Filed 11/5/15 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

KANIKA MESI WATERS,

Defendant and Appellant.

 A143557

 (Contra Costa County

 Super. Ct. No. 1-130590-3)

ORDER MODIFYING OPINION 

AND DENYING REHEARING

 NO CHANGE IN JUDGMENT

BY THE COURT:

It is ordered that the opinion filed herein on October 26, 2015, be modified as 

follows:

1. One page 8, third sentence of the first full paragraph, after the words “power to 

impose restitution,” insert the words “in probation cases” so the sentence reads:

While section 1202.4, subdivision (f) does provide that the court shall require the 

defendant to make restitution “in every case in which a victim has suffered 

economic loss as a result of the defendant’s conduct,” it does not expressly grant 

trial courts the power to impose restitution in probation cases other than as a 

condition of probation.

There is no change in judgment. 

Respondent’s petition for rehearing is denied.

Dated:

________________________________

Margulies, Acting P.J.
Filed 10/26/15 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

KANIKA MESI WATERS,

Defendant and Appellant.

 A143557

 (Contra Costa County

 Super. Ct. No. 1-130590-3)

Defendant Kanika Mesi Waters appeals from a victim restitution order entered in 

connection with her plea to one count of grand theft by embezzlement. Defendant argues 

the court lacked jurisdiction because she successfully completed her probation over two 

years before the court ordered restitution. We find the court acted in excess of its 

jurisdiction and therefore reverse.

I. BACKGROUND

In April 2007, defendant was charged by felony complaint with one count of grand 

theft embezzlement by clerk, agent, or servant. (Pen. Code,1§§ 487, subd. (a), 508.) 

While defendant was a Bank of America (BofA) employee, she accessed seven customer 

accounts, changed the customers’ addresses to the Hayward address of Elexsis Nation, a 

former BofA employee, sent new ATM cards and PIN’s to Nation’s Hayward address,

and then updated the customers’ information again to reflect their true addresses. Nation 

used the ATM cards to make numerous withdrawals totaling over $20,000. BofA 

covered the customers’ losses, and in December 2007, filed a victim impact statement, 

claiming a loss of $20,800. 

 

1 All statutory references are to the Penal Code.
2

On January 10, 2008, defendant pled no contest to the charges. In reciting the 

terms of the plea agreement, the prosecutor stated defendant would pay restitution in an 

amount to be determined. However, when the trial court placed defendant on three years 

of probation, it only ordered her to pay a $200 restitution fine. It failed to order 

defendant to pay restitution to BofA. 

In November 2008, the probation department filed a petition to revoke probation 

because defendant failed to report an address change. The court issued a bench warrant. 

It is unclear from the record what happened next. The record does reflect defendant 

appeared before the court in custody on May 16, 2011. On May 31, 2011, the court 

terminated probation as successfully completed. 

Over two years later, on October 15, 2013, defendant filed a petition seeking 

reduction of her felony conviction to a misdemeanor pursuant to section 1203.4. In 

response, the probation department filed a recommendation, noting victim restitution had 

not been ordered, even though BofA had earlier filed a victim impact statement 

requesting $20,800 in restitution. 

At a January 3, 2014 hearing on the matter, the court indicated it intended to order 

restitution. Defense counsel stated defendant was prepared to go forward and would 

stipulate to restitution in the amount of $20,800. At the conclusion of the hearing, the 

court stated the section 1203.4 petition would not be granted unless restitution was paid 

in full. 

At hearing held on a March 14, 2014, defendant withdrew her stipulation and 

contested the amount of restitution. She did not, however, contest the court’s jurisdiction 

to order restitution. The court allowed the withdrawal of the stipulation, and after several 

continuances, held a hearing to consider evidence concerning the amount of victim 

restitution on October 31, 2014. At the October 31 hearing, the court set victim 

restitution at $20,800. 

II. DISCUSSION

The issue on appeal is whether the trial court acted in excess of its jurisdiction by 

imposing victim restitution after the expiration of defendant’s probation. We conclude 
3

that it did. We also conclude defendant is not estopped from challenging the trial court’s 

exercise of jurisdiction. 

