to another county to determine the amount of victim restitution before the transfer is made.

Analysis Prepared by: Pedro Reyes / APPR. / 916-319-2081

Date of Hearing: February 28, 2017

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

As Proposed to be Amended in Committee

SUMMARY:

Extends the court's jurisdiction for purposes of amending a restitution order for five years after sentencing or until the defendant is no longer on probation or mandatory supervision, whichever is longer. Specifically, this bill:

1. States legislative intent to abrogate the holdings in Hilton v. Superior Court (2014) 239 Cal.App.4th 766, and People v. Waters (2015) 241 Cal.App.4th 822.
   
2. Provides that the court retains jurisdiction to impose or modify restitution for a period of five years following the date of sentencing, or until termination of probation or mandatory supervision, whichever is longer.

EXISTING LAW:

1. Establishes the right of crime victims to receive restitution directly from the persons convicted of the crimes for losses they suffer. (Cal. Const. art I, § 28, subd. (b).)
   
2. Requires victim restitution from adult criminal defendants who have been sentenced by the court in every case in which a victim has suffered an economic loss as a result of the defendant's conduct. (Pen. Code, § 1202.4, subd. (f).)
   
3. Defines probation as "the suspension of the imposition or execution of a sentence and the order of conditional release in the community under the supervision of a probation officer." (Pen. Code, § 1203, subd. (a).)
   
4. Gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years. (Pen. Code, § 1203.1, subd. (a).)
   
5. Gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years. (Pen. Code, § 1203a.)
   
6. Authorizes the extension of probation for five years in certain misdemeanor cases, such as driving under the influence. (Veh. Code, § 23600, subd. (b)(1).)
   
7. Requires a court which grants probation to make the payment of the victim restitution order a condition of probation. (Pen. Code, § 1202.4, subd. (m).)
   
8. Authorizes the court to revoke, modify, extend, or terminate its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)
   
9. Authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)
   
10. Prohibits the court from modifying the restitution obligations due to the defendant's good conduct. (Pen. Code, § 1203.3, subd. (b)(4).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 194 is an important measure which will clarify that the courts retain jurisdiction over a case in order to require payment of restitution even after the probationary period expires. This will ensure that the Constitutional right of crime victims to receive the restitution that they deserve is upheld.
   
   “In two recent state appellate court decisions, questions arose when it came to deciding whether or not the court had jurisdiction to impose restitution on a person who has committed a crime, after their probationary period has expired. This is problematic because the initial court hearing and the restitution hearing are completely separate from one another. Often times, restitution hearings can be delayed due to extraneous circumstances. Generally restitution is not granted at the initial hearing because the court does not have the exact figure that must be paid at that time because some costs may be ongoing or not yet determined, such as medical bills.
   
   “AB 194 clarifies that the court will retain jurisdiction over a case for purposes of restitution for five years after probation is sentenced, or for the duration of the probationary period, whichever is longer. This will ensure that victims receive the just restitution that they are owed and that they are provided with the correct amount to compensate their losses and be made whole once again.”
   
2. Recent Case Law: Two recent appellate court cases have held that a trial court acts in excess of its jurisdiction when it orders or modifies restitution after the expiration of a defendant's probationary period.^[1]
   

In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the Court of Appeal held that once probation expires, the judge cannot modify a restitution order. In Hilton, the defendant pled to driving under the influence and the court placed him on probation for three years. At a subsequent restitution hearing, the court ordered the defendant to pay $3,000 restitution to the victim, which he did. (Id. at pp. 769-770.) The victim then sued the defendant civilly and won $3.5 million. Probation then expired on the criminal case. One year and seven months after probation expired, the victim went back to court and requested that the court order $886,000 more in restitution, to pay for the costs of the civil suit as well as additional lost wages. The defendant objected based on lack of jurisdiction. (Id. at 770.) The Court of Appeal reversed the order, holding that once probation expires, the court loses jurisdiction to modify a restitution order and that any extension of probation was an act in excess of jurisdiction and void. (Id. at p. 772.) The court noted that termination of probation occurs by operation of law at the end of the probationary period. (Id. at p. 773.) The court also held that the language of Penal Code section 1203.3, reflects legislative intent, consistent with pre-exisiting law on probation, that the trial court lacks jurisdiction to impose restitution once probation expires. (Id. at pp. 775-776.)

