BILL ANALYSIS Ó
AB 2477
Page A
Date of Hearing: March 29, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2477 (Patterson) - As Introduced February 19, 2016
SUMMARY: Overturns case law holding that a court lacks
jurisdiction to modify a restitution order after the defendant's
probation expires, thereby extending jurisdiction for
restitution indefinitely. Specifically, this bill:
1)States legislative intent to abrogate the holdings in Hilton
v. Superior Court (2014) 239 Cal.App.4th 766, and People v.
Waters (2015) 241 Cal.App.4th 822.
2)Provides that the court retains jurisdiction to impose or
modify restitution regardless of the type of sentence imposed
or suspended and notwithstanding any other law.
EXISTING LAW:
1)Establishes the right of crime victims to receive restitution
directly from the persons convicted of the crimes for losses
they suffer. (Cal. Const. art I, § 28, subd. (b).)
2)Requires victim restitution from adult criminal defendants who
AB 2477
Page B
have been sentenced by the court in every case in which a
victim has suffered an economic loss as a result of the
defendant's conduct. (Pen. Code, § 1202.4, subd. (f).)
3)Defines probation as "the suspension of the imposition or
execution of a sentence and the order of conditional release
in the community under the supervision of a probation
officer." (Pen. Code, § 1203, subd. (a).)
4)Gives the court discretion in felony cases to grant probation
for up to five years, or no longer than the prison term that
can be imposed when the prison term exceeds five years. (Pen.
Code, § 1203.1, subd. (a).)
5)Gives the court discretion in misdemeanor cases to generally
grant probation for up to three years, or no longer than the
consecutive sentence imposed if more than three years. (Pen.
Code, § 1203a.)
6)Authorizes the extension of probation for five years in
certain misdemeanor cases, such as driving under the
influence. (Veh. Code, § 23600, subd. (b)(1).)
7)Requires a court which grants probation to make the payment of
the victim restitution order a condition of probation. (Pen.
Code, § 1202.4, subd. (m).)
8)Authorizes the court to revoke, modify, extend, or terminate
its order of probation. (Pen. Code, §§ 1203.2 & 1203.3.)
9)Authorizes the court to modify the dollar amount of
restitution at any time during the term of probation. (Pen.
Code, § 1203.3, subd. (b)(5).)
10)Prohibits the court from modifying the restitution
obligations due to the defendant's good conduct. (Pen. Code,
§ 1203.3, subd. (b)(4).)
FISCAL EFFECT: Unknown
AB 2477
Page C
COMMENTS:
1)Author's Statement: According to the author, "AB 2477 is a
measure which will clarify that the courts retain jurisdiction
over a case for purposes of restitution even after the
probationary period expires. By doing this we will uphold the
Constitutional right of crime victims to receive the
restitution that they deserve.
"In two recent state appellate court decisions, questions arose
when it came to deciding whether or not the court had
jurisdiction to impose restitution on a person who has
committed a crime, after their probationary period has
expired. This is problematic because the initial court hearing
and restitution hearing are totally separate from one another.
Often times restitution hearings can be delayed due to
extraneous circumstances. Generally restitution is not granted
at the initial hearing because the court still does not have
the exact figure that must be paid because some costs may be
ongoing or not yet determined, such as medical bills.
"AB 2477 clarifies that the court will retain jurisdiction over
a case for purposes of restitution. This bill will ensure that
victims receive the just restitution that they are owed and
that they are provided with the correct amount to compensate
their losses."
2)Constitutionally Protected Right to Victim Restitution: The
right of a victim to restitution from the person convicted of
a crime from which the victim suffers a loss as result of the
criminal activity became a constitutional right when adopted
by vote of the people in June 1982 as part of Proposition 8.
Proposition 8 added article I, section 28, subdivision (b), to
the California Constitution, and provided:
"It is the unequivocal intention of the People of the State of
California that all persons who suffer losses as a result of
criminal activity shall have the right to restitution from the
AB 2477
Page D
persons convicted of the crimes for losses they suffer.
"Restitution shall be ordered from the convicted persons in
every case, regardless of the sentence or disposition imposed,
in which a crime victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary. The Legislature
shall adopt provisions to implement this section during the
calendar year following adoption of this section."
The Proposition was not self-executing, but rather directed the
Legislature to adopt implementing legislation. (People v.
