The opinion
Filed 2/25/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
BARRON NICHOLAS HILTON, B248654
Petitioner, (Los Angeles County
Super. Ct. No. 8MB00474)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
THE PEOPLE et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. Lawrence J. Mira, Judge. Petition
granted and cause remanded with directions.
Jonathan K. Golden; Hutton and Wilson and Richard A. Hutton for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest, Fernando Tellez.
Jackey Lacey, District Attorney, Phyllis Asayama and Cassandra Hart, Deputy
District Attorneys, for Real Party in Interest, the People.
_________________________
INTRODUCTION
In this case, we hold a trial court does not have jurisdiction to modify a
defendant’s probation to impose restitution after the defendant’s probationary term has
expired. Such a modification would be erroneous as an act in excess of the trial court’s
jurisdiction. Moreover, to hold otherwise would subject a defendant placed on probation
to a lifetime restitution obligation and there would be no end to the restitution orders trial
courts could impose on such a defendant.
Our holding is based largely on In re Griffin (1967) 67 Cal.2d 343 (Griffin).
Griffin concluded modification of probation during a defendant’s probationary term was
permissible, but modification after that term had expired was an act in excess of the trial
court’s jurisdiction. As we discuss, Griffin’s progeny and related cases reinforce our
holding, as do various Penal Code sections.
FACTUAL SUMMARY
The facts of the present case place in sharp relief the problems created by a
contrary holding. In February 2008, petitioner Barron Nicholas Hilton (Hilton), the
defendant, drove a vehicle that struck Fernando Tellez (Tellez), a pedestrian. Based on
the incident and pursuant to a plea bargain, Hilton, on April 9, 2008, pled no contest to
driving with a blood alcohol level of at least .08 percent (former Veh. Code, § 23152,
subd. (b)) and unlawful use of a license (Veh. Code, § 14610, subd. (a)(1)). The court
placed Hilton on probation for three years on the condition, inter alia, he pay restitution
to Tellez as determined at a restitution hearing. The court scheduled a restitution hearing
for June 4, 2008. The court dismissed the remaining counts. Tellez claimed in writing
$3,215 in restitution. On September 17, 2008, the court ordered $3,215 in restitution
pursuant to stipulation. On January 21, 2009, Hilton filed proof of payment of the
restitution.
On January 29, 2009 (i.e., eight days after Hilton filed his proof of payment),
Tellez filed a lawsuit against Hilton based on the February 2008 incident. On April 8,
2011, Hilton’s probationary term expired by operation of law. On June 7, 2011, a jury
2
awarded Tellez $4.6 million in the civil case and, in August 2012, the case settled for
$3.5 million.
On November 28, 2012, more than one year and seven months after Hilton’s
probation expired, after Hilton had paid the restitution requested by Tellez, and after
Hilton had settled the civil lawsuit for $3.5 million, Tellez filed a motion seeking more
than $886,000 in additional restitution (motion). The additional restitution was for
attorneys’ fees and costs in the civil case, attorneys’ fees and costs pertaining to the
motion, future attorneys’ fees and costs for restitution, future lost wages, and accounting
fees incurred in the calculation of those wages, less the $3,215 already paid for
restitution. Tellez contended in his written motion that restitution was authorized by
former article I, section 28, subdivision (b) of the California Constitution (former article
I, section 28, subdivision (b)), a subdivision providing for restitution for crime victims,
and Penal Code1 section 1202.4, subdivision (f)(1), that states, inter alia, “The court may
modify the amount [of restitution], on its own motion or on the motion of the district
attorney, the victim or victims, or the defendant.”
At the April 3, 2013 hearing on the motion, the court held it had jurisdiction to
impose additional restitution. At the hearing, the court ruled the $3,215 restitution award
was essentially an unauthorized restitution order that could be corrected at any time. The
court indicated that even though the order was based on information that was presented in
good faith, and that was accurate at the time of the order, and even though Hilton had
paid in good faith the restitution ordered, the order was nonetheless unauthorized because
it was not full restitution. The court also characterized the $3,215 restitution order as “an
illegal order, even though inadvertently applied.” The court concluded, “So my finding is
you can reopen the issue of restitution based upon [People v. Brown (2007)
147 Cal.App.4th 1213] and it is an unauthorized order in restitution.” The trial court did
not discuss Griffin.
1
Unless otherwise indicated, statutory references are to the Penal Code.
3
Hilton filed a petition for a writ of mandate challenging the ruling by the trial
court. We hold the ruling of the trial court was erroneous as an act in excess of the
court’s jurisdiction. We will grant the petition and remand the matter with directions.
ISSUES
Hilton claims (1) the trial court’s jurisdiction to amend its restitution order expired
when probation was terminated, (2) section 1202.4, subdivision (f)(1) did not permit
modification of the September 17, 2008 restitution order, and (3) the September 17, 2008
restitution order reflecting the amount requested by Tellez could not later be declared
invalid on the ground the amount was less than full restitution.
