Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. KA071472
It is ordered that the opinion filed herein on November 19, 2007, be modified as follows:
1. On the caption page, change “Affirmed in part, reversed in part, and remanded” to:
Affirmed.
2. On page 2, line 10 of the second full paragraph, the sentence commencing “We remand for exercise” is deleted and the following is inserted in its place:
Finally, we conclude that, while the trial court failed to exercise its discretion in setting the amount of victim restitution to be paid by Harrison, the court has lost jurisdiction with respect to Tovar. For reasons we shall discuss, we therefore affirm this part of the judgment.
3. On page 17, the second full paragraph is deleted and the following paragraphs are inserted in its place:
Respondent concedes that the trial court apparently was unaware that it retained jurisdiction under section 1202.46 to increase the restitution order as to Tovar once the final figures were available. In our initial opinion, we accepted the suggestion of respondent that we remand the matter to allow the trial court to exercise discretion as to Harrison. In a letter requesting modification, respondent asked that we modify our opinion so that the court could exercise discretion as to the restitution obligation of appellant Tovar as well. Tovar’s attorney responded, arguing that it is too late for the trial court to increase the restitution order as to Tovar.
Counsel for Tovar is correct. Section 1202.46 provides 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 over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined.” The full amount of restitution was not known when Tovar was sentenced, but it was known on the later date when Harrison was sentenced, and the restitution order was made as to her. When the trial court imposed the restitution order on Harrison and failed to modify the earlier restitution order as to Tovar, it lost jurisdiction to change the order as to Tovar, and cannot do so now. The statute also requires that full restitution be made to the victim, unless the trial court finds clear and compelling reasons for not doing so and states those reasons on the record. (§ 1202.4, subd. (g).) No such finding has been made, nor do we see a basis for making it and thus depriving the victim’s family of a restitution order that fully compensates it as the statute commands. Consequently, the restitution order as to Harrison must remain as pronounced by the trial court.
4. On page 17, delete the paragraph under Disposition and insert the following paragraph in its place:
The judgments are affirmed.
This modification changes the judgment.
EPSTEIN, P.J. MANELLA, J. SUZUKAWA, J.