Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. KA070892, Bruce F. Marrs, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Paul Khoury pled guilty to one count of grand theft of property valued at over $400, in violation of Penal Code section 487. The trial court sentenced appellant to three years in state prison, and ordered him to pay $269,650.53 in direct victim restitution.
All further statutory references are to the Penal Code unless otherwise indicated.
On May 21, 2007, the trial court ordered funds seized from appellant in April 2005 to be released to the victim. Appellant appeals from that order, contending that the trial court lacked jurisdiction to release the funds. We affirm the trial court's order.
Facts
On February 6, 2004, appellant was convicted of grand theft for making fraudulent warranty claims to IBM. He was sentenced to five years of formal probation. Appellant's probationary status apparently did not deter him from committing the theft in this case.
On April 12, 2005, a judge of the Los Angeles County Superior Court issued a search warrant to United States Postal Inspector Cissy Tubbs. In the affidavit in support of the search warrant, Tubbs stated that funds totaling $3,459.48 in appellant's Bank of America accounts were stolen from IBM. On April 13, Inspector Tubbs seized the funds and froze appellant's bank accounts.
On May 19, 2005, appellant was charged with grand theft of personal property, again involving fraudulent warranty claims against IBM. The theft was alleged to have occurred on and between January 29, 2004 and April 15, 2005. On July 14, 2005, appellant pled no contest to the charged crime and was sentenced to three years in state prison. The trial court ordered appellant to pay $269,650.53 in direct victim restitution to IBM.
Appellant made fraudulent claims, obtained free replacement parts and sold those parts on eBay. He deposited the proceeds in his Bank of America accounts.
On April 19, 2007, appellant requested a court order releasing the funds in his accounts to him. By this time, appellant had been released from prison. The trial court denied the order, finding that "no orders were made to hold or freeze any of the defendant's personal funds. Therefore, this court has no jurisdiction to grant the defendant's request."
On May 8, 2007, the People filed a motion to release the seized funds to the victim, IBM. On May 21, 2007, the trial court granted the People's motion.
Discussion
1. Release of seized funds
Appellant contends that the trial court acted in excess of its jurisdiction when it ordered that funds frozen in his bank accounts be disbursed to the victim. Appellant contends that the trial court had jurisdiction to direct the funds to a victim only at sentencing, and appellant had completed his prison sentence. We do not agree.
"Law enforcement officials who seize property pursuant to a warrant issued by the court do so on behalf of the court, which has authority pursuant to Penal Code section 1536 to control the disposition of the property. [Citation.] This authority also arises from the court's inherent power to control and prevent the abuse of its process. [Citation.] Thus, even in the absence of statutory authorization, the superior court possesses the inherent power to conduct proceedings and issue orders regarding property seized from a criminal suspect pursuant to a warrant issued by the court." (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 713.)
"[California] courts retain jurisdiction to dispose of seized items even after the criminal case has been completed, People v. Superior Court, Orange County, 28 Cal.App.3d 600, 607-08, 104 Cal.Rptr. 876 (Cal.App.4th Dist.1972) (court had jurisdiction to hear motion for return of property made at return of "not guilty" verdict), and may return property in the absence of any criminal proceeding in a "special proceeding" separate from any underlying criminal case, Ensoniq Corp., 65 Cal.App.4th at 1547, 77 Cal.Rptr.2d 507. This jurisdiction over seized property exists separate and apart from the criminal matter by virtue of the judicial control over seized items conferred by statute, in much the same manner as in rem jurisdiction." (In re Seizure of Approximately 28 Grams of Marijuana (N.D.Cal. 2003) 278 F.Supp. 1097, 1106 [summarizing California law].)
A trial court is not free to dispose of the seized property as it wishes, of course. If the property is not to be returned to the person from whom it is seized, there must generally be a hearing to determine that another is entitled to the property. If the property was stolen, the victim may seek its return. The state may seek the forfeiture of the property under at least two different theories. When, as is the case here, there has already been a restitution hearing to determine the amount of restitution due to the victim of a crime, there is no need for an additional hearing. The court may order that the seized funds be paid to the victim. (People v. Nystrom (1992) 7 Cal.App.4th 1177, 1181-1182; § 1202.4, subd. (f) ["The court may specify that funds confiscated at the time of the defendant's arrest, . . . be applied to the restitution order if the funds are not exempt for spousal or child support or subject to any other legal exemption"].)
The above-quoted provision was added to section 1202.4, subdivision (f) effective January 1, 2006. The disbursement in this case took place before that date, but we see no bar to the retroactive application of the statute. (See People v. White (1997) 55 Cal.App.4th 914, 917 [statutory amendment to provide for payment of restitution from prison wages was a procedural change that did not violate ex post facto rule].)
We cannot agree with appellant that a trial court may only apply a defendant's seized funds to a restitution order at sentencing, or within the time allowed for recall of the sentence. This is normally a court's usual practice. If seized funds are overlooked at sentencing, however, we see no bar to applying them to a valid and unsatisfied restitution order at a later date. As we discuss above, a trial court has continuing jurisdiction over the seized funds. We see no reason for a rule which would allow a defendant to acquire the seized funds due to the mere passage of time.
Appellant's reliance on People v. Willie (2005) 133 Cal.App.4th 43 is misplaced. Willie involved a restitution fine imposed pursuant to section 1202.4, subdivision (b). This case involves a restitution order imposed pursuant to section 1202.4, subdivision (f). Nystrom, decided a decade before Willie, authorized trial courts to apply seized funds to restitution orders. Nothing in the language of Nystrom limited that authorization to sentencing hearings. Further, Willie was decided before the above-quoted amendment to section 1202.4, subdivision (f) became law. That amendment clearly authorizes the court to apply seized funds to a restitution order. We see nothing in the language of that amendment which limits the court's action to the sentencing hearing, or to the time a defendant is in prison or on probation.
We do agree with the Court in Willie that a trial court does not have open-ended jurisdiction to modify a sentence and that the trial court in that case erred in amending the sentencing order as a means of releasing the seized funds. However, Willie is not applicable because the trial court in this case properly and straightforwardly issued an "Order Releasing Seized Money to Victim."
2. Additional fines
Respondent contends that the trial court erred in failing to impose certain fines, and asks us to modify the abstract of judgment to impose these fines. Appellant acknowledges the error and agrees that the abstract of judgment must be corrected. This matter is before us on appeal of an order releasing frozen funds which was entered two years after the judgment in the underlying criminal case. The judgment in the underlying criminal case has been final for several years, and the time for appeal from that judgment has long since passed. Were the judgment properly before us on appeal, we would have no hesitation in correcting it to add omitted fines. It is not before us, however, and we see no basis upon which we can modify the abstract of judgment in the underlying criminal case.
Disposition
The trial court's order releasing the seized money to the victim is affirmed.
We concur: TURNER, P. J., MOSK, J.