DISCUSSION
The Court Lacked Jurisdiction Over Hilton to Impose Restitution Once His Probationary
Term Expired.
1. Applicable Law.
a. Sentencing and Jurisdiction.
“ ‘ “Upon conviction it is the duty of the court to pass sentence on the defendant
and impose the punishment prescribed. [Citations.] Pursuant to this duty the court must
either sentence the defendant or grant probation in a lawful manner; it has no other
discretion.” ’ [Citations.]” (People v. Duff (2010) 50 Cal.4th 787, 795-796.)
“[G]enerally a trial court lacks jurisdiction to resentence a criminal defendant after
execution of sentence has begun.” (People v. Howard (1997) 16 Cal.4th 1081, 1089
(Howard).) However, a court retains power to modify a sentence at any time prior to
execution of the sentence. (People v. Karaman (1992) 4 Cal.4th 335, 344, 347, 350,
352.)
People v. Turrin (2009) 176 Cal.App.4th 1200, 1204 (Turrin), discussing the
above principles, observed there are “few exceptions to the rule” (id. at p. 1204) that a
trial court lacks jurisdiction to resentence after execution of a sentence has begun.
Among those exceptions, Turrin noted the former section 1170, subdivision (d) exception
permitting a trial court to recall a sentence within 120 days of committing a defendant to
4
prison; the exception permitting correction for clerical (but not judicial) error; and the
exception that an unauthorized sentence may be corrected at any time. (Turrin, at
pp. 1204-1205.)
b. Probation and Jurisdiction.
Section 1203, subdivision (a) provides, in relevant part, “As used in this code,
‘probation’ means the suspension of the imposition or execution of a sentence and the
order of conditional and revocable release in the community under the supervision of a
probation officer.” “[P]robation is a statutory creation.” (People v. Tanner (1979)
24 Cal.3d 514, 519.)
“ ‘An integral and important part of the penological plan of California is the
discretionary retention in the trial court of jurisdiction over the defendant and the cause
of action against him [or her] . . . by virtue of the probation procedures.’ [Citation.]”
(People v. Feyrer (2010) 48 Cal.4th 426, 438 (Feyrer), italics added.) “During the
probationary period, the court retains jurisdiction over the defendant [citations], and at
any time during that period the court may, subject to statutory restrictions, modify the
order suspending imposition or execution of sentence (§ 1203.3).” (Howard, supra,
16 Cal.4th at p. 1092, italics added.)
At the time of Hilton’s 2008 offenses, former section 1203.3, subdivision (a), a
probation statute, stated, in relevant part, “The court shall have authority at any time
during the term of probation to revoke, modify, or change its order of suspension of
imposition or execution of sentence.” (Italics added.)
c. Former Section 1203.3, Subdivision (a), Griffin, and Related Authorities Teach
That Once a Defendant’s Probationary Term Has Expired, a Trial Court Loses
Jurisdiction Over the Defendant and Must Discharge the Defendant from Probation.
As discussed below, former section 1203.3, subdivision (a), and other statutory
and case law, teach that once a defendant’s probationary term has expired, a trial court no
longer has jurisdiction to modify the defendant’s probation, and the court must discharge
the defendant from probation.
5
In Griffin, supra, 67 Cal.2d 343, our Supreme Court considered the jurisdictional
effect of former section 1203.3 in a habeas corpus proceeding challenging an order
revoking probation entered after the defendant’s term of probation had expired. In
framing the jurisdictional issue, the Supreme Court underscored that “section 1203.3
provides that the court shall have authority to revoke or modify probation ‘at any time
during the term of probation.’ ”2 (Griffin, at p. 346, italics added.) Citing this language,
the court endorsed the view, consistently taken by the Courts of Appeal, that “ ‘the statute
itself furnishes the measure of the power which may thus be exercised’ and ‘the court
loses jurisdiction or power to make an order revoking or modifying the order suspending
the imposition of sentence or the execution thereof and admitting the defendant to
probation after the probationary period has expired.’ [Citations.]” (Ibid., italics added,
fn. omitted.) Given this established and sound construction of the probation statute, the
Griffin court acknowledged that the order entered after the defendant’s term of probation
expired was in “excess of jurisdiction.”3 (Id. at p. 347.)
2
Former section 1203.3 is a predecessor to former section 1203.3, subdivision (a),
the latter of which was operative at the time of Hilton’s 2008 offenses. Both statutes
begin with the sentence, cited by the court in Griffin, “ ‘The court shall have authority at
any time during the term of probation to revoke, modify, or change its order of
suspension of imposition or execution of sentence.’ ” (See Griffin, supra, 67 Cal.2d at
p. 346, fn. 2, quoting former section 1203.3.)
3
The Griffin court explained, “The jurisdictional concept involved in the cases
holding that the court is without power to revoke probation after the end of the
probationary term is not lack of jurisdiction of the cause but excess of jurisdiction.”
