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 T akeya 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

. A ppellant contend s the trial court was without authority to modify the amount of restitution owed to the victim following termination of probation

. Appellant r e lies on People v. Martinez (2017) 2 Cal.5th 1093 ( Martinez ) to

argue that the cou rt’s jurisdiction to do so was not extended by Penal Code2

section 1202.46 1 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 1 202.4. 2 BACKGROUND
I n 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
I n November 2017, pursuant to a n 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 pr obation pursuant to Assembly Bill No. 1950 (Stats. 2020, ch. 328)?” ( McCune , supra , S276303.)

3 A detailed summary o f the underlying offense is not necessary to resolve the issue on appeal. In brief, according to summaries in a probation report and resp ondent’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 jo b had not yet taken effect.3

restitution for all los s es & 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 a n 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 restit ution hearing was set and continued numerous times. Hearings in Ma y, July, and August were continued because the parties were

a waiting supporting documentation from the victim. At the August hearing, the prosecutor stated, “ it appears through the notes t hat 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

. Ap pellant 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 A ssembly 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 , i n 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 prosecut ion opted to rely solely on the medical documenta tion and presented a packet of documents includ ing two hospital bills, an ambulance bill, bills for prescriptions, and additional medical bills , totaling $86,306.12. 6
T he court ordered victim restitution in th at 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.Ap p.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 t o 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. 65 2

– 65 3.)

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 make5

[ d efendant who pled guilty only to leaving scene of an injury a ccident 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 af ter 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, t he Legislature expanded victims’ access to restitution in
the 1990 ’ s by enacting section 1202.4

. . . . Subdivision (f) of s ection 1202.4 [provides] : ‘ [i]f the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall inc lude 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 am ount 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 th e 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 re tain 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 p p

. 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 du ring 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 p p . 653

– 654 , italics added .) McCune declined to follow the
decisions in Hilton v. Superior Court (201 4) 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 restitut ion orders, during the term7

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 p p

. 654

– 655.)
A ppellant argues McCune is distinguishable because the restitution
order in the present case co uld 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 V ehicle 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 pr event 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 ones elf.” ’ ” ( 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

sect ion 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

– 10 98 ; 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 t he accident itself, rather th an 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 victi m 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.]
Th ey 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 the9

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. 110 7 .) 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 de fendant 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 powe r 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 impris onment, 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 an y 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 resti tution for
losses due to t he accident itself only as a probation condition under
section 1203.1 . ( Martinez , supra , 2 Cal.5th at p. 110 1; 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 impo sing 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, m odification 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 con dition 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.) S ection 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

. ( Mc Cune , 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

– 83 0 ; Hilton , supra , 239 Cal.App.4th at pp. 77 2

– 776 ; s ee 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, w e upheld th e post

termination restitution order under section 1202.46. ( McCune , at pp. 651,
653. ) W e 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
discuss ed above, we agree with appellant’s argument that Martinez clarifies

11 The Hilton and Waters decisions properly construed th e Penal Code as it relate s to a restitution order imposed solely under a trial court’s discretion to fashion cond ition s 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 impose s 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 Am erica , 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, r espondent argues 12 that the retention of jurisdiction in section
1202.46 extends to a probation order awarding restitution that could not be
awarded u nder 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 reference s to section 1202.4 in section 1202.46 13 support a conclusion that retention of jurisdiction is limited to restitution orders for losses resulting f rom 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 v ictim 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 l osses 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 pu rsuant to Section 1202.4. ”13

to apply section 1202.46 to all restitution orders, including those imposed a s probation conditio ns for losses not resulting from a defendant’s criminal conduct, there would have been no need to include the reference to subdivision (f) of s ection 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

. Th us , the trial court was not authoriz ed to impose the restitution obligation under s e ction 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 t ermination 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

a nd 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 durin g 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 S IMONS , J.

WE CONCUR:

J ACKSON , P. J.

B URNS , J.

A 167703 People v. Koontzy15

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.