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C.A. Reverses Restitution Award Where Harm to Victim Stemmed From Non-Criminal Acts
By a MetNews Staff Writer
Div. Five of the First District Court of Appeal has held that in a hit-and-run case—where the “running” is a crime but the “hitting” isn’t—a judge improperly ordered a woman to pay $86,306.12 in victim restitution where her conviction, based on a no-contest plea, was for the felony of fleeing the scene of an accident resulting in an injury.
Restitution could be ordered under that circumstance, if done so timely, but not under the statute invoked by the trial-court judge—Penal Code §1202.4—Justice Mark B. Simons said in an opinion filed Thursday. With that statute being inapplicable, a tethered provision, which would allow an order to be made after a probationary period ended, could not be invoked, he declared.
Appellant Takeya Lashay Koontzy on Nov. 17, 2017 pled no contest to the fleeing charge; on Jan. 31, 2018, she was placed on three years probation, with payment of restitution being a condition of probation; and on Jan. 31, 2021, the term of probation ended, with no restitution amount having been calculated. On April 14, 2023, Napa Superior Court Judge Mark S. Boessenecker made the order for restitution that was disputed on appeal.
Provisions of Statute
Boessenecker purported to act pursuant to §1202.4(a)(1)—which says: “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”—and in accordance with procedures set forth in §1202.4(f).
In light of the delay in ascertaining what the damages were—owing largely to the victim dawdling in providing documentation—Boessenecker deemed §1202.46 to be applicable. It provides that “when the economic losses of a victim cannot be ascertained at the time of sentencing” under §1202.4(f), “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.”
In Thursday’s opinion, Simons said that §1202.46 does authorize an order for restitution after a probationary period has ended—backing a 2022 determination by the Fifth District Court of Appeal in People v. McCune—but only if, in the words of §1202.4, there is “an economic loss as a result of the commission of a crime.”
Nature of Losses
He wrote:
“[I]t 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.”
Simons reasoned that since §1202.4 does not come into play, the time for setting the amount of restitution cannot be extended by §1202.46 which expressly applies only to sentences under §1202.4(f).
He said Boessenecker’s order was necessarily made under §1203.1, which vests broad discretion in sentencing courts to make orders “reasonably related to the crime of which the defendant was convicted or to future criminality,” and has been judicially construed to include orders for restitution. But, he pointed to §1203.3 which authorizes modifications of the conditions of probation conditions only “during the term of probation,” with §1202.46, where applicable, creating an exception.
“Accordingly,” he proclaimed, Boessenecker “was without authority to modify the restitution order following termination of probation.”
The case is People v. Koontzy, 2024 S.O.S. 1434.
Other Opinion
On Friday, the First District’s Div. Five, in an opinion also by Simon, reversed an order requiring a woman who had completed a mental health diversion to pay more than $17,000 in restitution to the victim she had stalked and to the California Victim Compensation Board. The order was made pursuant to Penal Code §1001.36 (f)(1)(D) which provides that where a defendant is granted a mental health diversion, “Upon request, the court shall conduct a hearing to determine whether restitution…is owed to any victim as a result of the diverted offense and, if owed, order its payment during the period of diversion.”
Simon wrote:
“Because the trial court ordered the restitution after the end of the statutory maximum two-year period of diversion and because section 1001.36, subdivision (f)(1)(D), only permitted the trial court to order restitution ‘during the period of diversion’ we reverse the court’s restitution orders.”
He commented:
“In the present case, the prosecution’s failure to make a timely request for restitution frustrated the Legislature’s intent to make the victim whole and to make payment of restitution part of appellant’s rehabilitative process. Although it is especially unfortunate the victim bears the burden of the prosecution’s mistake, that is not a ground for the trial court to make an award of restitution contrary to the plain language of section 1001.36.”
That case is People v. Berlin, A166452.
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