Filed 4/25/24 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A167703 v. TAKEYA LASHAY KOONTZY, (Napa County Super. Ct. No. CR183615) Defendant and Appellant.

Defendant and appellant Takeya Lashay Koontzy (appellant) pled no contest to fleeing the scene of an injury accident (Veh. Code § 20001, subd. (a)) and was placed on probation with the condition that she pay victim restitution in an amount to be determined. Due in large part to the victim’s delay in providing documentation of her damages and the victim’s failure to appear on multiple dates set for restitution hearings, the trial court did not determine the amount of restitution before termination of appellant’s probation. More than two years post-termination, the court entered an order directing appellant to pay $86,306.12 in victim restitution.

Appellant contends the trial court was without authority to modify the amount of restitution owed to the victim following termination of probation.

Appellant relies on People v. Martinez (2017) 2 Cal.5th 1093 (Martinez) to argue that the court’s jurisdiction to do so was not extended by Penal Code

section 1202.461 because the restitution was not for losses incurred “as a result of the commission of a crime.” (§ 1202.4, subd. (a)(1).) We agree, and distinguish the present case from our decision in People v. McCune (2022) 81 Cal.App.5th 648, 651–652, review granted Oct. 26, 2022, S276303 (McCune), in which there was no dispute that the restitution was properly imposed under section 1202.4.2 BACKGROUND In June 2017, the Napa County District Attorney filed a criminal complaint charging appellant with fleeing the scene of an injury accident (Veh. Code § 20001, subd. (a); count one) and with reckless driving (Veh.

Code § 23103, subd. (a); count two).3 In November 2017, pursuant to an agreement, appellant pleaded no contest to count one and count two was dismissed. She agreed to pay “full

restitution for all losses & expenses incurred due to this collision.”4 In January 2018, the trial court suspended imposition of sentence and placed appellant on formal probation for three years subject to various terms and conditions, including that she pay victim restitution in an amount to be determined.

In April 2019, the probation department filed a restitution investigation report indicating that the victim had requested $86,347.77 in restitution for “medical bills, ambulance fees, and prescription costs.” A contested restitution hearing was set and continued numerous times.

Hearings in May, July, and August were continued because the parties were awaiting supporting documentation from the victim. At the August hearing, the prosecutor stated, “it appears through the notes that our victim hasn’t always responded in a timely manner, which has led to some of the delays.”

At an October hearing, the prosecutor stated that she received the supporting documentation but mistakenly never provided it to the defense. December 2019 and January 2020 hearings were continued because the victim failed to appear, and the prosecution asked that the matter be taken off calendar when the victim again failed to appear in February 2020, despite receiving a subpoena for her appearance.

Appellant completed the three-year term of probation on January 31, 2021.5 In February 2022, appellant filed a petition for dismissal pursuant to

In April 2023, the trial court conducted a contested restitution hearing.

The prosecution opted to rely solely on the medical documentation and presented a packet of documents including two hospital bills, an ambulance bill, bills for prescriptions, and additional medical bills, totaling $86,306.12.

The court ordered victim restitution in that amount, plus 10 percent annual interest. The present appeal followed.

DISCUSSION Appellant argues the trial court exceeded its authority by modifying the restitution order following termination of probation. She acknowledges this court held in McCune, supra, 81 Cal.App.5th 648, that section 1202.46 extends a trial court’s jurisdiction to modify a section 1202.4 restitution order. However, she argues that, in the present case, the trial court was not authorized to order restitution under section 1202.4 for losses due to the collision, because her criminal conduct in fleeing the scene of the accident was not the cause of those losses.6 (See Martinez, supra, 2 Cal.5th 1093

(See People v. Zuniga (2022) 79 Cal.App.5th 870, 874 & fn. 3; see also McCune, supra, 81 Cal.App.5th at pp. 652–653.)

“Proposition 8, adopted by the voters in 1982, marked a sharp change in the state’s policy toward restitution. Formerly, trial courts had discretion to impose victim restitution as a condition of probation. [Citation.]

Proposition 8 granted crime victims a constitutional right to receive restitution from the convicted person in nearly all cases . . . . [¶] Consistent with this mandate, the Legislature expanded victims’ access to restitution in the 1990’s by enacting section 1202.4. . . . Subdivision (f) of section 1202.4 [provides]: ‘[i]f 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. The court shall order full restitution.’ [¶] In that situation—where the court defers setting the amount of restitution until the victim’s loss becomes clear—section 1202.46 extends the court’s jurisdiction to set the amount: ‘Notwithstanding Section 1170, when the economic losses of a victim cannot be ascertained at the time of

shall be determined at the direction of the court. The court shall order full restitution. . . . [¶] . . . [¶] [(f)](3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct . . . .” 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.’ (§ 1202.46.) [¶] . . . [¶] Section 1202.46 expressly preserves the court’s jurisdiction to follow the process in section 1202.4, which serves the constitutional mandate to ensure full victim restitution.” (McCune, supra, Cal.App.5th at pp. 652–653.)