Vega-Hernández (1986) 179 Cal.App.3d 1084.) In response, the
Legislature enacted Penal Code sections 1202.4 and 1203.04
(repealed section related to restitution as condition of
probation). (People v. Ortiz (1997) 53 Cal.App.4th 791, 795,
fn. 3.)
The constitutional provisions regarding restitution were amended
by the voters again in 2008, when they approved Proposition 9,
the Victims' Bill of Rights Act of 2008, also known as Marsy's
Law. The amendments, among other things, make clear that a
victim is entitled to restitution, expanded the definition of
a victim to include a representative of a deceased victim, and
gave that representative the ability to enforce a victim's
right. (See People v. Runyan (2012) 54 Cal.4th 849, 858-859.)
3)Restitution as a Condition of Probation: When the court
grants probation, payment of restitution must be made a
condition of probation. (Pen. Code, 1202.4, subd. (m).)
The court has broader discretion to order restitution as a
condition of probation than it does when a defendant is not
granted probation. (People v. Anderson (2010) 50 Cal.4th 19,
26-27.) When ordering restitution as a condition of
probation, the court is not restricted to directing payment to
only those victims as defined in the restitution statute.
Additionally, the court can order restitution as a condition
of probation even when the losses are not necessarily caused
by the conduct underlying the defendant's conviction. Rather
AB 2477
Page E
than having a causal connection, the restitution condition
must only be reasonably related to either the defendant's
crime or to the goal of deterring future criminality. (Ibid;
see also People v Carbajal (1995) 10 Cal4th. 1114, 1121-1124.)
If part of a restitution order has not been paid after a
defendant is no longer on probation, it remains enforceable by
the victim as though it were a civil judgment. (Pen. Code,
1202.4, subd. (m).)
4)Recent Case Law: Two recent appellate court cases have held
that a trial court acts in excess of its jurisdiction when it
orders or modifies restitution after the expiration of a
defendant's probationary period.<1>
In Hilton v. Superior Court (2014) 239 Cal.App.4th 766, the
Court of Appeal held that once probation expires, the judge
cannot modify a restitution order. In Hilton, the defendant
pled to driving under the influence and the court placed him
on probation for three years. At a subsequent restitution
hearing, the court ordered the defendant to pay $3,000
restitution to the victim, which he did. (Id. at pp.
769-770.) The victim then sued the defendant civilly and won
$3.5 million. Probation then expired on the criminal case.
One year and seven months after probation exprired, the victim
went back to court and requested that the court could order
$886,000 more in restitution, to pay for the costs of the
civil suit as well as additional lost wages. The defendant
objected based on lack of jurisdiction. (Id. at 770.) The
Court of Appeal reversed the order, holding that once
probation expires, the court loses jurisdiction to modify a
--------------------------
<1> These cases are not contrary to the recent California
Supreme Court case of People v. Ford (2015) 61 Cal.4th 282,
which held that agreeing to a hearing on restitution outside the
probationary period estops the defense from later challenging
lack of jurisdiction.
AB 2477
Page F
restitution order and that any extension of probation was an
act in excess of jurisdiction and void. (Id. at p. 772.) The
court noted that termination of probation occurs by operation
of law at the end of the probationary period. (Id. at p.
773.) The court also held that the language of Penal Code
section 1203.3, reflects legislative intent, consistent with
pre-exisiting law on probation, that the trial court lacks
jurisdiction to impose restitution once probation expires.
(Id. at pp. 775-776.)
People v. Waters (2015) 241 Cal.App.4th 822, agreed with the
holding in Hilton. In this case, the court sought to order
restitution two years after the probationary period expired,
even though the victim impact statement seeking $20,000 was
filed before the entry of the plea. (Id. at p. 825.) The
court noted that Penal Code section 1202.4, subdivision (f)
requires the trial court to order victim restitution unless
the trial court finds compelling and extraordinary reasons for
not doing so. Regarding jurisdiction, a trial court's power
to modify a sentence usually expires 120 days after judgment.
(See Pen. Code, § 1170, subd. (d).) (Id. at p. 827.) But
there is an exception where victim restitution cannot be
ascertained at the time of sentencing and the trial court
retains jurisdiction to order restitution. (Pen. Code, §
1202.46.) However, section 1202.46 must be harmonized with the
preexisting statutory scheme concerning probation, which
limits a trial court's jurisdiction to modify probation to the
term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4).)
(Id. at p. 830-831.) Therefore, the court concluded that the
trial court lacked jurisdiction to order restitution after the
expiration of the defendant's probationary period. (Id. at p.
