Filed 5/28/15




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S212940
           v.                        )
                                     )                       Ct.App. 1/3 A135733
WILLIAM J. FORD,                     )
                                     )                         Sonoma County
           Defendant and Appellant.  )                   Super. Ct. No. SCR-530837
____________________________________)


        Defendant William J. Ford appeals from an order awarding victim
restitution. He contends that the trial court lacked jurisdiction to conduct the April
6, 2012, hearing prescribing the amount of restitution he owed because his term of
probation — including the condition of restitution — had expired one week
earlier. For support, defendant relies on Penal Code section 1203.3, subdivision
(b)(5), which provides that “[n]othing 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.”
(Italics added.) The People maintain that the trial court retained jurisdiction to
award full restitution in the amount of the victim‟s loss, even after the term of
probation expired. They rely on Penal Code section 1202.4, subdivision (f), which
requires the court to “order full restitution unless it finds compelling and
extraordinary reasons for not doing so and states them on the record,” and on
Penal Code section 1202.46, which provides that “when the economic losses of a

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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.”
       We need not decide whether a trial court retains jurisdiction to modify the
amount of restitution once a defendant‟s term of probation has expired. So long as
a court has subject matter jurisdiction — and both parties agree the trial court had
it here — then a party seeking or consenting to action beyond the court‟s power
may be estopped from complaining that the resulting action exceeds a court‟s
jurisdiction. (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 584.) By agreeing to a
continuance of the restitution hearing to a date after his probationary term expired,
defendant implied his consent to the court‟s continued exercise of jurisdiction. He
is therefore estopped from challenging it. For this reason, we affirm the judgment
of the Court of Appeal.
                                   I. BACKGROUND
       In February 2008, defendant severely injured Elaine Jennings in a hit-and-
run accident. He was charged with felony hit and run, enhanced for personal
infliction of great bodily injury (Veh. Code, § 20001, subd. (a); Pen. Code,
§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8), 12022.7, subd. (a)), and driving while
his license was suspended or revoked (Veh. Code, § 14601.1, subd. (a)). On
August 21, 2008, defendant pleaded no contest in a negotiated disposition to
felony hit and run in exchange for dismissal of the other charges, a grant of
probation, and the option to have his conviction reduced to a misdemeanor if he
successfully completed probation. The plea agreement provided that he would pay
“restitution directly to any victim(s).”
       At sentencing on October 9, 2008, defendant was placed on probation for
three years, ordered to serve six months in jail, and directed to pay various fines
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and restitution amounting to $12,465.88 for the victim‟s medical expenses. At
defendant‟s request, the court reserved jurisdiction to determine the amount of
additional restitution, including lost wages.1
       On May 7, 2010, the probation office determined the appropriate amount of
victim restitution to be $211,000. Defendant requested a hearing. The hearing
was originally scheduled for September 24, 2010, but was continued many times,
sometimes at defendant‟s explicit request, and always with defendant‟s consent.
Probation was extended three times, also with defendant‟s consent. The final
extension was to March 30, 2012.
       At the restitution hearing on January 27, 2012, Jennings testified that she
had needed considerable time to gather information supporting her claim of lost
income, given that she could not have known that such documentation would be
required at the time the business was operating. Based on a full review of her
records, she estimated that she had suffered losses of $275,017. The trial court
found that Jennings had made a prima facie case for restitution in the amount of
$275,017, and granted the defense request for more time to rebut the justification
for that amount.
       The restitution hearing was scheduled to resume on March 1, 2012.
Because a defense witness failed to comply with a subpoena, the restitution
hearing was continued to March 8 and then to March 27, 2012. On March 27, the
deputy district attorney assigned to the case advised that she was unavailable to
proceed that afternoon because she was conducting a preliminary hearing in
another courtroom. Defendant agreed to continue the matter to April 6, 2012. But

1       Jennings and her husband owned a catering company. Her injuries,
coupled with the assistance she needed from her husband to perform virtually all
of the tasks of daily living, “severely curtailed [their] ability to conduct [their]
business for the next several months.”


