Filed 7/21/14 P. v. Smith CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
v.                                                                       A139218
LANCE BOYD SMITH,                                                        (Sonoma County
         Defendant and Appellant.                                         Super. Ct. No. SCR610970)



         This is an appeal from judgment after appellant Lance Boyd Smith entered a plea
of no contest to one felony vandalism count. The trial court suspended imposition of a
sentence and placed appellant on probation subject to various terms and conditions,
including serving 349 days in custody. The trial court then awarded appellant 349 days
of credit for time served and deemed his probationary term served in full. Appellant was
also ordered to pay various fines and assessments, including significant amounts of
restitution to three victims.
         After appellant filed a timely notice of appeal, appellate counsel was appointed to
represent him. Appointed counsel initially filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436 (People v. Wende) in which he raised no issue for appeal and asked
this court for an independent review of the record. (See also People v. Kelly (2006) 40
Cal.4th 106, 124 (People v. Kelly).)
         Upon reviewing the People v. Wende brief filed on appellant’s behalf, we
requested further briefing from the parties with respect to the following issue: “Did the


                                                             1
trial court have jurisdiction to order victim restitution after the expiration of
defendant’s term of probation. See Penal Code section 1203.3. See also, People v.
Ford (2013) 217 Cal.App.4th 1354.”
       Having considered the parties’ respective briefs, as well as the relevant record on
appeal, we affirm the judgment for reasons set forth below.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On November 19, 2012, an information was filed charging appellant with
recklessly setting fire to a gas station, a felony (Pen. Code, § 452, subd. (c)) (count one),
and misdemeanor theft (Pen. Code, § 484, subd. (a)) (count two).1 It was further alleged
appellant had suffered a prior strike conviction in 1988. (§ 1170.12.)
       These charges stemmed from the following events occurring in the early morning
hours of November 23, 2011. Appellant and two companions, travelling in appellant’s
van, were captured on a surveillance camera visiting a gas station in Rincon Valley. As
was customary at this early-morning hour, the gas station was unattended and gas could
be purchased only by credit card. However, at this date and time, there were no credit
card records indicating appellant or his companions purchased gas.
       The surveillance camera footage did show, however, appellant and his friends
accessing gas from the pumps with what appeared to be keys. Shortly thereafter, this
footage showed a “flicker” from inside the van that could have come from a match or
lighter, followed by a big explosion or possibly two explosions that rocked the van.2 This
explosion then led to a fire that ultimately destroyed appellant’s van as well as a
significant portion of the gas station.
       Testimony from witnesses at the preliminary hearing who were involved with the
subsequent fire containment effort or the investigation of the explosion site, as well as the
surveillance camera footage itself, demonstrated that the men put gas into several
containers inside the van rather than into the van’s gas tank. One of these containers had

1
       All statutory citations herein are to the Penal Code unless otherwise stated.
2
       Two explosions were heard on the video, but it may have been a single two-phase
explosion rather than two distinct explosions.


                                              2
a 150- to 200-gallon capacity; another had a 55-gallon capacity. A hole cut in the van
panel near the gas filler cap enabled them to fill these containers through a hose inside the
van.3 Unfortunately, filling these containers with gas more than likely allowed vapors to
escape and, when these vapors were exposed to either static electricity in the air or to a
spark from a lighter or match used to light one of the men’s cigarettes, the vapors more
than likely caused the explosion.4
       Appellant was arraigned on August 31, 2012 and, the following week, pleaded not
guilty to both count one, recklessly setting fire to a gas station, and count two,
misdemeanor theft. Appellant also denied the prior strike allegation.
       On January 23, 2013, appellant entered a new plea of no contest to a new charge
of felony vandalism (§ 594, subd. (a)) (count three), and counts one and two, as well as
the prior strike allegation, were dismissed on the People’s motion. In doing so, appellant
stipulated to the factual basis for his plea. He also acknowledged through counsel that,
following entry of his plea, “the Court would also retain jurisdiction for purposes of
restitution.” As the court explained when accepting appellant’s plea: “I will go ahead,
because this is a negotiated disposition, put you on probation, but terminate it [based on
his time already served in custody] and impose the minimum, statutory fines and fees.
That is your understanding of the agreement?” Appellant responded in the affirmative.
       Accordingly, on February 19, 2013, the trial court suspended imposition of
sentence and placed appellant on probation for 349 days. Under the terms of the
negotiated deal, the trial court then granted appellant 349 days of credit for time served,
thus deeming his probationary term served in full, and ordered him to pay a $280
restitution fine, a $30 criminal conviction fee, and a $40 court security fee. Finally, the
trial court ordered appellant to pay victim restitution in the amounts of $2,417.75 to the


3
       Appellant attributed the presence in his van of this hole and the large containers to
his carpet cleaning business, for which he used equipment with a gas-powered motor.
4
       Pumping fuel into non-approved containers inside a vehicle is not a safe or
recommended method of dispensing fuel and can cause vapor or static electricity to build
up, thereby greatly increasing fire risk.


