PEOPLE v. FORD

Appellant’s Petition for Review

Cal.August 26, 2013

| S9 1 99 40 = SUEREVE COURT ILED AUG 2 6 2013 Frank A. McGuire Clerk Deputy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. Plaintiff and Respondent, Court ofAppeal Case No. A135733 v. Sonoma County Superior Court WILLIAM J. FORD, Case No. SCR-530837 Defendant and Appellant. Appeal from the Sonoma County Superior Court Honorable BRADFORD DEMEO,Judge PETITION FOR REVIEW AFTER THE PUBLISHED DECISION OF THE COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION THREE, AFFIRMING THE ORDER OF THE SUPERIOR COURT Jane Gaskell, CSB #271387 Law Offices ofAndrian & Gallenson 1100 Mendocino Avenue Santa Rosa, California 95401 Telephone: (707) 527-9381 Facsimile: (707) 526-9051 Attorneys for Defendant/Appellant WILLIAM J. FORD IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. Plaintiff and Respondent, Court of Appeal Case No. A135733 v. Sonoma County Superior Court WILLIAM J. FORD, Case No. SCR-530837 Defendant and Appellant. Appeal from the Sonoma County Superior Court Honorable BRADFORD DEMEO,Judge PETITION FOR REVIEW AFTER THE PUBLISHED DECISION OF THE COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION THREE, AFFIRMING THE ORDER OF THE SUPERIOR COURT Jane Gaskell, CSB #271387 Law Offices of Andrian & Gallenson 1100 Mendocino Avenue Santa Rosa, California 95401 Telephone: (707) 527-9381 Facsimile: (707) 526-9051 Attorneys for Defendant/Appellant WILLIAM J. FORD TABLE OF CONTENTS TABLE OF AUTHORITIES....200000 000000 cococcc ccc cnc cen ete cee bbe bee ebbben cece ii QUESTION PRESENTED....00 0000000000 o ccc ccc ccc ccc ccc ct eee ce tebe eee tet teeebbbeb bee eee beeen2 NECESSITY FOR REVIEW......0000. 000000 coco ccc ccc cece cece bce c eben beecbe eb bbb bbe ceca2 SUMMARYOF ARGUMENT....0000000 0000.0 cc ccc ccc cece veces cee cbeceebee cee beb bee bere ceeen 2 STATEMENTOF THE CASE....000 0000000000 occ ccc cece ccc cce ccc cccce beste ebb bee cbbbbe cress 4 Procedural History............ 20.0206. c ccc e ccc cee ec cee ese cee ves tescscsnsteaeeesneneeerens 4 Statement of Facts... 00000000000 occ cece ccc cess ccc ee cee ceeceuetunsebeebenbebbbeebbbneberee. 8 ARGUMENT... 000.000 ooo cece ccc cee cect eee bee bee eee b teed bet bbe bib bbe bbb bbr bi been pec 10 I. MR. FORD WAS GRANTED PROBATION BY THE COURT AND THEREFORE ALL RESTITUTION FINES AND ORDERS MUST BE CONDITIONS Ul. SECTION 1203.3 IS THE SOURCE OF THE COURT’S AUTHORITY TO MODIFY PROBATION: WHEN PROBATION TERMINATES, THE COURT NO LONGERHAS ANY JURISDICTION TO MODIFY THE PREVIOUSLY-IMPOSED CONDITONS OF PROBATION....20 00. .cccccccscccecssescccscscscu cesses cecseececessvsssetevscevevauentensessens 11 Ii. THERE IS NO PRECEDENT TO SUPPORT THE PEOPLE’S ARGUMENT THAT PENAL CODESECTION 1202.46 AUTHORIZES THE TRIAL COURT TO MODIFY THE TERMSOF PROBATION AFTER PROBATION HAS TERMINATED. ..202 00.0. oooccceceeccee ce een ee bee c ee ce eaeeeee terest tenreveeeereeees 14 A. THE HISTORY OF 1202.46.0.0000000 00.0. oo ccc ce cece cee cece eee cc cee eueveceseeeees 14 B. THE CASE LAW..0 ooo.cece cece ccc cee tne testnstbcesseeaeeeereneees 17 IV. THE TRIAL COURT’S IMPOSITION OF A MODIFIED RESTITUTION ORDER AFTER THE TERMINATION OF PROBATION WASAN ACTIN EXCESS OF JURISDICTION TO WHICH MR. FORD DID NOT CONSENT...................... 20 A. WHILE THE COURT DID NOT LACK FUNDAMENTAL JURISDICTION, THE COURT ACTED IN EXCESSOF ITS POWER. 2020 osccecececcceces essence seeeaeeeseseseseatscussssseccesesesssssscscsssscavavavsvevsvevavareesaeeas20 B. MR. FORD DID NOT CONSENT TO THE COURT’S ACTIN EXCESSOF JURISDICTION AND SHOULD NOTBE ESTOPPED FROM RAISING THE ISSUE ON APPEAL.........0.00 000.00 ..0ccccccceceeeeee eee ees22 CONCLUSIONbee eee eee e een e ee bes cee eee eee ee tne nee te tee tbe een ees tpebbeebceibtbbsebbenee genes 23 Certificate ofWord Count Proof of Service Table of Authorities Page Cases California Supreme Court People v. Giordano (2007) 42 Cal. 4th 644.000.ccc ccc eececcnecuececnecuceenaeeneuesaustseeaeveneecees 10, 18 In re Daoud (1976) 16 Cal. 3d 879.0... ccc ccc ec ccc neceseeecseseseseucancueceteuseatnaeen 12, 13 In re Griffin (1967) 67 Cal.2d 343.0... cece ccc cce eee eeeeesseuccsuncsaveseneeuesaseaeetunsen sass 12 People v. Lara (2010) 48 Cal.4th 216.00... cecccceccnecesceecseuceesuuceveuereeneutanens 20, 21 In re Bakke (1986) 42 Cal. 3d 84.00.cccecceceeceeceecseceasesessecaecaeeuteusaseuttree suns21 City ofLos Angeles v. Cole (1946) 28 Cal.2d 509.0...cee ec cece eceecessusccusecuseesesteseseasereenees 22, 23 Guardianship ofDi Carlo (1935) 3 Cal.2d 225.0.cece cncc nce ese eee eesucseeseusseseeceecueeseesancere sess22 People v. Patrich (1897) 118 Cal. 332...ccc ce cece cca eceeeecsaceuecsuseuseueeeseesasensurcenie cuss22 People v. Hill (1998) 17 Cal. 4th 800.000...ccc ccc ccc eccecceseuessuccuseuseeseesasesureenaeres 22 People v. Noguera (1992) 4 Cal. 4th 599.0ceccccecc ese esueseessasceeeeeceesusensanensenscerance22 California Courts ofAppeal People v. White (1982) 133 Cal. App. 3d 677.0... ccc ccc ccccccecceccusccuscusaceectesenceseaecescan 11 People v. DePaul (1982) 137 Cal App 3d 409.000... cece cecccccccecccscsuccucecevceeeaseveuseeneensss 12 ii People v. Smith (1970) 12 CalApp.3d 621.200... ec ccccecceccnececneeeeeeesecstenensaueusueetaraeeas 12 People v. Blakeman (1959) 170 Cal App 2d 596.20... ccccccccceecneceecee eeu ceesessscuseneensuere suas 12 People v. Blume (1960) 183 Cal App 2d 474.0000... ccccccccecceecesceeceeuscesaeeneureaseneutaecsse 12 People v. Turrin (2009) 176 Cal. App. 4th 1200.00... 0. ccccccccc ccc ececees ese ceusuceteusreeneesensa aay 18 People v. Brown (2007) 147 Cal. App. 4th 1213.00... cece cccncceceeseccusevesescusceseenensaauas 18 People v. Zackery (2007) 147 Cal. App. 4th 380........ 0. ccccccecceceeceseceseucussesuscucescsensunease 18 People v. Moreno (2003) 108 Cal. App. 4th Loo... ceccccaecececcseeeseesecnsecesesersncasaenees 18 People v. Bufford (2007) 146 Cal. App. 4th 966.00... cccccccccceceeececeeeesessecneeneneeanewess 18, 19 People v. Rowland (1997) 51 Cal. App. 4th 1745.00... cece ccc ceeeeesecc cea esuceuceasenieeeaenen 19 People v. DeFrance (2008) 167 Cal. App. 4th 486......... 