(Griffin, supra, 67 Cal.2d at p. 347.) Because “[n]either the probation statutes nor the
cases applying them support a holding that expiration of the probationary period
terminates the court’s jurisdiction of the subject matter” (ibid.), the court held the
defendant was estopped from complaining of the order made in excess of jurisdiction
where he requested a continuance of the probation revocation hearing to a date he knew
was after the expiration of his probationary term. (Id. at pp. 348-349.) Whether Hilton
should be estopped from challenging a judicial act in excess of jurisdiction is not at issue
in this case.
6
People v. White (1982) 133 Cal.App.3d 677 (White) is in accord. In White, the
court stated, “An order revoking probation must be made within the period of time
circumscribed in the order of probation. Otherwise, the probationary period terminates
automatically on the last day. [Citations omitted.] If no order of modification or
revocation is made before the end of the period of probation delineated in the original or
any subsequent probation grant, the court has no authority or jurisdiction over the
defendant. (In re Griffin (1967) 67 Cal.2d 343, 346.)” (Id. at pp. 682-683, italics added.)
Our Supreme Court relied on Griffin and former section 1203.3 in the case of In re
Bakke (1986) 42 Cal.3d 84 (Bakke). Bakke held, inter alia, a trial court’s order, issued
after the defendant’s probationary term had expired, and purporting to extend the
defendant’s probation, was in excess of jurisdiction and void.
In Bakke, the defendant was convicted of a misdemeanor. The court suspended
imposition of sentence and placed the defendant on probation for three years on the
condition, inter alia, he serve time in jail. The defendant appealed and, at the defendant’s
request, the court repeatedly stayed execution of his jail term pending the appeal,
including stays pending receipt of the remittitur. While his case was on appeal, the
defendant’s probationary term expired. The appellate court ultimately affirmed the
judgment. Upon remand, the trial court issued two orders, one requiring the defendant to
begin serving his jail term, and the other extending his probationary term. The defendant
filed a petition for a writ of habeas corpus. (Bakke, supra, 42 Cal.3d at pp. 86-90.)
Bakke, relying on Griffin (and People v. Ham (1975) 44 Cal.App.3d 288, another
case involving estoppel and Griffin) concluded that since the defendant applied for the
stay of execution of his jail term pending the appeal, the defendant waived his right to
object to execution of the jail term upon completion of the appeal. (Bakke, supra,
42 Cal.3d at pp. 86, 89.) However, with regard to the order extending probation, Bakke
stated, “Although the court extended the period of probation to April 4, 1984, the
probation term and petitioner’s obligation to comply with the other conditions ended on
that date. The court’s order of June 13, 1984, purporting to further extend the period of
7
probation to June 13, 1986, not having been made prior to the expiration of the term, was
in excess of jurisdiction and is void.” (Id. at p. 90, fn. 5, italics added.)
People v. Lewis (1992) 7 Cal.App.4th 1949 (Lewis) also concluded a trial court
granting probation retains jurisdiction to administer probation laws during the
probationary term and, once that term expires, the court lacks jurisdiction. In Lewis, the
appellate court stated when a convicted defendant appears for sentence, a trial court has
only two statutory alternatives, it must sentence the defendant or grant probation. (Id. at
p. 1954.) Lewis stated, “[T]he trial court has the power over the defendant at all times
during the term of probation until the defendant is discharged from probation . . . .”
(Ibid., second italics added.) Lewis also observed, “When a probationer is discharged, he
or she has completed the term of probation, and the court no longer has jurisdiction.
(§ 1203.3, subd. (b)(3).)” (Id. at pp. 1955-1956, italics added.)
People v. Medeiros (1994) 25 Cal.App.4th 1260 (Medeiros) highlights the
necessity to discharge a defendant following expiration of the probationary term. In
Medeiros, the court purported to extend the term beyond the statutorily applicable five-
year limit. (Id. at pp. 1262-1264.) Medeiros held the extension was improper and
directed the trial court to discharge the defendant from probation. (Id. at pp. 1263, fn. 2,
1264-1268.)
In People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia) the trial court placed the
defendant on probation scheduled to expire in July 1999. In 1997, the trial court
summarily revoked probation based on an alleged probation violation. At a later
probation revocation hearing, the defendant admitted probation violations that had
occurred in 2000. Based solely on those admissions, the trial court found the defendant
in violation of probation, revoked and reinstated probation, and extended it to 2003. The
defendant appealed, claiming the trial court lacked jurisdiction to extend the probationary
term. (Id. at p. 740.)
Tapia agreed the alleged violation that had served as the basis for the 1997
summary revocation of probation had not been proven, and the defendant’s probation had
8
expired in 1999. (Tapia, supra, 91 Cal.App.4th at p. 740.) Tapia concluded the trial
court retained jurisdiction to decide whether the defendant violated probation during the
probationary term, but when a court finds no violation has occurred during that term,
there is no need for further jurisdiction. (Id. at p. 742.) Tapia, relying on Lewis,
concluded the defendant’s probation expired in July 1999, the trial court’s order finding
him in violation was void, and he was entitled to an order discharging him from
probation. (Tapia, at pp. 740-742.)
