Does a discretionary restitution order under section 1202.4 of the California Criminal Code apply to a grant of probation under the California Probation Act?

This limitation does not apply to discretionary restitution orders in the context of grants of probation under section 1203.1. (Woods, supra, 161 Cal.App.4th. at p. 1050.) " 'California courts have long interpreted the trial court's discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal.' " (Ibid., quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

A split sentence to time in county jail followed by mandatory supervision pursuant to section 1170, subdivision (h), is equivalent to a prison sentence subject to the mandatory restitution requirements of section 1202.4 rather than discretionary restitution ordered as a condition of probation under section 1203.1. (People v. Rahbari (2014) 232

Page 38

Cal.App.4th 185, 190, 196.) Therefore, the limitation of section 1202.4 applies to this case.

In People v. Rubics (2006) 136 Cal.App.4th 452 (Rubics) we interpreted section 1202.4 as requiring a restitution award to be made for "a loss incurred 'as a result of the commission of a crime' for which [the defendant] was convicted." (Rubics, supra, at p. 457.) In that case, however, where the defendant pleaded guilty to one count of felony hit-and-run under Vehicle Code section 20001 resulting in a death, we looked to the elements of the crime and concluded funeral expenses for the deceased victim were recoverable as restitution. We noted death or injury was a necessary element of the crime even though the focus of the crime was on leaving the accident. "[A]lthough a primary focus of [Vehicle Code] section 20001 may be the act of leaving the scene [of an accident], a conviction also acknowledges the fleeing driver's responsibility for the damages he or she has caused by being involved in the accident itself." (Rubics, at p. 459.) Therefore, we concluded it was proper for the court to order the defendant to pay the victim's funeral expenses "because the 'victim ... suffered economic loss as a result of the defendant's conduct.' " (Id. at p. 461.)⁷