Opinion
A167801
03-14-2024
THE PEOPLE, Plaintiff and Respondent, v. JOEHN ANDREWS, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 012201567.
Mayfield, J. [*]
After Joehn Andrews pled no contest to a charge of reckless driving while fleeing a peace officer (Veh. Code, § 2800.2), the trial court placed him on probation and ordered him to pay victim restitution in an amount to be determined by further court order. The hearing to set the amount of restitution was continued several times, ultimately to a date after Andrews's term of probation had ended. He contends the court exceeded its jurisdiction by issuing an order setting the amount of restitution after his probation had ended. We disagree and affirm.
BACKGROUND
I.
Andrews's Plea and Sentencing
On September 10, 2022, Andrews led police on a high speed chase after he was spotted driving a stolen car. He crashed, totaling the car and injuring a passenger.
Andrews was charged with evading a peace officer in a manner causing injury (Veh. Code, § 2800.3, subd. (a)), fleeing a peace officer by driving recklessly (Veh. Code, § 2800.2), driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). As to the first two counts, he was alleged to have inflicted great bodily injury (§ 12022.7, subd. (a).)
All undesignated statutory citations are to the Penal Code.
On November 1, 2022, Andrews agreed to plead no contest to fleeing a peace officer by driving recklessly, in exchange for dismissal of the other counts and the enhancements. He signed a plea form stating that he would receive one year's probation, subject to conditions including 364 days in jail, and that his probation would end when he finished serving his jail term. He initialed a paragraph stating, "I understand that conviction of the charge(s) will require me to pay appropriate restitution to the victim(s) of my crimes and/or to pay a restitution fine."
At an unreported hearing that same day, the trial court accepted his plea and ordered probation as set forth in the form, including a jail term of 364 days, less credits of 106 days. The court ordered Andrews to "make RESTITUTION as determined by further order from the Court." It scheduled a restitution hearing on December 1, 2022.
II.
The Restitution Order
The trial court continued the restitution hearing three times-once at Andrews's request, once at the People's, and once on a joint request-to February 24, 2023. On that date, the People sought another continuance. Over Andrews's objection, the court continued the hearing a final time to April 21, 2023.
At some point before that date, Andrews finished serving his jail sentence, and his term of probation ended. At the April 21 hearing, he contended the court had lost jurisdiction to issue an order setting the amount of restitution. The court held that, under People v. Ford (2015) 61 Cal.4th 282 (Ford), Andrews's role in contributing to the hearing's delay estopped him to object to the court's jurisdiction. It ordered him to pay restitution of $6,900.
DISCUSSION
I.
Constitutional and Statutory Provisions Governing Restitution
The California Constitution provides that "all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) A trial court must order such restitution "in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Id., subd. (b)(13)(B); People v. Giordano (2007) 42 Cal.4th 644, 652.) To implement that constitutional mandate, the Legislature has enacted a restitution scheme codified mainly in sections 1202.4 through 1202.46. (Giordano, at pp. 652-653; §§ 1202.41202.46.) We review de novo whether the court exceeded the limits on its jurisdiction set by that statutory scheme. (People v. Zuniga (2022) 79 Cal.App.5th 870, 874 (Zuniga).)
In any case in which a victim suffers economic loss, the sentencing court "shall require that the defendant make restitution to the victim . . . in an amount established by court order." (§ 1202.4, subds. (f) &(a)(3)(B).) If the court cannot ascertain the amount of a victim's losses when it imposes sentence or orders probation, it must include in its restitution order "a provision that the amount shall be determined at the direction of the court." (Id., subd. (f).) In such a case, "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.)
II.
The Trial Court Properly Imposed Victim Restitution
Andrews raises two claims on appeal: first, that the trial court exceeded its jurisdiction by fixing the amount of restitution after his probation had ended; and second, that it erred in holding he was estopped to object. The Attorney General essentially concedes error on the latter issue,however, we do not reach this issue given our determination that the court did not act in excess of its jurisdiction. (See People v. McCune (2022) 81 Cal.App.5th 648, 654-655, review granted Oct. 26, 2022, S276303 (McCune).)
Ford, supra, 61 Cal.4th 282, on which the trial court relied, held that a defendant who consented to a continuance of a restitution hearing to a date after his probation ended was estopped to argue the court acted in excess of its jurisdiction. (Id. at pp. 284-285.) Andrews contends Ford is inapplicable because he objected to the continuance of the restitution hearing to a date after his probation ended, and the Attorney General implicitly concedes he is correct. While we are inclined to agree, we need not decide the estoppel issue given our determination that the trial court had jurisdiction to set the amount of victim restitution in this case. (See People v. Kerley (2018) 23 Cal.App.5th 513, 563 ["We will affirm a trial court's decision if it is correct, even if it is based on erroneous reasoning"].)
When the trial court issued its order placing Andrews on probation, the amount of the victim's economic loss had not been ascertained. The trial court therefore acted within the jurisdiction conferred by the statutory scheme summarized above by retaining jurisdiction, pursuant to section 1202.46, to set the amount later. (McCune, supra, 81 Cal.App.5th at p. 653, review granted.) Although, as a result of continuances, Andrews's probation ended before the court set the amount, it retained jurisdiction to do so" 'until such time as the losses may be determined.'" (Id. at p. 655, quoting § 1202.46; accord, Zuniga, supra, 79 Cal.App.5th at pp. 875-876.) Once the prosecution identified the amount, and Andrews had a chance to be heard, the court issued an order setting the amount.
