Filed 11/5/15 (unmodified opn. attached)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                           DIVISION ONE

THE PEOPLE,                                         A143557
         Plaintiff and Respondent,
                                                    (Contra Costa County
v.                                                  Super. Ct. No. 1-130590-3)
KANIKA MESI WATERS,
                                                     ORDER MODIFYING OPINION
         Defendant and Appellant.                    AND DENYING REHEARING

                                                    NO CHANGE IN JUDGMENT

         BY THE COURT:
         It is ordered that the opinion filed herein on October 26, 2015, be modified as
follows:
         1. One page 8, third sentence of the first full paragraph, after the words “power to
impose restitution,” insert the words “in probation cases” so the sentence reads:

         While section 1202.4, subdivision (f) does provide that the court shall require the
         defendant to make restitution “in every case in which a victim has suffered
         economic loss as a result of the defendant’s conduct,” it does not expressly grant
         trial courts the power to impose restitution in probation cases other than as a
         condition of probation.
There is no change in judgment.
Respondent’s petition for rehearing is denied.
Dated:




                                              ________________________________
                                              Margulies, Acting P.J.
Filed 10/26/15 (unmodified version)
                                CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                           DIVISION ONE


THE PEOPLE,
        Plaintiff and Respondent,
                                                      A143557
v.
KANIKA MESI WATERS,                                   (Contra Costa County
                                                      Super. Ct. No. 1-130590-3)
        Defendant and Appellant.


        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.

        1
            All statutory references are to the Penal Code.
           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


                                                  2
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.)
       As Proposition 8 was not self-executing, the Legislature enacted implementing
legislation. (People v. Giordano, supra, 42 Cal.4th at p. 652.) 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.)
       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.) Section 1202.46 sets forth an
exception to this rule for the purposes of determining restitution: “Notwithstanding


                                               3
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 (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.) In that case, the defendant violated the terms of probation by failing to make
required restitution payments. (Id. at pp. 344–345.) 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.) The defendant filed a
petition for a writ of habeas corpus, arguing the trial court lacked jurisdiction to revoke


                                                4
his probation. (Id. at pp. 345–346.) 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.)
       The Supreme Court reached a similar conclusion in In re Bakke (1986) 42 Cal.3d
84 (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.)
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.) Analogizing to Griffin, the Supreme Court held the trial court
did not exceed its jurisdiction. (Bakke, at p. 89.) 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.)
       In People v. Ford (2015) 61 Cal.4th 282 (Ford), the Supreme Court revisited the
doctrine of estoppel to contest jurisdiction. At the sentencing in that case, the court
ordered the defendant to pay the victim $12,465.88 for medical expenses and reserved
jurisdiction to determine the amount of additional restitution, including lost wages. (Id.
at p. 285.) After the restitution hearing was continued several times, due in part to
defense requests for more time, the defendant argued the court lacked jurisdiction to
order additional restitution because the defendant’s term of probation had expired. (Id. at
p. 286.) The Supreme Court found the trial court had the power to order restitution. As
an initial matter, the court distinguished between a lack of fundamental jurisdiction, i.e.,
where a court has no authority at all over the subject matter or the parties, and ordinary
acts in excess of jurisdiction, which a party may be precluded from challenging due to
waiver, estoppel, or the passage of time. (Id. at pp. 286–287.) Citing to Bakke, the court
concluded the expiration of the probationary period did not terminate the court’s
fundamental jurisdiction. (Ford, at p. 287.) The court declined to determine whether the
trial court acted in excess of its jurisdiction, finding the defendant’s consent to the court’s
continued exercise of jurisdiction estopped him from challenging it. (Id. at p. 288.) The


                                               5
court stated: “In the circumstances here, where defendant’s own requests played a role in
delaying the proceedings and defendant did not object to a continuance of the restitution
hearing to a date beyond his probationary term, he can be understood to have consented
to the continuance.” (Ibid.)
       The Second Appellate District recently found a trial court lacked jurisdiction to
order restitution after probation expired in Hilton v. Superior Court (2014)
239 Cal.App.4th 766 (Hilton).2 In that case, the defendant pled no contest to driving
under the influence and unlawful use of a license after he struck a pedestrian with his
vehicle. (Id. at p. 769.) The court ordered the defendant to pay victim restitution of
$3,215. (Ibid.) The pedestrian subsequently filed a civil suit against the defendant,
which settled for $3.5 million. (Id. at pp. 769–770.) After the defendant’s probation
expired, the pedestrian filed a motion seeking $886,000 in additional restitution for the
attorney fees and costs incurred in the civil action, as well as future lost wages. (Id. at
p. 770.) The trial court held it had jurisdiction to consider the motion. (Ibid.)
       In considering the defendant’s petition for writ of mandate, the Hilton court found
the trial court lacked jurisdiction to order restitution. (Hilton, supra, 239 Cal.App.4th at
p. 771.) The court held Griffin and its progeny taught that a trial court loses jurisdiction
over a defendant once the defendant’s probationary term expires. (Hilton, at pp. 771–
773.) The court also held section 1203.3, subdivision (b)(4) and (5) reflected a legislative
intent that trial courts will lack jurisdiction to impose restitution after the probationary
term. (Hilton, at pp. 775–776.) The court rejected the People’s contention that the trial
court retained jurisdiction to impose restitution under section 1202.46, reasoning section
1202.46 must be harmonized with preexisting statutory and case law. (Hilton, at p. 780.)




       2
         On June 11, 2014, the Supreme Court granted review in Hilton and deferred
action in the matter pending its disposition of Ford. After Ford was decided, the court
dismissed review of Hilton. On August 26, 2015, the court granted a request to republish
the Second Appellate District’s opinion in Hilton.