People v. Waters (2015) 241 Cal.App.4th 822, agreed with the holding in Hilton. In that case, the court sought to order restitution two years after the probationary period expired, even though the victim impact statement seeking $20,000 was filed before the entry of the plea. (Id. at p. 825.) The court noted that Penal Code section 1202.4, subdivision (f) requires the trial court to order victim restitution unless the trial court finds compelling and extraordinary reasons for not doing so. Regarding jurisdiction, a trial court's power to modify a sentence usually expires 120 days after judgment (see Pen. Code, § 1170, subd. (d)). (Id. at p. 827.) But there is an exception where victim restitution cannot be ascertained at the time of sentencing and the trial court retains jurisdiction to order restitution. (Pen. Code, § 1202.46.) However, section 1202.46 must be harmonized with the preexisting statutory scheme concerning probation, which limits a trial court's jurisdiction to modify probation to the term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4).) (Id. at p. 830-831.) Therefore, the court concluded that the trial court lacked jurisdiction to order restitution after the expiration of the defendant's probationary period. (Id. at p. 831.)^[2]

This bill seeks to overturn these cases.

1. Restitution as a Condition of Probation: When the court grants probation, payment of restitution must be made a condition of probation. (Pen. Code, 1202.4, subd. (m).)
   
   The court has broader discretion to order restitution as a condition of probation than it does when a defendant is not granted probation. (People v. Anderson (2010) 50 Cal.4th 19, 26-27.) When ordering restitution as a condition of probation, the court is not restricted to directing payment to only those victims as defined in the restitution statute. Additionally, the court can order restitution as a condition of probation even when the losses are not necessarily caused by the conduct underlying the defendant's conviction. Rather than having a causal connection, the restitution condition must only be reasonably related to either the defendant's crime or to the goal of deterring future criminality. (Ibid; see also People v Carbajal (1995) 10 Cal4th. 1114, 1121–1124.)
   
   If part of a restitution order has not been paid after a defendant is no longer on probation, it remains enforceable by the victim as though it were a civil judgment. (Pen. Code, 1202.4, subd. (m).)
   
2. Extending Probation: If the defendant is unable to pay full restitution within the initial term of probation, the court can modify and extend the period of probation to allow the defendant to pay off all restitution within the probation term. (Pen. Code, §1203.3, subd. (b)(4); People v Cookson (1991) 54 Cal.3d 1091, 1097.) Generally, the probation term may be extended up to, but not beyond, the maximum probation period allowed for the offense. (People v Medeiros (1994) 25 Cal.App.4th 1260, 1267–1268.)
3. Constitutionally Protected Right to Victim Restitution: The right of a victim to restitution from the person convicted of a crime from which the victim suffers a loss as result of the criminal activity became a constitutional right when adopted by vote of the people in June 1982 as part of Proposition 8. Proposition 8 added Article I, section 28, subdivision (b), to the California Constitution, which provided:
   
   "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.
   
   "Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section."
   
   The Proposition was not self-executing, but rather directed the Legislature to adopt implementing legislation. (People v. Vega-Hernández (1986) 179 Cal.App.3d 1084.) In response, the Legislature enacted Penal Code sections 1202.4 and 1203.04 (repealed section related to restitution as condition of probation). (People v. Ortiz (1997) 53 Cal.App.4th 791, 795, fn. 3.)
   
   The constitutional provisions regarding restitution were amended by the voters again in 2008, when they approved Proposition 9, the Victims' Bill of Rights Act of 2008, also known as Marsy's Law. The amendments, among other things, make clear that a victim is entitled to restitution, expanded the definition of a victim to include a representative of a deceased victim, and gave that representative the ability to enforce a victim's right. (See People v. Runyan (2012) 54 Cal.4th 849, 858-859.)
   