0c ccccccccecceseceecescutssusenenscaeeeeuanrenss22 Hoshour v. County ofContra Costa (1962) 203 Cal.App.2d 602.000... 0. cc cccccccceccsececaeaceeceseeeessecuecuceesueaneenans22 Phillips v. Beilsten (1958) 164 Cal.App.2d 450... 2... ccecceccecnceceeeceveveeeceveneusavensrusarreess22 iii Statutes Cal. Gov. Code, § 139670000... ccccceccccccnccceeceee esse seuscesecuteneneensetasatenseueeueens 10 Cal. Penal Code, § 1202.4..........cccccccceccseccccseeceseccussscuseusestecesetsaeersueenssPassim Cal. Penal Code, § 1203.3 ..........cccccccccecceccesccescuceccececuseeeuseeutevevaneveneessPassim Cal. Penal Code, § 1202.41.02... ciccecccccecencceeececeusceuscescsascuueeeecaeseueeuteresecess 15 Cal. Penal Code, § 1202.46.00... .......ccccccecceccccesecccceseseusecesenentanenseveneensPassim Cal. Penal Code, § 1170.0... ...cccccccccceccecccueesecuecesetcueeseuesueaeantubenseeuneres Passim Cal. Veh. Code, § 21955000... cece ccc cccccetecu se eceeucseceveuceesanaeeetensususeusuesutenesenes 9 Cal. Veh. Code, § 20001-2002. .eeccec ccc cccceecenccesaeeeceesteneeusaceeeaceesasensueutenceeseustenes9 Cal. Veh. Code, § 146011...ececccccce een eeeeeeeeesussuessueraeeeeeueeaeeertiaaaan9 Other California Senate Bill 1126....0. 00... ccccccceccecenececcesceccecusecscuseuseseesutesanss 15, 16 Legis. Counsel’s Dig., Sen. Bill No. 1126 (1999 Reg. Sess.)...........cccccccceceusseueceeee 15 California Judges Benchguide 83: Restitution (CJER 2012), §83.73..........cccceseeeeeees 16 iv IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATEOF CALIFORNIA, No. Plaintiff and Respondent, Court ofAppeal Case No. A135733 V. Sonoma County Superior Court WILLIAMJ. FORD, Case No. SCR-530837 Defendant and Appellant. PETITION FOR REVIEW TO THE HONORABLE TANI G. CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Appellant WILLIAM J FORD petitions this court for review following the decision of the Court of Appeal, First Appellate District, Division Three, filed in that court on July 17, 2013. A copy of the decision of the Court of Appealis attached hereto as ExhibitA. QUESTION PRESENTED 1. Does Penal Code section 1202.46 grant the trial court never-ending jurisdiction to modify restitution even after the expiration of probation, and despite the express language of Penal Code section 1203.3, which authorizes modification of the conditions of probation only during the probationary term? NECESSITY FOR REVIEW A grant of review andresolution of this issue by this court is necessary to settle an important question of law, involving the rights of probationers who successfully complete probation and the interpretation of Penal Code section 1202.46, which has not been held applicable where the defendant was granted probation ratherthan sentto state prison. SUMMARY OF ARGUMENT At the time of Mr. Ford’s sentencing, the trial court ordered victim restitution in an amountin excess of $12,000 and granted Mr. Ford probation. By operation of law, payment of all restitution fines and orders become conditions of probation pursuant to Penal Code section 1202.4(m). Thereafter, modification of the restitution order is authorized under Penal Code section 1203.3 (b)(5), which allows modification at any time during the term of probation. Consequently, when a victim requests additional restitution, a modification of probation is sought through thetrial court. Here, the Sonoma County Probation Department contacted Mr. Ford and attempted to modify his probation. After multiple delays, primarily due to the victim’s failure to furnish appropriate accounting records, the court failed to modify the restitution amountpriorto the expiration of Mr. Ford’s probation. The People argued that the original sentence, which contained both a restitution fine and a restitution amountpayable directly to the victim, was invalid. Secondly, the People argued that Penal Code section 1202.46 provides authority for a trial court to impose an additional restitution order at any time, regardless of the expiration of probation. Mr. Ford disagreed, and argued that the plain language of Penal Code section 1203.3 bringsthetrial court’s jurisdiction to modify probation to an end when the probationary term expires. The trial court determined thatit still had jurisdiction to act and issued an additional restitution order after probation had terminated. Mr. Ford contendsthat after termination of his probation, any act by the court not supportedbyeither statute or decisional authority is an act in excess of jurisdiction, which is therefore invalid. Mr. Ford did not consent to the court’s act of ordering an additional restitution amount. Rather, at the first opportunity, through defense counsel, Mr. Ford challenged the court’s jurisdiction and hasrefrained from engaging in any furtherlitigation of this issue beforethetrial court. After argument was heard in Division Three of the First District of the Court of Appeal concurred with the trial court and held that Penal Code section 1202.46 authorizes the order of additional restitution after the termination of probation. In light of the unanimousopinion, no Petition for Rehearing wasfiled. STATEMENT OF THE CASE Procedural History Mr. Ford wasinvolved in a motorvehicle accidentresulting in injury on February 2, 2008. Hefailed to stop his vehicle at the scene of the accident or to provide the identification and vehicle registration information required by law. On August 21, 2008, defendant William J. Ford entered a plea of no contest to one felony violation of Vehicle Code Section 20001{a). On October 9, 2008, imposition of sentence was suspended and Mr. Ford was granted formal probation with standard terms for 36 months. Restitution was imposedin the amountof Twelve Thousand Four HundredSixty-Five Dollars and Eighty-Eight Cents ($12,465.88) for victim’s medical expenses. Further restitution was reserved. On May 7, 2010, in a letter to the appellant, the Sonoma County Probation Department informed Mr. Ford that he was required to pay restitution in the amount of Two Hundred Eleven Thousand Dollars ($211,000), or Thirteen Thousand One Hundred Eighty-Seven Dollars and Fifty Cents ($13,187.50) per month. In response, Mr. Ford exercised his statutory right to a