Opinion
E068936
10-26-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL OWEN DEVAUGHN, Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF132760) OPINION APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. Affirmed. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Michael Owen DeVaughn, was convicted of numerous financial and theft-related crimes in 2011, was sentenced to prison, and ordered to pay victim restitution in an as yet undetermined amount. He has previously appealed twice, his second appeal challenging the sentence imposed in absentia. While the second appeal was pending, the court conducted a restitution hearing, at which it ordered defendant to pay an aggregate sum of $373,500 to three victims. Defendant appeals.
On appeal, defendant argues that the trial court lacked jurisdiction to conduct a restitution hearing while his prior appeal was pending. We affirm.
BACKGROUND
Because the facts of the offenses are not relevant to the issues on appeal, we will focus on procedural events.
Defendant was charged by information in 2007 with multiple counts of theft and various financial crimes, as well as an enhancement allegation for a prior robbery conviction. He was convicted on all counts and was originally sentenced to prison for 32 years, eight months. The court also ordered defendant to pay restitution to the victims, in an amount to be determined by probation, pursuant to Penal Code section 1202.4, subdivision (f).
All further statutory references are to the Penal Code, unless otherwise stated.
Defendant appealed his convictions and in a partially published opinion, we reversed certain enhancements to counts 10, 18, 19, 20, 21, and 33, and ordered that the terms for counts 12, 29, 38, and 46 be stayed pursuant to section 654. (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1121.) On remand, the trial court corrected the sentence in defendant's absence and an amended abstract of judgment was filed on December 16, 2014, reflecting a new sentence of 28 years in prison. Defendant appealed, arguing that the court erred by sentencing him in absentia, and we affirmed with directions on September 28, 2017. (People v. DeVaughn (Sept. 28, 2017, E065707) [nonpub. opn.].)
On June 3, 2016, while the appeal in case No. E065707 was pending, the matter came on calendar for hearing regarding a victim restitution dispute. Defendant was not present, so the matter was continued. On June 21, 2016, defendant appeared at the victim restitution dispute hearing and complained he had not been served with the People's motion in time for the hearing; he also objected to the court proceeding on the restitution matter while his appeal in case No. E065707 was pending. On July 1, 2016, the court received the probation department's Memorandum Determining the Amount of Restitution. However, the probation department was unable to determine restitution.
The record on appeal does not include any motion by the People regarding restitution. We note that the Memorandum Determining Restitution was completed by the probation officer on May 24, 2016, although it was not filed until July 1, 2016, so we are unclear about what precipitated the restitution hearing.
On September 16, 2016, the court conducted the hearing on the disputed restitution. After appearing at a few hearings that were continued, defendant waived his personal appearance but reasserted his objection to the court's jurisdiction to hear the restitution matter while the second appeal was pending. The court issued a restitution order and order to levy defendant's assets pursuant to section 186.11, to pay victim restitution.
On September 16, 2016, the court ordered victim restitution as follows: (a) on count 11, the court ordered restitution in the amount of $161,000.00 payable to victims Jeffrery [sic] Hopko and Isla Blum-Hopko; (b) on count 28, restitution in the amount of $210,000.00 was ordered payable to Arrowhead Service Corporation; (c) on count 37, defendant was ordered to pay restitution in the amount of $2,500.00 to Anna Smith. The order reflects that on count 36, Crawford Real Estate wrote a check to defendant in the sum of $3,750.00, but the check was never cashed or canceled, and that Stewart Title sustained a loss in the amount of $430,000.00, but that law enforcement had been able to recover that amount. The total amount of victim restitution that remained unpaid was $373,500.00.
Defendant appealed the restitution order.
Because the trial court failed to serve defendant with copies of the minutes or orders following his waiver of appearance, defendant did not know the date of the restitution order and only learned of it after the prison had been served with a copy. For this reason, he was granted leave to file a late notice of appeal. --------
DISCUSSION
The sole issue presented in this appeal is whether the trial court had jurisdiction to conduct the hearing on the restitution dispute while defendant's second appeal was pending. Defendant argues that because a valid notice of appeal transfers jurisdiction of a cause to the appellate court, the trial court had no jurisdiction to conduct the restitution hearing during the pendency of the prior appeal. We disagree.
Section 1202.4, subdivision (f), provides in pertinent part that "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If 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."
Section 1202.42, subdivision (d), and section 1202.46 confer continuing jurisdiction to modify an order for victim restitution. (See, People v. Turrin (2009) 176 Cal.App.4th 120, 1207.) Section 1202.46 is explicit in providing that 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 of a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined. "Under a reading of the plain language of section 1202.4, if the court cannot determine the amount of restitution at the time of sentencing, there is no limitation upon when the court must next set a restitution hearing, nor is there a limitation on the permissible reasons that may prevent fixing the amount of restitution." (People v. Bufford (2007) 146 Cal.App.4th 966, 971.)
Victim restitution is mandated by both the state Constitution and section 1202.4. (People v. Moreno (2003) 108 Cal.App.4th 1, 9.) Thus, where a trial court fails to award restitution, the sentence is invalid. (Moreno, supra, at p. 9, citing People v. Rowland (1997) 51 Cal.App.4th 1745, 1751.) When a sentence is invalid for a lack of restitution provision, it may be corrected at any time. (Moreno, supra, at p. 10.)
We acknowledge the general rule that the perfecting of an appeal deprives the trial court of jurisdiction in a case pending appeal. (Code Civ. Proc., § 916; People v. Hedge (1999) 72 Cal.App.4th 1466, 1477.) The purpose of the rule is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided and to prevent the trial court from rendering the appeal futile by altering the appealed judgment. (People v. Hedge, supra, at p. 1477.) However, notwithstanding a stay pending appeal, a trial court is not divested of its jurisdiction "'to determine "ancillary or collateral matters" which do not affect the judgment on appeal.' [Citation.]" (Ibid.) Whether a matter is "embraced" in or "affected" by a judgment within the meaning of section 916 depends upon whether post-judgment trial court proceedings on the particular matter would have any impact on the "effectiveness" of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.)
Defendant acknowledges as much, recognizing that a trial court retains the power to correct an unauthorized sentence, citing People v. Karaman (1992) 4 Cal.4th 335, 349, footnote 15. Here, restitution was actually ordered as part of the original sentence in January 2011. Only the amount was undetermined, rendering the sentence incomplete. In this respect, the restitution portion of the sentence was invalid, or unauthorized, insofar as victim restitution is mandatory, and it was subject to correction at any time. (People v. Rowland, supra, 51 Cal.App.4th at p. 1751.) Additionally, because the issue of restitution was ancillary or collateral to the issues posed in the first two appeals, the perfecting of the appeal did not divest the trial court of jurisdiction to modify the restitution order. (People v. Hedge, supra, 72 Cal.App.4th at p. 1471.)
In sum, the express language of sections 1202.4 and 1202.46, considered in conjunction with the policies permitting the trial court to correct an invalid sentence and to make post-judgment orders ancillary to the issues embraced by the appeal, persuade us that the trial court had jurisdiction to order victim restitution when the amounts became ascertainable while the appeal was pending.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.