4. Argument in Support: According to the California District Attorneys Association, the sponsor of this bill, “The ability of the trial courts to make orders of restitution has recently been left in disarray by the holdings in People v. Ford, 61 Cal. 4th 282 (2015), People v. Waters, 241 Cal. App. 4th 822 (2015), and People v. Hilton, 224 Cal. App. 4th 47 (2014). Those decisions have found that a court cannot modify or order additional restitution after a probation term has expired because the court acts in excess of its jurisdiction pursuant to Penal Code section 1203.3, absent a waiver by the defendant. Following Hilton, the court in Waters also ‘rejected the People’s contention that the trial court retained jurisdiction to impose restitution under section 1202.46, reasoning section 1202.46 must be harmonized with preexisting statutory and case law.’ Waters, 241 Cal. App. 4th at 829 (citing Hilton, 224 Cal. App. 4th at 780).
   
   Critically, the court in Hilton distinguished People v. Bufford, 146 Cal. App. 4th 966 (2007), in which restitution was ordered pursuant to section 1202.46 after the defendant’s completion of a prison sentence. The court in Hilton concluded that ‘Bufford was not a probation case…Bufford concluded, inter alia, the trial court retained jurisdiction under section 1202.46. Bufford expressly acknowledged “[Penal Code] section 1203.3 does not apply in this case, because defendant was not placed on probation.”’ Hilton, 224 Cal. App. 4th at 782 (quoting Bufford, 146 Cal. App. 4th at 970 n. 4).
   
   “Per Bufford, the court apparently still has jurisdiction to act to impose or modify a restitution order if it denies probation at the outset and imposes a state prison sentence that is not subject to section 1170(h). However, per Hilton and Waters, a court acts in excess of its jurisdiction if it orders restitution after the court’s grant of probation has expired, been revoked, or been terminated – including early termination either due to probation violations or the defendant’s good behavior. Because sentencing to local prison pursuant to section 1170(h) includes mandatory supervision that is treated like probation pursuant to section 1170(h)(5)(B) and 1203.3(a), a court arguably acts in excess of its jurisdiction when ordering restitution after the completion of a sentence pursuant to section 1170(h) as well. Thus, a victim is likely not going to be able to obtain full restitution under the current law when restitution is not definitively determined before the expiration of a period of supervision (as that term is defined in PC 1203.2(f)(3)). Likewise, a defendant faces the same uncertainty in having restitution ordered against him or her.”
   
   “Those differing outcomes based on the defendant’s sentencing is not fair from the victim’s perspective and is inconsistent with the mandate of Article I, Section 28 of the California Constitution requiring that ‘Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.’ How the court sentences a defendant should not limit a victim’s ability to get a restitution order at a later time. The unfairness is more apparent for crimes involving great bodily injury, where the monetary cost of treatment and rehabilitation can be indeterminate at the time of sentencing. The unfairness also is more apparent in cases of massive financial fraud, where all victims of the crime have not yet been identified at the time of sentencing….”
   
   “AB 194 clarifies that a victim has a definite, statutory right to restitution within a certain period of time regardless of the type of sentence imposed. The bill effectively imposes a five-year, post-sentence statute of limitations upon the ability to obtain restitution when it is not determined at the time of sentencing, unless the court has otherwise retained jurisdiction beyond the five years because of a longer supervision period (either probation or mandatory supervision) pursuant to PC 1203.3. The five-year period is commensurate with the maximum probationary period for most felonies. See PC 1203.1.”
   
5. Argument in Opposition: According to the American Civil Liberties Union, “Under existing law, a court generally only has power to modify a defendant’s sentence within 120 days after judgment. When restitution is ordered, Penal Code section 1203.3(b)(5) expressly allows the court to modify the dollar amount “at any time during the term of the probation.” However, the trial court loses jurisdiction over the defendant – including jurisdiction to impose or modify restitution – when the defendant’s term of probation ends, absent misconduct by the defendant.
   
   “These statutes and court decisions reflect California’s longstanding interest in ensuring that a defendant remain subject to the control of the criminal justice system for the period proscribed under statute, as applied in the individual case by the court, and no longer. They give victims and prosecutors incentive to exercise due diligence in promptly determining the claim for restitution. By allowing the court to retain jurisdiction to impose or modify restitution for five years after sentencing, AB 194 would subject criminal defendants – and courts, and victims – to an extended period of uncertainty as to the full requirements imposed on the defendant. For example, a defendant sentenced to a year of probation who successfully completed that term – including payment of whatever restitution was initially ordered – would then be left for four more years not knowing whether further restitution might be ordered. The effect in many cases would be to multiply several times over the amount of time that individual remained subject to the control of the criminal justice system.
   