AB 2477
Page G
831.)<2>
This bill seeks to overturn these cases.
5)Argument in Support: According to the California District
Attorneys Association, the sponsor of this bill, "Current law
(Penal Code 1202.46) provides that if a crime victim's
economic losses cannot be determined at the time of
sentencing, the court retains jurisdiction over a defendant
for purposes of imposing or modifying restitution until the
losses can be determined. Recently, in Hilton v. Superior
Court (2014) 224 Cal.App.4th 47, the Fourth District Court of
Appeal held that the court loses jurisdiction to modify or
impose a restitution amount once probation expires. Common
practice, prior to the Hilton decision, was that the court
retained jurisdiction for the limited purpose of modifying or
imposing a restitution order.
"While the law provides elsewhere (PC 1214(b) & (c); PC
1202.4(m)) that restitution orders survive the expiration of
probation, parole, mandatory supervision, and post release
community supervision, the holding in Hilton precludes a court
from ordering or correcting the restitution amount.
"This is contrary to the California Constitution, which requires
a restitution order in every case, regardless of sentence or
disposition (Article I Section 28 subdivision (b)(13)). The
Victims' Bill of Rights (Proposition 8 in June 1982) and
Marsy's Law (Proposition 9 in November 2008) support a court's
continuing jurisdiction to deal with victim restitution
issues, and clearly provide that every case where a victim has
---------------------------
<2> It is unclear why in People v. Waters, supra, 241
Cal.App.4th 822, the People did not file an appeal claiming that
a judgment lacking a victim restitution order was an
unauthorized sentence. (See e.g. People v. Rowland (1997) 51
Cal.App.4th 1745 [when the court fails to issue a restitution
award altogether, the sentence is invalid].)
AB 2477
Page H
suffered a loss must have a restitution order.
"In the vast majority of cases, the victim restitution amount is
finite, and the victim will not have to come back to court to
get the amount increased because of ongoing expenses, such as
additional medical bills or counseling fees. However, there
are at least three scenarios in which the court needs to be
able to deal with restitution issues post-supervision: (1)
when it is discovered that victim restitution was overlooked;
(2) when it is discovered that the original restitution amount
was incorrect and needs to be reduced, increased, or
eliminated; or (3) when victim restitution was contemplated by
the parties, but the period of supervision expired before it
could be ordered.
"The bottom line is that the law needs to be flexible enough to
deal with victim restitution in all cases. We need to be able
to set the victim restitution amount in the first place,
whenever it becomes known, and we need to be able to correct
the amount of victim restitution when it is discovered to be
incorrect."
6)Argument in Opposition: According to the California Attorneys
for Criminal Justice, "The bill would infinitely expand a
defendant's liability for restitution long after he or she
completes her probationary term.
"Currently, the precedents hold that the trial court's
jurisdiction ends upon the termination of a defendant's
probationary term. This encourages a claimant to use due
diligence in presenting a claim for restitution. It also
provides an incentive for a defendant to satisfy the
restitution order prior to the expiration of probation in
order to prevent the probation term from being extended to
satisfy the debt. It provides further incentive to a
defendant to pay restitution early in his probationary term in
support of a request for early termination of that term.
"The proposed legislation would not only be contrary to current
AB 2477
Page I
case law; it would be contrary to the above-mentioned goals
and incentives. By expressly providing that the trial court
would have jurisdiction over a defendant for purposes of
imposing or modifying restitution "at any time," the bill
would exceed even the boundaries of civil liability statutes
of limitation in many cases (particularly those involving
personal injury). ?
"Defendants could be forced at attempting to defend against
claims made decades after the successful completion of
probation, and as stated in Waters at page 832, a defendant's
estate could even be subjected to liability. The court in
Waters goes on to state, '[w]hile we are sensitive to concerns
about making crime victims whole, there must be some
discernible limit to a trial court's power over a defendant
after he or she completes a sentence.' (Id.)"
7)Related Legislation: AB 2295 (Baker) eliminates court
discretion to order less than full restitution when there are
compelling and extraordinary reasons not to do so. AB 2295 is
pending hearing in this committee.
8)Prior Legislation: AB 2645 (Dababneh), Chapter 111, Statutes
of 2014, requires a court transferring a probation or
mandatory supervision case to another county to determine the
amount of victim restitution before the transfer is made.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association (Sponsor)
California Police Chiefs Association
California Probation, Parole, and Correctional Association
California State Sheriffs' Association
Crime Victims United of California
AB 2477
Page J
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744