Filed 2/29/24 P. v. Escobar CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARK ANTHONY ESCOBAR

,

Defendant and Appellant. B3 2 7727

(Los Angeles County Super. Ct. No. VA149861 )

APPEAL from an order of the Superior Court of
Los Angeles County, Scott R. Herin

, Judge. Affirmed.
J effrey S. Kross , 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

, Assistant Attorney General

, Noah P. Hill and Steven E. Mercer , Deputy Attorney s General for Plaintiff and Respondent.2 Defendant Mark Anthony Escobar appeals from an
order imposing victim restitution pursuant to Penal Code
section 1202.4 , subdivision (f). 1 He contends that t he court lacked jurisdiction to make the order because his probation

term had previously expired. We conclude tha t even if the

court improperly extended defendant’s probation beyond
the statutory maximum term, the court had jurisdiction to
determine the amount of restitution and make the challenged
order. We the refore affirm.

FACTUAL AND PROCEDURAL SUMMARY

In 2018 , the district attorney’s office charged defendant
with felony reckless driving on a highway causing injury to R.L. (Veh. Code, § § 2310 3, subd. (a), 23105 (count 1) ), misdemeanor reckless driving on a highway caus ing injury to K.B. (Veh. Code, §§ 23103, subd. (a), 2310 4, subd. (a) (count 2) ) , and driving the wrong way on a divided highway causing injury to R.L. ( Veh. Code, § 21651, subd. (c) (count 3) ). On February 2 5, 2019, defendant pleaded no contest

to count 3 pursuant to a plea agreement

. The court found him guilty of the charge and, in accordance with the agreement, suspended imposition of sentence and placed him on three years probation on the conditions , among others, that he serve 90 days in ja il and make restitution to the victims in an amount to be
determined at a hearing. T he court dismissed the two remaining

counts. Defendant acknowledged , however, that his restitution obligation would require restitution for the victims of all three

counts alleged. (See § 1 192.3, subd. (b).)

1 Subsequent statutory references are to the Penal Code

.3 On July 31, 2019 , the court summarily revoked defendant’s probation due to his failure to report to the probation department

. On December 18, 2019, t he court reinstated probation on the same terms and conditions

. 2
In 2020, the Legislature enacted Assembly Bill No. 1950 (2019

– 2020 Reg. Sess.) , which amended section 1203.1 to limit periods of felony probation to two years, with some exceptions not applicable here. ( Stats. 2020, ch. 328, § 2; see § 1203.1, subds. (a) & ( l ).) During a hearing held o n February 2, 2021, the court considered the probation department ’s recommend ation that
the court again revoke defendant’s probation because he had not reported to the department since September 2020. Defendant
and his counsel stipulated to extend his probation to February 1,
2022

. T he court accepted the stipulation and stated that

“ defendant remains on probation upon the same terms and conditions.” On April 29, 2021, the court s ummarily revoked defendant’s probation when defendant failed to appear for

a progress report hearing

. During a hearing held on July 15, 2021, a deputy district attorney informed the court and counsel that the victim
restitution amounts are $21,589 for K.B. and $4,736 for R.L

. Neither victim was present at the hearing. Defendant , with his
counsel joining, stipulated to pay these amounts

. The court then
reinstated defendant on probation and ordered him to pay the stipulated restitution

.

2 Defendant calculates the period from July 31, 2019 to December 18, 2019, during which his probation was tolled, to be 110 days. It is 140 days.4 On November 15, 2021, defendant admitted that he
had violated probation by failing to report to the probation department in October 2021. T he court revoked his probation
and

, upon defendant’s agreement to extend his probation to November 15, 2022, reinstated his probation with an additional
condition that he complete a drug treatment program during that
time

. At a hearing held on November 9, 2022

— six days before
the scheduled probation expiration date

— the court found
that defendant had complete d his drug treatment program. Defendant ’s counsel indicated that defendant “is in position to pay” the restitution amount and need ed to know “where to pay”
it. After some colloquy among the court and counsel , defendant and counsel agreed t hat probation would b e extended to December 19, 2022

, by which time defendant would produce cashier’s checks payable to the victims

, and the deputy district attorney would “make every effort” to provide defendant with
the victims’ addresses.
At a hearing held on December 15, 2022, defendant paid
K.B. the restitution due him. R.L. , however, asserted that he

never agreed to accept the $4,736 restitution amount defendant had stipulated to pay . A ccording t o the court, the deputy district attorney w ho had stated that amount in July 2021 apparently made “a mistake .” A deputy district attorney conceded that “the People blew it,” and argued that the prosecutor’s error cannot be used to deny R.L. his right to restitution

. The court agreed , and

set a restitution hearing as to R.L.’s claim to take place the next day. At the restitution hearing on December 16, 2022, R.L.
testified and submitted evidence of medical expenses

, lost5

income

, and business rental expenses . He sought a total
of $33, 013.85. Aft er hearing argument s, t he court ordered defendant to pay restitution to R.L. in the amount of $16,699. 85. The court further ordered that the restitution be enforceable as

a civil judgment

, then terminated defendant’s probation. Defendant timely appealed.