McCune discussed the relationship between sections 1202.4, 1202.46, and 1203.3. The court concluded that the trial court’s authority to set restitution after termination of probation was not “implicitly circumscribed by other statutes that generally authorize a court to revoke, modify, or change probation conditions only during the probationary period. (See, e.g., § 1203.3, subds. (a) [court may revoke, modify, or change a probation order ‘during the term of probation’], (b)(4) [court may modify terms of probation to ensure timely payment of restitution ‘while on probation’], (b)(5) [nothing prohibits court from modifying amount of restitution ‘during the term of probation’]; [citation].)” (McCune, supra, 81 Cal.App.5th at pp. 653–654, italics added.) McCune declined to follow the decisions in Hilton v. Superior Court (2014) 239 Cal.App.4th 766 (Hilton) and People v. Waters (2015) 241 Cal.App.4th 822 (Waters), which construed section 1203.3 to constrain a trial court’s authority to modify a section 1202.4 restitution order after termination of probation. McCune reasoned, “There is no disharmony between sections 1203.3, 1202.4, and 1202.46. Section 1203.3 grants courts authority and jurisdiction to revoke, modify, or change probation conditions generally, including restitution orders, during the term of probation. (§ 1203.3, subds. (a), (b)(4) [&] (5).) Section 1202.4 grants additional authority to address the specific situation in which ‘the amount of loss cannot

be ascertained at the time of sentencing,’ and it mandates that the restitution order ‘shall include a provision that the amount shall be determined at the direction of the court.’ (§ 1202.4, subd. (f).) When a court follows this process, section 1202.46 grants the court jurisdiction ‘for purposes of imposing or modifying restitution until such time as the losses may be determined’ (§ 1202.46), even if that occurs after probation has ended.” (McCune, at pp. 654–655.)

Appellant argues McCune is distinguishable because the restitution order in the present case could not have been made pursuant to section 1202.4, because the victim’s damages were not due to her criminal conduct.

We agree. The California Supreme Court’s decision in Martinez, supra, 2 Cal.5th 1093, which also involved a conviction under Vehicle Code section 20001, subdivision (a), is directly on point. Martinez explained that, “[A]lthough the Vehicle Code section 20001(a) offense is commonly referred to as a hit and run, the term is something of a misnomer; the offense is ‘more accurately described as fleeing the scene of an injury accident.’ [Citation.]

That is to say, ‘ “the act made criminal” ’ under the statute ‘ “is not the ‘hitting’ but the ‘running.’ ” ’ [Citation.] ‘ “The legislative purpose of sections 20001 and 20003 is to prevent the driver of a vehicle involved in an injury- causing accident from leaving injured persons in distress and danger for want of medical care and from attempting to avoid possible civil or criminal liability for the accident by failing to identify oneself.” ’ ” (Martinez, at p. 1102.)

Turning to the question of restitution, Martinez reasoned, “Where, as here, a criminal defendant is convicted and sentenced to state prison, section 1202.4 . . . provides that the defendant must pay restitution directly to the victim for losses incurred ‘as a result of the commission of a crime.’

(§ 1202.4, subd. (a)(1); see [citation].) ‘To the extent possible,’ direct victim restitution is to be ordered in an amount ‘sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.’ (§ 1202.4, subd. (f)(3).) Application of these provisions depends on the relationship between the victim’s loss and the defendant’s crime. Here, defendant’s crime was not being involved in a traffic accident, nor does his conviction imply that he was at fault in the accident. Defendant’s crime, rather, was leaving the scene of the accident without presenting identification or rendering aid. Thus, under section 1202.4, the trial court was authorized to order restitution for those injuries that were caused or exacerbated by defendant’s criminal flight from the scene of the accident, but it was not authorized to award restitution for injuries resulting from the accident itself.” (Martinez, supra, 2 Cal.5th at pp. 1097–1098; see also id. at pp. 1104–1105, 1107.)

Respondent does not dispute appellant’s contention that the restitution order is entirely for losses due to the accident itself, rather than for any losses caused or exacerbated by appellant’s flight.7 Notably, another person was present at the time of the collision, so there is no basis in the record to infer that appellant’s flight led to any delay in the victim receiving medical assistance. Thus, under Martinez, the restitution order was not authorized by section 1202.4. As the Supreme Court explained, “ ‘[c]onvicted criminals may be required to pay one or more of three types of restitution.’ [Citation.]

