Restitution Order Remains if Effect Even After Early Termination of Probation

People v. McCune (Cal. Ct. App., July 25, 2022, No. A163579) 2022 WL 2913888, at *1–4

Summary:McCune appealed from an order awarding victim restitution, claiming the court lost jurisdiction to order restitution when it terminated his probation early after a  change to the Penal Code that shortened his probationary term from five years to two. The Court of Appeal held that the trial court retained jurisdiction to determine and award victim restitution under Penal Code sections 1202.4 and 1202.461 irrespective of McCune’s probation status.

Facts:McCune pled no contest to felony hit and run involving injury and as part of his plea, McCune agreed to pay restitution to the victim. The court suspended imposition of sentence and placed McCune on five years’ probation. McCune was ordered to pay victim restitution in an amount to be determined by the court and probation officer. The  probation department filed and served notice that the victim sought $30,166.23 to recover  medical expenses related to his injuries.

Effective the following day, January 1, 2021, the Legislature enacted Assembly Bill No. 1950 (AB 1950) which amended section 1203.1, subdivision (a) to reduce the maximum felony probation term to two years. The  probation department (with the district attorney’s concurrence) petitioned to terminate McCune’s probation. The petition stated McCune would remain liable for victim restitution. The court granted the petition.

The prosecution asked the court to set a restitution hearing and the court requested briefing on whether it retained jurisdiction to determine the amount of restitution after probation terminated. The court ruled that it retained jurisdiction and ordered McCune to pay restitution.

Issue: whether the trial court had statutory authority to set the amount of restitution after his probation expired


History of Restitution in California

Proposition 8, adopted by the voters in 1982, granted crime victims a constitutional right to receive restitution from the convicted person in nearly all cases: “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, § 28, former subd. (b).) In 2008, voters passed Proposition 9, which removed the exception for “compelling and extraordinary reasons.” (Cal. Const., art. I, § 28, subd. (b)(13); People v. Pierce (2015) 234 Cal.App.4th 1334, 1338, fn. 2,.)

The Legislature expanded victims’ access to restitution in the 1990’s by enacting section 1202.4, requiring restitution in every case, whether or not probation is granted.  Subdivision (f) of the statute addresses the particular situation in this case: “[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.” (§ 1202.4, subd. (f).)

Where the court defers setting the amount of restitution until the victim’s loss becomes clear—section 1202.46 extends the court’s jurisdiction to set the amount: “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.” (§ 1202.46.)

Recent Court of Appeal Decision Fourth District


People v. Zuniga (2022) 79 Cal.App.5th 870,, petn. for review filed July 15, 2022 (Zuniga), considered a similar case.   Zuniga agreed to pay full victim restitution in a plea deal and received three years’ probation.  Because the victim’s losses were not yet clear at the time of sentencing, the trial court included a probation condition that Zuniga would pay restitution in an amount to be determined later, as section 1202.4, subdivision (f) prescribes. Zuniga’s probation was terminated early, as a result of the new two-year limit in Assembly Bill 1950. Several months after his probation expired, the court held a restitution hearing and set the amount, despite Zuniga’s objection that the court had lost jurisdiction.

The Court of Appeal affirmed explaining that the trial court had simply followed the process, in section 1202.4, for awarding restitution when the amount is initially uncertain. The trial court retained jurisdiction under section 1202.46 to set the amount despite the fact that Zuniga’s probation had expired because a contrary result would frustrate the clear purpose of the constitutional mandate to award victim restitution.

Section 1202.46 applies here because the amount of restitution was uncertain at the time of sentencing. The  trial court followed the procedure in section 1202.4 by ordering restitution in an amount to be determined by the court, and it set the restitution later when the amount could be ascertained. (§ 1202.4, subd. (f).). Section 1202.46 expressly preserves the court’s jurisdiction to follow the process in section 1202.4, which serves the constitutional mandate to ensure full victim restitution. (§§ 1202.4, subds. (a), (f), 1202.46; Cal. Const., art. I, § 28; Zuniga, supra, 79 Cal.App.5th at p. 876, 295 Cal.Rptr.3d 141; Bufford, supra, 146 Cal.App.4th at p. 971, 53 Cal.Rptr.3d 273.) The statutes apply to both probation and non-probation cases. (§§ 1202.4, subds. (a), (f), 1202.46.)

There is no conflict  between sections 1203.3, 1202.4, and 1202.46. Section 1203.3 grants courts authority and jurisdiction to revoke, modify, or change probation conditions generally, including restitution orders, during the term of probation. (§ 1203.3, subds. (a), (b)(4), (b)(5).)

Section 1202.4 grants additional authority to address the specific situation in which “the amount of loss cannot be ascertained at the time of sentencing,” and it mandates that the restitution order “shall include a provision that the amount shall be determined at the direction of the court.” (§ 1202.4, subd. (f).)

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.

The Legislature intended sections 1202.4 and 1202.46 to apply in both probation and non-probation cases (see Giordano, supra, 42 Cal.4th at p. 653, 68 Cal.Rptr.3d 51, 170 P.3d 623), and nothing indicates it intended to make it harder for victims in probation cases to receive full restitution.

McCune agreed to pay victim restitution as part of his plea deal. The court set the restitution amount just halfway through his original five-year probationary period, which ordinarily would raise no question about jurisdiction. McCune should not receive a windfall simply because his probation was cut short by a change in the law.


The restitution order was affirmed.

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