CA Supreme Court – Restitution After Probation Ends?

In Article 1778 on our website (linked below), we summarized the First Appellate District court’s ruling in People v. Scotlane McCune (2022) 81 Cal. App. 5th 648, 297 Cal. Rptr. 3d 392, wherein the court of appeal rejected Mr. McCune’s argument that his obligation to pay restitution ended when his probation ended and that an order fixing the amount of victim restitution owed after his probation ended was invalid.  

The First District reasoned that Penal Code § 1202.46, which provides that the sentencing court retains jurisdiction to the fix the amount of restitution until the amount of the victim’s losses can be determined, applied even after probation ended because the statute makes no mention of any end to the court’s jurisdiction and because those who go to prison have such an obligation to pay restitution well past when probation otherwise might end.

Mr. McCune then appealed this ruling to the California Supreme Court and the Supreme Court affirmed the First District on August 8, 2024.

It is good to know a few of the facts of the underlying case before understanding the issue with restitution.  In June 2017, Mr. McCune crashed his vehicle head-on into a tree while driving without a license.  He helped his injured passenger, Miguel Villa, out of the vehicle and then fled the scene.  McCune was then charged and convicted of felony hit and run with injury (Vehicle Code § 20001(a)).  He was also charged with misdemeanor driving without a license (Vehicle Code § 12500(a)), but this was dismissed when he entered his plea to felony hit and run.

He was then placed on five years of formal probation, but with the passage of Assembly Bill 1950 in January 2021, his probation was shortened to two years.

One week after his probation ended, the judge fixed the amount of restitution owed to Mr. Villa and Mr. McCune objected, arguing that since his probation ended, the court’s jurisdiction over the case ended, including its ability to set restitution.  Moreover, the Penal Code allowed the judge to modify the terms of probation at any time during probation.  The Penal Code also made restitution a mandatory element of probation, so if probation ended without such a condition, the judge could not add this on after probation ended.  The implication was that if probation was for a limited time, that time limited his obligation to new conditions of probation.

The trial court denied the motion and the First Appellate District affirmed the trial court.

Mr. McCune then appealed this order to the California Supreme Court. 

The Supreme Court began its analysis by acknowledging that under California law, 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. Constitution, article 1, § 28 (b)(13)(B); see Penal Code § 1202.4.

But not all victim losses are immediately ascertainable.  The extent of losses from some injuries may not be known for months or even years.  When a victim’s losses are not ascertainable at the time defendant is sentenced, the sentencing court must issue a restitution order providing that the amount shall be determined at the discretion of the court. Penal Code § 1202.4(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.

In other words, the court retained jurisdiction over restitution even after probation ended.  The duration of probation did not circumscribe the judge’s power to order or modify the amount of restitution owed.  

We regarded the First Appellate District’s ruling with some concern, but felt at ease that such a ruling was only controlling in the First District and Los Angeles County / Orange County / Riverside and San Bernardino counties are not part of the First District.

Now, however, the California Supreme Court’s ruling extends the First District’s ruling to all of California, which certainly changes how restitution will be viewed in the future.