People v. Theriault CA2/6

Filed 3/2/16 P. v. Theriault CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B257057 (Super. Ct. No. M0441613A) Plaintiff and Respondent, (San Luis Obispo County)

v.

ANTHONY RICHARD THERIAULT,

Defendant and Appellant.

Anthony Richard Theriault appeals an order requiring him to pay victim restitution following his no contest plea to disturbing the peace. (Pen. Code, § 415, subd. (2).)1 We conclude the trial court lacked jurisdiction to issue the restitution order 18 months after Theriault's probation term had expired. We reverse. FACTS Theriault was charged with making a criminal threat (§ 422) to his 15-year- old stepson. He pled no contest to disturbing the peace. (§ 415.) He was sentenced to one year summary probation with conditions that he pay a fine, not own or possess weapons and not have contact with the victim. His probation term expired on March 9, 2011. The trial court made no order for victim restitution. On September 18, 2012, the People filed a motion for victim restitution. Theriault objected claiming the trial court lacked jurisdiction to make a restitution order

1 All statutory references are to the Penal Code.

because his probation period had expired. The court ruled that it had jurisdiction and entered a victim restitution order. Theriault appealed to the superior court appellate division. It affirmed the restitution order. On July 3, 2014, we granted a petition to transfer this appeal to this court. We issued a stay of all proceeding pending the resolution of the issue of whether a trial court has jurisdiction to issue a restitution order after the defendant's probation period has expired. Appellate courts had reached opposite conclusions on this issue in People v. Ford (2013) 217 Cal.App.4th 1354, review granted October 23, 2013, No.S212940, and Hilton v. Superior Court (2014) 224 Cal.App.4th 47, review granted June 11, 2014, No. S217616. In Ford, the court held the trial court retained jurisdiction after the probation term expired to issue a restitution order. In Hilton, the court ruled the trial court lost jurisdiction. The Supreme Court granted review in both cases. On May 28, 2015, the California Supreme Court in Ford ruled that it did not have to decide "whether a trial court retains jurisdiction to modify the amount of restitution once a defendant's term of probation has expired" (People v. Ford (2015) 61 Cal.4th 282, 284) because the defendant agreed to continue the restitution hearing and was therefore "estopped from challenging" the order (id. at p. 285). On July 8, 2015, the California Supreme Court in Hilton issued the following order: "Review in the above-captioned matter, which was granted and held for People v. Ford (2015) 61 Cal.4th 282 . . . is hereby dismissed. (Cal. Rules of Court, rule 8.528(b)(1).)" (People v. Hilton (2015) 351 P.3d 1039.) On August 26, 2015, the Supreme Court granted a request that Hilton v. Superior Court, supra, 224 Cal.App.4th 47 be republished. DISCUSSION Jurisdiction to Issue a Restitution Order Theriault contends that because his term of probation ended on March 9, 2011, the trial court did not have jurisdiction to issue a restitution order 18 months later. We agree.