                                              3
Rincon Valley Fire Protection District and $4,669.64 to the Santa Rosa Fire Department.
The trial court then reserved jurisdiction on the amount of restitution to be paid to the
third set of victims, the owners of the fire-damaged gas station, just as the judge indicated
he would do at the January 23, 2013 hearing.
        On May 16, 2013, the restitution hearing was held with respect to the amount due
the gas station owners, over appellant’s objection that the court lacked jurisdiction
because he was no longer on probation. Following this hearing, at which the gas station
owner testified and produced written documentation as to her losses, the court ordered
appellant to pay the owners $213,152.40 in repair costs and $204,490.00 in lost profits,
all of which were attributable to the fire. A timely notice of appeal was filed on July 10,
2013.
                                       DISCUSSION
        There is one legal issue before this court on appeal: Did the trial court retain
jurisdiction to decide the issue of victim restitution payable to the gas station owners once
the court, pursuant to a negotiated disposition, placed appellant on probation for 349 days
and then, based upon the time he had already served in custody, deemed the probation
grant served in full? The relevant law is as follows.
        Victim restitution is a creature of both constitutional and statutory law. “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.)


                                              4
       This constitutional mandate, however, was not self-executing. It required
implementing legislation. The current version of this legislation 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.” (§ 1202.4,
subd. (f) (italics added).) A separate provision adds that, where, as here, the defendant is
placed on probation, “the court shall make the payment of restitution fines and orders
imposed pursuant to this section a condition of probation . . . .” (§ 1202.4, subd. (m).)
Further, should “[a]ny portion of a restitution order . . . remain[] unsatisfied after a
defendant is no longer on probation,” the order “shall continue to be enforceable by a
victim pursuant to Section 1214 until the obligation is satisfied.” (§ 1202.4, subd. (m).)
       A related statute, section 1203.3, subdivision (b)(5), also applies to restitution
orders in cases where the defendant is placed on probation. This statute provides:
“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 probation.” (§ 1203.3, subd. (b)(5).) And, finally, section
1202.46, enacted in 1999, clarifies that, “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.
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.” (§ 1202.46.)
       In this case, the trial court took several steps to comply with the legal mandate that
appellant pay restitution to all victims of his criminal activity. In particular, as mentioned


                                               5
above, pursuant to the negotiated plea bargain, the trial court placed appellant on
probation for a term of 349 days with the condition that he serve 349 days in custody.
Then, crediting appellant 349 days for time served, the trial court immediately deemed
his probationary term complete. At the same time, the trial court ordered appellant to pay
victim restitution in the amounts of $2,417.75 to the Rincon Valley Fire Protection
District and $4,669.64 to the Santa Rosa Fire Department for their costs in handling the
fire. However, with respect to the restitution owed to the remaining victims, the gas
station owners who sustained the most significant losses from appellant’s crime, the trial
court reserved jurisdiction to allow for an evidentiary hearing at a later date.
       After this subsequent restitution hearing, held on May 16, 2013, the trial court
ordered appellant to pay the additional sum of $417,642.40 to the gas station owners to
cover their repair costs and lost profits resulting from the fire. This amount, while no
doubt significant, was established by competent witness testimony offered by the
prosecution and subject to cross-examination by defense counsel. Appellant was also
afforded full opportunity to present conflicting evidence. However, despite bearing the
burden to disprove the prosecution’s evidence regarding the victims’ losses, he declined
to do so.5 (People v. Foster (1993) 14 Cal.App.4th 939, 946-947 [a defendant has the
opportunity at a hearing to rebut the proposed restitution amount; however, he or she
bears the burden of disproving the victim’s restitution estimate].)
       Appellant has never challenged the amount of restitution awarded to the gas
station owners. However, prior to this hearing, appellant filed a written Opposition to
Request for Restitution challenging the trial court’s jurisdiction to award it. He argued
that, because his probationary term had been deemed served in full, the trial court no
longer had jurisdiction over him for purposes of restitution. While appellant’s counsel
failed initially to reassert this issue for purposes of appeal, we concluded it warranted


5
        To briefly summarize, prosecutorial witness Joy Mukherji testified that the gas
station was part of a shopping center owned by her and her husband, and that, due to the
gas station explosion and resulting damage, not just the gas station, but other businesses
in the shopping center sustained significant economic losses.