   “In cases in which a defendant plays a role in the delay in proceedings, courts have found that a trial court retains power to order restitution after the expiration of probation. And certainly if restitution is still owing following the expiration of the probationary period, there is nothing that precludes enforcing a restitution order as a civil judgment. However, when delays in imposing or modifying restitution are out of the defendant’s control, defendants should not bear the burden of such delays by remaining under court control for years beyond the time for which they are sentenced to probation.”
   
6. Related Legislation:
   
   1. AB 596 (Choi) provides that drug diversion qualifies as a conviction for purposes of obtaining victim restitution. AB 596 is pending committee referral from the Assembly Rules Committee.
      
   2. AB 1257 (Baker) makes restitution payments to victims of crimes the first priority for debt collected by the Franchise Tax Board. AB 1257 is pending committee referral from the Assembly Rules Committee.
      
7. Prior Legislation:
   
   1. AB 2477 (Patterson) of the 2015-16 Legislative Session, would have extended the court’s jurisdiction for purposes of amending a restitution order indefinitely. AB 2477 failed passage in this committee.
      
   2. AB 2645 (Dababneh), Chapter 111, Statutes of 2014, requires a court transferring a probation or mandatory supervision case to another county to determine the amount of victim restitution before the transfer is made.

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association (Sponsor)

Opposition

American Civil Liberties Union
California Attorneys for Criminal Justice

Analysis Prepared by:

1. These cases are not contrary to the recent California Supreme Court case of People v. Ford (2015) 61 Cal.4th 282, which held that agreeing to a hearing on restitution outside the probationary period estops the defense from later challenging lack of jurisdiction. ↑

2. It is unclear why in People v. Waters, supra, 241 Cal.App.4th 822, the People did not file an appeal claiming that a judgment lacking a victim restitution order was an unauthorized sentence. (See e.g. People v. Rowland (1997) 51 Cal.App.4th 1745 [when the court fails to issue a restitution award altogether, the sentence is invalid].) ↑

Date of Hearing:

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 194

Author:(Patterson) – As Introduced Ver:January 19, 2017

As Proposed to be Amended in Committee

SUMMARY:

Extends the court's jurisdiction for purposes of amending a restitution order for five years after sentencing or until the defendant is no longer on probation or mandatory supervision, whichever is longer. Specifically, this bill:

1. States legislative intent to abrogate the holdings in Hilton v. Superior Court (2014) 239 Cal.App.4th 766, and People v. Waters (2015) 241 Cal.App.4th 822.
   
2. Provides that the court retains jurisdiction to impose or modify restitution for a period of five years following the date of sentencing, or until termination of probation or mandatory supervision, whichever is longer.

EXISTING LAW:

1. Establishes the right of crime victims to receive restitution directly from the persons convicted of the crimes for losses they suffer. (Cal. Const. art I, § 28, subd. (b).)
   
2. Requires victim restitution from adult criminal defendants who have been sentenced by the court in every case in which a victim has suffered an economic loss as a result of the defendant's conduct. (Pen. Code, § 1202.4, subd. (f).)
   
3. Defines probation as "the suspension of the imposition or execution of a sentence and the order of conditional release in the community under the supervision of a probation officer." (Pen. Code, § 1203, subd. (a).)
   
4. Gives the court discretion in felony cases to grant probation for up to five years, or no longer than the prison term that can be imposed when the prison term exceeds five years. (Pen. Code, § 1203.1, subd. (a).)
   
5. Gives the court discretion in misdemeanor cases to generally grant probation for up to three years, or no longer than the consecutive sentence imposed if more than three years. (Pen. Code, § 1203a.)
   
6. Authorizes the extension of probation for five years in certain misdemeanor cases, such as driving under the influence. (Veh. Code, § 23600, subd. (b)(1).)
   
7. Requires a court which grants probation to make the payment of the victim restitution order a condition of probation. (Pen. Code, § 1202.4, subd. (m).)
   
8. Authorizes the court to revoke, modify, extend, or terminate its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)
   
9. Authorizes the court to modify the dollar amount of restitution at any time during the term of probation. (Pen. Code, § 1203.3, subd. (b)(5).)
   