Griffin, the cases that follow Griffin, and former section 1203.3, subdivision (a)
support the conclusion that once a defendant’s probationary term has expired, the trial
court must discharge the defendant from probation.
d. Section 1203.3, Subdivisions (b)(4) and (5) Reflect a Legislative Intent,
Consistent with Preexisting Probation Law, That Trial Courts Will Lack Jurisdiction to
Impose Restitution Once a Probationary Term Has Expired.
Hilton argues section 1203.3, subdivisions (b)(4) and (5), that expressly refer to
restitution, demonstrate the Legislature’s intent that a trial court loses jurisdiction to
impose restitution once a probationary term has expired. We agree.
The Legislature amended former section 1203.3 by the addition of subdivision
(b)(4) in 1995.4 Section 1203.3, subdivision (b)(4) states, “The court may modify the
time and manner of the term of probation for purposes of measuring the timely payment
of restitution obligations or the good conduct and reform of the defendant while on
probation.” (Italics added.) The Legislature is presumed to have been aware of former
section 1203.3, subdivision (a) and Griffin when the Legislature enacted section 1203.3,
subdivision (b)(4). (Cf. People v. Harrison (1989) 48 Cal.3d 321, 329.)
Section 1203.3, subdivision (b)(5) (added in 20005), states, “Nothing in this
section shall be construed to prohibit the court from modifying the dollar amount of a
4
(Former § 1203.3, as amended by Stats. 1995, ch. 313, § 9, p. 1762, eff. August 3,
1995.)
5
(Former § 1203.3, as amended by Stats. 2000, ch. 1016, § 11, p. 7471.)
9
restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term
of the probation.” (Italics added.)
“ ‘[E]very word and phrase employed [in a statute] is presumed to be intended to
have meaning and perform a useful function . . . [and] a construction rendering some
words in the statute useless or redundant is to be avoided.’ [Citation.]” (People v.
Contreras (1997) 55 Cal.App.4th 760, 764.) We agree with Hilton that to construe
section 1203.3, subdivisions (b)(4) and (5) as applying after a defendant’s probationary
term has expired would render the phrase “while on probation” in subdivision (b)(4) and
the phrase “during the term of the probation” in subdivision (b)(5) surplusage.
Moreover, former section 1203.3 at issue in Griffin expressly provided that courts
had authority to modify probation “during the term of probation.” (Italics added.) In
addition, Griffin approvingly cited appellate cases that construed the section as
precluding modification after the probationary period had expired. (Griffin, supra,
67 Cal.2d at p. 346.) We likewise conclude section 1203.3, subdivisions (b)(4) and (5),
are inapplicable after the probationary term has expired. We also conclude subdivisions
(b)(4) and (5) are consistent with a legislative intent that a trial court loses jurisdiction to
modify restitution once a probationary term has expired.
2. Application of the Law to This Case.
On April 9, 2008, Hilton pled no contest to two counts. At that time, the trial
court had a duty either to grant Hilton probation or sentence him to prison. The trial
court granted probation, i.e., suspended imposition of the sentence and conditionally
released Hilton to the community under the supervision of the probation officer (§ 1203,
subd. (a)), for three years.
By granting probation on April 9, 2008, the trial court suspended imposition of
sentence “ ‘subject to administration of the probation laws.’ ” (Lewis, supra,
7 Cal.App.4th at p. 1954, italics added.) The trial court retained jurisdiction “ ‘under the
probation statutes’ ” (ibid., italics added) and, under said probation statutes, retained
jurisdiction over Hilton. (Feyrer, supra, 48 Cal.4th at p. 438.) The trial court retained
10
jurisdiction over Hilton that it otherwise would have lost if it had sentenced Hilton and
Hilton had begun serving his sentence. In sum, once the trial court granted probation,
the jurisdiction the trial court retained and maintained over Hilton was exclusively based
on the fact he was on probation.
During Hilton’s probationary term, he fulfilled all conditions of his probation,
including the requirement that he pay $3,215 in stipulated restitution. The trial court
never issued an order revoking or modifying Hilton’s probation during his probationary
term.
Hilton’s probationary term expired on April 8, 2011. Once the probationary term
expired, the trial court did not have jurisdiction to modify the order granting probation.
Griffin confirmed this principle, approvingly observing appellate cases consistently had
affirmed it. The issuance of any modification order in this case would have been
erroneous as an act in excess of the statutory jurisdiction granted by former section
1203.3, subdivision (a) (cf. Griffin, supra, 67 Cal.2d at p. 346) and would have been void
(cf. Bakke, supra, 42 Cal.3d at p. 90, fn. 5). Moreover, section 1203.3, subdivisions
(b)(4) and (5) support our conclusion that issuance of any modification order in this case
would have been erroneous. Further, once the probationary term expired, no trial court
in this case had authority or jurisdiction over Hilton. (Cf. White, supra, 133 Cal.App.3d
at pp. 682-683.)
