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Filed 11/20/23 P. v. Orozco CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO JAVIER OROZCO,

Defendant and Appellant.

 A164946

 (Sonoma County

 Super. Ct. No. SCR7205614)

In 2019, Francisco Javier Orozco pled no contest to misdemeanor 

battery. (Pen. Code, § 242, undesignated statutory references are to this 

code.) The trial court placed him on probation for three years and reserved as 

to victim restitution. In 2022, the court ordered Orozco to pay $1,232.81 in 

restitution. On appeal, he argues the court lacked jurisdiction to order 

restitution because his probation had already terminated pursuant to 

Assembly Bill No. 1950 (2019–2020 Reg. Sess.), reducing misdemeanor 

probation terms to one year. (§ 1203a, subd. (a), as amended by Stats. 2020, 

ch. 328, § 1.) We affirm. 

BACKGROUND

Orozco was charged with two counts of assault by means of force likely 

to produce great bodily injury after he and three others attacked two victims. 

(§ 245, subd. (a)(4).) As part of a negotiated disposition, he pled no contest to 

misdemeanor battery, and his remaining counts were dismissed. At a 
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sentencing hearing, the prosecutor noted — and defense counsel confirmed —

the agreed-upon disposition would include three years of probation and a 

reservation as to restitution. Accordingly, the trial court suspended the 

imposition of sentence, placed Orozco on three years of probation —

beginning July 8, 2019 — and ordered “Restitution Reserved.”

In January 2021, the Legislature enacted Assembly Bill No. 1950, 

reducing the maximum probation term for misdemeanors to one year with 

certain exceptions that are inapplicable here. (Stats. 2020, ch. 328, § 1; 

§ 1203.1, subds. (a), (l).) That November, the California Victim 

Compensation Board submitted a restitution request in the amount of 

$1,178.47, and the prosecution asked the trial court to order Orozco to pay 

full restitution. Orozco objected, arguing the court lacked jurisdiction to 

order restitution because his probation had already terminated as a matter of 

law under Assembly Bill No. 1950. The court disagreed, ordered him to pay 

$1,232.81 in restitution, and converted the amount to a civil judgment.

DISCUSSION

Orozco argues the trial court exceeded its jurisdiction by fixing the 

amount of victim restitution after his probation term expired due to the 

enactment of Assembly Bill No. 1950.

1 Having independently reviewed this 

question of statutory interpretation, we disagree. (People v. Zuniga (2022) 

79 Cal.App.5th 870, 874 (Zuniga).)

Victims have a constitutional right to obtain restitution for losses they 

suffer from the persons convicted of criminal offenses. (Cal. Const., art. I, 

§ 28, subd. (b)(13)(A).) Courts must order restitution “from the convicted 

1 The parties agree, as do we, that the provisions in Assembly Bill 

No. 1950 apply to individuals who, like Orozco, were serving probation at the 

time the bill was passed. (People v. Prudholme (2023) 14 Cal.5th 961, 963; In 

re Estrada (1965) 63 Cal.2d 740.) 
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wrongdoer in every case, regardless of the sentence or disposition imposed, in 

which a crime victim suffers a loss.” (Id., subd. (b)(13)(B); People v. Giordano

(2007) 42 Cal.4th 644, 652.) Per the California Constitution’s directive to the 

Legislature to adopt legislation implementing this right, the Legislature set 

forth a restitution scheme in section 1202.4. (Giordano, at pp. 652–653.) 

Section 1202.4 requires full restitution in every case where a victim 

suffers an economic loss — the resulting order is enforceable as a civil 

judgment. (§ 1202.4, subds. (a)(3)(B), (f).) The statute makes no distinction 

between a victim’s right to restitution from a defendant who is sentenced to 

prison and one who is placed on probation. (People v. Giordano, supra, 

42 Cal.4th at p. 653.) 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 any other showing to 

the court. (§ 1202.4, subd. (f).) When the court cannot ascertain the amount 

of loss at the time of sentencing, the restitution order must “include a 

provision that the amount shall be determined at the direction of the court.” 

(Ibid.) In those circumstances, “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.” (§ 1202.46.)

The trial court here adhered to this mandate. At the time the court 

imposed a term of probation on Orozco in 2019, the amount of the victim’s 

economic loss could not be determined — the California Victim Compensation 

Board did not submit its restitution request to the prosecution until 

November 2021 — the court thus reserved on the issue of restitution.

(Zuniga, supra, 79 Cal.App.5th at p. 876.) Even though Orozco’s probation 

term was reduced to one year and terminated under Assembly Bill No. 1950, 

the court retained jurisdiction to set the restitution amount “until such time 
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as the losses may be determined.” (§ 1202.46; Zuniga, at p. 876.) Consistent 

with that authority, and once the prosecution provided the court with the 

restitution amount, the court set it. That Orozco’s probation term had 

already expired is “immaterial . . . . Section 1202.46 expressly preserves the 

court’s jurisdiction to follow the process in section 1202.4, which serves the 

constitutional mandate to ensure full victim restitution.” (People v. McCune

(2022) 81 Cal.App.5th 648, 653, review granted Oct. 26, 2022, S276303

(McCune).)

