Opinion
A132032
12-19-2011
In re T.Tr., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T. Tr., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City & County of San Francisco Super. Ct. No. JW05-6803)
T.Tr. appeals from a restitution order imposed by the juvenile court on remand, contending the court exceeded the scope of our remittitur. We conclude the juvenile court acted properly and therefore shall affirm.
BACKGROUND
After a contested jurisdictional hearing, the juvenile court sustained allegations that T.Tr. had committed first degree murder, conspiracy to commit murder, two attempted murders, and assault with a firearm, as well as enhancements for use of a firearm and committing crimes for the benefit of a criminal street gang. T.Tr. appealed and in No. A125597, this court held that the murder finding should be modified to murder in the second degree, and that a restitution award should be modified as described below. In all other respects, the judgment was affirmed.
The trial court had ordered a total of $5,012.02 in restitution, specifying that $3,111 was to cover costs incurred by the district attorney's office for relocation of Kamisha Gray, a prosecution witness, and that the remainder was to reimburse the cost of relocating the victim's mother, who felt threatened after testifying. As to the $3,111, our prior opinion stated, "The Attorney General concedes that Kamisha was not a direct victim in this case and thus that the district attorney is not entitled to restitution for the cost of relocating her." (In re T.Tr. (Oct. 21, 2010, A125597) [nonpub. opn.].) We held that restitution was properly awarded for the cost of relocating the victim's mother and rejected T.Tr.'s argument that there was insufficient evidence to support that portion of the award. The matter was remanded with directions "to modify the disposition order in conformity with this opinion." (Ibid.)
At a hearing after remand, on January 27, 2011, the district attorney represented that "the People requested restitution of $5,012.02 for Kamisha Gray and Malika Crosby combined. I believe I misspoke. The total amount is for Malika Crosby. I have the paperwork here for counsel to show them. And the Court of Appeals said that we could not request restitution for Kamisha Gray because she is not a victim. That amount is to not include Kamisha Gray. Kamisha Gray did have restitution—we did incur expenses of $3,111 for Kamisha Gray, but that factor was miscalculated into the amount that we were requesting for Malika Crosby. I will give counsel a copy before the next court appearance, but the amount we are asking for Malika Crosby also comes out to $5,012.02."
On March 18, at the continued hearing, the district attorney represented that she had shown T.Tr.'s counsel "receipts for the restitution amount of $5,012.02. I have explained to all counsel that this was for the housing of Malika Crosby. And that none of this is for Kamisha Gray. Kamisha Gray did have separate expenses incurred by the district attorney's office. We are not seeking those expenses. Expenses that we are seeking are $889.95 to take Malika Crosby's items from her house and place them in storage. We are seeking $122.07 for one night's hotel stay for Malika Crosby. And $2,000 for first month's rent because Ms. Malika Crosby was placed into a new apartment for her safety as she feared retaliation from the suspects. And another $2,000 for the deposit for . . . that location which she was secretly moved to. And the total amount comes to $5,012.02." The attorney stated that at the original hearing, the assistant district attorney who appeared "used the name . . . Kamisha Gray. And the person either misspoke, or the person was asking for restitution for Kamisha Gray. One way or the other, we are not seeking that restitution amount in these proceedings for Kamisha Gray. We are only seeking restitution for Malika Crosby, and the reason being is that the individual was afraid for her safety."
The court then stated its intention "to correct the . . . restitution amount of $5,012.02 for Malika Crosby instead of for Kamisha Gray. The court finds that the D.A. representative simply misspoke at the time of the sentencing. And the intended victim [sic] has always been for Malika Crosby."
DISCUSSION
T.Tr. argues that the juvenile court exceeded its jurisdiction when it failed to strike the $3,111 it had originally indicated was for the cost of relocating Kamisha Gray and modified the restitution award to reflect that the full amount of $5,012.02 was for the cost of relocating Malika Crosby.
