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The People v. Robert Glenn Mcclure

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)


September 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ROBERT GLENN MCCLURE, DEFENDANT AND APPELLANT.

(Super. Ct. No. NCR80572)

The opinion of the court was delivered by: Robie , J.

P. v. McClure

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Robert Glenn McClure pled no contest to receiving property stolen from an optical business. The trial court sentenced defendant to state prison for three years and ordered him to pay victim restitution of $10,180.

A week after sentencing, defendant sought reconsideration of the victim restitution order. Defendant argued that an order that he pay the victim's entire loss from the burglary was improper, because he neither pled guilty to burglary nor entered a Harvey*fn1 waiver as to any burglary charge. The trial court declined to consider defendant's request on the ground it had lost jurisdiction to modify the victim restitution order when it committed defendant to state prison.

On appeal, defendant contends, and the People concede, that the trial court erred in concluding it had no jurisdiction to consider a request by defendant to modify the victim restitution order.

We agree. "'[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun.' [Citation.]" (People v. Turrin (2009) 176 Cal.App.4th 1200, 1204.) But an order for direct victim restitution remains subject to modification after sentencing, under Penal Code section 1202.42, which provides that the defendant may request a hearing and the court may modify the amount on the defendant's motion. (See Pen. Code, §§ 1202.42, subd. (f)(3), 1202.46; see also Turrin, at p. 1208 ["section 1202.42 confers continuing jurisdiction with respect to victim restitution"].)

We shall remand the matter to allow the trial court to consider defendant's request to modify the victim restitution order.*fn2

DISPOSITION

Defendant's conviction is affirmed. The matter is remanded to allow the trial court to consider defendant's request to modify the order for victim restitution.

We concur: RAYE , P. J. DUARTE , J.


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