People v. McCune

553 P.3d 136

324 Cal.Rptr.3d 111

The PEOPLE, Plaintiff and Respondent,

v.Scotlane MCCUNE, Defendant and Appellant.

S276303

Supreme Court of California.

August 8, 2024

First Appellate District, Division Five, A163579, Napa County Superior Court, CR183930, Elia Ortiz, Judge

Kaiya R. Pirolo, Walnut Creek, under appointment by the Supreme Court, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Alan L. Amann, Melissa Mandel, Teresa Torreblanca and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.

Hydee Feldstein Soto, City Attorney (Los Angeles), Kent J. Bullard, Assistant City Attorney, and Sahar Nayeri, Deputy City Attorney, for the Los Angeles City Attorney’s Office as Amicus Curiae on behalf of Plaintiff and Respondent.

Opinion of the Court by Kruger, J.

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. Const., art. I, § 28, subd. (b)(13)(B); see Pen. 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 the defendant is sentenced, the sentencing court must issue a restitution order providing "that the amount shall be determined at the direction of the court." (Pen. Code, § 1202.4, subd. (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.)

This case raises a question concerning the relationship between these provisions governing postsentencing restitution calculations and the provisions governing probation. Defendant Scotlane McCune was placed on felony probation for five years and ordered at sentencing to pay victim restitution in an amount to be determined. McCune’s probation period was shortened, however, by operation of new legislation capping felony probation at two years. The trial court fixed the amount of victim restitution not long thereafter. McCune argues the order came too late because, under the probation statute, the trial court’s authority to modify the order of probation ended once his term of probation had expired. (Pen. Code, § 1203.3.)

The Court of Appeal rejected McCune’s argument as inconsistent with the clear instructions in Penal Code section 1202.46, which provides that the sentencing court retains jurisdiction to fix the amount of restitution until the amount of the victim’s losses can be determined. We agree and therefore affirm the judgment.

I.

In June 2017, McCune crashed a vehicle head-on into a tree while driving without a license. He helped his injured passenger, Miguel Villa, exit the vehicle, and then fled the scene. McCune was charged with felony hit and run with injury (Veh. Code, § 20001, subd. (a)) and misdemeanor driving without a license (id. § 12500, subd. (a)). He pleaded no contest to the felony hit and run and the trial court dismissed the misdemeanor charge. At sentencing in June 2018, the trial court suspended imposition of sentence and placed McCune on five years’ formal probation. One of the probation terms required McCune to "[p]ay restitution to Miguel Villa and/or the California Victim Compensation & Government Claims Board in an amount to be determined by the Probation Officer and the Court." On December 31, 2020, the probation department filed a restitution investigation report stating that Villa sought $30,166.23 in restitution for medical losses.

The day after that filing, on January 1, 2021, new legislation took effect that capped the maximum term of felony probation to two years, subject to exceptions not relevant here. (Assem. Bill No. 1950 (2019-2020 Reg. Sess.), Stats. 2020, ch. 328, § 2 (Assembly Bill 1950).) Because McCune had by then served approximately two and a half years of his term of probation — more than the maximum two-year term prescribed by the new law — the trial court terminated McCune’s probation on January 14, 2021. One week later, the District Attorney moved for a restitution hearing. McCune objected that once his probation had terminated, the court no longer had the authority to fix an amount of victim restitution. The trial court disagreed, concluding that it had the power to set the amount of victim restitution under Penal Code section 1202.4 (section 1202.4) and Penal Code section 1202.46 (section 1202.46). The parties eventually stipulated to $21,365.94 in victim restitution.

On appeal, McCune renewed his objection to the trial court’s authority to set the amount of victim restitution after probation had terminated.¹ The Court of Appeal rejected the argument, citing sections 1202.4 and 1202.46. (McCune, supra, 81 Cal.App.5th 648, 653, 297 Cal.Rptr.3d 392.) The court saw no tension or conflict between those provisions and the provisions governing probation: While "[s]ection 1203.3 grants courts authority and jurisdiction to revoke, modify, or change probation conditions generally, including restitution orders, during the term of probation," sections 1202.4 and 1202.46 grant "additional authority to address the specific situation in which ‘the amount of loss cannot be ascertained at the time of sentencing.’ " (McCune, at pp. 654-655, 297 Cal.Rptr.3d 392.) "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." (Id. at p. 655, 297 Cal.Rptr.3d 392.)

