People v. Waters

• Court: California Court of Appeals
• Writing for the Court: Margulies, Acting P.J.
• Citation: People v. Waters, 241 Cal.App.4th 822, 194 Cal.Rptr.3d 316 (Cal. App. 2015)
• Decision Date: 26 October 2015
• Docket Number: A143557
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kanika Mesi WATERS, Defendant and Appellant.

241 Cal.App.4th 822

194 Cal.Rptr.3d 316

The PEOPLE, Plaintiff and Respondent,

v.Kanika Mesi WATERS, Defendant and Appellant.

A143557

Court of Appeal, First District, Division 1, California.

Filed October 26, 2015

As Modified on Denial of Rehearing November 5, 2015

Jonathan Soglin, San Francisco, and Jeremy Price, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Englerand Jeffrey M. Laurence, Assistant Attorneys General, Catherine A. Rivlinand Allen R. Crown, Deputy Attorneys General for Plaintiff and Respondent.

Opinion

Margulies, Acting P.J.Defendant Kanika Mesi Waters appeals from a victim restitution order entered in connection with her plea to one count of grand theft by embezzlement. Defendant argues the court lacked jurisdiction because she successfully completed her probation over two years before the court ordered restitution. We find the court acted in excess of its jurisdiction and therefore reverse.

I. BACKGROUND

In April 2007, defendant was charged by felony complaint with one count of grand theft embezzlement by clerk, agent, or servant. (Pen. Code,¹ §§ 487, subd. (a), 508.) While defendant was a Bank of America (BofA) employee, she accessed seven customer accounts, changed the customers' addresses to the Hayward address of Elexsis Nation, a former BofA employee, sent new ATM cards and PIN's to Nation's Hayward address, and then updated the customers' information again to reflect their true addresses. Nation used the ATM cards to make numerous withdrawals totaling over $20,000. BofA covered the customers' losses, and in December 2007, filed a victim impact statement, claiming a loss of $20,800.

On January 10, 2008, defendant pled no contest to the charges. In reciting the terms of the plea agreement, the prosecutor stated defendant would pay restitution in an amount to be determined. However, when the trial court placed defendant on three years of probation, it only ordered her to pay a $200 restitution fine. It failed to order defendant to pay restitution to BofA.

In November 2008, the probation department filed a petition to revoke probation because defendant failed to report an address change. The court issued a bench warrant. It is unclear from the record what happened next. The record does reflect defendant appeared before the court in custody on May 16, 2011. On May 31, 2011, the court terminated probation as successfully completed.

Over two years later, on October 15, 2013, defendant filed a petition seeking reduction of her felony conviction to a misdemeanor pursuant to section 1203.4. In response, the probation department filed a recommendation, noting victim restitution had not been ordered, even though BofA had earlier filed a victim impact statement requesting $20,800 in restitution.

At a January 3, 2014 hearing on the matter, the court indicated it intended to order restitution. Defense counsel stated defendant was prepared to go forward and would stipulate to restitution in the amount of $20,800. At the conclusion of the hearing, the court stated the section 1203.4 petition would not be granted unless restitution was paid in full.

At hearing held on a March 14, 2014, defendant withdrew her stipulation and contested the amount of restitution. She did not, however, contest the court's jurisdiction to order restitution. The court allowed the withdrawal of the stipulation, and after several continuances, held a hearing to consider evidence concerning the amount of victim restitution on October 31, 2014. At the October 31 hearing, the court set victim restitution at $20,800.

II. DISCUSSION

The issue on appeal is whether the trial court acted in excess of its jurisdiction by imposing victim restitution after the expiration of defendant's probation. We conclude that it did. We also conclude defendant is not estopped from challenging the trial court's exercise of jurisdiction.

A. Statutory Scheme

“In 1982, California voters passed Proposition 8, also known as The Victims' Bill of Rights.... Proposition 8 established the right of crime victims to receive restitution directly ‘from the persons convicted of the crimes for losses they suffer.’ (Cal. Const., art. I, § 28, subd. (b).) The initiative added article I, section 28, subdivision (b) to the California Constitution: ‘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.’ ” (People v. Giordano(2007) 42 Cal.4th 644, 652, 68 Cal.Rptr.3d 51, 170 P.3d 623.)