                                              6
closer consideration and asked for supplemental briefing. In doing so, we pointed out
this issue had been recently considered by our First District colleagues in People v. Ford
(2013) 217 Cal.App.4th 1354 (People v. Ford), a decision that has since been ordered
depublished and is presently awaiting review by the California Supreme Court
(S212940). In People v. Ford, our colleagues held that, once a defendant’s probationary
period had expired, the court nonetheless retained jurisdiction pursuant to sections
1202.4, subdivision (f), and 1202.46 to award additional restitution. (217 Cal.App.4th at
p. 1356; see also People v. Bufford (2007) 146 Cal.App.4th 966, 968 [holding that the
court retained jurisdiction after the defendant had fully served her sentence to issue an
order for payment of victim restitution].)6
       Not surprisingly, appellant disagrees with the holding of People v. Ford, and asks
this court to instead follow the reasoning of another recently depublished case out of the
Second District, Division Three, Hilton v. Superior Court (2014) 224 Cal.App.4th 47,
that is likewise awaiting California Supreme Court review (S217616, 2014 Cal. LEXIS
3768). There, contrary to People v. Ford, the court held that “a trial court does not have
jurisdiction to modify a defendant’s probation to impose restitution” after expiration of
the probationary term, reasoning that “[s]uch a modification would be erroneous as an act
in excess of the trial court’s jurisdiction” and, “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.” (Hilton v.
Superior Court, supra, at p. 50.)
       Undoubtedly, the California Supreme Court will have the last word on whether a
trial court retains jurisdiction to award additional restitution once a defendant’s
probationary term has expired. However, putting aside for the moment the conflict in the
appellate courts with respect to this issue, we agree with the People there is an alternative
6
        The People v. Ford court rejected the defendant’s argument that section 1203.3,
subdivision (b)(5), limits the trial court’s authority to impose or modify a restitution order
to the “time during the term of probation.” According to the court, “subdivision (b)(5) is
permissive, not restrictive. It takes nothing away from the court’s authority to award
restitution under section 1202.4.” (People v. Ford, supra, 217 Cal.App.4th at p. 1358.)


                                              7
basis for upholding the restitution award to the gas station owners based on the
circumstances of this case that permits us to avoid entering into otherwise murky legal
waters.7 This alternative basis, sounding in equity, is firmly rooted in California Supreme
Court case law. Briefly stated, pursuant to this equitable concept, a probationer, like
appellant, may be estopped from challenging an award of restitution imposed after
expiration of the probationary period as an act in excess of the trial court’s jurisdiction if
the probationer, by his conduct, acquiesced or consented to the trial court’s act. (See In
re Griffin (1967) 67 Cal.2d 343, 348 [“A litigant who has stipulated to a procedure in
excess of jurisdiction may be estopped to question it when ‘To hold otherwise would
permit the parties to trifle with the courts.’ [Citation.]”]; see also In re Bakke (1986) 42
Cal.3d 84, 89-90.)
       The legal justification for applying this equitable principle of estoppel under such
circumstances was succinctly explained by the California Supreme Court in In re Bakke,
supra, 42 Cal.3d 84. There, the court relied on this principle to reject a defense argument
that the trial court had lost jurisdiction to order execution of a jail term imposed as a
condition of probation where, at the defendant’s request, the court had previously stayed
execution of the jail term pending an appeal that ended up running longer than the
stipulated period of probation. The court reasoned as follows:
“Respondent does not contest the generally applicable rule that a probation order may be
revoked or modified only during the period of probation. (§ 1203.3; [citations].) A
probationer may by his conduct, however, consent to the continuance of a proceeding to a
time beyond that within which a statute requires the court to act. In an analogous context
the Court of Appeal held in People v. Ham (1975) 44 Cal.App.3d 288, 294 [118 Cal.Rptr.
591], that when a probationer appeared before the court for a revocation hearing prior to
the expiration of the period of probation, and requested a continuance to a date beyond
that period, the court retained the power to conduct the hearing and to revoke probation
as the probationer was estopped to complain that the period of probation had expired. [¶]
7
       We simply note there are significant factual distinctions between our case and
Hilton v. Superior Court, which, for reasons set forth below, we need not address.