hearing on this proposed modification of his probation terms. The hearing date wasinitially set September 24, 2010. Thereafter, the hearing date wasre-set six times between October 2010 and April 2011. After April 1, 2011, the court and counsel met a further five times before once again re-setting the date of the hearing for August 26, 2011. However, on August 19, 2011, this date was again vacated and the People stipulated that Mr. Ford had requested a timely Restitution Hearing. After further court appearances, the hearing date was re-set for October 5, 2011, four days before Mr. Ford’s probation was due to expire. Prior to October 5, 2011, the Probation Department, in the form of an Order Modifying Probation, recommended the aforementioned modification of the conditions of Mr. Ford’s probation to the trial court. The proposed Order also contained a specific request that formal probation be extended for 24 months “in order to allow him to pay the orderedrestitution.” A copy ofthe letter and proposed Order were attached as an Exhibit to the Appellant’s Opening Brief (hereinafter “AOB Exhibit _”) as Exhibit A. At the time set for hearing on October 5, 2011, Mr. Fordstipulated to an extension of his probation. However, the court only extended probation until November 2, 2011. On October 26, 2011, Mr. Ford once again agreed to a further extension of his probation by another 30 days. On November2, 2011, all parties settled on extending Mr. Ford’s probation until March 30, 2012. Therestitution hearing began on January 27, 2012, and in response to rebuttal, Ms. Jennings was ordered to provide further documents to defense counsel. The hearing was continued until March 1, 2012, at which time the People undertookfurther direct examination of Ms. Jennings. However, when a subpoenaed defense witness, Officer E. Rhodes of the Santa Rosa Police Department,failed to appear on this second date, the hearing was continued until March 8, 2012. Once again, despite defense counsel’s efforts, on March 8, 2012, the witness failed to appear. As a result, Judge DeMeo issued an Orderto Show Causeto Officer Rhodes. This Order wasvacatedthe following day after Officer Rhodes appeared before the court in chambers. The hearing wasre-set for March 27, 2012. On March 27, 2012, the hearing was once again continued, this time dueto the unavailability of the Deputy District Attorney assignedtothecase. A Stipulation and Orderto this effect were attached as AOB Exhibit B. The hearing date was re-set for April 6, 2012. No further request or orders regarding probation were forthcoming from either the trial court of the Deputy District Attorney. As previously ordered bythetrial court in early November,Mr.Ford’s probation terminated on March 30,2012. On April 6, 2012, defense counsel made a special appearance on behalf of the Appellant solely to contest the trial court’s continuing jurisdiction to enter any order relating to Mr. Ford and his now-terminated probation. During the April 6, 2012 court appearance, the Deputy District Attorney agreed that Mr. Ford’s probation had not been extended and consequently had terminated, as indicated on the court docket, a copy of which is attached as AOB Exhibit C. The court asked both parties to brief the issue and set a further hearing date of May 17, 2012. Both parties filed timely briefs and the hearing took place, as scheduled, on May 17, 2012. The Appellant, who had been present for the multitudinous previous hearings, was not present. The Court concludedit had jurisdiction over the matter and orderedrestitution in the amount of Two HundredSeventy-Five Thousand Seventeen Dollars ($275, 017). Defense counsel requested an opportunity to research the available options for the Appellant. Although a briefing schedule and further hearing date wereinitially set, no further proceedings tookplacein thetrial court. On June 15, 2012, the Appellantfiled a timely Notice of Appeal. Statementof Facts The underlying criminal chargesin this case stem from an accidentthat occurred on February 2, 2008. In light of the guilty plea entered by Mr. Ford, a brief summaryof the facts, as stated in the originaltraffic collision report authored by Officer Eric Rhodesof the California HighwayPatrol, is provided for backgroundinformation only. At approximately 8:00 p.m., Ms. Elaine Jennings, accompanied by her dog, began crossing B Street in Santa Rosa, California. As it was raining heavily, Ms. Jennings decided to cross the street without using a crosswalk. Although she saw Mr. Ford’s vehicle approaching, she continued crossing the street, mistakenly believing he had seen her. Thecar struck both Ms. Jennings and her dog. Ms. Jennings’ left leg was broken in multiple places. She also sprained herleft shoulder, chipped a tooth, and suffered several bruises and abrasions. Mr. Ford, whoselicense was suspended, wasstopped bya patrol car on 7‘ Street, just east of Orchard Street. In his statementto the officer on scene, Mr. Ford explained he had seen a dog fly up onto his hood but after he stopped at a subsequenttraffic light started to realize the damage appeared to be too substantial to have been caused by a dog. He added he waslooking for an opportunity to turn around when he was stopped. Although the investigating officer concluded Ms. Jennings caused the collision by crossing between two controlled intersections outside of a crosswalk in violation of Vehicle Code section 21955, he also recommendedthat Mr. Ford be charged with felony “hit and run”, a violation of Vehicle Code section 20001(a) and a misdemeanorviolation of driving on a suspendedlicense pursuant to Vehicle Code section 14601.1 (a). Mr. Ford entered a plea of no contest on August 21, 2008 and was subsequently sentenced to formal probation for 36 months. Multiple conditions of probation were imposed, including a six-month county jail sentence. The Court also ordered Victim restitution of Twelve Thousand Four Hundred Sixty-Five Dollars and Eighty-Eight Cents ($12,465.88) for medical expenses. In May 2010, approximately nineteen monthsafter the sentencing, Mr. Ford’s probation officer began the process of modifying the probation conditions by asking