A. Statutory Scheme

“In 1982, California voters passed Proposition 8, also known as The Victims’ Bill 

of Rights. . . . Proposition 8 established the right of crime victims to receive restitution 

directly ‘from the persons convicted of the crimes for losses they suffer.’ (Cal. Const., 

art. I, § 28, subd. (b).) The initiative added article I, section 28, subdivision (b) to the 

California Constitution: ‘It is the unequivocal intention of the People of the State of 

California that all persons who suffer losses as a result of criminal activity shall have the 

right to restitution from the persons convicted of the crimes for losses they suffer. [¶] 

Restitution shall be ordered from the convicted persons in every case, regardless of the 

sentence or disposition imposed, in which a crime victim suffers a loss, unless 

compelling and extraordinary reasons exist to the contrary.’ ” (People v. Giordano

(2007) 42 Cal.4th 644, 652.)

As Proposition 8 was not self-executing, the Legislature enacted implementing 

legislation. (People v. Giordano, supra, 42 Cal.4th at p. 652.) Section 1202.4 authorizes 

the imposition of restitution fines, which support a fund that compensates victims, and 

restitution payments to victims. (§ 1202.4, subds. (e), (f).) Under subdivision (f) of 

section 1202.4, the trial court is obliged to require the defendant to pay full restitution to 

victims of a crime “unless it finds compelling and extraordinary reasons for not doing so, 

and states them on the record.” Under subdivision (m) of section 1202.4, the trial court 

must incorporate any such order in the defendant’s conditions of probation. In view of 

these statutory requirements, this court has held a sentence is invalid where a trial court 

fails to issue a restitution award to the victim. (People v. Rowland (1997) 51 Cal.App.4th 

1745, 1750–1752.)

Pursuant to section 1170, subdivision (d), a trial court generally “does not have 

open-ended jurisdiction to modify a sentence; the court’s jurisdiction expires after 120 

days.” (People v. Willie (2005) 133 Cal.App.4th 43, 49.) Section 1202.46 sets forth an 

exception to this rule for the purposes of determining restitution: “Notwithstanding 
4

Section 1170, when the economic losses of a victim cannot be ascertained at the time of 

sentencing . . . , 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.” 

As to a trial court’s jurisdiction to modify probation, section 1203.3, 

subdivision (a) provides: “The 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.” Under subdivision (b)(4) of section 1203.3: “The court may modify the 

time and manner of 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 amount of 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 payees to enforce the obligations in the 

manner of judgments in civil actions.” Subdivision (b)(5) of section 1203.3 states: 

“Nothing in this section shall be construed to prohibit the court from modifying the dollar 

amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time 

during the term of the probation.”

B. Case Law

In In re Griffin (1967) 67 Cal.2d 343 (Griffin), our Supreme Court addressed the 

meaning of former section 1203.3, which also stated trial courts had the authority to 

revoke or modify probation “ ‘at any time during the term of probation.’ ” (Griffin, at 

p. 346.) In that case, the defendant violated the terms of probation by failing to make 

required restitution payments. (Id. at pp. 344–345.) At the defendant’s request, the 

probation revocation hearing was continued to a date after the expiration of his probation 

term, at which time his probation was revoked. (Id. at p. 345.) The defendant filed a 

petition for a writ of habeas corpus, arguing the trial court lacked jurisdiction to revoke 
5

his probation. (Id. at pp. 345–346.) The court found the defendant had asked the trial

court to act in excess of its jurisdiction by requesting a continuance and he was therefore 

estopped from challenging the exercise of jurisdiction. (Id. at p. 348.)

The Supreme Court reached a similar conclusion in In re Bakke (1986) 42 Cal.3d 

84 (Bakke). There, the court stayed the imposition of a jail term and sentenced the 

defendant to probation pending the resolution of the defendant’s appeal. (Id. at p. 86.) 

The defendant petitioned for habeas corpus, contending the trial court lost jurisdiction to 

order execution of the jail term because the appeal had run longer than the period of 

probation. (Id. at p. 89.) Analogizing to Griffin, the Supreme Court held the trial court 

did not exceed its jurisdiction. (Bakke, at p. 89.) The court reasoned: “Like a request for 

a continuance of a revocation hearing, an application for a stay of execution of a jail term 

pending appeal contemplates that the proceedings related to that term will resume at a 

later time.” (Ibid.)

