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Court of Appeal:

Restitution Award Issued 30 Years After Conviction Is Proper

Opinion Says Court Retains Jurisdiction Indefinitely to Order Remuneration, No Constitutional Problem in Delay

By a MetNews Staff Writer

Div. Six of this district’s Court of Appeal has held that a trial court did not err in ordering restitution payments to the victims of a crime 30 years after the defendant’s conviction, saying that a court retains jurisdiction to make such a decree even decades after sentencing and that the convict’s due process rights were not violated by the delay.

Presiding Justice Arthur Gilbert wrote the opinion, filed May 19 and certified for publication yesterday, and declared:

“Is there a time limit for a defendant to pay restitution in a criminal case? Here we decide the passage of time does not limit a court’s authority to order restitution in a criminal case.”

At issue is Penal Code §1202.4(f), which, subject to certain exceptions, provides:

“[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….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.”

Section 1202.46 deals with circumstances where the loss is uncertain at the time of sentencing, and specifies:

“[T]he 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. This section does not prohibit a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine pursuant to Section 1202.4.”

Release From Parole

The question arose after Anthony Sinay became eligible for parole after serving nearly 28 years in prison for torturing his then-girlfriend’s daughter by taping the child’s mouth and holding her in a bathtub of scalding water. The victim, referred to in the opinion as “R.P.,” suffered debilitating burns to 33% of her body as well as permanent disfigurement and disabilities.

In 1993, Sinay was found guilty by a jury of multiple charges relating to the assault. Following the verdict, then-San Luis Obispo Superior Court Judge Michael L. Duffy (now retired) sentenced him to life in prison with the possibility of parole in 1993.

Duffy imposed a $10,000 restitution fine but did not address or order any payments to the victim or her parents. Sinay was released on parole in October 2021.

Before his release, attorneys with the San Luis Obispo District Attorney’s office filed a motion seeking actual restitution to R.P. and her family, arguing that the trial court had authority to modify Sinay’s sentence to include the award under §1202.46.

Prosecutors attached exhibits to the request, detailing costs incurred by the victim’s family between 1993 and 2013 relating to R.P.’s medical treatments, as well as documents relating to lost wages.

On May 16, 2023, San Luis Obispo Superior Court Judge Michael S. Frye held a restitution hearing at which R.P. and her parents testified. Sinay opposed the restitution request on the ground that the court lacked jurisdiction to resentence him.

Frye sided with the prosecutors and ordered Sinay to pay $15,600 to R.P.’s mother for lost wages, $818,697.14 for past and future loss of income to R.P., and $85,866.65 for past medical expenses. Sinay appealed, arguing that the court acted outside its jurisdiction in awarding the payments and that the 30-year delay violated his constitutional rights to due process and a speedy trial.

Justices Kenneth Yegan and Tari L. Cody joined in the opinion affirming the order.

McCune Case

Sinay points to a concurring opinion written by California Supreme Court Justice Goodwin H. Liu in response to last year’s People v. McCune decision, in which the jurist said that “[n]either section 1202.4, subdivision (f) nor section1202.46…, singly or together, gives a sentencing court unbounded time to set…restitution.”

In the McCune case, the high court held that a trial court retains the power to fix the amount of restitution even if probation is terminated. Liu wrote separately to emphasize that the decision did not “mean that there are no timing limitations at all” and said:

“Penal Code section 1202.46’s extension of jurisdiction until ‘such time as the losses may be determined’ is best read to mean that restitution must be fixed when the information becomes available to ascertain the amount of loss—i.e., when there is sufficient information such that ‘the losses may be determined.’ If the victim, prosecution, or court produces or entertains such information beyond the time it became available or reasonably discoverable, it is doubtful that the court’s jurisdiction would extend that far.”

Based on these statements, Sinay contends that it is doubtful that the court’s jurisdiction to award restitution extends beyond the time when the losses are discovered or are reasonably discoverable.

Saying that “[t]he concurring opinion in McCune does not assist Sinay,” Gilbert pointed out that the case dealt only with a restitution order issued after the termination of a probationary term, a circumstance not present in the case before the court.

The presiding justice cited case law upholding awards ordered after the entry of a final judgment, even where a trial court failed to expressly retain jurisdiction over restitution matters, and holding that an invalid sentence—such as one ordering less than full restitution—may be corrected at any time.

Constitutional Arguments

As to the defendant’s constitutional arguments, Gilbert said “Sinay has forfeited this argument because he did not object on the ground of a speedy trial in the trial court.” The jurist continued:

“Forfeiture aside, Sinay has not cited any decision finding a violation of due process from a delayed restitution hearing….Furthermore, Sinay had the opportunity to cross-examine R.P. and her parents regarding all aspects of their testimonies, including their memories….The trial court expressly found their testimonies credible….[A]ny missing reporter’s transcript from the 1993 sentencing proceedings would not be probative of the then child’s future medical expenses and lost earnings.”

He remarked:

“The restitution request could not have been a surprise to Sinay. In 1993, he informed the probation officer that he intended to financially support R.P., including her college education. In 1998, Sinay informed the Board of Prison Terms that he intended to support R.P. as soon as he obtained release on parole. Apparently Sinay had a change of heart when given the opportunity to fulfill his request.”

He also rejected Sinay’s argument that Frye improperly calculated the present value of R.P.’s future lost wages, noting that the defendant did not object in the trial court and determining that there was no abuse of discretion in assigning a 4.25% discount to determine the present value of the missed income.

The case is People v. Sinay, B331391.