Mr. Ford to pay an additional Two Hundred Eleven Thousand Dollars ($211,000) as restitution for losses Ms. Jennings claims were suffered by her small business enterprise during 2008 and 2009 as a result of her injuries. During the partially completed hearing process, Ms. Jennings testified about various profit and loss calculations and taxation issues. Hence, the final amount of the May 17, 2013 court order was significantly higher (at $275, 017) than theinitial figure requested. ARGUMENT I. MR. FORD WAS GRANTED PROBATION BY THE COURT AND THEREFOREALL RESTITUTION FINES AND ORDERS MUST BE CONDITIONS OF PROBATION Following the passage of Proposition 8 in 1982, the Legislature was required to adopt implementinglegislation to enact what was knownatthe Victim’s Bill of Rights. (People v. Giordano (2007) 42 Cal. 4th 644, 652-653.) Although it providedinitially for mandatory restitution fines and restitution as a condition of probation, the early statutes did not “either require[e] or authoriz[e] trial courts to order defendants who wereconvicted of crimes but were not given probation to makerestitution to any of the victims of their crimes.” (Ibid.) This was remedied in 1986 by the addition of Government Code Section 13967, which provided for victim restitution in probation- denied cases. (Ibid.) By the mid-1990s, the state’s restitution scheme was consolidated into Penal Code Section 1202.4 and the restitution sections of Government Code Section 13697 were deleted. (Jd. at p. 653.) (All further references are to the Penal Code unless stated otherwise.) Of particular importto the case beforethe court is section1202.4 (m), which provides: In every case in which the defendantis granted probation, the court shall make the paymentofrestitution fines and orders imposed pursuantto this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendantis no longer on probation shall continue to be enforceable by a victim pursuantto Section 1214 until the obligationis satisfied. 10 (§ 1202.4 (m).) At the sentencing on October 9, 2008, Mr. Ford was ordered to pay a restitution fine of Four Hundred Forty dollars ($440) and restitution of Twelve Thousand Four Hundred Sixty-Five Dollars and Eighty-Eight Cents ($12,465.88) directly to the victim. (See AOB Exhibit C.) Therefore, by operation of Section 1202.4 (m), paymentof both of these imposed amounts became conditions of Mr. Ford’s probation. Further confirmation ofthis is derived from thefact thatit was the Probation Department who instigated this proceeding by attempting to both modify and extend Mr. Ford’s probation, as shown on the Order Modifying Probation. (AOB Exhibit A.) Thus, in a case whereprobation has been granted,restitution is no longer a sentencing issue, but rather becomes a condition of probation. II. SECTION 1203.3 IS THE SOURCE OF THE COURT’S AUTHORITY TO MODIFY PROBATION: WHEN PROBATION TERMINATES, THE COURT NO LONGERHAS ANY JURISDICTION TO MODIFY THE PREVIOUSLY-IMPOSED CONDITIONS OF PROBATION It is axiomatic that an order revoking or modifying probation must be made during probation. (People v. White (1982) 133 Cal. App. 3d 677, 682-683; In re Daoud (1976) 16 Cal. 3d 879, 882; People v. DePaul (1982) 137 Cal App 3d 409, 412; see also, In re Griffin (1967) 67 11 Cal.2d 343, 347; People v. Smith (1970) 12 Cal.App.3d 621, 625; People v. Blakeman (1959) 170 Cal App 2d 596; People v. Blume (1960) 183 Cal App 2d 474.) Where no such order is made, “the probationary period terminates automatically on thelast day.[Citations.] If no order of modification or revocation is made before the end of the period of probation delineatedin the original or any subsequentprobation grant, the court has no authority or jurisdiction over the defendant. [Citation.]” (People v. White, supra, at p. 682-683.) The statutory authority for making changes to a previously- imposed grant of probation is found in section 1203.3, which states “[t]he 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 (a).) (Emphasis added.) Further, modification of restitution is specifically addressed in section 1203.3 (b)(4) & (5), which provides: (4) The court may modify the time and mannerof 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 amountof 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 payeesto enforce the obligations in the mannerof judgmentsin civil actions. (5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order 12 pursuantto subdivision (f) of Section 1202.4 at any time during the term ofthe probation. (Ibid.) (Emphasis added.) Furthermore, In re Daoud, supra, 16 Cal. 3d 879 also explains once lost, “a court cannot revive lapsed jurisdiction by the simple expedient of issuing an order nuncpro tunc. [Citation.]” (Jd. at p. 882.) And,failure to act within the term of probation is judicial, not clerical error, hence “it is well settled that judicial error cannot be corrected oncejurisdiction has expired. [Citations omitted.]” (/bid.) Hence, while he was on probation, the court had jurisdiction over Mr. Ford, and wasstatutorily empowered to modify the conditions of his probation. However, the authority provided by section 1203.3 came to an end on March 30, 2012, when Mr. Ford’s probation terminated automatically, at which point the court lost the jurisdiction to makefurther orders relating to this case. As stated in In re Daoud, this wasjudicial not clerical error, and therefore the court cannot issue an order nunc pro tunc to overcome the lapse in jurisdiction. Moreover, as stated in the attached Declaration of Chris P. Andrian (AOB Exhibit D) the continuing and lengthy delays in this case were primarily the result of the People’s inability to provide promised documents relating to Ms. Jennings’ business finances. Indeed, the court refused to set a hearing between April 2011 and August 2011 13 due to the lack of documentation. Meanwhile, Mr. Ford made himself available at numerous court dates, abided by the court’s orders, and continued through his probationary period without incident. As stipulated to by the People, whenthe end of his probation was looming, Mr. Ford made a timely request for the hearing to be set prior to the original probation termination