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on April 6, defense counsel made a special appearance contesting the court‟s
jurisdiction to order additional restitution on the ground that defendant‟s term of
probation had expired one week earlier. After setting a briefing schedule on the
jurisdictional issue, the court conducted a hearing on May 17, 2012, at which it
determined that jurisdiction existed to order the full amount of restitution. The
court then confirmed the restitution amount was $275,017. The court‟s order of
restitution was appealable, as it was made after judgment and affected defendant‟s
substantial rights. (Pen. Code, §§ 1202.4, subd. (f), 1237, subd. (b).)
       The Court of Appeal affirmed, noting that its earlier decision in People v.
Bufford (2007) 146 Cal.App.4th 966 had held that Penal Code sections 1202.4,
subdivision (f) and 1202.46 “mean exactly what they say and that the completion
of a prison term was irrelevant to the court‟s ability to exercise jurisdiction. . . .
The same reasoning applies here, and the court retained jurisdiction to award
additional restitution without regard to the expiration of Ford‟s probation.”
       We granted review.
                                    II. DISCUSSION
       Although the term “jurisdiction” is sometimes used as if it had a single
meaning, we have long recognized two different ways in which a court may lack
jurisdiction. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th
653, 660 (American Contractors).) A court lacks jurisdiction in a fundamental
sense when it has no authority at all over the subject matter or the parties, or when
it lacks any power to hear or determine the case. (Abelleira v. District Court of
Appeal (1941) 17 Cal.2d 280, 288.) If a court lacks such “ „fundamental‟ ”
jurisdiction, its ruling is void. (People v. Lara (2010) 48 Cal.4th 216, 225.) A
claim based on a lack of fundamental jurisdiction may be raised for the first time
on appeal. (Ibid.)