10. Prohibits the court from modifying the restitution obligations due to the defendant's good conduct. (Pen. Code, § 1203.3, subd. (b)(4).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 194 is an important measure which will clarify that the courts retain jurisdiction over a case in order to require payment of restitution even after the probationary period expires. This will ensure that the Constitutional right of crime victims to receive the restitution that they deserve is upheld.
   
   “In two recent state appellate court decisions, questions arose when it came to deciding whether or not the court had jurisdiction to impose restitution on a person who has committed a crime, after their probationary period has expired. This is problematic because the initial court hearing and the restitution hearing are completely separate from one another. Often times, restitution hearings can be delayed due to extraneous circumstances. Generally restitution is not granted at the initial hearing because the court does not have the exact figure that must be paid at that time because some costs may be ongoing or not yet determined, such as medical bills.
   
   “AB 194 clarifies that the court will retain jurisdiction over a case for purposes of restitution for five years after probation is sentenced, or for the duration of the probationary period, whichever is longer. This will ensure that victims receive the just restitution that they are owed and that they are provided with the correct amount to compensate their losses and be made whole once again.”
   
2. Recent Case Law: Two recent appellate court cases have held that a trial court acts in excess of its jurisdiction when it orders or modifies restitution after the expiration of a defendant's probationary period.^[1]
   

In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the Court of Appeal held that once probation expires, the judge cannot modify a restitution order. In Hilton, the defendant pled to driving under the influence and the court placed him on probation for three years. At a subsequent restitution hearing, the court ordered the defendant to pay $3,000 restitution to the victim, which he did. (Id. at pp. 769-770.) The victim then sued the defendant civilly and won $3.5 million. Probation then expired on the criminal case. One year and seven months after probation expired, the victim went back to court and requested that the court order $886,000 more in restitution, to pay for the costs of the civil suit as well as additional lost wages. The defendant objected based on lack of jurisdiction. (Id. at 770.) The Court of Appeal reversed the order, holding that once probation expires, the court loses jurisdiction to modify a restitution order and that any extension of probation was an act in excess of jurisdiction and void. (Id. at p. 772.) The court noted that termination of probation occurs by operation of law at the end of the probationary period. (Id. at p. 773.) The court also held that the language of Penal Code section 1203.3, reflects legislative intent, consistent with pre-exisiting law on probation, that the trial court lacks jurisdiction to impose restitution once probation expires. (Id. at pp. 775-776.)

People v. Waters (2015) 241 Cal.App.4th 822, agreed with the holding in Hilton. In that case, the court sought to order restitution two years after the probationary period expired, even though the victim impact statement seeking $20,000 was filed before the entry of the plea. (Id. at p. 825.) The court noted that Penal Code section 1202.4, subdivision (f) requires the trial court to order victim restitution unless the trial court finds compelling and extraordinary reasons for not doing so. Regarding jurisdiction, a trial court's power to modify a sentence usually expires 120 days after judgment (see Pen. Code, § 1170, subd. (d)). (Id. at p. 827.) But there is an exception where victim restitution cannot be ascertained at the time of sentencing and the trial court retains jurisdiction to order restitution. (Pen. Code, § 1202.46.) However, section 1202.46 must be harmonized with the preexisting statutory scheme concerning probation, which limits a trial court's jurisdiction to modify probation to the term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4).) (Id. at p. 830-831.) Therefore, the court concluded that the trial court lacked jurisdiction to order restitution after the expiration of the defendant's probationary period. (Id. at p. 831.)^[2]

This bill seeks to overturn these cases.

1. Restitution as a Condition of Probation: When the court grants probation, payment of restitution must be made a condition of probation. (Pen. Code, 1202.4, subd. (m).)
   
   The court has broader discretion to order restitution as a condition of probation than it does when a defendant is not granted probation. (People v. Anderson (2010) 50 Cal.4th 19, 26-27.) When ordering restitution as a condition of probation, the court is not restricted to directing payment to only those victims as defined in the restitution statute. Additionally, the court can order restitution as a condition of probation even when the losses are not necessarily caused by the conduct underlying the defendant's conviction. Rather than having a causal connection, the restitution condition must only be reasonably related to either the defendant's crime or to the goal of deterring future criminality. (Ibid; see also People v Carbajal (1995) 10 Cal4th. 1114, 1121–1124.)
   