Andrews contends that by exercising the jurisdiction explicitly granted by section 1202.46, the trial court violated a limit implicitly set by another statute, section 1203.3, which governs courts' authority to modify orders of probation. (§ 1203.3, subd. (a).) He cites a subdivision of section 1203.3 stating that the statute "does not prohibit the court from modifying the dollar amount of a restitution order . . . at any time during the term of the probation." (§ 1203.3, subd. (b)(5), italics added.) In his view, that language implicitly bars a court from fixing the amount of restitution after a term of probation has ended. But McCune rejected exactly that argument. (McCune, supra, 81 Cal.App.5th at pp. 653-655, review granted.) It held, in similar circumstances, that it was "immaterial" that a term of probation ended before a trial court could ascertain the amount of the victim's losses. (Id. at p. 653.) 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." (McCune, at p. 653.) We agree.
In both McCune and Zuniga, the trial court was unable to set the amount of restitution before the defendant's probationary term ended not because of continuances but because Assembly Bill No. 1950, which reduced the maximum length of probation terms, retroactively terminated the defendant's probation before the court held a restitution hearing. (McCune, supra, 81 Cal.App.5th at p. 651, review granted, citing Stats. 2020, ch. 328, § 2 (2019-2020 Reg. Sess.); Zuniga, supra, 79 Cal.App.5th at pp. 871-872 [same].) Andrews does not contend this distinction makes a difference in determining the trial court's jurisdiction to set the amount of victim restitution.
Andrews also cites People v. Waters (2015) 241 Cal.App.4th 822 and Hilton v. Superior Court (2014) 239 Cal.App.4th 766 in support of his argument that the trial court lacks jurisdiction to fix the amount of restitution after probation ends. As explained in Zuniga, supra, 79 Cal.App.5th 870, those cases are distinguishable. (Id. at pp. 876-878.) In Waters, the court did not order any victim restitution at sentencing; the court purported to impose such a requirement only after the defendant's probationary term had ended. (Zuniga, at p. 876, citing Waters, at pp. 829831.) In Hilton, the court determined the amount of restitution due when it ordered probation, the defendant paid that amount, his probation ended-yet the court later ordered him to pay a further, much greater sum. (Zuniga, at p. 877, citing Hilton, at p. 769.) Because the losses in Hilton "not only might have been determined but were in fact determined" when the court ordered probation, its later order was not authorized by section 1202.46, which applies only "when the economic losses of a victim cannot be ascertained at the time of sentencing." (Hilton, at p. 782, fn. 9; § 1202.46.)
Additionally, the concerns expressed in Waters and Hilton about the risk of "surpris[ing] former defendants by issuing restitution orders out of the blue sky decades after probation ended" (McCune, supra, 81 Cal.App.5th at 655, review granted, citing People v. Waters, supra, 241 Cal.App.4th at 831, Hilton v. Superior Court, supra, 239 Cal.App.4th at p. 769) is not evident here. Andrews acknowledged at the time of the plea that he would be required to pay victim restitution in an amount not then specified, and that amount was set approximately five months later after Andrews was provided with notice and an opportunity to be heard.
In summary, here, as in Zuniga and McCune, the trial court could not ascertain the amount of the victim's losses at the time of sentencing so its probation order imposed a duty to pay restitution in an amount to be determined later. (McCune, supra, 81 Cal.App.5th at p. 651, review granted; Zuniga, supra, 79 Cal.App.5th at p. 877.) The court thus retained jurisdiction over Andrews, pursuant to section 1202.46, until it could determine that amount. (McCune, at p. 655.) Andrews's other arguments are unpersuasive. Because we agree with the analysis in McCune, and our Supreme Court will soon resolve the issue conclusively, we need not belabor it further.
Andrews contends that the Supreme Court in Ford, supra, 61 Cal.4th 282 "would have held that the termination of probation was irrelevant to . . . jurisdiction if the court maintains jurisdiction to award restitution post-probationary period [under section 1202.46]." (See ante, fn. 2.) But by relying on estoppel, the Ford court made it unnecessary to reach the question of jurisdiction; it did not rely on estoppel because it had reached the issue and determined the court lacked jurisdiction. (Ford, at pp. 284-285.) Andrews also contends that McCune makes surplusage of the time limit implied by subdivision (b)(5) of section 1203.3, which states that the statute "does not prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of probation." But fixing the amount of a restitution award pursuant to section 1202.46 when the amount of a victim's loss becomes ascertainable, as the trial court did here, is not the only way in which a court might modify a restitution order. (See, e.g., § 1203.3, subd. (b)(4) [court can modify dollar amount of restitution obligation for compelling and extraordinary reasons related to defendant's good conduct and reform].) The cited language can still affect other sorts of modifications.
DISPOSITION
The order setting the amount of victim restitution is affirmed.
We concur: Stewart, P. J., Richman, J.
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.