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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

 B327727

 (Los Angeles County

 Super. Ct. No. VA149861)

APPEAL from an order of the Superior Court of 

Los Angeles County, Scott R. Herin, Judge. Affirmed. 

Jeffrey 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 

Attorneys 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 the court 

lacked jurisdiction to make the order because his probation 

term had previously expired. We conclude that 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 therefore 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, §§ 23103, subd. (a), 23105 (count 1)), misdemeanor 

reckless driving on a highway causing injury to K.B. (Veh. Code, 

§§ 23103, subd. (a), 23104, 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 25, 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 jail and make restitution to the victims in an amount to be 

determined at a hearing. The 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 § 1192.3, 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, the 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 on February 2, 2021, the court 

considered the probation department’s recommendation 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. The court accepted the stipulation and stated that 

“defendant remains on probation upon the same terms and 

conditions.”

On April 29, 2021, the court summarily 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. The 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 completed his drug treatment program. 

Defendant’s counsel indicated that defendant “is in position to 

pay” the restitution amount and needed to know “where to pay” 

it. After some colloquy among the court and counsel, defendant 

and counsel agreed that probation would be 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. According to the court, the deputy district 

attorney who 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, lost 
5

income, and business rental expenses. He sought a total 

of $33,013.85. After hearing arguments, the 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 probation 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 February 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 Assembly 

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 expired 
6

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 restitution 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 

section 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 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.” (§ 1202.4, subd. (f).)

Section 1202.4 further provides that 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.” (§ 1202.4, subd. (f).) 

In that situation, section 1202.46 provides that “the court shall 

retain jurisdiction over a person 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 another 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, S276303; 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 preserving 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

(1994) 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

stipulated 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 constitutional 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 jurisdiction 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 courts

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.