The Court of Appeal’s conclusion is consistent with that of the only other reported decision concerning the postprobation exercise of section 1202.46 jurisdiction to fill in a restitution amount that could not be ascertained at sentencing, People v. Zuniga (2022) 79 Cal.App.5th 870, 295 Cal.Rptr.3d 141 (Zuniga), which similarly concluded that jurisdiction existed despite the early termination of probation by operation of Assembly Bill 1950. As the Court of Appeal noted, its decision is also consonant with People v. Bufford (2007) 146 Cal.App.4th 966, 970–972, 53 Cal. Rptr.3d 273 (Bufford), which held that where a defendant was ordered at sentencing to pay victim restitution, the jurisdiction conferred by sections 1202.4 and 1202.46 to specify the amount of restitution owed did not automatically terminate with the completion of a prison sentence. (See McCune, supra, 81 Cal. App.5th at p. 653, 297 Cal.Rptr.3d 392.)

But the Court of Appeal parted company with other cases that had taken a different view of the relevant statutes. In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, 769, 168 Cal.Rptr.3d 309 (Hilton) and People v. Waters (2015) 241 Cal.App.4th 822, 825, 194 Cal.Rptr.3d 316 (Waters), the courts held that once probation has terminated, a trial court no longer has the power to issue new restitution orders — whether ordering restitution for the first time (Waters) or adding to the restitution amount ordered at sentencing that the defendant had already fulfilled (Hilton). Although the cases addressed different questions from the one presented here, the Court of Appeal criticized their reasoning for expressing an unduly restrictive view of a court’s authority under section 1202.46. (See McCune, supra, 81 Cal.App.5th at pp. 654–655, 297 Cal.Rptr.3d 392.)

[1, 2] In view of the tension in the case law, we granted review to answer the question whether a trial court retains the power to fix the amount of victim restitution under sections 1202.4 and 1202.46 after a term of probation has terminated.²

II.

We start with an overview of the law governing victim restitution. "Under the California Constitution, as amended in 1982 by Proposition 8 (commonly known as The Victims’ Bill of Rights), every crime victim has a right to be compensated by the defendant for losses incurred as a result of the defendant’s crime. [Citation.] At the time Proposition 8 was passed, ‘victims had some access to compensation through the Restitution Fund, and trial courts had discretion to impose restitution as a condition of probation.’ [Citation.] Courts did not, however, have general statutory authority to order the defendant to pay restitution directly to the victim of his or her crime. [Citation.] In passing Proposition 8, the electorate expanded victims’ access to compensation by declaring an ‘unequivocal intention … 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,’ and instructing the Legislature to adopt legislation to implement this directive." (Martinez, supra, 2 Cal.5th at p. 1100, 218 Cal.Rptr.3d 140, 394 P.3d 1066; see Prop. 8, as approved by voters, Gen. Elec. (June 8, 1982), adding Cal. Const., art. I, former § 28, subd. (b); Stats. 1982, § 3, pp. A-186 to A-187.) Proposition 8 required that restitution be ordered "in every case, regardless of the sentence or disposition imposed," absent "compelling and extraordinary reasons." (Stats. 1982, § 3, p. A-187.) "The Legislature enacted responsive legislation in 1983, and has amended it frequently thereafter." (People v. Birkett (1999) 21 Cal.4th 226, 230, 87 Cal.Rptr.2d 205, 980 P.2d 912; see Stats. 1983, ch. 1092, § 320.1, p. 4058.)

Initially the Legislature addressed victim restitution in a piecemeal fashion. One statute required victim restitution in cases in which defendants were granted probation, while a different statute required restitution when probation was denied. (See People v. Giordano (2007) 42 Cal.4th 644, 652–653, 68 Cal.Rptr.3d 51, 170 P.3d 623 (Giordano).) In the mid-1990's, the Legislature consolidated these provisions in section 1202.4 and...