Opinion
H043846
12-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JOANNA MARIE STEELE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F27655)
I. INTRODUCTION
Defendant Joanna Marie Steele pleaded no contest to leaving the scene of an accident resulting in death (Veh. Code § 20001, subd. (a)) and misdemeanor driving under the influence of alcohol (DUI) (id., § 23152, subd. (a)). The trial sentenced defendant to three years in prison. After a contested restitution hearing, the court ordered defendant to pay restitution totaling $18,988 to the family members of the deceased victim for funeral expenses and other economic losses.
On appeal, defendant contends that the trial court abused its discretion by awarding restitution. She argues that there was no basis to find that she caused or exacerbated the victim's injuries when she drove while intoxicated or left the scene after the accident. Defendant also contends that she did not forfeit her challenge to the restitution award and that this appeal is not barred by her waiver of appellate rights.
We determine that defendant did not forfeit or waive her appellate claim, and that the matter must be remanded to the trial court for reconsideration of the restitution award. The trial court determined that the "appropriate nexus" existed between the restitution award and "either Counts 1 or 2" (leaving the scene of an accident resulting in death and DUI) based on defendant's no contest pleas. However, in People v. Martinez (2017) 2 Cal.5th 1093 (Martinez), which was decided after the trial court awarded restitution in this case, the California Supreme Court held that restitution may be awarded for leaving the scene of an accident in nonprobation cases for injuries that are "caused or exacerbated" by a defendant's criminal flight from the scene but not "for injuries resulting from the accident itself." (Id. at p. 1098.) We will remand the matter to the trial court with directions to reconsider the amount of restitution for leaving the scene of an accident based on this standard, and to also reconsider whether the claimed losses for the DUI offense were incurred "as a result of the commission of a crime" by defendant. (Pen. Code, § 1202.4, subd. (a)(1); see id., subd. (f) & (f)(3).)
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
In August 2014, about 4:30 p.m., a Nissan Frontier truck hit Adolfo Galvan at an intersection and then fled the scene. The police obtained reports from witnesses and video surveillance from nearby businesses. Part of the accident was recorded on video. The victim was walking on the street when the truck drove by the victim's left side. The right front of the truck struck the victim.
As defendant was convicted by plea, the facts of defendant's offense are taken from the probation officer's report, which was based on a Santa Cruz police report.
The police located the truck at a hotel about an hour and half after the incident. There was damage to the front end of the truck consistent with the collision, and there appeared to be blood on the vehicle where Galvan was struck. The police searched the vehicle and found a card indicating the hotel room where defendant was staying.
Defendant was contacted in her hotel room. She smelled of alcohol, her eyes were red and watery, and there were bottles of alcohol in the room. Defendant admitted driving in the area where the incident occurred, but she denied being involved in a collision or hitting the victim. She indicated that she had gone to a liquor store and another store earlier in the day. Her fiancé, who was also in the hotel room, reported that they had been drinking at the beach earlier in the day and returned to the hotel to sleep. Defendant was arrested and transported to the hospital for a blood draw.
Galvan suffered numerous injuries and was flown to a hospital after the incident. He died less than two weeks later.
A. The Information and the Pleas
By first amended complaint, defendant was charged with leaving the scene of an accident resulting in death (Veh. Code, § 20001, subd. (a)). Following the preliminary examination, defendant was held to answer. On December 23, 2014, an information was filed charging defendant with leaving the scene of an accident resulting in death (id., § 20001, subd. (a); count 1), misdemeanor DUI (id., § 23152, subd. (a); count 2), and misdemeanor driving with a blood alcohol level of 0.08 percent or more (id., § 23152, subd. (b); count 3).
In August 2015, defendant pleaded no contest to leaving the scene of an accident resulting in death (Veh. Code § 20001, subd. (a); count 1) and misdemeanor DUI (id., § 23152, subd. (a); count 2). She entered her pleas based on the court's indicated sentence of three years in prison and with the understanding that the sentencing or surrender date would be in February 2016. On motion of the prosecution, count 3 was dismissed. The parties stipulated to a factual basis for the pleas based upon the transcript of the preliminary examination.
At the conclusion of the change-of-plea hearing, defense counsel requested that the truck be returned to the owner. According to defense counsel, the truck had been impounded for a year and the owner (apparently defendant's fiancé) had lost income because his alternate vehicle was not very reliable. Defense counsel stated that defendant had no intention of withdrawing her plea and that there was no evidentiary value in the vehicle. The prosecutor opposed the request. The prosecutor explained that the prosecution's practice was to authorize release of evidence 60 days after sentencing after all appellate rights had run, unless an appeal was filed, in which case the prosecution continued to maintain items of evidentiary value. The prosecutor contended that the truck in this case was of "great" evidentiary value if defendant's pleas were withdrawn. The truck had body damage and there was DNA obtained from the truck. The trial court denied the request to have the truck released. The court stated that the sentencing date could be advanced but observed that defendant had requested and received a later sentencing date. Defense counsel stated, "Yes. That is true, Your Honor, and I appreciate that. [Defendant] is going to waive any appellate rights in this case and waive any rights to withdraw her plea if that helps at all. I don't think there's any danger or problems with the [prosecution] releasing it." The court reiterated that it was not going to order release of the truck until sentencing was completed, but that the parties could try to reach an agreement on their own.