date. Thus, Mr. Ford is no longer subject to probation and therefore there is no mechanism through which the court can makevalid orders modifying any previously imposed terms and conditions of probation. Il. THERE IS NO PRECEDENT TO SUPPORT THE PEOPLE’S ARGUMENT THAT PENAL CODE SECTION 1202.46 AUTHORIZES THE TRIAL COURT TO MODIFY THE TERMS OF PROBATION AFTER PROBATION HAS TERMINATED During oral argumentbefore the court on April 6, 2012, Deputy District Attorney Hammond claimed that Penal Code section 1202.46 granted the court never-endingjurisdiction to modify a restitution orderat any time, even many years, after probation ended. A review of the history and case law showsthatthis interpretation is contraryto the legislative purpose and use of section 1202.46. A. The History of 1202.46 In 1999, the Legislature enacted Senate Bill 1126 (SB 1126), the purpose of which was to convert the provisions of a Department of 14 Corrections (DoC) pilot project into permanentlegislation. (Legis. Counsel’s Dig., Sen. Bill No. 1126 (1999 Reg. Sess.). The DoC had developed a system of allowing inmates to appearin court via audio-video communications rather than personally. (/bid.) Enactment of SB 1126 permanently authorized this program undersection 1202.41. Similarly, the precedinglegislation had also established a pilot program that enabled the State Board of Control to collaborate with the courts regarding the amendmentofrestitution orders. (Ibid.) This pilot included allowing the State Board of Control to determineif the cost of holding a hearing wasjustified, even where the hearing had not been waived. (Ibid.) Thebill therefore also sought to specifically provide that restitution hearings could now be conducted using audio-video communications. In addition, section 1202.41(c) contains the mandate that the other provisions withinthebill would not be construed as prohibiting “an individual or district attorney’s office from independently pursuing the imposition or amendmentofa restitution order that mayresult in a hearing, regardless of whether the victim has received assistance.” (Ibid.) In other words,the bill was focused on dealing with a variety of problemsrelating to the ability to ensure defendants wereable to appear in court when they were already in the custody of Departmentof Corrections. This interpretationof the legislative history is further supported by the California Judges Benchguide 83, which provides guidance on howsection 15 1202.46 allows a restitution order after sentencing whentheinitial amount of restitution is uncertain. (Cal. Judges Benchguide 83: Restitution (CJER 2012), §83.73, p. 83-54.) In particular, the attached ‘judicial tip’ explains this section’s relationship to the problems of transporting inmates from the prison system. The next provision of SB 1126 ultimately provided the language for section 1202.46, which readsas follows: Notwithstanding Section 1170, 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. (Ibid.) Section 1202.46 mustfirst be read then in conjunction with section 1170, which is the statute from which the court derives its authority for determinate sentencing. Its provisions provide the court with authority to recall the original sentence and re-sentence the defendant. (§ 1170(d).) However, this authority is limited to a 120-day period after the original sentence. (/bid.) Thereafter, under section 1170, the court has no authority to amend the sentence once 120 days have 16 transpired. Where a defendant has been sentencedtostate prison, a restitution order must be made at sentencing. (§ 1170(d).) And because there is no condition of probation, which can be used as a vehicle for modifying restitution, any amendmentof restitution where the defendant was committed to state prison can only be achieved by a change to the sentence. Hence, without section 1202.46, the court would lose jurisdiction to re-sentence the defendantafter the first 120 days of incarceration. Whenthe wholebill is considered, the resultant statutes were clearly intended to provide the court with authority to act with regard to restitution whenthe defendant was imprisoned. As discussed at length above, Mr. Ford was granted probation. Hence, section 1202.46 is not applicable to his situation. B. The Case Law After an extensive review of available case law, there are only six published cases that discuss section 1202.46. The first five cases are summarized as follows: 1. People v. Giordano (2007) 42 Cal. 4th 644, 650-651: The defendantwasserving a sentencein state prison. The Court of Appealaffirmed defendant's sentence as modified by the restitution order. It agreed with thetrial court's determination that Penal Codesection 1202.46 granted thetrial court jurisdiction to consider the requestfor restitution seven months after defendantwas sentenced. (Giordano at p. 650-651.) 17 2. People v. Turrin (2009) 176 Cal. App. 4th 1200: The defendant was Serving a sentencein state prison. Thetrial court had lost jurisdiction to modify defendant's restitution fines; thus, an order denying defendant's motion to modify restitution fines wasnot appealable post-judgmentorder. 3. People v. Brown (2007) 147 Cal. App. 4th 1213: The defendant wasServing a sentencein state prison. The only reference to 1202.46 relates to the court’s authority to imposinga restitution orderafter the initial sentencing. This case involved withdrawal of plea after the restitution amount wasaltered from the original agreement. 4. People v. Zackery (2007) 147 Cal. App. 4th 380: The defendant wasServing a sentencein state prison. Theissueis the procedure to be adopted whenthe court, under the authority of 1202.46, corrects a what is deemeda clerical errorat the original sentencing. 