People v. Lavinge CA2/6

Filed 9/13/16 P. v. Lavinge 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B269699 (Super. Ct. No. F435911) Plaintiff and Respondent, (San Luis Obispo County)

v.

KELLY DEWAYNE LAVINGE,

Defendant and Appellant.

Kelly Dewayne Lavinge appeals the trial court's modification of a prior order awarding victim restitution pursuant to Penal Code section 1202.4, subdivision (f) (hereafter section 1202.4(f)).1 Appellant contends the court lacked jurisdiction to modify the restitution order after he began serving his prison sentence. We affirm. FACTS AND PROCEDURAL HISTORY In 2011, appellant was convicted by a no contest plea of second degree murder (§ 187, subd. (a)) and was sentenced to 15 years to life in state prison. At the time of sentencing, the trial court ordered appellant to pay $8,061.16 in victim restitution to the Victim Compensation and Government Claims Board (VCGCB) (Now the California Victim Compensation Board). The court also notified appellant that “there

1 All statutory references are to the Penal Code.

may be additional claims” and that “[i]f there are, you do have the right to a hearing.” Appellant waived his right to be present at any subsequent restitution hearings. In August 2013, the People moved to modify the restitution order to account for additional payments that appellant’s victims had received from VCGCB for mental health counseling since the date of sentencing. The court approved the modification and ordered appellant to pay $10,005.16 in restitution. In April 2015, the People again moved to modify the restitution order to account for continuing mental health counseling benefits provided by VCGCB to the victims. Appellant opposed the motion, claiming, among other things, that the court lacked jurisdiction to further modify the restitution order. The court overruled appellant’s objection and ordered restitution in the amount of $11,301.16. DISCUSSION Appellant contends the court lacked jurisdiction to modify the restitution order after appellant was sentenced to prison. We disagree. Section 1202.4(f) provides in relevant part, “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, 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. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so and states them on the record.” “‘[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun.’ [Citation.].” (Hilton v. Superior Court (2014) 239 Cal.App.4th 766, 771.) Section 1202.46, however, provides an exception to this general rule for purposes of imposing or modifying restitution. The statute provides in relevant part, “[W]hen the economic losses of a victim cannot be ascertained at the