DISCUSSION

Defendant contends that his p robation terminated as a
matter of law at some point prior to the court’s December 16,
2022 restitution hearing and, therefore, the court did not have jurisdiction to issue the restitution order. We disagree

. On F ebruary 25, 2019, the court placed defendant on probation for a three

- year term
, which was then set to expire

on February 24, 2022. The intervening enactment of A ssembly
Bill No. 1950 , however, effectively shortened defendant’s probation term by one year

. ( See Stats. 2020, ch. 328, § 2

, amending § 1203.1, subd. (a) ; People v. Prudholme (2023) 14 Cal.5th 961, 979 [ Assembly Bill No. 1950 applies to persons who were serving a term of probation when the amendment became effective].) Thus, as of January 1, 2021, when Assembly Bill
No. 1950 went into effect, defendant’s probation, if not tolled or extended, would have been set to expire on February 24, 2021. Defendant does not dispute that his probation term was
tolled and extended during two periods while his probation had
been revoked. (§ 1203.2, subd. (a).) Even with these extensions, however, he contends that , due to the reduction of his probation

term under Assembly Bill No. 1950, his probation term expired6

prior to the December 16, 2022 restitution hearing. 3 We need

not decide this question , however, because even if defendant’s probation had terminated prior to the court’s restitu tion hearing

, the court still had jurisdiction to hold that hearing and determine
the amount of restitution. Under our state constitution, the victim of a crime is entitled to restitution, which the court shall order “ from the
convicted wrongdoer in every case, regardless of the sentence

or disposition imposed, in which a crime victim suffers a loss .” ( Cal. Const., art. I, § 28, subd. (b) (13)(B) .) The Legislature implemented this constitutional mandate by enacting

sec tion 1202.4, which provides that, except for situations not present here, “ 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 victi ms 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. ” (§ 1202.4 , subd. (f).)
Section 1 202.4 further provides that if “ the amount of loss
cannot be ascertained at the ti me of sentencing, the restitution order shall include a provision that the amount shall be
determined at the direction of the court. ” (§ 1202.4 , subd. (f).)
In that situation, section 1202.46 provides that “ the court shall retain jurisdiction over a pers on subject to a restitution order

3 Defendant did not assert in the trial court that his probation terminated on a particular date or at all prior to the December 16, 2022 restitution hearing. On appeal

, he indicates at one point that his probation terminated on August 30, 2021. At anothe r point, he asserts that his “probation should have terminated by law no later than November 9, 2022.”7

for purposes of imposing or modifying restitution until such time

as the losses may be determined.” (§ 1202.46.) This statute thus “extends the court’s jurisdiction to set the amount” of restitution without regard to whether the defendant ’s probationary term
has expired . ( People v. McCune (2022) 81 Cal.App.5th 648, 652

, review granted Oct. 26, 2022, S 276303 ; accord, People v. Zuniga (2022) 79 Cal.App.5th 870, 876 [ under section 1202.46, trial

court retained jurisdiction to determine restitution amount
after probation expired] .) By p reserving the court’s jurisdiction for this purpose , section 1202.46 “ serves the constitutional
mandate to ensure full victim restitution. ” ( McCune

, supra , at p. 653 .) 4
Defendant contends that the foregoing analysis does not apply because section 1202.46 extends jurisdiction to impose restitution “until such time as the losses may be determined,”
and , he argues, the losses had been determined when he stipulated to restitution amounts in July 2021. We disagree.
The “ victims ’ right to restitution is a constitutional one,
and

. . . cannot be bargained away or limited by the prosecution .” ( People v. Pierce (2015) 234 Cal.App.4th 1334, 1337 ; see People v.
Brown (2007) 147 Cal.App.4th 1213, 1226 [“ [v] ictim restitution may not be bargained away by the People”] ; People v. Valdez (19 94) 24 Cal.App.4th 1194, 1202

– 1203 [victim restitution is

not subject to negotiation between the prosecution and defense, and cannot be limited by the prosecution].) When the prosecutor proffered the $4,736 amount as R.L. ’s restitution and defendant

4 In McCune

, the Supreme Court is currently considering the question whether a trial court has jurisdiction to set the amount of victim restitution after terminating defendant ’ s probation pursuant to Assembly Bill No. 1950

.8

stipu lated to that amount

, they effectively bargained away
and limited R.L. ’s right to restitution

. Because the stipulation
would have had the effect of denying R.L. his constitution al and statutory right to restitution, the trial court correctly determined
it was invalid. R.L. ’s “losses,” therefore, were not determined by
the July 2021 stipulation ; they were determined at the hearing
held December 16, 2022. The court had jurisdicti on to hold that hearing and make that determination under section 1202.46. Defendant’s reliance on People v. Sem (2014) 229 Cal.App.4th 1176 and People v. Medeiros (1994) 25 Cal.App.4th
1260 is misplaced. In Sem and Medeiros , the trial court s effectively extended the defendants’ probation terms beyond
the maximum allowed by statute by either revoking and then reinstating probation (in Medeiros ) or revoking probation
but postponing the decision whether to reinstate or terminate probation “until long after the expiration of the probationary period” (in Sem ). ( Sem

, supra , at p. 1180.) Neither case involved the application of section 1202.46 or the question whether the court has jurisdiction to determine the amount of restitution
after probation is terminated.9 DISPOSITION

The December 16, 2022 order determining the restitution
amount is affirmed.

NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J. We concur:

BENDIX , J.

WEINGART , J.