The People v. Ford ( 2013 )

Filed 7/17/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A135733
v.
WILLIAM J. FORD, (Sonoma County
Super. Ct. No. SCR-530837)
Defendant and Appellant.
William Ford appeals from an order awarding victim restitution. He contends the
court lost jurisdiction to award restitution when his probation term expired nine days
earlier. We disagree. The court‟s retention of jurisdiction to determine and award victim
restitution was permissible under Penal Code sections 1202.4 and 1202.461 irrespective
of the expiration of Mr. Ford‟s probation.
We therefore affirm.
BACKGROUND
Ford severely injured Elaine Jennings in a hit and run accident in 2008. Following
his no contest plea to leaving the scene of an accident, he was placed on three years‟
probation and ordered to pay $12,465.88 in restitution for Jennings‟s medical expenses.
Ford‟s probation officer advised the court that Jennings also sought over $36,000
restitution for lost wages. Ford‟s counsel expressed his intent to request a hearing on the
amount of restitution. The court expressly reserved jurisdiction to determine the amount
of additional restitution.
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All further statutory references are to the Penal Code.
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On May 7, 2010, the probation department notified Ford that he owed Jennings
$211,000 in victim restitution.2 Ford requested a hearing. The hearing was initially set
for August 3, but there followed a series of delays and continuances during which Ford‟s
probation was extended several times. The restitution hearing was finally held on
January 27, March 1, and April 6, 2012. On April 6, defense counsel made a limited
appearance to contest jurisdiction because Ford‟s probation term had expired on March
30. The People asserted the court retained jurisdiction over restitution under section
1202.46 “unless and until the amount of restitution owing the victim can be determined.”
Following additional briefing on the jurisdictional issue, the court ruled it had jurisdiction
to award restitution under section 1202.4. “This was not just a condition of probation, it
was a restitution order, the Court reserving jurisdiction to determine the amount.” Ford
was ordered to pay Jennings restitution in the amount of $275,017.
This timely appeal followed.
DISCUSSION
Ford contends the restitution award was a condition of his probation, and therefore
that the court had no jurisdiction to alter it once his probation term expired. His
contention is without merit.
We had occasion to address a closely related issue in People v. Bufford (2007) 146
Cal.App.4th 966, in which we held the trial court retained jurisdiction to adjudicate
restitution following a defendant‟s completion of her prison sentence. We explained why
California‟s restitution scheme, embodied in our Constitution and statutes, mandates this
result:
“Article I, section 28 was added to the California Constitution by initiative
measure adopted by the voters June 8, 1982. Subdivision (b) provides, in part, „that all
persons who suffer losses as a result of criminal activity shall have the right to restitution‟
and that „[r]estitution 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,
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This amount included substantial lost earnings and additional medical expenses.
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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.‟ [¶] Implementing legislation was added to Penal Code section 1202.4 that
now provides, in relevant part that „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. . . . .‟
(§ 1202.4, subd. (f).)” (People v. Bufford, supra, 146 Cal.App.4th at pp. 969-970; see
also People v. Giordano (2007) 42 Cal.4th 644, 651-653 [outlining legislative history].)
The Legislature also made it clear that the trial court retains jurisdiction to impose
or modify a restitution award until the appropriate amount can be ascertained. “Section
1202.46 specifically 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.‟ ”
(People v. Bufford, supra, 146 Cal.App.4th at p. 970, italics added.)
In Bufford we held that these provisions mean exactly what they say and that the
completion of a prison term was irrelevant to the court‟s ability to exercise jurisdiction.
“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. . . .” (People v. Bufford, supra, 146 Cal.App.4th
at p. 971, italics added.) We also observed that an interpretation that would terminate the
court‟s ability to adjudicate restitution upon completion of the defendant‟s prison term
conflicts with the constitutional directive that, absent “compelling and extraordinary
circumstances,” restitution must be ordered whenever a crime victim suffers a loss,
regardless of the sentence or disposition. We said: “We are not willing to read section
1202.4 so narrowly that restitution may not be awarded in this case. To do so would
frustrate the clear language of article I, section 28.” (Ibid.) The same reasoning applies
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here, and the court retained jurisdiction to award additional restitution without regard to
the expiration of Ford‟s probation.
Ford attempts to distinguish Bufford on the ground that the defendant there was
sentenced to prison, not probation, but nothing in sections 1202.4 or 1202.46 supports
that distinction. To the contrary, section 1202.4, subdivision (f) expressly provides that
the trial court retains jurisdiction to award or modify restitution “until such time as the
losses may be determined.” The Legislature made no distinction between defendants
sentenced to prison terms and those granted probation.
Ford maintains the difference is nonetheless meaningful because “where probation
has been granted, restitution is no longer a sentencing issue, but rather becomes a
condition of probation.” Therefore, he argues, the court‟s power to modify restitution
awards in probation cases is controlled exclusively by section 1203.3, which concerns the
court‟s power to revoke, modify, or terminate probation orders during a probationary
term. We disagree. Initially enacted in 1937, section 1203.3 was amended in 2000 to
specify that “Nothing in this section shall be construed to 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 the probation.” (§ 1203.3, subd. (b)(5), italics
added; see Historical and Statutory Notes, 50D West‟s Ann. Pen. Code (2004 ed.) foll.
§ 1203.3, p. 534.) Ford says this concluding phrase of subdivision (f) means the court is
prohibited from modifying the amount of restitution after probation ends, but subdivision
(b)(5) neither says so nor, in view of section 1204.46‟s contrary directive, can it be
applied to encompass that meaning. Subdivision (b)(5) is permissive, not restrictive. It
takes nothing away from the court‟s authority to award restitution under section 1204.4.
Ford makes much of our footnote in Bufford that states: “[s]ection 1203.3 does not
apply in this case, because defendant was not placed on probation” (People v. Bufford,
supra, 146 Cal.App.4th at p. 970, fn. 4), and suggests we thereby meant to imply that
section 1203.3 would have applied had the defendant been given probation instead of a
sentence to state prison. Not so, and so what? We identified section 1203.3 merely to
clarify that it did not apply, and it is fundamental that an opinion is only authority for
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“ „ “the points actually involved and actually decided.” ‟ ” (People v. Knoller (2007) 41
Cal.4th 139, 155.) As explained above, section 1203.3 does not limit the jurisdiction
delineated by sections 1204.4 and 1204.46.
We therefore hold the trial court had jurisdiction to award restitution under section
1204.4 when it awarded Jennings the full amount of economic losses she suffered as a
result of Ford‟s actions.
DISPOSITION
The restitution order is affirmed.
_________________________
Siggins, J.
We concur:
_________________________
Pollak, Acting P.J.
_________________________
Jenkins, J.
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Trial Court: Superior Court of the County of Sonoma
Trial Judge: Honorable Bradford DeMeo
Counsel for Appellant: Jane Gaskell
William J. Ford ADRIAN & GALLENSON
Counsel for Respondent: Kamala D. Harris, Attorney General
Dane R. Gillette, Chief Assistant
Attorney General
Gerald A. Engler, Senior Assistant
Attorney General
Seth K. Schalit, Supervising Deputy
Attorney General
Catherine Mcbrien, Deputy Attorney
General
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