5. People v. Moreno (2003) 108 Cal. App. 4th 1: The defendant wasserving a sentencein state prison. This case stands for the proposition that under 1202.46, a sentence is considered invalid if the court at the initial sentencing had neither ordered restitution nor found "compelling and extraordinary reasons” for orderingless than full restitution. The sixth and final case is People v. Bufford (2007) 146 Cal. App. 4th 966, wherein the Court ofAppeal affirmed trial court’s ability to impose restitution after the defendant had completedherstate prison sentence. (Id. at p. 971-972.) Of particular note is the court’s reliance on the procedural history, i.e. that it was the defendant who caused the delay in setting the restitution amount because an appeal was pendingandsherefusedtotestify until the outcomeof the appeal wasaffirmed. (Ibid.) Bufford is the only case 18 that makesanyreference to section 1203.3, the statute allowing modification of restitution during the period of probation. At footnote 4, the court notes: Section 1203.3 does not apply in this case, because defendant wasnotplaced on probation.[.. ..] (Bufford at p. 970, footnote 4.) Thoughnotstated explicitly, it is clearly implied it that if a defendant was on probation, section 1203.3 would apply. Every published case in which section 1202.46 is discussed involves a defendant who was sentencedto state prison. The only case that references probation does so simply to point out that the court does have jurisdiction becausethis is not a case governedby the probation statutes. Deputy District Attorney Hammond also argued the sentence was illegal or invalid because of this failure to modify probation. Again, this assertion is not supported by either the language of the statute or the case law. Rather, “[w]here the court fails to issue an award altogether .. . the sentenceis invalid. [Citation.]” (People v. Rowland (1997) 51 Cal. App. 4th 1745, 1751.) And section 1202.46 itself describes a sentence as being invalid ‘due to the omission ofa restitution orderorfine.’ Here, Mr. Ford did notgo to state prison. Nor did the sentencing court neglect to impose victim restitution: rather, at the time of sentencing, restitution of over Twelve ThousandDollars ($12,000) wasorderedto reflect Ms. Jennings’ medical expenses. Although underPenal Code section 1170(d) a 19 prison sentence can be recalled by the court during the first 120 days, here there was no imposition of prison, and therefore section 1170 does not apply. As discussed above, once formal probationis granted, the Court has authority to act under section 1203.3; probation can be revoked, modified, or terminated. There simply is no alternative vehicle through which the court can alter a sentence more than 18 monthsafter its imposition. Section 1202.46 does not apply and Mr. Ford’s sentence wasneitherillegal nor invalid. IV. THE TRIAL COURT'S IMPOSITION OF A MODIFIED RESTITUTION ORDER AFTER THE TERMINATION OF PROBATION WASAN ACT IN EXCESS OF JURISDICTION TO WHICH MR. FORD DID NOT CONSENT. A. While the court did not lack fundamentaljurisdiction, the court acted in excessof its power. “A lack of jurisdiction in its fundamentalor strict sense results in ‘an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] (People v. Lara (2010) 48 Cal.4th 216, 224-225.) As case law explains, “[nJeither 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.” (Jn re Bakke (1986) 42 Cal. 3d 84, 89.) Indeed, probation statutes themselves contemplate that such fundamental jurisdiction 20 continues, for they provide for the court's determination of certain matters after the end of the probationary term.(/bid.) However, while a court “may have jurisdiction in the strict sense”, it may “nevertheless lack ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds ofrelief, or to act without the occurrence of certain procedural prerequisites.’ [Citation.]” (People v. Lara, supra, 48 Cal.4th at p. 225.) When a court acts outside the boundsof its power,it is said to have acted in excessof jurisdiction. (Ibid.) Mr. Ford does not argue that the trial court lacked fundamental jurisdiction over the subject matter. Rather, while the court does have certain enumerated powers, which enable it to act after probation expires, perhaps the most commonly used being the power to expunge convictions, there is simply no statutory authority which allowsa trial court to modify a condition of probation after termination. The durability of section 1203.3 is discussed above:It is the source of the court’s authority for modifying probation and ends when probation is complete. Of course there can be no doubt the Legislature intended to ensure victims of criminal behavior receive appropriate restitution. However, the current penalogical scheme embodied within section 1202.4 et seq. more than adequately allows for this both at the imposition of sentence and through the subsequentprobationary procedures. 21 The court here seeks to expand its reach without support from either statutory or decisional authority. B. Mr. Ford did not consent to the court’s act in excess of jurisdiction and should not be estoppedfrom raising the issue on appeal. It is well settled that when a court has jurisdiction of the subject, a party whoseeksor consentsto action beyond the court's poweras defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. (City ofLos Angeles v. Cole (1946) 28 Cal.2d 509, 515; Guardianship of Di Carlo (1935) 3 Cal.2d 225, 228-229; People v. Patrich (1897) 118 Cal. 332, 333; Hoshour v. County of Contra Costa (1962) 203 Cal.App.2d 602, 605; Phillips v. Beilsten (1958) 164 Cal.App.2d 450, 457.) Hence, in contrast to fundamental jurisdiction, where a court’s orderis in excess of jurisdiction “is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of > time.’ (People v. Lara, supra, at p. 225.) However, a defendant will be excused from the necessity of a timely objection if such an objection would be futile. (People v. Hill (1998) 17 Cal. 4th 800, 820; People v. Arias (1996) 13 Cal. 4th 92, 159; People v. Noguera (1992) 4 Cal. 4th 599, 638; People v. DeFrance (2008) 167 Cal. App. 4th 486, 501.) In addition, a defendantwill not be estoppedfrom raising an issue on appealif the issue calls into question “the functioning of the courts and in some instances on other considerations of public policy.” (City ofLos Angelesv. Cole, supra, at p. 515.) 