BARRON NICHOLAS HILTON, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE et al., Real Parties in Interest.
No. B248654
Second Dist., Div. Three
Feb. 25, 2014
239 Cal. App. 4th 766
*Reporter‘s Note: Review granted on June 11, 2014, S217616. Review dismissed on July 8, 2015. Opinion directed to be published by the Supreme Court on August 26, 2015.
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.
OPINION
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 0.08 percent (
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
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
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)
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) that a trial court lacks jurisdiction to resentence after execution of a sentence has begun. Among those exceptions, Turrin noted the former
b. Probation and Jurisdiction.
” ‘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 (
At the time of Hilton‘s 2008 offenses,
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,
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, 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 order suspending the imposition of sentence or the execution thereof and admitting the defendant to probation after the probationary
People v. White (1982) 133 Cal.App.3d 677 [184 Cal.Rptr. 134] (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.] 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[, supra,] 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 [227 Cal.Rptr. 663, 720 P.2d 11] (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 [118 Cal.Rptr. 591], another case involving estoppel and Griffin) concluded
People v. Lewis (1992) 7 Cal.App.4th 1949 [10 Cal.Rptr.2d 376] (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. (
People v. Medeiros (1994) 25 Cal.App.4th 1260 [31 Cal.Rptr.2d 83] (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 [110 Cal.Rptr.2d 747] (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 expired in 1999. (Tapia, supra, 91 Cal.App.4th at p. 740.)
Griffin, the cases that follow Griffin, and
d. Section 1203.3, Subdivision (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
The Legislature amended former section 1203.3 by the addition of subdivision (b)(4) in 1995.4
” ‘[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
Moreover, former section 1203.3, at issue in Griffin, expressly provided that courts had authority to modify probation ”during the term of probation.” (Griffin, supra, 67 Cal.2d at p. 346, italics added.) In addition, Griffin approvingly cited appellate cases that construed the section as precluding modification after the probationary period had expired. (Ibid.) We likewise conclude
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 (
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 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
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
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 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. Article I, Section 28, Former Subdivision (b) of the California Constitution Did Not Support an Order for Additional Restitution.
The People, citing
“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 [225 Cal.Rptr. 209].” (Giordano, supra, 42 Cal.4th at p. 652.) In People v. Vega-Hernandez, supra, 179 Cal.App.3d 1084 (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
4. Former Section 1202.4, a Legislative Implementation of Article I, Section 28, Former 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
In Giordano, our Supreme Court stated, “In the mid-1990‘s, the Legislature consolidated much of the state‘s victim restitution scheme into
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’ (
In sum, when a defendant is convicted and a trial court can either grant probation or impose a prison sentence,
b. Former Section 1202.4, Subdivision (f) Does Not Authorize Imposition of Restitution Once Probation Has Expired.
The People, citing
We presume the Legislature intended the language in
The People suggest
It is true
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 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
Finally, assuming arguendo
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 [53 Cal.Rptr.3d 273] (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.App.4th at pp. 968-969.)
Bufford concluded, inter alia, the trial court retained jurisdiction under
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 them due to the defendant‘s alleged inability to pay.
However,
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.
A trial court is presumed to have known and followed the law. (Cf. People v. Mosley (1997) 53 Cal.App.4th 489, 496 [62 Cal.Rptr.2d 268];
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 [36 Cal.Rptr.2d 627, 885 P.2d 1040].) 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.)
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
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.
Klein, P. J., and Croskey, J., concurred.