Hilton v. Superior Court

• Decision Date: 25 February 2014
• Docket Number: B248654
• Citation: 239 Cal.App.4th 766,168 Cal.Rptr.3d 309
• Parties: Barron Nicholas HILTON, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

239 Cal.App.4th 766

168 Cal.Rptr.3d 309

Barron Nicholas HILTON, Petitioner,

v. The SUPERIOR COURT of Los Angeles County, Respondent;The People et al., Real Parties in Interest.

B248654

Court of Appeal, Second District, Division 3, California.

Filed February 25, 2014

Review Granted June 11, 2014

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.

KITCHING, J.

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, 62 Cal.Rptr. 1, 431 P.2d 625 ( 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 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 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, former subdivision (b) of the California Constitution (article I, section 28, former subdivision (b)), a subdivision providing for restitution for crime victims, and Penal Code ¹ 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, 54 Cal.Rptr.3d 887 ] and it is an unauthorized order in restitution." The trial court did not discuss Griffin.

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." ’ [Citation.]" ( People v. Duff (2010) 50 Cal.4th 787, 795–796, 114 Cal.Rptr.3d 233, 237 P.3d 558.)

"[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, 68 Cal.Rptr.2d 870, 946 P.2d 828 ( 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, 14 Cal.Rptr.2d 801, 842 P.2d 100.)

People v. Turrin (2009) 176 Cal.App.4th 1200, 1204, 98 Cal.Rptr.3d 471 ( Turrin ), discussing the above principles, observed there are "few exceptions to the rule" ( id . at p. 1204, 98 Cal.Rptr.3d 471 ) 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 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, 98 Cal.Rptr.3d 471.)

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, 156 Cal.Rptr. 450, 596 P.2d 328.)

" ‘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, 106 Cal.Rptr.3d 518, 226 P.3d 998, italics added ( Feyrer ).) "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, 68 Cal.Rptr.2d 870, 946 P.2d 828, 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.

In Griffin, supra, 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625, 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, 62 Cal.Rptr. 1, 431 P.2d 625, italics added, fn. omitted.) 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...