22 Here, Mr. Ford was present and ready to continue the hearing scheduled on March 27, 2012. However,prior to entering the courtroom,the Deputy District Attorney informed defense counsel that she was required to return to another courtroom to resume a partially-complete preliminary hearing and would not be able to move forward that afternoon with Mr. Ford’s hearing. This issue was not clear from the very brief transcript of the proceedings before Judge DeMeo. Therefore, a Stipulation and Order to Modify the Record has been attached to this brief. Any objection to the District Attorney's unavailability would have therefore been futile and Mr. Ford should not be estopped from asserting on appeal that the trial court acted in excessofits jurisdiction. CONCLUSION The conceptof never-ending authority to imposevictim restitution espousedbythetrial court and the People flies in the face of logic. The purposeof punishmentis fulfilled when a sentenceis imposed and served, whetherit be in the state prison system or through a completed grant of probation. To allow the re-openingof the question of restitution after the completion of every other aspect of a sentence would subject an otherwise rehabilitated criminal defendantto a lifetime penalty. 23 Mr. Ford respectfully requests that this Court overturn the decision of the First District Court of Appeal and invalidate the restitution order issued by thetrial court in this matter. Dated: August22, 2013 Respectfully submitted, iheLE Jane Ga 24 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, No. Plaintiff and Respondent, A 135733 V. Superior Ct. No. SCR-530837 WILLIAM J. FORD, (Superior Court of Sonoma County) Defendant and Appellant. CERTIFICATE OF WORD COUNT I, Jane Gaskell, appellate counsel of record for WILLIAM J. FORD in this matter, do hereby certify that according to Microsoft Word, the word processing program usedto generate the PETITION FOR REVIEW,the word countof the brief is 5248 . Executed at Santa Rosa, California this 27" day ofAugust LoGaskell CERTIFICATE OF SERVICE The undersigned hereby certifies that she is an employee of the Law Offices of Andrian & Gallenson, attorneys for Defendant and Appellant William J. Ford, and is a person of such age anddiscretion to be competent to serve papers. The undersigned certifies that she caused copies of Appellant's PETITION FOR REVIEW AFTER THE PUBLISHED DECISION OF THE COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION THREE, AFFIRMING THE ORDER OF THE SUPERIOR COURTin the case entitled People v. Ford, Court of Appeal Case No. 135733, to be served onthe parties in this action, addressedasfollows: Office of The Attorney General 455 Golden Gate, Suite 11000 San Francisco, California 94102-7004 Clerk of The Court First District Court of Appeals Division 3 350 McAllister Street San Francisco, CA 94102 (By Federal Express Delivery), | caused such envelope to be shipped by Federal Express, Priority Overnight Delivery, from Santa Rosa, California, to the person oroffice of each addressee above. Honorable Bradford Demeo Sonoma County Superior Court 600 Administration Drive Santa Rosa, California 95403 Sonoma County District Attorney Attention: Robin Hammond Hall of Justice, Room 212-J 600 Administration Drive Santa Rosa, California 95403 (By Personal Service/Messenger), | caused such envelope to be delivered by hand to the personoroffices of each addressee above. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on August 28, 2013 at Santa Rosa, California. COs(1) OS On Cynfiia Waugh Law es Si Andrian & Gallenson> ~ EXHIBIT A Filed 7/17/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, A135733 Vv. WILLIAM J. FORD, (Sonoma County Super. Ct. No. SCR-530837 Defendant and Appellant. mpet ° ) William Ford appeals from an order awarding victim restitution. He contends the court lost jurisdiction to award restitution when his probation term expired nine days earlier. We disagree. The court’s retention ofjurisdiction to determine and award victim restitution was permissible under Penal Code sections 1202.4 and 1202.46irrespective of the expiration of Mr. Ford’s probation. Wetherefore affirm. BACKGROUND Ford severely injured Elaine Jenningsin a hit and run accident in 2008. Following his no contest plea to leaving the scene of an accident, he was placed on three years’ probation and ordered to pay $12,465.88 in restitution for Jennings’s medical expenses. Ford’s probation officer advised the court that Jennings also sought over $36,000 restitution for lost wages. Ford’s counsel expressed his intent to request a hearing on the amountofrestitution. The court expressly reserved jurisdiction to determine the amount of additional restitution. ' All further statutory referencesare to the Penal Code. 1 On May7, 2010, the probation departmentnotified Ford that he owed Jennings $211,000 in victim restitution.” Ford requested a hearing. The hearing wasinitially set for August 3, but there followed a series of delays and continuances during which Ford’s probation was extended several times. The restitution hearing wasfinally held on January 27, March 1, and April 6, 2012. On April 6, defense counsel made limited appearance to contest jurisdiction because Ford’s probation term had expired on March 30. The Peopleasserted the court retained jurisdiction over restitution under section 1202.46 “unless and until the amount ofrestitution owing the victim can be determined.” Following additional briefing on the jurisdictional issue, the court ruled it had jurisdiction to awardrestitution under section 1202.4. “This wasnot just a condition of probation,it wasa restitution order, the Court reserving jurisdiction to determine the amount.” Ford wasordered to pay Jenningsrestitution in the amount of $275,017. This timely appeal followed. DISCUSSION Ford contendsthe restitution award wasa condition of his probation, and therefore that the court had nojurisdiction to alter it once his probation term expired. His contention is without merit. Wehadoccasion to addressa closely related issue in People v. Bufford (2007) 146 Cal.App.4th 966, in which weheld the trial court retained jurisdiction to adjudicate restitution following a defendant’s completion ofher prison sentence. We explained why California’s restitution scheme, embodied in our Constitution and statutes, mandatesthis result: “Article I, section 28 was addedto the California Constitution by initiative measure adopted bythe voters June 8, 1982. Subdivision (b) provides,in part, ‘that all persons whosuffer losses as a result of criminal activity shall have the right to restitution’ andthat ‘[rJestitution shall be ordered from the convicted persons in every case, regardless ofthe sentence or disposition imposed, in which a crime victim suffers loss, * This amount included substantial lost earnings and additional medical expenses. 