Further still, once Hilton’s probationary term expired, any extension thereof after
April 8, 2011, was an act in excess of jurisdiction and void as Bakke, relying on Griffin,
concluded (cf. Bakke, supra, 42 Cal.3d at p. 90, fn. 5) and the trial court was required to
discharge Hilton from probation pursuant to former section 1203.3, subdivision (b)(3).
(Tapia, supra, 91 Cal.App.4th at pp. 741-742; Lewis, supra, 7 Cal.App.4th at pp. 1955-
1956.) We note the March 18, 2009 minute order provided the next scheduled event was
termination of proceedings in this case. That occurred by operation of law on April 8,
2011.
11
Once the trial court granted probation, the jurisdiction the trial court retained and
maintained over Hilton was exclusively based on the fact he was on probation. Tellez
filed with the trial court a motion for additional restitution. Effectively, therefore, his
motion was a motion for an order modifying Hilton’s probation to require additional
restitution. However, the trial court’s jurisdiction over Hilton expired on April 8, 2011,
and Tellez filed his motion in November 2012, more than one year and seven months
after Hilton’s probationary term had expired. On April 3, 2013, the trial court ruled it
had jurisdiction to impose additional restitution. That ruling was erroneous.6
3. Former Article I, Section 28, Subdivision (b) of the California Constitution Did Not
Support an Order for Additional Restitution.
The People, citing former article I, section 28, subdivision (b), argue restitution
was mandatory whether or not Hilton’s probationary term expired. The trial court did not
expressly rely upon this provision as a basis for its ruling. In any event, we reject the
argument. Former subdivision (b) was added to the California Constitution in 1982.
(People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) Former subdivision (b)
states, “ ‘It is the unequivocal intention of the People of the State of California that all
persons who suffer losses as a result of criminal activity shall have the right to restitution
from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be
ordered from the convicted persons in every case, regardless of the sentence or
disposition imposed, in which a crime victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to
implement this section during the calendar year following adoption of this section.” The
People maintain the above italicized language supports their argument.
6
This is not a case in which Hilton violated probation, the trial court revoked
probation, or there was a change of circumstances warranting an extension of the
probationary term. We express no opinion as to what result would obtain in any of those
circumstances.
12
“California Constitution, article I, section 28, subdivision (b), which is not self-
executing, directed the Legislature to adopt implementing legislation. [Citation.]; People
v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 1092-1099 (Vega-Hernandez).)”
(Giordano, supra, 42 Cal.4th at p. 652.) In Vega-Hernandez, the trial court ordered the
defendant to pay restitution for pain and suffering, medical expenses, and property losses,
even though restitution for those categories was not statutorily authorized at the time of
the defendant’s offenses. The defendant appealed, arguing the order was invalid. (Vega-
Hernandez, at pp. 1088-1089, 1091.)
On appeal, the Attorney General argued the order was valid pursuant to former
article I, section 28, subdivision (b). (Vega-Hernandez, supra, 179 Cal.App.3d at
p. 1091.) Vega-Hernandez rejected the argument, holding that because the former
subdivision was not self-executing, the restitution order was not supported by
constitutional authority. (Id. at pp. 1091-1092, 1099.) We similarly conclude former
article I, section 28, subdivision (b) provides no independent constitutional predicate for
awarding additional restitution in this case.
4. Former Section 1202.4, a Legislative Implementation of Former Article I, Section 28,
Subdivision (b), Reflects a Legislative Intent, Consistent with Preexisting Probation Law,
That Trial Courts Lack Jurisdiction to Impose Restitution Once a Probationary Term Has
Expired, and Former Section 1202.4, Subdivision (f) Does Not Authorize Imposition of
Restitution Once That Term Has Expired.
a. Background.
In 1983, the Legislature enacted former section 1202.4 as a legislative response to
former article I, section 28, subdivision (b). (Giordano, supra, 42 Cal.4th at p. 652.)
Former section 1202.4, subdivision (a) applicable at the time of Hilton’s 2008 offenses,
stated in relevant part, “(a)(1) It is the intent of the Legislature that a victim of crime
who incurs any economic loss as a result of the commission of a crime shall receive
restitution directly from any defendant convicted of that crime. [¶] . . . [¶] (3) The court,
in addition to any other penalty provided or imposed under the law, shall order the
13
defendant to pay both of the following: [¶] . . . [¶] (B) Restitution to the victim or
victims, if any, in accordance with subdivision (f), which shall be enforceable as if the
order were a civil judgment.”
In Giordano, our Supreme Court stated, “In the mid-1990’s, the Legislature
consolidated much of the state’s victim restitution scheme into Penal Code section
1202.4.” (Giordano, supra, 42 Cal.4th at p. 653.) The Legislature added to former
section 1202.4, a provision regarding restitution payments by defendants who had been
denied probation, as well as a provision regarding restitution payments as a condition of
probation. (Giordano, at p. 653.) The result is “Penal Code section 1202.4 now requires
restitution in every case, without respect to whether probation is granted.”7 (Ibid.)