                                               6
C. The Trial Court Acted in Excess of its Jurisdiction
         In this case, the trial court ordered defendant to pay restitution over two years after
the expiration of her probation, when she petitioned for dismissal of her felony
conviction. We agree with the reasoning of the Second Appellate District in Hilton and
find the restitution order was an act in excess of the trial court’s jurisdiction.
             Section 1203.3 limits the trial court’s authority to modify the conditions of a
defendant’s probation, including the defendant’s restitution obligations, to the
probationary period. Subdivision (a) of the statute states: “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.” (§ 1203.3, subd. (a), italics added.)
Subdivision (b)(4) provides: “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.” (§ 1203.3, subd. (b)(4),
italics added.) Likewise, subdivision (b)(5) 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.” (§ 1203.3, subd. (b)(5), italics added.)
         As the Second Appellate District held in Hilton, to construe section 1203.3 as
applying after a defendant’s probationary term would render the phrases “while on
probation” and “during the term of probation” surplusage. (Hilton, supra,
239 Cal.App.4th at pp. 775–776.) Moreover, when the Legislature enacted
subdivision (b)(4) of section 1203.3 in 19953 and subdivision (b)(5) in 2000,4 it is
presumed to have been aware of the Supreme Court’s earlier decision in Griffin, supra,
67 Cal.2d at page 346, which holds that “ ‘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 period
         3
             (Former § 1203.3, as amended by Stats. 1995, ch. 313, § 9, p. 1762, eff. Aug. 3,
1995.)
         4
             (Former § 1203.3, as amended by Stats. 2000, ch. 1016, § 11, p. 7471.)


                                                  7
has expired.’ ” As the Legislature framed the language of section 1203.3 in a manner
similar to that of Griffin, we presume it intended to convey the same meaning. (Cf.
People v. Harrison (1989) 48 Cal.3d 321, 329.)
       The Attorney General argues Griffin is inapposite because the victim restitution
order in this case was not a condition of probation. But the Attorney General has not
identified any authority which would allow a trial court to order victim restitution outside
of probation in this situation. While section 1202.4, subdivision (f) does provide that the
court shall require the defendant to make restitution “in every case in which a victim has
suffered economic loss as a result of the defendant’s conduct,” it does not expressly grant
trial courts the power to impose restitution other than as a condition of probation.
Moreover, subdivision (m) of section 1202.4 suggests that, in this context, victim
restitution can only be ordered as part of probation. Specifically, the provision states:
“In every case in which the defendant is granted 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).)
       Nor does section 1202.46 support the Attorney General’s position. That statute,
which was enacted in 1999, provides “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.” (§ 1202.46.) Section 1202.46 further states that it
should not be construed to prohibit “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.” (Italics added.) The statute’s use of the phrase
“at any time” cannot be read in isolation and must be harmonized with the preexisting
statutory and case law concerning probation, including section 1203.3, which limits the
court’s power to modify probation and restitution after the expiration of the probationary
period.5

       5
         Contrary to the Attorney General’s contention, People v. Moreno (2003)
108 Cal.App.4th 1, and People v. Bufford (2007) 146 Cal.App.4th 966, do not demand a
different interpretation. While those cases approved of postjudgment restitution awards,

                                              8
       Accordingly, we conclude that the trial court exceeded its authority by ordering
victim restitution after the conclusion of probation. To hold otherwise could lead to
anomalous results. For example, under the Attorney General’s view, a trial court that
fails to consider victim restitution in the first instance, could order a defendant to pay
such restitution decades after probation expires. The trial court could even go so far as to
order a defendant’s estate to pay restitution after learning of the defendant’s death. While
we are sensitive to concerns about making crime victims whole, there must be some
discernible limit to a trial court’s power over a defendant after he or she completes his or
her sentence.
D. Defendant is Not Estopped from Challenging the Exercise of Jurisdiction
       The Attorney General argues that even if the trial court lacked authority to impose
restitution after defendant’s probation period ended, defendant is estopped from
challenging the exercise of that jurisdiction since she failed to object below. We
disagree. As discussed above, in at least three cases, Griffin, Bakke, and Ford, the
Supreme Court found defendants were estopped from contesting jurisdiction to modify
their sentences. In two of those cases, the defendant requested to continue the hearings at
issue to a time after the expiration of the defendant’s probationary term. (Griffin, supra,
67 Cal.2d at p. 347; Bakke, supra, 42 Cal.3d at p. 89.) In the third case, the defendant
consented to a continuance of a restitution hearing to a time after probation had expired,
and his own requests played a role in delaying the proceedings. (Ford, supra, 61 Cal.4th
at pp. 285–286.) In contrast, in the instant action, no attempt was made to set a
restitution hearing until long after defendant successfully completed her probation.
Defendant only appeared before the court after the expiration of her probation because




neither involved probation. Moreover, in Moreno, restitution was ordered while the
defendant was still serving his sentence. (Id. at pp. 3–4.) And unlike in the instant
action, the trial court in Bufford expressly ordered the defendant to pay restitution at
sentencing. (Id. at p. 968.) The issue on appeal was whether the trial court could reserve
jurisdiction to set the amount of restitution. (Id. at p. 970.)


                                              9
she sought to dismiss her felony conviction pursuant to section 1203.4. Moreover,
defendant played no role in delaying the order of restitution.6
                                   III. DISPOSITION
       We reverse the trial court’s order directing defendant to pay restitution.




       6
         Having found defendant is not estopped from challenging the exercise of
jurisdiction, we do not reach defendant’s ineffective assistance of counsel claim.


                                             10
                                 _________________________
                                 Margulies, Acting P. J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




A143557
People v. Waters



                            11
Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Terri Mockler

Counsel:

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

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




                                          12