2 unless compelling and extraordinary reasonsexist to the contrary. The Legislature shall adopt provisions to implementthis section during the calendar year following adoption of this section.” [J] Implementing legislation was added to Penal Code section 1202.4 that now provides, in relevant part that ‘the court shall require that the defendant make restitution to the victim or victims in an amountestablished by court order, based on the amountofloss claimed by the victim or victims or any other showing to the court. If the amountof loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determinedat the direction of the court. .. .. , (§ 1202.4, subd. (f).)” (People v. Bufford, supra, 146 Cal.App.4th at pp. 969-970; see also People v. Giordano (2007) 42 Cal.4th 644, 651-653 [outlining legislative history].) The Legislature also made it clear that the trial court retains jurisdiction to impose or modify a restitution award until the appropriate amount can be ascertained. “Section 1202.46 specifically provides that ‘when the economic losses of a victim cannot be ascertainedat the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subjectto a restitution order for purposes of imposing or modifyingrestitution until such time as the losses may be determined.’ ” (People v. Bufford, supra, 146 Cal.App.4th at p. 970, italics added.) In Bufford we held that these provisions mean exactly what they say and that the completion of a prison term wasirrelevant to the court’s ability to exercise jurisdiction. “Undera reading of the plain language of section 1202.4, if the court cannot determine the amountofrestitution at the time of sentencing, there is no limitation upon whenthe court must nextset a restitution hearing. .. .” (People v. Bufford, supra, 146 Cal.App.4th | at p. 971, italics added.) We also observed that an interpretation that would terminate the court’s ability to adjudicate restitution upon completion of the defendant’s prison term conflicts with the constitutional directive that, absent “compelling and extraordinary circumstances,” restitution must be ordered whenevera crime victim suffers a loss, regardless of the sentence or disposition. We said: “Weare not willing to read section 1202.4 so narrowly that restitution may not be awardedin this case. To do so would frustrate the clear languageofarticle I, section 28.” (/bid.) The same reasoning applies 3 here, and the court retained jurisdiction to award additional restitution without regard to the expiration of Ford’s probation. Ford attempts to distinguish Bufford on the groundthat the defendant there was sentenced to prison, not probation, but nothing in sections 1202.4 or 1202.46 supports that distinction. To the contrary, section 1202.4, subdivision (f) expressly provides that the trial court retains jurisdiction to award or modify restitution “until such time as the losses may be determined.” The Legislature madenodistinction between defendants sentenced to prison terms and those granted probation. Ford maintains the difference is nonetheless meaningful because “where probation has been granted, restitution is no longer a sentencing issue, but rather becomes a condition ofprobation.” Therefore, he argues, the court’s power to modify restitution awards in probation casesis controlled exclusively by section 1203.3, which concerns the court’s powerto revoke, modify, or terminate probation orders during a probationary term. Wedisagree. Initially enacted in 1937, section 1203.3 was amendedin 2000 to specify that “Nothing in this section shall be construed to prohibit the court from modifying the dollar amountof a restitution order pursuant to subdivision (f) of section 1202.4 at any time during the term ofthe probation.” (§ 1203.3, subd. (b)(5), italics added; see Historical and Statutory Notes, 50D West’s Ann. Pen. Code (2004ed.) foll. § 1203.3, p. 534.) Ford says this concluding phrase of subdivision (f) means the court is prohibited from modifying the amount ofrestitution after probation ends, but subdivision (b)(5) neither says so nor, in view of section 1204.46’s contrary directive, can it be applied to encompass that meaning. Subdivision (b)(5) is permissive,notrestrictive. It takes nothing away from the court’s authority to award restitution under section 1204.4. Ford makes muchofour footnote in Buffordthat states: “[s]ection 1203.3 does not apply in this case, because defendant was not placed on probation” (People v. Bufford, supra, 146 Cal.App.4th at p. 970, fn. 4), and suggests we thereby meant to imply that section 1203.3 would have applied had the defendant been given probation instead of a sentence to state prison. Not so, and so what? Weidentified section 1203.3 merely to clarify that it did not apply, and it is fundamental that an opinionis only authority for 4 “* “the points actually involved and actually decided.” ’” (People v. Knoller (2007) 41 Cal.4th 139, 155.) As explained above, section 1203.3 does not limit the jurisdiction delineated by sections 1204.4 and 1204.46. Wetherefore hold the trial court had jurisdiction to award restitution under section 1204.4 whenit awarded Jennings the full amount of economiclosses she suffered as a result of Ford’s actions. DISPOSITION Therestitution orderis affirmed. Siggins, J. Weconcur: Pollak, Acting P.J. Jenkins,J. Trial Court: Trial Judge: Counsel for Appellant: William J. Ford Counsel for Respondent: Superior Court of the County of Sonoma Honorable Bradford DeMeo Jane Gaskell ADRIAN & GALLENSON Kamala D. Harris, Attorney General Dane R. Gillette, ChiefAssistant Attorney General Gerald A. Engler, Senior Assistant Attorney General Seth K. Schalit, Supervising Deputy Attorney General Catherine Mcbrien, Deputy Attorney General