   If part of a restitution order has not been paid after a defendant is no longer on probation, it remains enforceable by the victim as though it were a civil judgment. (Pen. Code, 1202.4, subd. (m).)
   
2. Extending Probation: If the defendant is unable to pay full restitution within the initial term of probation, the court can modify and extend the period of probation to allow the defendant to pay off all restitution within the probation term. (Pen. Code, §1203.3, subd. (b)(4); People v Cookson (1991) 54 Cal.3d 1091, 1097.) Generally, the probation term may be extended up to, but not beyond, the maximum probation period allowed for the offense. (People v Medeiros (1994) 25 Cal.App.4th 1260, 1267–1268.)
3. Constitutionally Protected Right to Victim Restitution: The right of a victim to restitution from the person convicted of a crime from which the victim suffers a loss as result of the criminal activity became a constitutional right when adopted by vote of the people in June 1982 as part of Proposition 8. Proposition 8 added Article I, section 28, subdivision (b), to the California Constitution, which provided:
   
   "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.
   
   "Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section."
   
   The Proposition was not self-executing, but rather directed the Legislature to adopt implementing legislation. (People v. Vega-Hernández (1986) 179 Cal.App.3d 1084.) In response, the Legislature enacted Penal Code sections 1202.4 and 1203.04 (repealed section related to restitution as condition of probation). (People v. Ortiz (1997) 53 Cal.App.4th 791, 795, fn. 3.)
   
   The constitutional provisions regarding restitution were amended by the voters again in 2008, when they approved Proposition 9, the Victims' Bill of Rights Act of 2008, also known as Marsy's Law. The amendments, among other things, make clear that a victim is entitled to restitution, expanded the definition of a victim to include a representative of a deceased victim, and gave that representative the ability to enforce a victim's right. (See People v. Runyan (2012) 54 Cal.4th 849, 858-859.)
   
4. Argument in Support: According to the California District Attorneys Association, the sponsor of this bill, “The ability of the trial courts to make orders of restitution has recently been left in disarray by the holdings in People v. Ford, 61 Cal. 4th 282 (2015), People v. Waters, 241 Cal. App. 4th 822 (2015), and People v. Hilton, 224 Cal. App. 4th 47 (2014). Those decisions have found that a court cannot modify or order additional restitution after a probation term has expired because the court acts in excess of its jurisdiction pursuant to Penal Code section 1203.3, absent a waiver by the defendant. Following Hilton, the court in Waters also ‘rejected the People’s contention that the trial court retained jurisdiction to impose restitution under section 1202.46, reasoning section 1202.46 must be harmonized with preexisting statutory and case law.’ Waters, 241 Cal. App. 4th at 829 (citing Hilton, 224 Cal. App. 4th at 780).
   
   Critically, the court in Hilton distinguished People v. Bufford, 146 Cal. App. 4th 966 (2007), in which restitution was ordered pursuant to section 1202.46 after the defendant’s completion of a prison sentence. The court in Hilton concluded that ‘Bufford was not a probation case…Bufford concluded, inter alia, the trial court retained jurisdiction under section 1202.46. Bufford expressly acknowledged “[Penal Code] section 1203.3 does not apply in this case, because defendant was not placed on probation.”’ Hilton, 224 Cal. App. 4th at 782 (quoting Bufford, 146 Cal. App. 4th at 970 n. 4).
   
   “Per Bufford, the court apparently still has jurisdiction to act to impose or modify a restitution order if it denies probation at the outset and imposes a state prison sentence that is not subject to section 1170(h). However, per Hilton and Waters, a court acts in excess of its jurisdiction if it orders restitution after the court’s grant of probation has expired, been revoked, or been terminated – including early termination either due to probation violations or the defendant’s good behavior. Because sentencing to local prison pursuant to section 1170(h) includes mandatory supervision that is treated like probation pursuant to section 1170(h)(5)(B) and 1203.3(a), a court arguably acts in excess of its jurisdiction when ordering restitution after the completion of a sentence pursuant to section 1170(h) as well. Thus, a victim is likely not going to be able to obtain full restitution under the current law when restitution is not definitively determined before the expiration of a period of supervision (as that term is defined in PC 1203.2(f)(3)). Likewise, a defendant faces the same uncertainty in having restitution ordered against him or her.”
   
