Filed 10/24/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GOLNAZ GHOLIPOUR, D072235
Petitioner,
v. (Super. Ct. No. SCD246831)
THE SUPERIOR COURT OF SAN DIEGO
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest
PROCEEDINGS in mandate after superior court denied petitioner's motion to
transfer. Charles G. Rogers, Judge. Petition denied.
John O'Connell, San Diego County Primary Public Defender and Randy Mize,
Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Bonnie M. Dumanis, San Diego County District Attorney, Mark A. Amador and
Samantha Begovich, Deputy District Attorneys, for Real Party in Interest.
In this case, we deny a petition for a writ of mandate challenging an order by
which the trial court retained jurisdiction to determine the amount of petitioner's
restitution. As we interpret Penal Code1 section 1203.9, although petitioner's case was
transferred from the trial court to the superior court of another county while her appeal
from her workers' compensation fraud conviction was pending in this court, the trial court
in which she was convicted retained jurisdiction over imposition of restitution so that
when we vacated the trial court's initial restitution order, the trial court had the power to
impose a new restitution order consistent with our instructions on remand.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, petitioner Golnaz Gholipour was charged and convicted of multiple
counts of perjury and workers' compensation fraud. The trial court imposed a split six-
year sentence, with three years to be served in local custody and three years to be served
under mandatory supervision.
Following Gholipour's conviction, the trial court entered a restitution award in the
amount of $309,101.05. Gholipour appealed both the judgment of conviction and the
trial court's restitution order.
In April 2016, while her appeal was pending, Gholipour completed the in-custody
portion of her sentence, was released on mandatory supervision and began living in
Orange County. Shortly after her release from custody, Gholipour moved to transfer her
1 All further statutory references are to the Penal Code unless otherwise indicated.
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case and supervision to Orange County pursuant to section 1203.9 and on June 16, 2016,
the trial court entered an order transferring Gholipour's case to Orange County.
On June 29, 2016, we filed our opinion affirming the judgment of conviction;
however, we reversed the trial court's restitution order and expressly remanded the case to
the trial court to conduct further restitution proceedings consistent with our opinion. In
particular, we found that the restitution was made under the mandatory provisions of
section 1202.4, under which restitution may be ordered only with respect to losses
associated with the crimes for which a defendant has been convicted; we found the trial
court's restitution order was defective because it included restitution for losses which
occurred years before Gholipour committed the particular crimes for which she was
convicted. (See People v. Gholipour (June 29, 2016, D067177, D068234) [nonpub.
opns.] 2016 WL 3625509.)
Following issuance of our remittitur, Gholipour moved in the trial court for an
order directing that the amount of her restitution be determined by the Orange County
Superior Court. The trial court found that as the transferring court under section 1203.9,
it had jurisdiction to determine the amount of Gholipour's restitution and that it was
appropriate for it to exercise that jurisdiction. Accordingly, the trial court denied
Gholipour's motion.
Gholipour filed a petition for a writ of mandate challenging the trial court's order.
We issued an order to show cause, stayed further proceedings in the trial court and set the
matter on our calendar for argument.
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I
In general, when a person has been released on probation or mandatory
supervision, section 1203.9, subdivision (a)(1), requires transfer of his or her case to the
county where the person resides. However, section 1203.9, subdivision (a)(3), provides
in pertinent part: "If victim restitution was ordered as a condition of probation or
mandatory supervision, the transferring court shall determine the amount of restitution
before the transfer unless the court finds that the determination cannot be made within a
reasonable time from when the motion for transfer is made. If a case is transferred
without a determination of the amount of restitution, the transferring court shall complete
the determination as soon as practicable. In all other aspects . . . the court of the
receiving county shall have full jurisdiction over the matter upon transfer as provided in
subdivision (b).[2]" (Italics added.)
According to the Judicial Council, which was the sponsor of the legislation which
added section 1203.9, subdivision (a)(3): "[C]ourts often transfer cases without first
determining victim restitution amounts and without any indication that the restitution
amount was properly considered. [Citation.] As a result, receiving courts are often unable
to determine accurate restitution amounts because the relevant witnesses and information
are not readily available in the receiving county. Those transfers also create significant
hardships on victims who risk losing restitution if they are unable to travel to the
2 Section 1203.9, subdivision (b), states: "The court of the receiving county shall
accept the entire jurisdiction over the case effective the date that the transferring court
orders the transfer."
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receiving county to pursue or clarify a request for restitution in person. To improve
victim access to restitution and promote efficiencies in determining restitution amounts,
AB 2645 amends section 1203.9 to (1) prohibit transfers until restitution amounts have
been determined unless a transferring court finds that a determination of restitution
cannot be made within a reasonable amount of time from the date of the motion to
transfer; (2) require courts that transfer cases without first determining restitution to
retain jurisdiction to determine the amount as soon as practicable; and (3) clarify that, in
all other respects, the receiving court receives full jurisdiction over the matter. AB 2645
will facilitate the collection of victim restitution without compromising public safety."
(Sen. Com. on Public Safety, 2d reading analysis of Assem. Bill No. 2645 (2013-2014
Reg. Sess.), as amended May 6, 2014, p. 7, italics added.) The Judicial Council's
statement was consistent with the author's description of the legislation: "Under current
law a victim risks losing restitution if they cannot travel to the receiving county to pursue
restitution in person. Victims should not be forced to deal with extensive delays, incur
travel costs and spend time away from work and loved ones in order to get the restitution
to them as a victim of a crime." (Ibid.)
II
The parties agree that because here the transfer under section 1203.9, subdivision
(a) occurred while Gholipour's appellate challenge to the earlier trial court order requiring
restitution was pending in this court, and our later disposition of that issue requires a new
restitution order, application of section 1203.9, subdivision (a)(3) in this case presents a
question of first impression.
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Contrary to Gholipour's argument, nothing on the face of section 1203.9 deprived
the trial court of jurisdiction to determine the amount of her restitution on our remand.
By its terms section 1203.9 preserves a transferring court's power over restitution until
the amount of restitution has been "determined." Here, there has not yet been any final
determination of the amount of Gholipour's restitution; although the trial court made an
initial determination, Gholipour's successful direct appeal of that order is ample proof
that the issue has not been finally determined.
Our interpretation of section 1203.9, subdivision (a)(3), under which a transferring
court's power over restitution is preserved until it has made a determination and its
determination is final, is not only consistent with the language of the statute, it is also
consistent with the purpose of the legislation which preserved a transferring court's power
over restitution. As we have noted, the goal of section 1203.9, subdivision (a)(3) was to
assure that restitution issues are determined in the venue which has the most ready access
to pertinent information and which provides crime victims an opportunity to fully
participate in determination of the restitution they are owed. This efficiency and
protection would be lost if, by way of a successful appeal, the restitution issue was finally
determined by a court without any familiarity with the offense which gave rise to the
right to restitution or ready access to witnesses or victims.
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DISPOSITION
The petition is denied. The stay issued by this court on June 12, 2017, is
dissolved.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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