Criminal Appeal

Victim Restitution Amounted To Increased Punishment In Violation Of Defendant's Plea Agreement

Pursuant to a plea agreement, appellant was convicted of one felony count of assault with a deadly weapon. Division Three of California's First District Court of Appeal held that the trial court violated the terms of appellant's plea agreement by ordering her to pay over $34,000 in victim restitution for amounts paid by the California Victim Compensation and Government Claims Board to the hospital that treated the assault victim. According to the Court of Appeal, appellant must be afforded the opportunity to withdraw her plea because the trial court imposed a punishment more severe that that specified in the plea agreement. The Court noted that if appellant chooses not to withdraw her plea, on remand the trial court must consider whether compelling and extraordinary reasons justify awarding less than full victim restitution.

The unanimous opinion was authored by Presiding Justice William R. McGuiness.

People v. Brown, no. A111490 (Cal.Ct.App. (1st Dist., Div. 3) filed 2/22/07)

Trial Courts Retain Jurisdiction To Set Victim Restitution Even After Defendants Have Completed Their Sentences

In this case, the trial court ordered the defendant to pay victim restitution in an amount to be determined at a subsequent restitution hearing. The amount had not been set by the time the defendant completed her sentence. Therefore, the trial court denied the government's motion to set the amount of victim restiutition owed by the defendant. The People appealed, and Division Three of California's First District Court of Appeal reversed. According to the Court of Appeal's ruling, the trial court did not lose jurisdiction to order restitution simply by virtue of the fact that the defendant fully served her sentence before the final restitution hearing was held. Defendant's contention to the contrary, the Court concluded, would frustrate the relevant provisions of Article I, section 28, of the California Constitution.

The unanimous decision was authored by Justice Peter Siggins.

People v. Bufford, no. A108741 (Cal.Ct.App. (1st Dist., Div. 3) filed 1/12/07)

Cal. Supreme Court to Review Restitution Based on Future Earnings of Deceased Victim

Today, the Cal. supreem Court granted review in People v. Giordano, no. S138382.

The court of appeal (4th Dist., Div. 2), in a unanimous published opinion, had affirmed an award of restitution to a surviving spouse based on future earning of the decedent.

Cal. Supremes Review Grant (last week): People v. Crandell, S134883. (H027641). Question presented (according to the docket):

Does the imposition of a restitution fine under Penal Code section 1202.4, subdivision (b), violate a defendant's plea agreement if the fine was not an express term of the agreement?

Opinion Below.

Justice Mihara dissented:

I dissent for the same reasons I dissented in People v. Knox (2004) 123 Cal.App.4th 1453. (Knox at pp. 1463-1465, Mihara, J., dissenting.) I also note that the advisements in this case were not accurate. The court told defendant at the time of the plea that the “amount” of the restitution fund fine “will depend on your ability to pay the fine.” However, when defendant’s trial counsel objected to the $2600 restitution fund fine recommended by the probation department, the court acknowledged that it was setting the fine by multiplying the number of counts by the number of years and by $200 since “[t]hey take it out of their prison wages.” It hardly seems accurate to assure a defendant that the fine will be based on his ability to pay and then to instead set it based on the number of years he will spend in prison on the assumption that his prison wages during his 13-year prison term will be adequate to pay the fine.

In the light of a 2001 amendment to USSG, D.Ct. erred in including interest and finance charges in calculation of actual loss for sentencing purposes.

Holdings: (1) No abuse of discretion in admission of bankruptcy petition as a prior statement to rebut defendant's denial of personal credit problems. (The petition was not admitted as evidence of a prior act.)(2) Although Judge's questioning of defendant was "inappropriately extensive and suggestive of the court’s own conclusion about Goodman’s credibility, it does not warrant reversal for plain error." (3) the 2001 addition of application note 2(D) (now 3(D)(i))) to § 2B1.1, specifying that interest and finance charges are not included in calculation of loss was clarifying and applies to defendants who were sentenced under 1995 version of guidelines. (4) No abuse of discretion in including contractual interest and finance charges in restitution order.

Note 1: the opinion contains a thorough examination of whether the amendment was clarifying. The court considered three factors: whether the amendment was listed among those to be applied retroactively (it wasn't, but it the amendment (no. 617) had so many components and given that some would be clarifying and some would not, it's not surprising it wasn't included in the list of retroactive amendments); the statement of the commision as to whether it was clarifying (they didn't so state, but this was not dispositive); and the fact that the commission was resolving a circuit split (this was dispositve and led the court to hold that the amendment was clarifying.)

Note 2: The court, in remanding for resentencing, explicitly required "resentencing consistent with this opinion and consistent with Blakely v. Washington, 124 S. Ct. 2531 (2004)." U.S. v. Morgan, no. 02-50603.

Panel: D.W. Nelson, John R. Gibson (8th Cir.), Graber (author).

Juvenile Court May Order Juvenile Defendant to Pay Restitution to Fire Department for Expenses of Fighting Grass Fire Started by Minor Playing With Firecrackers. In re Brian N. (Filed June 23, 2004; Publ. Order July 12, 2004).

Upon revocation of probation, court cannot impose a second restitution fine in addition to the restitution fine imposed upon the earlier grant of probation. People v. Arata, no. C042769 (Cal.Ct.App. (3d Dist.) Apr. 29, 2004) (partially published).

AG flip-flop: "Although the People have routinely conceded this issue for several years, they inexplicably seek to defend the error in this case."

Amount of Restitution May be Delegated to Probation Officer

A juvenile court has authority to direct the probation officer to determine the amount of victim restitution. So said the California Court of Appeal (2d Dist., Div. 3) today in In re Karen, A., no. B164433. Justice H. Walter Croskey wrote the opinion.