   “Those differing outcomes based on the defendant’s sentencing is not fair from the victim’s perspective and is inconsistent with the mandate of Article I, Section 28 of the California Constitution requiring that ‘Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.’ How the court sentences a defendant should not limit a victim’s ability to get a restitution order at a later time. The unfairness is more apparent for crimes involving great bodily injury, where the monetary cost of treatment and rehabilitation can be indeterminate at the time of sentencing. The unfairness also is more apparent in cases of massive financial fraud, where all victims of the crime have not yet been identified at the time of sentencing….”
   
   “AB 194 clarifies that a victim has a definite, statutory right to restitution within a certain period of time regardless of the type of sentence imposed. The bill effectively imposes a five-year, post-sentence statute of limitations upon the ability to obtain restitution when it is not determined at the time of sentencing, unless the court has otherwise retained jurisdiction beyond the five years because of a longer supervision period (either probation or mandatory supervision) pursuant to PC 1203.3. The five-year period is commensurate with the maximum probationary period for most felonies. See PC 1203.1.”
   
5. Argument in Opposition: According to the American Civil Liberties Union, “Under existing law, a court generally only has power to modify a defendant’s sentence within 120 days after judgment. When restitution is ordered, Penal Code section 1203.3(b)(5) expressly allows the court to modify the dollar amount “at any time during the term of the probation.” However, the trial court loses jurisdiction over the defendant – including jurisdiction to impose or modify restitution – when the defendant’s term of probation ends, absent misconduct by the defendant.
   
   “These statutes and court decisions reflect California’s longstanding interest in ensuring that a defendant remain subject to the control of the criminal justice system for the period proscribed under statute, as applied in the individual case by the court, and no longer. They give victims and prosecutors incentive to exercise due diligence in promptly determining the claim for restitution. By allowing the court to retain jurisdiction to impose or modify restitution for five years after sentencing, AB 194 would subject criminal defendants – and courts, and victims – to an extended period of uncertainty as to the full requirements imposed on the defendant. For example, a defendant sentenced to a year of probation who successfully completed that term – including payment of whatever restitution was initially ordered – would then be left for four more years not knowing whether further restitution might be ordered. The effect in many cases would be to multiply several times over the amount of time that individual remained subject to the control of the criminal justice system.
   
   “In cases in which a defendant plays a role in the delay in proceedings, courts have found that a trial court retains power to order restitution after the expiration of probation. And certainly if restitution is still owing following the expiration of the probationary period, there is nothing that precludes enforcing a restitution order as a civil judgment. However, when delays in imposing or modifying restitution are out of the defendant’s control, defendants should not bear the burden of such delays by remaining under court control for years beyond the time for which they are sentenced to probation.”
   
6. Related Legislation:
   
   1. AB 596 (Choi) provides that drug diversion qualifies as a conviction for purposes of obtaining victim restitution. AB 596 is pending committee referral from the Assembly Rules Committee.
      
   2. AB 1257 (Baker) makes restitution payments to victims of crimes the first priority for debt collected by the Franchise Tax Board. AB 1257 is pending committee referral from the Assembly Rules Committee.
      
7. Prior Legislation:
   
   1. AB 2477 (Patterson) of the 2015-16 Legislative Session, would have extended the court’s jurisdiction for purposes of amending a restitution order indefinitely. AB 2477 failed passage in this committee.
      
   2. AB 2645 (Dababneh), Chapter 111, Statutes of 2014, requires a court transferring a probation or mandatory supervision case to another county to determine the amount of victim restitution before the transfer is made.

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association (Sponsor)

Opposition

American Civil Liberties Union
California Attorneys for Criminal Justice

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744

1. These cases are not contrary to the recent California Supreme Court case of People v. Ford (2015) 61 Cal.4th 282, which held that agreeing to a hearing on restitution outside the probationary period estops the defense from later challenging lack of jurisdiction. ↑

2. It is unclear why in People v. Waters, supra, 241 Cal.App.4th 822, the People did not file an appeal claiming that a judgment lacking a victim restitution order was an unauthorized sentence. (See e.g. People v. Rowland (1997) 51 Cal.App.4th 1745 [when the court fails to issue a restitution award altogether, the sentence is invalid].) ↑