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."
                                              4
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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