Opinion
C084462
10-02-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIETTA DABANIAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STKCRFE20060008275, SF099463A)
Defendant Marietta Dabanian appeals from the trial court's order denying her request to hold a hearing on modifying a restitution order issued against her over 10 years before the denial. She contends the order deprived her of due process and her statutory right to a hearing. We shall vacate the order denying her motion for a hearing and remand for a hearing to determine the amount the restitution should be offset for the funds defendant spent on caring for her victim in her time of need.
FACTS AND PROCEEDINGS
We briefly summarize the facts of defendant's crimes as the underlying facts are unnecessary to resolve this appeal. In January 2004, defendant met Jean Ralston, a 90-year-old retired school principal whose mental acuity had been declining since 2003. Defendant obtained power of attorney over Ralston in February 2004. Between then and when she was caught in March 2005, defendant stole over $100,000 from Ralston through various means. Defendant was convicted on October 13, 2006, of three counts of theft and one count of attempted theft, along with an enhancement for taking more than $100,000. On December 15, 2006, defendant was sentenced to a four-year state prison term. Defendant was also ordered to pay $187,000 in victim restitution, less whatever sums defendant expended in caring for Ralston in her time of need.
On appeal, defendant raised numerous claims, but none regarding the restitution order. We reversed for insufficient evidence the theft count which was the principal term and remanded for resentencing. (People v. Dabanian (Nov. 21, 2008, C054545) [nonpub. opn.].) The trial court resentenced defendant on February 27, 2009, imposing the same prison term and leaving the restitution order unchanged, including the qualification regarding costs of caring in time of need. There is no record of defendant appealing her resentencing, or of her seeking to modify the restitution order at any point up to this time.
On October 17, 2016, the trial court stayed execution of any withholding orders issued by the Franchise Tax Board. At a November 21, 2016 hearing, defendant, through counsel, asserted Ralston died in 2007 and there was a possible final distribution of her estate in 2008. Counsel requested a hearing to determine to whom restitution should be paid, and to determine the offset for the "less caring in the time of need figures." The trial court set a hearing for January 30, 2017. At the January 30 hearing, the court vacated the stay of execution and declined to hold a hearing on modifying the restitution order, finding "[i]t's [been] too long."
DISCUSSION
Defendant contends the restitution order must be vacated as the trial court failed to comply with its own order that provided restitution was to be reduced by the value of services she rendered to the victim.
Restitution orders are subject to forfeiture. In People v. O'Neal (2004) 122 Cal.App.4th 817, the trial court imposed at sentencing victim restitution for the defendant's three victims totaling $13,334 and a further amount to be determined by the court. (Id. at p. 819.) The defendant's trial counsel stated she wanted the opportunity to review the restitution issues and asked for a hearing on restitution. (Ibid.) The court made the restitution orders subject to the defendant having the matter put back on calendar once trial counsel reviewed the restitution issues. (Ibid.) Trial counsel never filed a motion regarding restitution. (Id. at p. 820.) The defendant attacked one of the restitution orders on appeal. (Ibid.) Appellate counsel also raised the matter in the trial court six months after the sentencing hearing. (Ibid.) The issue was forfeited by the defendant's failure to challenge the order in a timely manner in the trial court. (Ibid.) The court of appeal stated, "[b]ut O'Neal's motion did not explain the reason for the long delay or why he did not file it prior to his appeal. He waived this issue. [Citation.]" (Ibid.)
The same applies here. As in O'Neal, her failure to raise the issue in a timely manner forfeits her claim regarding the validity of the restitution order.
Just as the restitution order remains valid, so too does the entitlement to an offset for the sums defendant spent caring for her victim. Penal Code Section 1202.42 "confers continuing jurisdiction to modify an order for victim restitution." (People v. Turrin (2009) 176 Cal.App.4th 1200, 1207.) Turrin relied on subdivision (d) of section 1202.42, which provides that the "income deduction order" which must accompany an order for direct victim restitution, "shall be effective so long as the order for restitution upon which it is based is effective or until further order of the court." (Italics added; see Turrin at p. 1207.) In addition, section 1202.4, subdivision (f)(1) provides: "The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant." Where, as here, the trial court's restitution order provides for additional proceedings to modify the order, defendant may move to modify the order and the trial court has jurisdiction to rule on defendant's motion. While the passage of time prevents defendant from attacking the underlying restitution order, it does not prevent her from seeking to enforce the still valid order by the court entitling her to an offset.
Pursuant to the original restitution order, defendant is entitled to an offset for the sums she spent caring for her victim, and the trial court retains jurisdiction to modify the award after defendant provides sufficient evidence of what she spent. She sought to do this in a hearing, which the trial court declined to hold because she waited too long. This was in error. We shall therefore vacate the order denying her motion and remand for a hearing in which defendant can present evidence of the offset she was entitled to as per the original restitution order at the sentencing hearing. At the hearing, defendant cannot contest the original award of $187,000. Nor may she seek to modify the order based on an inability to pay. (See § 1202.4, subd. (g).)
While neither party briefed the trial court's continuing jurisdiction over the restitution award under section 1202.42, in the interest of judicial economy, we have resolved this issue without first requesting supplemental briefing. Any party claiming to be aggrieved may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The order denying defendant's request for a hearing is reversed and the matter remanded for a hearing at which defendant can seek offset against victim restitution as set forth in this opinion.
HULL, J. We concur: RAYE, P. J. ROBIE, J.