Giordano states, “[W]hen a defendant is convicted of a crime involving a victim
who ‘has suffered economic loss as a result of defendant’s conduct’ (Pen. Code,
§ 1202.4, subd. (f)), the court must require the defendant to pay full restitution directly to
the victim or victims of the crime ‘unless it finds compelling and extraordinary reasons
for not doing so and states those reasons on the record.’ [Citation.]” (Giordano, supra,
42 Cal.4th at pp. 651-652.)
In sum, when a defendant is convicted and a trial court can either grant probation
or impose a prison sentence, former section 1202.4 contemplates a court will impose its
mandatory restitution either as a condition of probation or upon the imposition of the
prison sentence.
b. Former Section 1202.4, Subdivision (f) Does Not Authorize Imposition of
Restitution Once Probation Has Expired.
The People, citing former section 1202.4, subdivision (f), argue restitution was
mandatory whether or not Hilton’s probationary term expired. That subdivision provides
in part as follows: “[I]n every case in which a victim has suffered economic loss as a
7
Giordano also observed, “Penal Code section 1203.1, subdivision (j) provides
broader discretion for trial courts to impose restitution as a condition of probation.”
(Giordano, supra, 42 Cal.4th at p. 653.)
14
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, based on the
amount of loss claimed by the victim or victims or any other showing to the court. 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 unless it finds compelling and extraordinary reasons for
not doing so and states them on the record.” (Italics added.) For the reasons discussed
below, we find former section 1202.4, harmonized with preexisting case and statutory
law, is consistent with our holding that courts lack jurisdiction to modify probation or
impose restitution or additional restitution after a defendant’s probationary term has
expired.
Former section 1203.3, subdivision (a), and cases such as Griffin, White, Bakke,
and Lewis preexisted the mid-1990’s consolidation of the restitution scheme into former
section 1202.4. “The Legislature . . . is deemed to be aware of statutes and judicial
decisions already in existence, and to have enacted or amended a statute in light thereof.”
(People v. Harrison (1989) 48 Cal.3d 321, 329.) Neither former section 1202.4,
subdivision (f), nor any other subdivision in that section, expressly states a trial court that
grants probation may impose restitution other than as a condition of probation, or that a
trial court may impose restitution on a defendant once the defendant’s probationary term
has expired.
We presume the Legislature intended the language in former section 1202.4,
subdivision (f) to be harmonized with the preexisting statutory and case law regarding
probation. Thus, when the court grants probation, the court will impose the restitution
mandated by former section 1202.4 as a condition of probation (§ 1202.4, subd. (m)).
However, this mandate is necessarily subject to the preexisting probation law that once
the probationary term has expired, a trial court lacks jurisdiction over a probationer, lacks
jurisdiction to impose restitution or additional restitution, and lacks jurisdiction to modify
probation to impose any such restitution.
15
The People suggest former section 1202.4, subdivision (f) implements former
article I, section 28, subdivision (b) which provides for, inter alia, a right to restitution
“regardless of the sentence or disposition imposed.” However, former section 1202.4,
subdivision (f) does not implement a right to restitution “regardless of the sentence or
disposition imposed,” if by that phrase one means “regardless of whether a defendant’s
probationary term has expired.”
Former article I, section 28, subdivision (b) does not say “regardless of whether a
sentence or disposition was imposed,” but says “regardless of the sentence or disposition
imposed.” (Italics added.) The latter phrase presupposes the court imposed a sentence or
disposition. In the present case, that disposition included probation. Former section
1202.4 implements the state constitutional right, but not by authorizing restitution here
untethered to probation. Instead, as applicable here, the former section implemented the
constitutional right by requiring the trial court, since it chose the disposition of probation,
to impose restitution as a condition of probation. The court was then required to exercise
probation jurisdiction accordingly, subject to preexisting probation law. This included
the law the trial court lacked jurisdiction to modify probation or, therefore, impose
restitution, after the defendant’s probationary term expired.
It is true former section 1202.4, subdivision (f) states, “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” and
subdivision (f)(1) states, “The court may modify the amount [of restitution], on its own
motion or on the motion of the district attorney, the victim or victims, or the defendant.”
However, neither of these provisions expressly states a trial court has jurisdiction
to modify probation or impose restitution after a defendant’s probationary term has
expired. Both provisions must be harmonized with the preexisting statutory and case law
16
with the result neither provision authorizes a trial court to impose restitution on a
defendant once the defendant’s probationary term has expired.8
5. Section 1202.46 Does Not Authorize the Imposition of Restitution Once the
Probationary Term Has Expired.