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       Even when a court has fundamental jurisdiction, however, the Constitution,
a statute, or relevant case law may constrain the court to act only in a particular
manner, or subject to certain limitations. (Burtnett v. King (1949) 33 Cal.2d 805,
807; Abelleira v. District Court of Appeal, supra, 17 Cal.2d at p. 291.) In
American Contractors, supra, 33 Cal.4th 653, 660-662, for example, we explained
that a court with fundamental jurisdiction over the parties nonetheless lacked the
power to enter a judgment forfeiting a bail bond prior to the end of the period
allowed for the surety to make an appearance. When a trial court has fundamental
jurisdiction but fails to act in the manner prescribed, it is said to have acted “in
excess of its jurisdiction.” (Id. at p. 661.) Because an ordinary act in excess of
jurisdiction does not negate a court‟s fundamental jurisdiction to hear the matter
altogether (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 285, p. 891),
such a ruling is treated as valid until set aside. (People v. Tindall (2000) 24
Cal.4th 767, 776, fn. 6.) A party may be precluded from seeking to set aside such
a ruling because of waiver, estoppel, or the passage of time. (Ibid.)
       Given the importance of distinguishing between lack of fundamental
jurisdiction and ordinary acts in excess of jurisdiction, California courts have
sought to draw the distinction in a variety of settings. (See 2 Witkin, Cal.
Procedure, supra, Jurisdiction, § 13, pp. 585-588.) As pertinent here — and as
defendant concedes — it is well settled that the expiration of a probationary period
does not terminate a court‟s fundamental jurisdiction. (In re Bakke (1986) 42
Cal.3d 84, 89 (Bakke).) But we need not decide whether expiration of the
probationary period rendered the trial court‟s award of restitution an act in excess
of jurisdiction. Despite the probationary period‟s expiration, defendant is
estopped from challenging the trial court‟s jurisdiction to award restitution.
       The doctrine of estoppel to contest jurisdiction may apply to “ „a party who
seeks or consents to action beyond the court‟s power as defined by statute or
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decisional rule‟ ” in the period after probation has terminated. (Bakke, supra, 42
Cal.3d at p. 89.) Whether the party should be estopped depends on a weighing of
equities in the particular case, the effect of estoppel on the functioning of the
courts, and considerations of public policy. (In re Griffin (1967) 67 Cal.2d 343,
348 (Griffin).) In Griffin, for example, we held that the habeas corpus petitioner
was estopped from challenging an order revoking probation. While the petitioner
argued that the order was in excess of jurisdiction, he had himself requested a
continuance of the probation revocation hearing to a date beyond the expiration of
his probationary term. (Id. at pp. 347-349; see id. at p. 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‟ ”].)
       We reached a similar conclusion in Bakke, supra, 42 Cal.3d 84. The trial
court imposed a jail term as a condition of probation but stayed execution of the
jail term pending appeal at the habeas corpus petitioner‟s request. When the
probationary term expired before the appeal could be resolved, the petitioner
contended that the trial court lacked jurisdiction to order execution of the jail term.
We followed the reasoning of Griffin and held that the petitioner was estopped
from objecting to the execution of the jail term, despite the fact his probation had
already terminated. (Bakke, at p. 89; see People v. Jackson (2005) 134
Cal.App.4th 929, 932-933 [defendant was estopped from challenging court‟s
jurisdiction to impose a probationary term exceeding the statutory maximum by
requesting the extension].)
       Defendant in this case did not seek the continuance. But estoppel can also
apply to a party who merely consents to a continuance to a date beyond the court‟s
ordinary authority to act. (Bakke, supra, 42 Cal.3d at p. 89.) We have long
recognized that a failure to object can constitute implied consent to an act in
excess of the court‟s jurisdiction. (People v. Toro (1989) 47 Cal.3d 966, 973
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[defendant who fails to object to instructions on a lesser related offense “impliedly
consents” to the court‟s jurisdiction to convict him of the uncharged offense];
Harrington v. Superior Court (1924) 194 Cal. 185, 188 [“if the court has
jurisdiction of the subject matter, . . . a party may voluntarily submit himself to the
jurisdiction of the court, or may, by failing to seasonably object thereto, waive his
right to question jurisdiction” (italics added)]; see generally Barsamyan v.
Appellate Division of Superior Court (2008) 44 Cal.4th 960, 970 [“ „Implied
consent is the failure to object‟ ”].) We have also held that a probationer‟s
conduct may signify consent to the continuance of a proceeding, even if the
continuance extends the proceedings beyond the period during which a statute
requires a court to act. (Bakke, at p. 89.) 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.
       Defendant has not shown that an objection to the proposed date would have
been futile. (See Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406.) Rather, he
had the opportunity to demand a timely hearing, yet failed to do so. In particular,
he could have insisted on such a hearing at the proceeding on March 27, 2012.
Once the deputy district attorney in this case announced her unavailability, the
hearing could still have gone forward while defendant‟s probation remained in
force, either with another deputy that same day or with the assigned deputy on any
of the days remaining before defendant‟s probation expired three days later.
