People v. Koontzy ( 2024 )

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
1
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
1 All undesignated statutory references are to the Penal Code.
2 The Supreme Court granted review in McCune to consider the
question, “Did the trial court exceed its jurisdiction by setting the amount of
victim restitution after terminating defendant’s probation pursuant to
Assembly Bill No. 1950 (Stats. 2020, ch. 328)?” (McCune, supra, S276303.)
3 A detailed summary of the underlying offense is not necessary to
resolve the issue on appeal. In brief, according to summaries in a probation
report and respondent’s restitution brief below, the victim was standing on
the side of a road speaking to another person when she was struck by the side
view mirror of appellant’s car as appellant drove by. Appellant did not stop
and was later detained. The victim had injuries to her abdomen and arm and
a hairline fracture to her back. At the time of the collision, the victim was
not covered by medical insurance because her husband’s benefits from a new
job had not yet taken effect.
2
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
4 The plea agreement did not include a Harvey waiver as to the reckless
driving charge (see People v. Harvey (1979) 25 Cal.3d 754), so we need not
consider whether such a waiver would affect the result on appeal.
5 It appears the probation term actually terminated earlier under
Assembly Bill No. 1950 (2019–2020 Reg. Sess.), effective January 1, 2021,
which limited most probation terms to two years (Stats. 2020, ch. 328, § 1).
3
section 1203.4. In April 2022, the prosecution sought a determination of
restitution, and, in July 2022, over appellant’s objection, the trial court
concluded it retained jurisdiction to modify the victim restitution order.
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.)
6 Section 1202.4 provides in part: “(a)(1) It is the intent of the
Legislature that a victim of crime who incurs an economic loss as a result of
the commission of a crime shall receive restitution directly from a defendant
convicted of that crime [¶] . . . [¶] (f) Except as provided in subdivisions (p)
and (q), in every case in which a victim has suffered economic loss as a result
of the defendant’s conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or any other
showing to the court. If the amount of loss cannot be ascertained at the time
of sentencing, the restitution order shall include a provision that the amount
4
[defendant who pled guilty only to leaving scene of an injury accident may
not be ordered to pay restitution for damages caused by the collision].) She
contends the governing statutes are sections 1203.1 and 1203.3, relating to
conditions of probation generally, and those statutes do not permit
modification of a condition after termination of probation. Reviewing de novo
the question of the scope of the trial court’s statutory authority (McCune, at
pp. 651–652), we conclude the trial court erred in modifying the restitution
order after termination of appellant’s probation.
“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 . . . .”
5
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,
81 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
6
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.’
7
(§ 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.)
7 Indeed, respondent entirely fails to address appellant’s argument.
8
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
8 Because section 1202.4 implements the right to direct victim
restitution under the California Constitution (Cal. Const., art. I, § 28,
subd. (b)(13); Martinez, 2 Cal.5th at p. 1100 & fn. 1), respondent’s argument
that the restitution order in the present case was mandated by the
Constitution also fails. (See Martinez, at p. 1100 [characterizing the
constitutional right as “a right to be compensated by the defendant for losses
incurred as a result of the defendant’s crime”].) As explained, the restitution
order in the present case could not be imposed as direct victim restitution
within the meaning of section 1202.4 and the Constitution.
9 Section 1203.1, subdivision (j) provides in part, “The court may impose
and require any or all of the terms of imprisonment, fine, and conditions
specified in this section, and other reasonable conditions, as it may determine
are fitting and proper to the end that justice may be done, that amends may
be made to society for the breach of the law, for any injury done to any person
resulting from that breach, and generally and specifically for the reformation
and rehabilitation of the probationer . . . .”
9
authority to impose restitution as a condition of probation in circumstances
not otherwise dictated by section 1202.4. . . . When section 1202.4 imposes its
mandatory requirements in favor of a victim’s right to restitution, the statute
is explicit and narrow. When section 1203.1 provides the court with
discretion to achieve a defendant’s reformation, its ambit is necessarily
broader”].)
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
10
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)
10 The Hilton and Waters decisions properly construed the Penal Code
as it relates to a restitution order imposed solely under a trial court’s
discretion to fashion conditions of probation; where we believe those courts
erred was in concluding that section 1202.46 does not extend a court’s
jurisdiction where a court properly imposes restitution under section 1202.4.
(See McCune, supra, 81 Cal.App.5th at pp. 653–655.)
11
92 Cal.App.5th 596, 611 [“A case is not authority for a proposition not
considered therein or an issue not presented by its own particular facts.”].)
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.
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SIMONS, J.
WE CONCUR:
JACKSON, P. J.
BURNS, J.
A167703
People v. Koontzy
13
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.
14