As Proposition 8 was not self-executing, the Legislature enacted implementing legislation. (People v. Giordano, supra,42 Cal.4th at p. 652, 68 Cal.Rptr.3d 51, 170 P.3d 623.) Section 1202.4 authorizes the imposition of restitution fines, which support a fund that compensates victims, and restitution payments to victims. (§ 1202.4, subds. (e), (f).) Under subdivision (f) of section 1202.4, the trial court is obliged to require the defendant to pay full restitution to victims of a crime “unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” Under subdivision (m) of section 1202.4, the trial court must incorporate any such order in the defendant's conditions of probation. In view of these statutory requirements, this court has held a sentence is invalid where a trial court fails to issue a restitution award to the victim. (People v. Rowland(1997) 51 Cal.App.4th 1745, 1750–1752, 60 Cal.Rptr.2d 351.)

Pursuant to section 1170, subdivision (d), a trial court generally “does not have open-ended jurisdiction to modify a sentence; the court's jurisdiction expires after 120 days.” (People v. Willie(2005) 133 Cal.App.4th 43, 49, 34 Cal.Rptr.3d 532.) Section 1202.46 sets forth an exception to this rule for the purposes of determining restitution: “Notwithstanding Section 1170, when the economic losses of a victim cannot be ascertained at the time of sentencing ..., 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. Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to Section 1202.4.”

As to a trial court's jurisdiction to modify probation, section 1203.3, subdivision (a) provides: “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.” Under subdivision (b)(4) of section 1203.3: “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. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions.” Subdivision (b)(5) of section 1203.3 states: “Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation.”

B. Case Law

In In re Griffin(1967) 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625(Griffin), our Supreme Court addressed the meaning of former section 1203.3, which also stated trial courts had the authority to revoke or modify probation “ ‘at any time during the term of probation.’ ” (Griffin,at p. 346, 62 Cal.Rptr. 1, 431 P.2d 625.) In that case, the defendant violated the terms of probation by failing to make required restitution payments. (Id.at pp. 344–345, 62 Cal.Rptr. 1, 431 P.2d 625.) At the defendant's request, the probation revocation hearing was continued to a date after the expiration of his probation term, at which time his probation was revoked. (Id.at p. 345, 62 Cal.Rptr. 1, 431 P.2d 625.) The defendant filed a petition for a writ of habeas corpus, arguing the trial court lacked jurisdiction to revoke his probation. (Id.at pp. 345–346, 62 Cal.Rptr. 1, 431 P.2d 625.) The court found the defendant had asked the trial court to act in excess of its jurisdiction by requesting a continuance and he was therefore estopped from challenging the exercise of jurisdiction. (Id.at p. 348, 62 Cal.Rptr. 1, 431 P.2d 625.)

The Supreme Court reached a similar conclusion in In re Bakke(1986) 42 Cal.3d 84, 227 Cal.Rptr. 663, 720 P.2d 11(Bakke). There, the court stayed the imposition of a jail term and sentenced the defendant to probation pending the resolution of the defendant's appeal. (Id.at p. 86, 227 Cal.Rptr. 663, 720 P.2d 11.) The defendant petitioned for habeas corpus, contending the trial court lost jurisdiction to order execution of the jail term because the appeal had run longer than the period of probation. (Id.at p. 89, 227 Cal.Rptr. 663, 720 P.2d 11.) Analogizing to Griffin,the Supreme Court held the trial court did not exceed its jurisdiction. (Bakke,at p. 89, 227 Cal.Rptr. 663, 720 P.2d 11.) The court reasoned: “Like a request for a continuance of a revocation hearing, an application for a stay of execution of a jail term pending appeal contemplates that the proceedings related to that term will resume at a later time.” (Ibid.)

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