Filed 7/7/17 P. v. Machado CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

DIOLINDA MACHADO,

Defendant and Appellant.

F073925

(Super. Ct. No. 1242043)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
BACKGROUND
Defendant Diolinda Machado was charged with multiple counts of making false financial statements (Pen. Code, § 532a, subd. (1)), inter alia. On June 3, 2010, pursuant to a plea agreement, she pled no contest to one of these counts. The remaining charges were dismissed with a Harvey waiver. The trial court placed defendant on formal probation for three years and ordered her to pay victim restitution in an amount to be determined. Later, with defendant’s consent, the court extended the probationary period to June 3, 2014.
On November 18, 2011, defendant was notified of the probation officer’s recommended restitution amount. She disputed the figure and requested a Cervantes hearing, which was scheduled for December 16, 2011. Between December 16, 2011, and May 5, 2014, the court and the parties convened 31 times. Seventeen motions for continuance were filed: ten by the defense; four by the prosecution and the defense jointly; one by the prosecution; and two by an unidentified movant. On one occasion, the defense filed a motion to vacate a hearing scheduled for March 15, 2012.
The Cervantes hearing finally commenced on June 2, 2014, at 2:20 p.m. The matter was adjourned at 4:15 p.m. after the court and the parties agreed further testimony could not be conducted that day. The court specified:
“We’ve been discussing off the record completing this afternoon. I believe [defense counsel] wants to call . . . defendant, and it may take more time than would allow today.
“The courthouse has an alarm that starts beeping, and it makes it really hard to ask questions. We talked about this Thursday, the 5th day of June, 2014, we’ll say 10:30 in the morning. And we understand that [defendant] has a dental appointment and will get here as quickly as she’s able to.”
The June 5th date was subsequently changed to June 9th.
The court and the parties briefly reconvened on June 9, 2014. The following colloquy ensued:
“[THE COURT:] This is a continuing Cervantes hearing. We started this on June 2[, 20]14, but I can’t remember if we had other hearings and certainly we’ve been working on getting to this hearing date for awhile. Continuing it to today’s date.
“The Court also has another hearing we have to finish up and . . . also [defendant] has a medical appointment and the request is to continue the case so she can get to her appointment.
“I would have everybody return on July 2, 2014, 9:30 [a.m.], to complete this process.
“So the record is clear, [defendant] has been on probation, that probation has been extended a number of times, I believe. She was in court for this hearing on the 2nd of June to put it over to today’s date to conclude the hearing, understanding the obligation of restitution was a significant part of probation in the case.
“I’m not sure with respect to periods when it’s been revoked and reinstated or extended or if any of those things would make a difference. It would appear on this record that the Court had previously extended the probation; I think it was extended off the date of the original probation which started on June 3[, 20]10 to 4 years to June 3[, 20]14. [¶] . . . [¶]
“[PROSECUTOR]: [The] People [we]re prepared to complete the hearing on the 2nd. The defense chose to put on . . . defendant. We continued, mutually agreeing to today’s date, the 9th. Under those circumstances, it seems very clear there is an agreement to extend for the purpose of this hearing. [¶] . . . [¶]
“[DEFENSE COUNSEL]: I don’t have any comment . . . . [¶] . . . [¶] . . . Although, I would just note, [the prosecutor] told me he’s intending to call another witness; so that’s the procedural posture of the case, that the People haven’t concluded their presentation yet.
“[PROSECUTOR]: I would have finished that date had [defendant] taken the stand. . . .
“[DEFENSE COUNSEL]: I believe we ran out of time which, I believe, was the issue.
“THE COURT: I think so too, but that doesn’t mean there could have been other things said or done that day. We’ll just make it up as it is appropriate. I’ll see you on July 2nd, 9:30 in the morning. [¶] . . . [¶] I’m going to revoke probation right now just to –
“[DEFENSE COUNSEL]: If you have jurisdiction.
“THE COURT: If I have jurisdiction over it – and I’ll revoke it and so that the Court can then figure out what needs to be done in terms of the status of that.” (Italics added.)
After the court granted the prosecution’s motion for a continuance, the Cervantes hearing resumed on July 10, 2014. At the outset, defense counsel asserted the court did not have jurisdiction to impose restitution because defendant’s probationary period ended on June 3, 2014. The prosecutor countered the court retained jurisdiction in view of section 1202.46, inter alia. The court pronounced:
“I think we’re ready to go forward on the hearing. If it turns out that there’s no jurisdiction to do this, well, . . . it would be an empty act that we can set aside later, but, otherwise, I think we’re ready to go.”
The Cervantes hearing concluded on March 16, 2015. On May 2, 2016, the court ordered defendant to pay $351,303.94 in victim restitution.
DISCUSSION
On appeal, defendant argues the trial court acted in excess of its jurisdiction when it imposed victim restitution after her probationary period expired. In view of section 1202.46, we disagree.
“The court’s role in construing a statute is to ‘ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ [Citations.] In determining the Legislature’s intent, a court looks first to the words of the statute. [Citation.] ‘[I]t is the language of the statute itself that has successfully braved the legislative gauntlet.’ [Citation.]” (People v. Snook (1997) 16 Cal.4th 1210, 1215.) “When looking to the words of the statute, a court gives the language its usual, ordinary meaning. [Citations.] If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs. [Citations.]” (Ibid.)
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. 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).) “[W]hen the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of [s]ection 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; accord, People v. Bufford (2007) 146 Cal.App.4th 966, 970.)
As noted, on June 3, 2010, pursuant to a plea agreement, defendant pled no contest to one count of making false financial statements. After the remaining charges were dismissed, she was placed on probation and ordered to pay victim restitution in an amount to be determined. (Cf. People v. Waters (2015) 241 Cal.App.4th 822, 825-826 [defendant not subject to restitution order until after termination of probationary term].) Later, defendant challenged the amount recommended by the probation officer and requested a Cervantes hearing. This hearing was originally scheduled for December 16, 2011, but was postponed to June 2, 2014, due in large part to the numerous continuance motions. Defendant’s probationary period ended on June 3, 2014, but the amount of victim restitution was not determined until May 2, 2016. (Cf. Hilton v. Superior Court (2014) 239 Cal.App.4th 766, 769-770 [amount of victim restitution stipulated more than two years before expiration of probationary term].) Under the express language of section 1202.46, a court “shall retain jurisdiction over a person subject to a restitution order for purposes of imposing . . . restitution until such time as the losses may be determined.” Thus, in the instant case, the court retained jurisdiction to impose victim restitution on defendant until May 2, 2016.
DISPOSITION
The judgment is affirmed.