They may be required to pay a restitution fine into the state Restitution Fund, to pay restitution directly to the victim, or to pay restitution as a condition of probation. The statutory requirements vary depending on the type of restitution at issue.” (Martinez, supra, 2 Cal.5th at p. 1100.)

Section 1202.4 provides for direct victim restitution. (Martinez, at p. 1100.)8 In contrast, under section 1203.1,9 “ ‘[i]n granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety,’ including the power to ‘regulate conduct “not itself criminal” ’ but ‘ “reasonably related to the crime of which the defendant was convicted or to future criminality.” ’ [Citations.] This discretion . . . has long been held to include the power to order restitution ‘even when the loss was not necessarily caused by the criminal conduct underlying the conviction,’ including in cases in which ‘the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation].’ . . . A trial court’s power to order restitution in probation cases is thus broader than its power to order direct victim restitution under section 1202.4 in cases in which the defendant receives a nonprobationary sentence.” (Martinez, at p. 1101; see also People v. Anderson (2010) 50 Cal.4th 19, 29 [“Trial courts continue to retain

Accordingly, under Martinez, the trial court could order restitution for losses due to the accident itself only as a probation condition under section 1203.1. (Martinez, supra, 2 Cal.5th at p. 1101; see also People v. Carbajal (1995) 10 Cal.4th 1114, 1119 [holding that trial court did not abuse its discretion in a hit-and-run case by conditioning the defendant’s probation on the payment of restitution to the owner of property damaged in the underlying accident].) And, critically, section 1202.46 only authorizes the retention of jurisdiction for imposing or modifying restitution “when the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4.” Therefore, modification of the restitution order after termination of probation could not, in this case, be based on the express retention of jurisdiction in section 1202.46.

Probation conditions ordered under section 1203.1 are subject to the limitations imposed by section 1203.3 and may not be modified following termination of probation. (McCune, supra, 81 Cal.App.5th at pp. 653–654, citing and quoting § 1203.3, subds. (a), (b)(4) & (b)(5).) McCune also acknowledged the Supreme Court’s decision in In re Griffin (1967) 67 Cal.2d 343, 346, which observed that, “The cases have consistently taken the view . . . 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 period has expired.’ ” (Accord, Waters, supra, 241 Cal.App.4th at pp. 829–830; Hilton, supra, 239 Cal.App.4th at pp. 772–776; see McCune, at p. 654 [citing Griffin].)10 Respondent argues that McCune, supra, 81 Cal.App.5th 648 should lead us to deny relief to appellant. McCune had the same basic factual and procedural background as this case: a defendant convicted of fleeing the scene of an injury accident was placed on probation and ordered to pay restitution to the victim in an amount to be determined. That determination was not made until after probation expired. In McCune, we upheld the post- termination restitution order under section 1202.46. (McCune, at pp. 651, 653.) We do not deviate from our analysis in McCune in any respect. That is, we continue to believe that section 1202.46 authorizes determination of the amount of a section 1202.4 restitution order after termination of probation, and we reject appellant’s arguments to the contrary. However, as discussed above, we agree with appellant’s argument that Martinez clarifies that the restitution order in the present case was not issued pursuant to section 1202.4, because the victim’s damages were not due to appellant’s criminal conduct. This contention was neither raised in McCune nor considered by this court in that case. Thus, McCune is not authority for rejecting appellant’s position. (McConnell v. Advantest America, Inc. (2023)

In sum, it is undisputed that the restitution order in this case is for losses due to the collision rather than losses due to appellant’s criminal conduct in leaving the scene. Thus, the trial court was not authorized to impose the restitution obligation under section 1202.4. Because the order was not imposed under section 1202.4, section 1202.46 did not provide a basis to extend jurisdiction to modify restitution following termination of probation. Instead, the restitution order was a condition imposed under section 1203.1, and it was subject to the limitations in section 1203.3 permitting modification of probation conditions only during the term of probation. Accordingly, the trial court was without authority to modify the restitution order following termination of probation.

DISPOSITION The trial court’s April 2023 restitution order is reversed.

SIMONS, J.

WE CONCUR:

JACKSON, P. J.

BURNS, J.

A167703 People v. Koontzy

A167703/People v. Koontzy Trial Court: Napa County Superior Court Trial Judge: Hon. Mark S. Boessenecker Counsel: The Law Office of Kaiya Pirolo and Kaiya R. Pirolo, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General and Heidi Salerno, Deputy Attorney General for Plaintiff and Respondent.