People v. Zuniga

• Court: California Court of Appeals
• Writing for the Court: BUCHANAN, J.
• Citation: People v. Zuniga, 79 Cal.App.5th 870, 295 Cal.Rptr.3d 141 (Cal. App. 2022)
• Decision Date: 14 June 2022
• Docket Number: D079767
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Alberto ZUNIGA, Defendant and Appellant.

79 Cal.App.5th 870

295 Cal.Rptr.3d 141

The PEOPLE, Plaintiff and Respondent,

v.David Alberto ZUNIGA, Defendant and Appellant.

D079767

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

Filed June 14, 2022

Marcia R. Clark, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, and Daniel Rogers, Christopher P. Beesley, and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

BUCHANAN, J.

David Alberto Zuniga pled no contest to felony hit and run resulting in death or serious bodily injury. ( Veh. Code, § 20001, subd. (b)(2).) On December 31, 2018, the court placed him on formal probation for three years. The terms and conditions of probation included that Zuniga "pay restitution [to the victim] through the Probation Department in an amount and manner to be determined by the probation officer at a later date."

Effective January 1, 2021, two years into Zuniga's probation term, the Legislature enacted Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill No. 1950), which amended Penal Code section 1203.1, subdivision (a),¹ by reducing the maximum felony probation term to two years, with certain exceptions not applicable here. In November 2021, the parties agreed that Zuniga was entitled to have his term of probation shortened to two years under Assembly Bill No. 1950. Accordingly, the court terminated Zuniga's probation nunc pro tunc to December 31, 2020.

When the court terminated Zuniga's probation, the probation officer still had not determined the amount of victim restitution, as contemplated in the original probation order. Zuniga then argued that the trial court lacked jurisdiction to set the amount of victim restitution because his probation had terminated. After soliciting briefing on the issue, the trial court disagreed with Zuniga and ordered direct restitution to the victim in the amount of $313,518.74.

Zuniga appeals from the restitution order. He contends that under section 1203.3, subdivision (a), the trial court lacked jurisdiction to "modify" the probation order by setting the amount of restitution after his probation had expired. We conclude that the trial court did not exceed its jurisdiction and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2018, Zuniga pled no contest to a single count of felony hit and run driving resulting in death or serious bodily injury. ( Veh. Code, § 20001, subd. (b)(2).) On the plea form, Zuniga acknowledged his understanding that "I must pay full restitution to all victims." At the change of plea hearing, Zuniga again confirmed his understanding that "there will be restitution, that is, you'll be required to pay and reimburse the victims in the case according to direct and indirect losses. It could be loss of work, it could be medical expenses, therapy, things like that."

Before sentencing, the probation officer spoke to the victim. According to the probation report, she said "her car was totaled" in the collision and "she might not be able to work again ...." "Overall, she has suffered emotional and physical damage. She has a scar on her head, damaged nerves on her eyes, her cervical bone was damaged, her lower back (2 lumbar areas are grinding), and she has [a] lot of pain had has to take ‘[facet] block injections.’ " She told the probation officer that her attorney was gathering documentation of her medical and therapy bills to submit for restitution. By the time of sentencing, however, the probation officer had not yet received this documentation. The probation officer told the victim "this officer would be recommending that restitution be reserved as she will be pending further treatment for her injuries." Accordingly, the probation officer recommended to the court that Zuniga's conditions of probation include that he "[p]ay restitution to the victim[ ] ... through the Probation Department in an amount and manner to be determined by the probation officer at a later date."

At the sentencing hearing on December 31, 2018, the victim made another statement about the impact of the hit-and-run. She said that the collision "hit [her] really bad," caused her to suffer a concussion, and resulted in injuries to her lower back and neck and "a lot of pain and suffering." She explained that she needed further medical treatment, she attends counseling, she can no longer drive or work, she has been harmed financially, and she suffers from depression.

Under the terms of the negotiated plea, the court placed Zuniga on three years formal probation.² The terms and conditions of probation included that Zuniga "pay restitution [to the victim] through the Probation Department in an amount and manner to be determined by the probation officer at a later date."

Two years later, effective January 1, 2021, the Legislature enacted Assembly Bill No. 1950, which amended section 1203.1, subdivision (a), by reducing the maximum felony probation term to two years, with certain exceptions not applicable here.

In April 2021, the victim contacted the probation officer and stated that she was requesting $242,086 in restitution for her medical bills. She did not provide any supporting documentation. The probation officer asked the court to schedule a restitution hearing. The court set the matter for a restitution hearing and requested an updated restitution report. The hearing was continued several times because Zuniga did not appear and his attorney was unable to contact him.

In August and September 2021, the probation officer filed updated reports with copies of the victim's medical and other bills totaling $313,518.74.

In November 2021, the court held a hearing with Zuniga present by video. The parties agreed that under Assembly Bill No. 1950, Zuniga's probation had terminated by operation of law on December 31, 2020. Accordingly, the court found that "probation has expired nunc pro tunc to 12/31/2020." The court requested briefing on whether it still had jurisdiction to determine the restitution amount.

The parties filed briefs on the jurisdictional issue. Zuniga argued that the trial court lacked jurisdiction to modify the restitution order because his probation had expired.

At the final restitution hearing, the court ruled that it still had jurisdiction to determine the amount of victim restitution owed. The court reasoned that the victim had a constitutional right to restitution, which Zuniga had agreed to as part of his plea bargain, and the Legislature did not intend to deprive victims of their rights to restitution by enacting Assembly Bill No. 1950 and shortening the maximum term of felony probation.

The court ordered Zuniga to pay restitution to the victim in the amount of $313,518.74. Zuniga timely filed this appeal from the restitution order.

DISCUSSION

The sole issue on appeal is whether the trial court exceeded its jurisdiction by setting the amount of victim restitution after terminating Zuniga's probation under Assembly Bill No. 1950.³ Because the material facts are undisputed, and the jurisdictional issue involves an interpretation of statutes, our review is de novo. (See Burke v. California Coastal Com. (2008) 168 Cal.App.4th 1098, 1106, 85 Cal.Rptr.3d 909.) We conclude that because the trial court had imposed victim restitution as one of the original conditions of probation and deferred setting the amount until the victim's losses could be determined, it retained jurisdiction to fix the amount under section 1202.46. We further conclude that the court did not "revoke, modify, or change" the original probation order within the meaning of section 1203.3, subdivision (a), when it set the amount after Zuniga's probation expired. Thus, the trial court did not exceed its jurisdiction.

"In 1982, California voters passed Proposition 8, also known as The Victims' Bill of Rights." ( People v. Giordano (2007) 42 Cal.4th 644, 652, 68 Cal.Rptr.3d 51, 170 P.3d 623 ( Giordano ).) "Proposition 8 established the right of crime victims to receive restitution directly ‘from the persons convicted of the crimes for losses they suffer.’ " ( Ibid. , quoting 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.’ " ( Ibid. )

" California Constitution, article I, section 28, subdivision (b), which is not self-executing, directed the Legislature to adopt implementing legislation." ( Giordano, supra , 42 Cal.4th at p. 652, 68 Cal.Rptr.3d 51, 170 P.3d 623.) "In the mid-1990's, the Legislature consolidated much of the state's victim restitution scheme into Penal Code section 1202.4." ( Id. at p. 653, 68 Cal.Rptr.3d 51, 170 P.3d 623.) "[S]ection 1202.4 now requires restitution in every case, without respect to whether probation is granted." ( Ibid. )

With certain exceptions not relevant here, section 1202.4, subdivision (f) provides in relevant part: "[I]n every case in which a victim has suffered economic loss as a 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. " (Italics added.) Subdivi...