In People v. Ford (2015) 61 Cal.4th 282 (Ford), the Supreme Court revisited the 

doctrine of estoppel to contest jurisdiction. At the sentencing in that case, the court 

ordered the defendant to pay the victim $12,465.88 for medical expenses and reserved 

jurisdiction to determine the amount of additional restitution, including lost wages. (Id.

at p. 285.) After the restitution hearing was continued several times, due in part to 

defense requests for more time, the defendant argued the court lacked jurisdiction to 

order additional restitution because the defendant’s term of probation had expired. (Id. at 

p. 286.) The Supreme Court found the trial court had the power to order restitution. As 

an initial matter, the court distinguished between a lack of fundamental jurisdiction, i.e., 

where a court has no authority at all over the subject matter or the parties, and ordinary 

acts in excess of jurisdiction, which a party may be precluded from challenging due to 

waiver, estoppel, or the passage of time. (Id. at pp. 286–287.) Citing to Bakke, the court 

concluded the expiration of the probationary period did not terminate the court’s 

fundamental jurisdiction. (Ford, at p. 287.) The court declined to determine whether the 

trial court acted in excess of its jurisdiction, finding the defendant’s consent to the court’s 

continued exercise of jurisdiction estopped him from challenging it. (Id. at p. 288.) The 
6

court stated: “In the circumstances here, where defendant’s own requests played a role in 

delaying the proceedings and defendant did not object to a continuance of the restitution 

hearing to a date beyond his probationary term, he can be understood to have consented 

to the continuance.” (Ibid.) 

The Second Appellate District recently found a trial court lacked jurisdiction to 

order restitution after probation expired in Hilton v. Superior Court (2014) 

239 Cal.App.4th 766 (Hilton).

2

In that case, the defendant pled no contest to driving 

under the influence and unlawful use of a license after he struck a pedestrian with his 

vehicle. (Id. at p. 769.) The court ordered the defendant to pay victim restitution of 

$3,215. (Ibid.) The pedestrian subsequently filed a civil suit against the defendant, 

which settled for $3.5 million. (Id. at pp. 769–770.) After the defendant’s probation 

expired, the pedestrian filed a motion seeking $886,000 in additional restitution for the 

attorney fees and costs incurred in the civil action, as well as future lost wages. (Id. at 

p. 770.) The trial court held it had jurisdiction to consider the motion. (Ibid.)

In considering the defendant’s petition for writ of mandate, the Hilton court found 

the trial court lacked jurisdiction to order restitution. (Hilton, supra, 239 Cal.App.4th at 

p. 771.) The court held Griffin and its progeny taught that a trial court loses jurisdiction 

over a defendant once the defendant’s probationary term expires. (Hilton, at pp. 771–

773.) The court also held section 1203.3, subdivision (b)(4) and (5) reflected a legislative 

intent that trial courts will lack jurisdiction to impose restitution after the probationary 

term. (Hilton, at pp. 775–776.) The court rejected the People’s contention that the trial 

court retained jurisdiction to impose restitution under section 1202.46, reasoning section 

1202.46 must be harmonized with preexisting statutory and case law. (Hilton, at p. 780.)

 

2 On June 11, 2014, the Supreme Court granted review in Hilton and deferred 

action in the matter pending its disposition of Ford. After Ford was decided, the court 

dismissed review of Hilton. On August 26, 2015, the court granted a request to republish 

the Second Appellate District’s opinion in Hilton.
7

C. The Trial Court Acted in Excess of its Jurisdiction

In this case, the trial court ordered defendant to pay restitution over two years after 

the expiration of her probation, when she petitioned for dismissal of her felony 

conviction. We agree with the reasoning of the Second Appellate District in Hilton and 

find the restitution order was an act in excess of the trial court’s jurisdiction.

 Section 1203.3 limits the trial court’s authority to modify the conditions of a 

defendant’s probation, including the defendant’s restitution obligations, to the

probationary period. Subdivision (a) of the statute states: “The 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, subd. (a), italics added.) 

Subdivision (b)(4) provides: “The court may modify the time and manner of 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.” (§ 1203.3, subd. (b)(4), 

italics added.) Likewise, subdivision (b)(5) states: “Nothing in this section shall be 

construed to prohibit the court from modifying the dollar amount of a restitution order 

pursuant to subdivision (f) of Section 1202.4 at any time during the term of the 

probation.” (§ 1203.3, subd. (b)(5), italics added.) 

As the Second Appellate District held in Hilton, to construe section 1203.3 as 

applying after a defendant’s probationary term would render the phrases “while on 

probation” and “during the term of probation” surplusage. (Hilton, supra, 

239 Cal.App.4th at pp. 775–776.) Moreover, when the Legislature enacted 

subdivision (b)(4) of section 1203.3 in 19953and subdivision (b)(5) in 2000,4it is 

presumed to have been aware of the Supreme Court’s earlier decision in Griffin, supra, 

67 Cal.2d at page 346, which holds that “ ‘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 

 

3

(Former § 1203.3, as amended by Stats. 1995, ch. 313, § 9, p. 1762, eff. Aug. 3, 

1995.)

4

(Former § 1203.3, as amended by Stats. 2000, ch. 1016, § 11, p. 7471.) 
8

has expired.’ ” As the Legislature framed the language of section 1203.3 in a manner 

similar to that of Griffin, we presume it intended to convey the same meaning. (Cf. 

People v. Harrison (1989) 48 Cal.3d 321, 329.)

The Attorney General argues Griffin is inapposite because the victim restitution 

order in this case was not a condition of probation. But the Attorney General has not 

identified any authority which would allow a trial court to order victim restitution outside 

of probation in this situation. While section 1202.4, subdivision (f) does provide that the 

court shall require the defendant to make restitution “in every case in which a victim has 

suffered economic loss as a result of the defendant’s conduct,” it does not expressly grant 

trial courts the power to impose restitution other than as a condition of probation. 

Moreover, subdivision (m) of section 1202.4 suggests that, in this context, victim 

restitution can only be ordered as part of probation. Specifically, the provision states: 

“In every case in which the defendant is granted probation, the court shall make the 

payment of restitution fines and orders imposed pursuant to this section a condition of 

probation.” (§ 1202.4, subd. (m).)

Nor does section 1202.46 support the Attorney General’s position. That statute, 

which was enacted in 1999, provides “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 further states that it 

should not be construed to prohibit “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.” (Italics added.) The statute’s use of the phrase 

“at any time” cannot be read in isolation and must be harmonized with the preexisting 

statutory and case law concerning probation, including section 1203.3, which limits the 

court’s power to modify probation and restitution after the expiration of the probationary 

period.

5

 

5 Contrary to the Attorney General’s contention, People v. Moreno (2003)

108 Cal.App.4th 1, and People v. Bufford (2007) 146 Cal.App.4th 966, do not demand a 

different interpretation. While those cases approved of postjudgment restitution awards, 
9

Accordingly, we conclude that the trial court exceeded its authority by ordering 

victim restitution after the conclusion of probation. To hold otherwise could lead to 

anomalous results. For example, under the Attorney General’s view, a trial court that 

fails to consider victim restitution in the first instance, could order a defendant to pay 

such restitution decades after probation expires. The trial court could even go so far as to 

order a defendant’s estate to pay restitution after learning of the defendant’s death. While 

we are sensitive to concerns about making crime victims whole, there must be some 

discernible limit to a trial court’s power over a defendant after he or she completes his or 

her sentence. 

D. Defendant is Not Estopped from Challenging the Exercise of Jurisdiction

The Attorney General argues that even if the trial court lacked authority to impose 

restitution after defendant’s probation period ended, defendant is estopped from 

challenging the exercise of that jurisdiction since she failed to object below. We 

disagree. As discussed above, in at least three cases, Griffin, Bakke, and Ford, the 

Supreme Court found defendants were estopped from contesting jurisdiction to modify 

their sentences. In two of those cases, the defendant requested to continue the hearings at 

issue to a time after the expiration of the defendant’s probationary term. (Griffin, supra,

67 Cal.2d at p. 347; Bakke, supra, 42 Cal.3d at p. 89.) In the third case, the defendant 

consented to a continuance of a restitution hearing to a time after probation had expired,

and his own requests played a role in delaying the proceedings. (Ford, supra, 61 Cal.4th 

at pp. 285–286.) In contrast, in the instant action, no attempt was made to set a 

restitution hearing until long after defendant successfully completed her probation. 

Defendant only appeared before the court after the expiration of her probation because 

 

neither involved probation. Moreover, in Moreno, restitution was ordered while the 

defendant was still serving his sentence. (Id. at pp. 3–4.) And unlike in the instant 

action, the trial court in Bufford expressly ordered the defendant to pay restitution at 

sentencing. (Id. at p. 968.) The issue on appeal was whether the trial court could reserve 

jurisdiction to set the amount of restitution. (Id. at p. 970.) 
10

she sought to dismiss her felony conviction pursuant to section 1203.4. Moreover, 

defendant played no role in delaying the order of restitution.6 

III. DISPOSITION

We reverse the trial court’s order directing defendant to pay restitution.

 

6 Having found defendant is not estopped from challenging the exercise of 

jurisdiction, we do not reach defendant’s ineffective assistance of counsel claim.
11

_________________________

Margulies, Acting P. J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.

A143557

People v. Waters
12

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Terri Mockler

Counsel: 

Jonathan Soglin and Jeremy Price, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, 

Assistant Attorneys General, Catherine A. Rivlin and Allen R. Crown, Deputy Attorneys 

General for Plaintiff and Respondent.