There is no merit to T.Tr.'s argument that the juvenile court violated the terms of the remittitur and thereby exceeded its jurisdiction. The remittitur "defines the scope of the jurisdiction of the court to which the matter is returned." (In re Anna S. (2010) 180 Cal.App.4th 1489, 1499.) "[T]he trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court." (People v. Dutra (2006) 145 Cal.App.4th 1359, 1366.) "Any ambiguity in the remittitur must be resolved in reference to the law and the appellate court's opinion and in a manner that harmonizes with the appellate court's ruling." (Eisenberg et al., Cal. Practice Guide: Civil Writs and Appeals (The Rutter Group 2010) ¶ 14:11, p. 14-3.) This court's prior opinion held that no restitution could be imposed for the cost of relocating Kamisha Gray, and the revised restitution award does not purport to do so. While the remittitur did not confer jurisdiction on the juvenile court to increase the amount of restitution imposed for the cost of relocating Malika Crosby, neither did it limit the court's authority to do so if authorized by other provisions of law. In fact, there is such other authority.
"[V]ictim restitution is mandated by both the Constitution and [Penal Code] section 1202.4. [Citations.] The only discretion retained by the trial court in this regard is in fixing the amount of the award. Although section 1202.4 mandates a sum which will fully reimburse the victim(s), the court can for 'clear and compelling reasons' award a lesser amount. However, in such a case the court must state the reasons for issuing a lesser award. [Citations.] Where the court fails to issue an award altogether . . . the sentence is invalid." (People v. Rowland (1997) 51 Cal.App.4th 1745, 1751.)
Penal Code section 1202.46 provides: "Notwithstanding Section 1170, 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. Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to Section 1202.4."
In People v. Moreno (2003) 108 Cal.App.4th 1, the trial court did not impose restitution nor retain jurisdiction for imposition of restitution when it sentenced the defendant. During the pendency of defendant's appeal from the conviction the district attorney sought restitution, which the trial court granted. The defendant then appealed from that order arguing, among other things, that the People had waived the right to seek restitution by not requesting it at the initial sentencing hearing and that the restitution award exceeded the scope of the remittitur from the first appeal. (Id. at p. 4.) The court held that "notwithstanding a trial court's failure to retain jurisdiction to impose or modify a restitution order, the second part of section 1202.46 permits the prosecutor, at any time, to request correction of a sentence that is invalid because, as in the present case, the court at the initial sentencing had neither ordered restitution nor found 'compelling and extraordinary reasons' for ordering less than full restitution. The victim too may make such a request, or the trial court may act on its own motion. It follows that the court is not barred from correcting the invalid sentence simply because the prosecutor failed to object when it was imposed. An invalid or unauthorized sentence is subject to correction whenever it comes to the court's attention." (Id. at p. 10, italics omitted & added.)
T.Tr. argues that Penal Code section 1202.46 does not apply here because it applies only to criminal sentences and not to juvenile adjudications, and that Welfare and Institutions Code section 730.6 must be applied instead. He points out that Welfare and Institutions Code section 730.6 does not contain the provision found in Penal Code section 1202.46 that "[n]othing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting a correction, at any time, of a sentence . . . ." However, Welfare and Institutions Code section 730.6, subdivision (h)(4) does include the provision that "The court may modify the amount on its own motion or on the motion of the district attorney, the victim or victims, or the minor." Moreover, in In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132-1133, the court observed Welfare and Institutions Code section 730.6 "parallels Penal Code section 1202.4, which governs adult restitution. In that context, both the People of this state when they passed Proposition 8, and extensive case authority express that restitution statutes are to be interpreted broadly and liberally. [Citation.] Any interpretation that limits a victim's rights to restitution 'would be in derogation of the expressed intent and purposes of Proposition 8 and the provisions adopted by the Legislature to implement this measure.' " (Fns. omitted.)
Thus, independent of the remittitur, the juvenile court was authorized upon a proper showing to increase the amount of restitution awarded to cover the cost of relocating Malika Crosby, and nothing in this court's prior opinion prohibited it from doing so.
DISPOSITION
The judgment is affirmed.
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Pollak, J.
We concur:
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McGuiness, P. J.
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Siggins, J.