Orozco disagrees, arguing section 1202.46 does not apply to cases

where a defendant has received probation. In those instances, Orozco 

contends a court has the authority only “during the term of probation to 

revoke, modify, or change its order of suspension of imposition or execution of 

sentence.” (§ 1203.3, subd. (a), italics added.) Relying primarily on Hilton v. 

Superior Court (2014) 239 Cal.App.4th 766 (Hilton) and People v. Waters

(2015) 241 Cal.App.4th 822 (Waters), Orozco argues the court here lacked the 

authority to fix the restitution amount because it lost jurisdiction to revoke or 

modify his probation order after his probation period expired. Not so.

Hilton and Waters involved improper modifications of the original 

restitution order in violation of section 1203.3 and are distinguishable. 

(Zuniga, supra, 79 Cal.App.5th at pp. 877–878.) “In Waters, the trial court 

failed to order the defendant to pay any victim restitution at sentencing; it 

imposed a victim restitution requirement for the first time after expiration 

of the defendant’s probation.” (Id. at p. 876, citing Waters, supra, 241 

Cal.App.4th at pp. 829–831.) The court, which never reserved jurisdiction to 

order restitution when imposing a term of probation, exceeded its jurisdiction 

because it failed to consider restitution in the first instance and ordered

restitution two years after probation ended. (Waters, at pp. 825, 829.) The
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trial court in Hilton also improperly modified the original probation order —

requiring the defendant to pay $3,215 in restitution — by ordering the 

defendant to pay an additional $886,000 in restitution nearly 24 months after 

probation expired. (Zuniga, at p. 877, citing Hilton, supra, 239 Cal.App.4th 

at p. 769.) The court explained the victim losses “not only might have been 

determined but were in fact determined” by the trial court before the 

defendant’s probation term expired; the amount was already ascertained.

(Hilton, at p. 782.) The defendants in both cases were surprised by these 

additional restitution obligations imposed only after they had successfully 

completed probation. (See, e.g., Waters, at p. 831, fn. 5.)

Here, in contrast, “payment of victim restitution in an amount to be 

determined later was already a condition of the original probation order.” 

(Zuniga, supra, 79 Cal.App.5th at p. 877.) And unlike the trial courts in 

Hilton and Waters, the court here expressly reserved jurisdiction over this 

issue because the amount of the victim’s loss was not ascertainable when 

probation was ordered. (Zuniga, at p. 877.) Thus, section 1202.46 allowed 

the court to retain jurisdiction until such time as the losses may be 

determined, “even if that occurs after probation has ended.” (McCune, supra, 

81 Cal.App.5th at p. 655, rev.gr.) Contrary to Orozco’s assertions, there “is 

no indication in the language or legislative history of Assembly Bill No. 1950 

that the Legislature intended to cut off a victim’s right to restitution” in cases 

like his — where the trial court already ordered restitution as a condition of 

probation, reserved the amount for future determination under section 

1202.4, and had not yet fixed the amount when probation “terminated early 

as a result of the new legislation.” (Zuniga, at p. 878.) Indeed, under 

Orozco’s interpretation, a victim’s constitutional right to restitution would be 

frustrated any time a probation term was of short duration and the amount 
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of loss was unascertainable at the time of sentencing. We think it unlikely 

that the Legislature would have so intended.

Orozco’s remaining arguments are likewise unpersuasive — we agree 

with the reasoning in McCune and Zuniga and discern no reason to depart 

from those decisions here. We acknowledge the California Supreme Court 

has granted review in McCune, and it will conclusively resolve the issue in 

due course.

2 Given that, we need not belabor it further. 

Finally, the settled statement indicates the trial court ordered the full 

restitution amount. But while the amount requested in the oral proceedings 

was $1,178.47, the amount ultimately identified in the minute orders was 

$1,232.81. Accordingly, the restitution amount should be amended to 

$1,178.47. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [oral 

pronouncement of judgment controls where there is a conflict with the 

abstract or minute orders].) 

DISPOSITION

The trial court is directed to amend the victim restitution amount owed 

as $1,178.47. The order is otherwise affirmed.

2 The issue on review is, “Did the trial court exceed its jurisdiction by 

setting the amount of victim restitution after terminating defendant’s 

probation pursuant to Assembly Bill No. 1950 (Stats. 2020, ch. 328)?” 

(McCune, supra, S276303, Supreme Ct. Mins., Sept. 6, 2022.)
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_________________________

Rodríguez, J.

WE CONCUR:

_________________________

Tucher, P. J.

_________________________

Fujisaki, J.

A164946