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Name: People v. Waters
Case #: A143557
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 10/26/2015

Trial court lacks jurisdiction to order victim restitution after probationary term has expired. Waters was convicted of felony embezzlement (Pen. Code, §§ 487, subd. (a), 508) in 2008 and placed on probation. Although the victim requested $20,800 in restitution, the trial court did not order it. In March 2011, Waters’ probation was terminated as successfully completed. In October 2013, she filed a petition to reduce her offense to a misdemeanor (Pen. Code, § 1203.4). In response, probation noted that victim restitution had not been ordered. At first Waters agreed to pay restitution, but then withdrew that stipulation. After a hearing, the court ordered restitution. Waters appealed and challenged the court’s jurisdiction to order restitution. Held: Reversed. Penal Code section 1202.4, subdivision (f) requires the trial court to order victim restitution unless the trial court finds compelling and extraordinary reasons for not doing so. Regarding jurisdiction, a trial court’s power to modify a sentence usually expires 120 days after judgment. (See Pen. Code, § 1170, subd. (d).) There is an exception where victim restitution cannot be ascertained at the time of sentencing and the trial court retains jurisdiction to order restitution. (Pen. Code, § 1202.46.) However, section 1202.46 must be harmonized with the preexisting statutory scheme concerning probation, which limits a trial court’s jurisdiction to modify probation to the term of probation (Pen. Code, § 1203.3, subds. (a), (b)(4); Hilton v. Superior Court (2014) 239 Cal.App.4th 766). The Court of Appeal here agreed with Hilton’s conclusion that trial courts lack jurisdiction to impose restitution after the probationary term.

Appellant was not estopped from challenging trial court’s exercise of jurisdiction. The Attorney General argued that, even if the trial court lacked authority to impose restitution after Waters’ probation period ended, Waters was estopped from challenging the trial court’s jurisdiction because she failed to object in the trial court. The Court of Appeal disagreed. A party may be precluded from challenging an order made in excess of jurisdiction due to waiver, estoppel, or the passage of time. However, Waters’ restitution hearing was set long after she successfully completed probation and she played no role in delaying the restitution order.