The People argue the trial court retained jurisdiction to impose restitution under
section 1202.469 without regard to whether Hilton’s probationary term expired. We
disagree. Section 1202.46 does not expressly state a trial court retains the jurisdiction
therein specified even after a defendant’s probationary term has expired. As mentioned,
section 1202.46 was enacted in 1999. “The Legislature is presumed to be aware of
‘ “judicial decisions already in existence, and to have enacted . . . a statute in light
thereof.” ’ ” (Giordano, supra, 42 Cal.4th at p. 659.) Section 1202.46 too must be
harmonized with the preexisting statutory and case law concerning probation, with the
result that section does not authorize a trial court to impose restitution once the
defendant’s probationary term has expired.
Finally, assuming arguendo section 1202.46 otherwise might have applied in this
case, the section still does not help the People based on the facts in this case. When the
section applies, “the court shall retain jurisdiction over a person subject to a restitution
8
Section 1202.4, subdivision (f)(11), requires a defendant to disclose to the trial
court, prior to the defendant’s scheduled release from probation, any unpaid restitution.
Section 1202.4, subdivision (m), provides that once a defendant is no longer on
probation, any unsatisfied portion of a restitution order is enforceable pursuant to former
section 1214. (Under former section 1214, subdivision (b), such restitution is enforceable
as a money judgment or civil judgment.) These provisions similarly evidence the
Legislature’s awareness that a trial court lacks jurisdiction to impose restitution once a
probationary term has expired.
9
Section 1202.46, enacted in 1999, states, “Notwithstanding Section 1170, when
the economic losses of a victim cannot be ascertained at the time of sentencing pursuant
to subdivision (f) of Section 1202.4, the 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.” (§ 1202.46, added by Stats. 1999, ch. 888, § 3,
p. 6388.)
17
order for purposes of imposing or modifying restitution until such time as the losses may
be determined.” (Italics added.) In the present case, however, losses not only might have
been determined but were in fact determined when, on September 17, 2008, the trial court
found Hilton owed Tellez $3,215 in restitution. As we more fully discuss in part 7, infra,
this was an award of full restitution. The record fails to demonstrate that on or before
September 17, 2008, anyone ever suggested the existence of additional losses to the trial
court. Assuming section 1202.46 could apply in this case, we note the trial court retained
jurisdiction under section 1202.46 only until September 17, 2008 at best; after that date,
section 1202.46 provided no jurisdictional basis for awarding restitution.
6. People v. Bufford and People v. Turrin Do Not Authorize Restitution After a
Probationary Term Has Expired.
The People argue that under People v. Bufford (2007) 146 Cal.App.4th 966
(Bufford), and Turrin, supra, 176 Cal.App.4th 1200, the trial court retained jurisdiction to
impose restitution without regard to whether Hilton’s probationary term expired.
We disagree.
Bufford is distinguishable from the present case. Bufford was not a probation case.
In Bufford, the trial court imposed a prison sentence and a restitution order and,
concluding the restitution amount could not be ascertained at time of sentencing, issued
an order to the effect the amount would be the subject of a future order. After the
defendant served her prison sentence, the defendant claimed the trial court lost
jurisdiction to set restitution because she had served the sentence. (Bufford, supra,
146 Cal.4th at pp. 968-969.)
Bufford concluded, inter alia, the trial court retained jurisdiction under section
1202.46. Bufford expressly acknowledged “[Penal Code] section 1203.3 does not apply
in this case, because defendant was not placed on probation.” (Bufford, supra,
146 Cal.App.4th at p. 970, fn. 4.) The People’s reliance on Bufford is inapposite.
Turrin too is distinguishable. Turrin held that once a defendant begins serving a
prison sentence, the trial court loses jurisdiction to modify restitution fines by reducing
18
them due to the defendant’s alleged inability to pay. (Turrin, supra, 176 Cal.App.4th at
pp. 1203, 1205-1206.) In dicta, Turrin distinguished former section 1202.42 and, relying
on that section’s language concerning the period during which income deduction orders
remain effective, concluded the section conferred upon trial courts continuing jurisdiction
to modify an order of victim restitution. (Turrin, at p. 1207.)
However, former section 1202.42 does not expressly state a restitution order may
be modified after a defendant’s probationary term has expired, and the section was
enacted in 2002, i.e., after Griffin was decided. Turrin did not discuss Griffin or former
section 1203.3, subdivision (a). Cases are not authority for propositions not considered.
(People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 198.) Moreover, the trial
court in this case never imposed an income deduction order and, even if the trial court
had imposed one, Hilton, on January 21, 2009, paid in full the $3,215 in restitution he
had owed. The record fails to demonstrate that after that date, and during Hilton’s
probationary term, the trial court was ever aware of any information appellant owed
additional restitution. That is, there was no predicate for an income deduction order to
remain effective or for any jurisdiction thereunder to continue.10
7. The Trial Court Erred on April 3, 2013, by Relying on Brown and Concluding the
September 17, 2008 Restitution Order Was Unauthorized.
