As the reader may be aware, judges honor a crime victim’s restitution claim with great respect. If one has been to a restitution hearing, as a defendant, it can be shocking to see how a judge will award restitution often with no more than testimony from the victim that he or she suffered certain financial losses.
Sometimes, it seems as if the judge regards the award of restitution as appropriate because, after all, defendant committed a crime, so it would only be fair to award the victim some restitution, even if poorly documented or not documented at all. Moreover, we often suspect that the judge knows defendant cannot pay even one dollar of the restitution anyways, so the judge is generous to the victim in the restitution order.
Recently, Assembly Bill (AB) 1950 was passed into law, reducing the probation period for many felonies (not DUI and not domestic violence, or any serious or violent crime) to two years and the probation period for many misdemeanors (not DUI or domestic violence) to one year.
The judge loses jurisdiction over defendant once probation ends. However, if probation is revoked (and a bench warrant issued) and not reinstated, the judge retains jurisdiction over defendant once defendant seeks to have the bench warrant recalled and probation reinstated (and later terminated).
In Napa County Superior Court in June 2018, Scotlane McCune pled no contest to felony hit and run involving property damage and bodily injury to his passenger (Vehicle Code § 20001(a)). He had crashed his cousin’s car into a tree and injured his passenger. As part of his plea, he agreed to pay restitution to his passenger. The judge then placed McCune on five years of formal probation.
At a restitution hearing two and a half years later, the probation department filed and served notice that the victim passenger sought $30,166.23 to recoup medial expenses related to his injuries.
Effective the very next day, January 1, 2021, the Legislature enacted AB 1950, amending Penal Code § 1203.1(a) to reduce the maximum felony probation term to two years, with certain exceptions. Accordingly, two weeks later, the probation department (with the district attorney’s agreement) petitioned to terminate McCune’s probation.
The petition stated McCune would remain liable for victim restitution. The judge granted the petition the same day.
Just over a week later, the prosecution asked the judge to set a restitution hearing. The judge then requested briefing on whether it retained jurisdiction to determine the amount of restitution after probation ended. Following argument, it ruled that it did and ordered McCune to pay restitution in a stipulated amount of $21,365.94.
McCune then appealed the ruling to the First Appellate District, arguing that the court lost jurisdiction to order restitution when it terminated his probation early following AB 1950’s becoming the law shortening his probation from five years to two years.
The First Appellate District rejected McCune’s arguments, affirming the trial court. The First District explained that Penal Code § 1202.4 requires restitution in every case whether or not probation is granted. For example, restitution can be ordered when a defendant is sentenced to state prison.
Penal Code § 1202.4(f) states that “[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.” Additionally, under Penal Code § 1202.46, when the amount of loss 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 s the losses may be determined.”
Here, the appellate court explained, the trial court must be allowed to retain jurisdiction over McCune’s restitution because otherwise it would frustrate the clear purpose of the mandate to award victim restitution. Moreover, McCune agreed to pay restitution as part of his plea deal, so he impliedly agreed to permit resolution of the amount of restitution to be paid, even if that was not accomplished within his probationary period.
As the appellate court summarized the issue, “we see no reason why McCune should receive a windfall simply because his probation was cut short by a change in the law.”
While we agree with the appellate court’s reasoning, we note that in other contexts, defendants certainly do enjoy a “windfall” when a change in the law decreases the penalties a defendant faces, particularly when a sentence is not considered final in sentencing on enhancements, i.e., SB 620 (firearm enhancements), SB 1393 (prior five-year serious felony enhancements), SB 1391 (refiling certain cases in juvenile court when offender was a juvenile but the original case was filed in adult court) and under SB 567 (and AB 124), certain prisoners can seek resentencing when certain youthful factors were not addressed in sentencing.
Likewise, even after a sentence is final, some defendants may enjoy some “windfall” in the duration of time they must register as a sex offender (under SB 384), some military veterans can seek shorter determinate sentences, if sentenced prior to 2015, while in prison under AB 865, and under SB 1437 (as amended by SB 775), some inmates can seek resentencing under the new felony murder rule, and under Penal Code 1473.7(a)(1) (as amended by Senate Bill 1259), some people having immigration consequences from a plea can seek to vacate the conviction.
However, it should be noted, that even if a sentence is reduced under any one of these recent resentencing provisions, restitution under McCune should not be reduced to zero unless the underlying conviction giving rise to such restitution is reversed or vacated.
For more information about Assembly Bill (AB) 1950 consequences, please click on the following articles: