1

Filed 5/23/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

TAKEYA LASHAY KOONTZY,

Defendant and Appellant.

 A167703

 (Napa County

 Super. Ct. No. CR183615)

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 
2

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.
3

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). 
4

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 $86,306.12.6 

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.

7 (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 We observe that this was virtually identical to the amount disclosed 

in the April 2019 restitution investigation report prepared by the probation 

department.

7 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 
5

[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 

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 

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 . . . .”
6

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 

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 under section 1202.4 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 
7

of probation. (§ 1203.3, subds. (a), (b)(4) [&] (5).) Section 1202.4 grants 

additional authority to address the specific situation in which ‘the amount of 

loss cannot be ascertained at the time of sentencing,’ and it mandates that 

the restitution order ‘shall include a provision that the amount shall be 

determined at the direction of the court.’ (§ 1202.4, subd. (f).) When a court 

follows this process, section 1202.46 grants the court jurisdiction ‘for 

purposes of imposing or modifying restitution until such time as the losses 

may be determined’ (§ 1202.46), even if that occurs after probation has 

ended.” (McCune, at pp. 654–655.)

Appellant argues McCune is distinguishable because the restitution 

order in the present case could not have been made pursuant to section 

1202.4, because the victim’s damages were not due to her criminal conduct. 

We agree. The California Supreme Court’s decision in Martinez, supra, 

2 Cal.5th 1093, which also involved a conviction under Vehicle Code section 

20001, subdivision (a), is directly on point. Martinez explained that,

“[A]lthough the Vehicle Code section 20001(a) offense is commonly referred to 

as a hit and run, the term is something of a misnomer; the offense is ‘more 

accurately described as fleeing the scene of an injury accident.’ [Citation.] 

That is to say, ‘ “the act made criminal” ’ under the statute ‘ “is not the 

‘hitting’ but the ‘running.’ ” ’ [Citation.] ‘ “The legislative purpose of sections 

20001 and 20003 is to prevent the driver of a vehicle involved in an injurycausing 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, 
8

section 1202.4 . . . provides that the defendant must pay restitution directly 

to the victim for losses incurred ‘as a result of the commission of a crime.’ 

(§ 1202.4, subd. (a)(1); see [citation].) ‘To the extent possible,’ direct victim 

restitution is to be ordered in an amount ‘sufficient to fully reimburse the 

victim or victims for every determined economic loss incurred as the result of 

the defendant’s criminal conduct.’ (§ 1202.4, subd. (f)(3).) Application of 

these provisions depends on the relationship between the victim’s loss and 

the defendant’s crime. Here, defendant’s crime was not being involved in a 

traffic accident, nor does his conviction imply that he was at fault in the 

accident. Defendant’s crime, rather, was leaving the scene of the accident 

without presenting identification or rendering aid. Thus, under 

section 1202.4, the trial court was authorized to order restitution for those 

injuries that were caused or exacerbated by defendant’s criminal flight from 

the scene of the accident, but it was not authorized to award restitution for 

injuries resulting from the accident itself.” (Martinez, supra, 2 Cal.5th at 

pp. 1097–1098; see also id. at pp. 1104–1105, 1107.)

Respondent does not dispute appellant’s contention that the restitution 

order is entirely for losses due to the accident itself, rather than for any 

losses caused or exacerbated by appellant’s flight. 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 
9

type of restitution at issue.” (Martinez, supra, 2 Cal.5th at p. 1100.) The 

second type of restitution is that mandated by section 1202.4, which requires 

“direct victim restitution for losses resulting from the defendant’s crime.” (Id.

at p. 1107.)8 In addition, 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 

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 . . . .”
10

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 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”].)

10

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 

10 Although Martinez distinguishes between direct victim restitution 

under section 1202.4 and restitution ordered as a condition of probation,

section 1202.4 “requires restitution in every case, without respect to whether 

probation is granted.” (People v. Giordano (2007) 42 Cal.4th 644, 653.)

Section 1203.1 provides additional authority for such an order, as well as 

“broader discretion” as to the scope of restitution. (Giordano, at p. 653.)
11

termination of probation. (McCune, supra, 81 Cal.App.5th at pp. 653–654, 

citing and quoting § 1203.3, subds. (a), (b)(4) & (b)(5).) McCune also 

acknowledged the Supreme Court’s decision in In re Griffin (1967) 67 Cal.2d 

343, 346, which observed that, “The cases have consistently taken the view 

. . . that ‘the statute itself furnishes the measure of the power which may 

thus be exercised’ and ‘the court loses jurisdiction or power to make an order 

revoking or modifying the order suspending the imposition of sentence or the 

execution thereof and admitting the defendant to probation after the 

probationary period has expired.’ ” (Accord, Waters, supra, 241 Cal.App.4th 

at pp. 829–830; Hilton, supra, 239 Cal.App.4th at pp. 772–776; see McCune, 

at p. 654 [citing Griffin].)11

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 posttermination restitution order under section 1202.46. (McCune, at pp. 651, 

653.) 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 

11 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.)
12

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)

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.”].)

Finally, respondent argues12 that the retention of jurisdiction in section 

1202.46 extends to a probation order awarding restitution that could not be 

awarded under section 1202.4: “[T]he reference to the determination of 

economic loss contained in section 1202.46—by way of reference to section 

1202.4, subdivision (f)—was one of process only and was not intended as a 

limitation on a trial court’s ability to determine the amount of restitution in a 

probation case once probation has expired.” However, the references to 

section 1202.4 in section 1202.4613 support a conclusion that retention of 

jurisdiction is limited to restitution orders for losses resulting from a

defendant’s criminal conduct—which is the scope of restitution mandated by 

section 1202.4 and the California Constitution. Had the Legislature intended 

12 Respondent failed to address appellant’s argument based on 

Martinez in its brief on appeal, but it filed a petition for rehearing responding 

to the argument.

13 Section 1202.46 provides, “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. This section does not prohibit 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 

pursuant to Section 1202.4.” 
13

to apply section 1202.46 to all restitution orders, including those imposed as

probation conditions for losses not resulting from a defendant’s criminal 

conduct, there would have been no need to include the reference to 

subdivision (f) of section 1202.4 in the first sentence of section 1202.46. (See

People v. Hudson (2006) 38 Cal.4th 1002, 1010 [“interpretations that render 

statutory terms meaningless as surplusage are to be avoided”]; accord,

Plantier v. Ramona Mun. Water Dist. (2019) 7 Cal.5th 372, 386.)14

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.

14 Respondent also points out that sections 1203.1 and 1203.3 contain 

references to section 1202.4: in section 1203.1, subdivision (a)(3), language 

stating that a restitution order is “enforceable as a civil judgment forthwith 

and in accordance with section 1202.4;” and in section 1203.3, subdivision 

(b)(5), language that the “section does not 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.” But those limited 

references do not mean that all restitution awards imposed as probation 

conditions may be treated as section 1202.4 awards for purposes of section 

1202.46.
14

SIMONS, J.

WE CONCUR:

JACKSON, P. J.

BURNS, J.

A167703

People v. Koontzy
15

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.