We conclude the trial court erred on April 3, 2013, by concluding the September
17, 2008 restitution award of $3,215 was unauthorized. Former section 1202.4,
subdivisions (a)(3)(B), (f)(3), and (m), not merely authorize but require a trial court that
grants probation to impose, as a condition of probation, restitution for a victim’s
economic losses resulting from a defendant’s criminal conduct. The restitution was also
10
The issue of whether a trial court had jurisdiction to award restitution to the victim
although the defendant’s probationary term had expired nine days earlier is pending
before our Supreme Court in People v. Ford, review granted October 23, 2013, S212940.
19
authorized by section 1203.1, subdivision (a)(3).11 The parties’ stipulation as to
restitution (if not also Tellez’s written claim that was dated May 29, 2008) supported the
trial court’s September 17, 2008 restitution award.
A trial court is presumed to have known and followed the law. (Cf. People v.
Mosley (1997) 53 Cal.App.4th 489, 496; Evid. Code, § 664.) We presume therefore that
on September 17, 2008, the trial court knew it was required to impose full economic
restitution unless the trial court found and stated compelling and extraordinary reasons
justifying a lesser award. (Former § 1202.4, subds. (a)(3)(B), (f), (g), & (m).) The trial
court made no such finding or statement, and, as of September 17, 2008, nothing in the
record rebuts the presumptions or demonstrates the trial court had reason to believe it was
awarding less than full restitution.
We conclude the trial court’s September 17, 2008 restitution award of $3,215
represented full restitution and, based on the record as it existed at the time of that award,
we conclude the award was authorized. Phrased differently, it is not true the award could
not lawfully have been imposed under any circumstance in this case. (See People v. Scott
(1994) 9 Cal.4th 331, 354.) The fact Tellez may have suffered additional losses, the
existence of which he never suggested to the trial court on or before September 17, 2008,
does not compel a contrary conclusion.
We also conclude the trial court erred on April 3, 2013, by relying on Brown,
supra, 147 Cal.App.4th 1213, to conclude the $3,215 restitution award was unauthorized.
In Brown, the trial court erred by imposing a restitution award that violated the
defendant’s plea bargain, which had called for a lesser award. (Id. at pp. 1223-1224.)
11
Section 1203.1, subdivision (a)(3) stated, “The court, or judge thereof, in the order
granting probation, may suspend the imposing or the execution of the sentence and may
direct that the suspension may continue for a period of time not exceeding the maximum
possible term of the sentence, except as hereinafter set forth, and upon those terms and
conditions as it shall determine. . . . [¶] . . . [¶] (3) The court shall provide for restitution
in proper cases. The restitution order shall be fully enforceable as a civil judgment
forthwith and in accordance with Section 1202.4 of the Penal Code.”
20
Brown’s discussion of unauthorized restitution pertained to the issue of remedy.
(Brown, supra, 147 Cal.App.4th. at pp. 1224-1226.) Brown rejected the defendant’s
request that the appellate court order specific performance and direct the trial court to
award the lesser agreed-upon restitution, because the record failed to demonstrate such an
award would have been authorized, i.e., that there were clear and compelling reasons for
an award of less than full restitution. (Id. at pp. 1226, 1228.) Brown remanded the matter
to permit the defendant to withdraw her plea and, if she did not, to permit the trial court
to decide in the exercise of its discretion whether to impose less than full restitution, since
the trial court erroneously had believed it lacked such discretion. (Id. at pp. 1228-1230.)
Moreover, the present case is factually distinguishable from Brown. In Brown,
there was no dispute the restitution order was, or was part of, full restitution. The
unauthorized restitution issue in Brown was whether, as a matter of remedy, less
restitution might have been imposed. However, in the present case, the trial court on
April 3, 2013, concluded the September 17, 2008 restitution award of $3,215 was not full
restitution. Further, the trial court on April 3, 2013, concluded it had jurisdiction to
impose more restitution, even though (1) the record in this case, and the trial court’s
comments, demonstrate the issue of the restitution amount was fully and fairly presented
to the trial court on September 17, 2008, before it awarded $3,215 in restitution on that
date, (2) the parties stipulated to that award, and (3) the trial court on September 17,
2008, when awarding the restitution, had no facts before said court suggesting the award
was anything other than full restitution.
21
DISPOSITION
The petition of Barron Nicholas Hilton for a writ of mandate is granted. The cause
is remanded to the trial court with directions forthwith (1) to vacate its April 3, 2013
order granting Fernando Tellez’s “Victim’s Request For Additional Restitution [¶] Penal
Code § 1202.4(f)(1)” filed November 28, 2012, the trial court’s finding that the
September 17, 2008 restitution award was unauthorized, and the trial court’s findings it
had jurisdiction to reopen the restitution issue and to impose additional restitution, (2) to
enter an order denying Tellez’s above entitled request, and (3) to discharge Hilton from
probation. The order of this court issued May 22, 2013, staying all proceedings in Los
Angeles Superior Court case No. 8MB00474, is lifted.
CERTIFIED FOR PUBLICATION
KITCHING, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
22