                                               8
“This court reached a similar conclusion in In re Griffin, supra, 67 Cal.2d 343, where we
explained: ‘Neither 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. The statutes themselves contemplate that such fundamental jurisdiction continues,
for they provide for the court’s determination of certain matters after the end of the
probationary term. [¶] When . . . the court has jurisdiction of the subject, a party who
seeks or consents to action beyond the court’s power as defined by statute or decisional
rule may be estopped to complain of the ensuing action in excess of jurisdiction.’ (Id., at
p. 347, fn. omitted.) In Griffin we applied that reasoning to reject a claim that the trial
court had exceeded its jurisdiction in revoking probation after the end of the probation
period when the petitioner himself had requested the continuance of the revocation
hearing. We reasoned that the contrary rules which apply to time limits established by
other civil and criminal statutes were not appropriate to the operation of the probation
system. [¶] “Similar reasoning should govern a probationer’s application for a stay of
execution of a jail term imposed as a condition of probation. 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. The continuance is to a date certain. The stay is to the time the judgment is
affirmed and the remittitur goes down, plus any additional time permitted under the
statutes and rules for resumption of the proceedings necessary to order the term executed.
(See, e.g., §§ 1265, 1468, 1382, subds. 2 & 3; Cal. Rules of Court, rule 191.) (See fn. 5.)
Consequently, the municipal court did not exceed its jurisdiction when, upon receipt of
the remittitur from the appellate department of the superior court, it ordered the stayed
jail term into effect.”8 (Id. at pp. 89-90 [footnotes omitted].)

8
       In In re Griffin, supra, 67 Cal.2d 343, the California Supreme Court explained
that, while it is well-established subject matter jurisdiction may not be conferred by
estoppel, this bar does not apply where, as here, there is a challenge to the court’s
exercise of authority as an act in excess of jurisdiction: “Petitioner contends that because
timely revocation of probation is ‘jurisdictional’ the rule that jurisdiction cannot be
conferred by estoppel applies. That rule relates to subject matter jurisdiction, the court’s

                                               9
       We conclude this reasoning applies squarely to the facts of this case. As explained
in the trial court’s restitution order: “The terms of the plea agreement included that
probation would be granted and terminated at time of sentencing with the defendant
receiving a jail sentence of credit for time served (175 actual + 174 conduct = 349 days
total).” Additional terms of the plea agreement included that “restitution would be
reserved” and appellant “waived his presence at any future restitution hearing.” As the
record reflects, appellant at no time objected to these terms. Rather, he accepted all the
benefits of this plea bargain, which we have confirmed was validly entered. (Cal. Rules
of Court, rule 4.414; Pen. Code, §§ 1016-1018, § 1192.5.) As such, permitting appellant,
at this late juncture, to effectively strike the plea bargain term by which the trial court
reserved jurisdiction for purposes of ordering additional restitution would, in the words of
the California Supreme Court, “trifle with the court[s].” (In re Griffin, supra, 67 Cal.2d
at p. 348.) It would also permit appellant to receive his benefits of the bargain, while
depriving others, including the People and his victim, of their benefits.
       Under these circumstances, we find no basis to disturb the judgment. Like the
request for a continuance of a revocation hearing in In re Griffin, and the application for a
stay of execution of a jail term pending appeal in In re Bakke, appellant’s acceptance of
the condition of his negotiated plea bargain that the trial court reserve jurisdiction with
respect to the amount of restitution owed the gas station owners, and his simultaneous
waiver of appearance at any future restitution hearing, clearly contemplate the holding of
further proceedings by the trial court with respect to the issue of restitution. This is

power to hear and determine the cause. [Citations.] [¶] 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. [Citations.] Neither 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. The statutes themselves contemplate that such
fundamental jurisdiction continues, for they provide for the court’s determination of
certain matters after the end of the probationary term. [¶] When, as here, the court has
jurisdiction of the subject, a party who seeks or consents to action beyond the court’s
power as defined by statute or decisional rule may be estopped to complain of the
ensuing action in excess of jurisdiction. [Citations.]” (Id. at pp. 346-347.)


                                              10
particularly true, we add, in light of the applicable statutory scheme, which provides for
such further action by the trial court without regard to the defendant’s completion of
probation. (See § 1202.4, subd. (m) [“[a]ny portion of a restitution order that remains
unsatisfied after a defendant is no longer on probation shall continue to be enforceable by
a victim pursuant to Section 1214 until the obligation is satisfied”]; § 1202.46 [“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”].)
       Accordingly, based on the California Supreme Court authority set forth above, we
conclude appellant is estopped to complain that the trial court acted in excess of
jurisdiction by awarding restitution to the gas station owners, undisputed victims of his
criminal activity, after expiration of the probationary term, because he not only consented
to, but thereafter received the benefits from, the valid plea bargain into which he
knowingly and willingly entered. (In re Griffin, supra, 67 Cal.2d at p. 347; In re Bakke,
supra, 42 Cal.3d at pp. 89-90.) We thus affirm the trial court’s judgment.
                                      DISPOSITION
       The judgment is affirmed.



                                                   _________________________
                                                   Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




                                              11