Alternatively, with defendant‟s consent, the hearing could have been continued to
a date beyond the expiration of his probationary term. By failing to object to the
proposed continuance beyond the expiration of the probationary term, defendant
effectively signaled his consent to it. (People v. Accredited Surety & Casualty
Co., Inc. (2013) 220 Cal.App.4th 1137, 1150 [“ „A party cannot sit idly by and
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permit action to be taken and later say that it had not consented‟ ”]; see People v.
Ingersoll (1913) 21 Cal.App. 763, 764.)
       Accordingly, we find that defendant‟s consent to the court‟s continued
exercise of jurisdiction estops him from challenging it here. To hold otherwise
would penalize the trial court, the People, and the victim for attempting to
accommodate defendant‟s requests for more documentation. Defendant obtained
the benefit of the dismissal of allegations that he personally inflicted great bodily
injury and committed a serious and violent felony by entering a no contest plea to
felony hit and run and by agreeing to pay restitution to the victim. (Griffin, supra,
67 Cal.2d at p. 348.) By the time of the hearing scheduled for March 27, 2012, the
trial court had already found a prima facie case supporting the amount of
restitution requested by the victim. (See People v. Sy (2014) 223 Cal.App.4th 44,
63.) The purpose of the continued hearing, as the trial court explained, was to
enable the defense to present its rebuttal. Having insisted on the opportunity for
rebuttal — and having obtained the benefit of his plea bargain and agreeing to
continue the hearing to a date certain to present that rebuttal — defendant cannot
be heard to complain that the trial court thereby lost jurisdiction when it set a
hearing to consider his rebuttal on the agreed-upon date.
       It is true that courts may decline to recognize estoppel in narrow
circumstances. Estoppel is not appropriate when allowing a deviation from the
law in a particular case would cause confusion in the processing of cases by
different litigants or when it would thwart public policy. (Griffin, supra, 67
Cal.2d at p. 348.) In People v. Mendez (1991) 234 Cal.App.3d 1773, for example,
the Court of Appeal declined to estop the Attorney General from challenging a
stipulation entered into by the district attorney under a significant misapprehension
of law, when the stipulation authorized privileges “exceeding those granted by the
Legislature or the Governor‟s pardon, and not available to any other similarly
                                           8
situated person.” (Id. at p. 1784.) By contrast, recognizing estoppel in these
circumstances would not affect the resolution of other cases or raise the prospect
of differential treatment. And in People v. Blakeman (1959) 170 Cal.App.2d 596,
the Court of Appeal declined to estop a defendant probationer from challenging a
banishment condition, even though he himself had proposed the banishment,
because such a condition was proscribed by the fundamental policy that one
political division not be allowed to “dump” undesirable persons on another. (Id. at
p. 598.) In this case, though, defendant identifies no policy, substantive or
procedural, that would preclude estoppel. (Griffin, at p. 348.) Instead, estopping
defendant from challenging the jurisdiction of the court to make an award of full
restitution in these circumstances — under a schedule to which defendant agreed
— promotes the proper functioning of the courts, advances the goals of the
probation system, and furthers the objective of ensuring victims of crime receive
the restitution they are due.
        Defendant does not claim that he was prejudiced in any way by a restitution
hearing that postdated the end of his probationary term. Nor does he point to any
evidence in the record that the People or the victim unreasonably delayed the
calculation of restitution. To the contrary: the victim testified that defendant
inflicted multiple, severe injuries preventing her and her husband from focusing on
their business for a period of months, and that she faced major challenges in
reconstructing her records with her accountant even after her recovery, as her
attention was “really overtaxed as it is” by her ongoing responsibilities at her
business. In this case, the doctrine of estoppel therefore prevents defendant from
complaining that the trial court acted in excess of jurisdiction when it fixed the
amount of restitution to the victim of his crime after expiration of the probationary
term.


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                              III. DISPOSITION
     The judgment of the Court of Appeal is affirmed.
                                             CUÉLLAR, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Ford
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 217 Cal.App.4th 1354
Rehearing Granted

__________________________________________________________________________________

Opinion No. S212940
Date Filed: May 28, 2015
__________________________________________________________________________________

Court: Superior
County: Sonoma
Judge: Bradford J. DeMeo

__________________________________________________________________________________

Counsel:

Law Offices of Andrian & Gallenson and Jane Gaskell for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Seth K. Schalit, Catherine McBrien, Eric D. Share and Huy T. Luong, Deputy
Attorneys General, for Plaintiff and Respondent.




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Counsel who argued in Supreme Court (not intended for publication with opinion):

Jane Gaskell
Law Offices of Andrian & Gallenson
1100 Mendocino Avenue
Santa Rosa, CA 95401
(707) 527-9381

Huy T. Luong
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5941




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