B. The Sentencing Hearing
In a presentence report, the probation officer recommended that defendant pay restitution in an amount to be determined to the victim's family. In a separate memorandum, the probation officer provided documentation from the victim's family regarding restitution.
The sentencing hearing was held on February 10, 2016. At the hearing, the prosecutor stated that defendant's blood alcohol level was 0.15 approximately three hours after she had driven, and that this should be added to the probation report. The trial court, which had also presided over defendant's preliminary examination, responded, "So noted. I recall that testimony or similar testimony from the preliminary examination transcript." The parties disputed at the sentencing hearing what the victim was doing just prior to being struck by defendant. Defendant argued that the victim stepped into the street, opened his car door, and "had to step back slightly and in that tight street his body came in contact with the corner of the truck." Defendant further argued that "according to the police report [the victim] committed the infraction of stepping into traffic." Defendant contended that she "wasn't charged with murder, manslaughter, reckless driving, drunk driving with death or anything like that." She argued that the prosecution "could have" charged her with those offenses, "but they saw that the evidence just wasn't there for that. [¶] . . . [I]t was an accident." The prosecution contended that defendant needed to accept responsibility for her conduct and that she was minimizing her conduct.
The trial court stated that there was a "direct nexus" between defendant's actions and the victim's death, and that it was an "unnecessary, tragic, wasteful death of this gentleman. It shouldn't have happened. Unfortunately, it did happen." The prosecution contended that the victim was not opening his car door when he was struck, and that instead, his car was parked on the other side of the street. The court stated, "I saw the video. I saw the video at the preliminary examination." The court stated that it "appreciate[d] the comments of counsel" and that they "serve[d] as advocates."
The trial court proceeded to sentence defendant to three years in prison on count 1 (leaving the scene of an accident resulting in death, Veh. Code, § 20001, subd. (a)) and a concurrent 180-day jail term on count 2 (DUI, Veh. Code, § 23152, subd. (a)).
Regarding restitution, the trial court stated that it had received "a packet of information regarding restitution claims" the day before. The court ordered "restitution in favor of" the victim's wife Diana Galvan and daughters Victoria Galvan Harper, Rebecca Galvan, and Dorothy Galvan "in an amount to be determined." The court stated that if there was a disagreement as to restitution, it would hold a hearing. Defense counsel indicated that defendant was waiving her appearance at any future restitution hearing. The court explained to the victim's family members that there was a "packet of documentation regarding restitution claims made by the four of you," that counsel was being given an "opportunity to review those claims to determine their appropriateness," and that if an agreement could not be reached regarding restitution, the court would hold a hearing. The court scheduled March 2, 2016 for the setting of a restitution hearing.
The following exchange then occurred between the trial court, defendant, and defense counsel.
"THE COURT: . . . And also [defendant] is indeed waiving any rights to appeal concerning this matter; is that correct?
"THE DEFENDANT: Yes, Your Honor.
"[DEFENSE COUNSEL]: That is correct, Your Honor. This is an agreement between the parties that the prosecution has agreed to release the truck forthwith and I know it's going to go through a process but it will start today and she does formally waive any rights on appeal.
"THE COURT: So noted." Defense counsel subsequently stated, "I would apologize if I misstated something. I didn't mean to and maybe I just misremembered and somehow in my mind I thought that he stepped back . . . . So I apologize if I misstated something." The court stated, "So noted for the record."
C. The Restitution Hearings
A minute order for the subsequent hearing on March 2, 2016, reflects that a further hearing was set for March 29, 2016.
In the meantime, on March 25, 2016, defense counsel sent an e-mail to the prosecution and to the trial court objecting to the "imposition of restitution." Defense counsel argued that "defendant's leaving the scene of the accident did not cause or exacerbate [the victim's] injuries. To impose restitution in this case will deprive defendant of her due process safeguards she would have received in a civil forum." In support of this argument, defense counsel cited People v. Escobar (1991) 235 Cal.App.3d 1504 (Escobar), in which this court held that a conviction "alone" for leaving the scene of an injury accident (Veh. Code, § 20001) "is legally insufficient to support" a restitution order requiring the defendant to pay for the injury caused by the underlying accident. (Escobar, supra, at p. 1507.)
A minute order for the March 29, 2016 hearing reflects that a further hearing was set for May 6, 2016.
In the meantime, on May 4, 2016, the prosecution filed a motion for victim restitution. The prosecution contended that defendant's objection to restitution was untimely because she failed to object to the restitution order at sentencing. The prosecution argued that the restitution order should remain in place, and that the only issue left was the amount of restitution. The prosecution also argued that restitution was proper because defendant was convicted of DUI and that offense could be viewed as the cause of the victim's injury.
1. May 6, 2016 Hearing
At the hearing on May 6, 2016, the trial court stated that it had reviewed "the emails and the pleading that was filed." The court stated its tentative ruling as follows: "I see this as potentially a two-step process. First of all, from the Court's perspective the order of restitution will stand. I do believe that the victims are legally entitled to restitution. The Court notes that the defendant wishes to make a causation argument concerning the leaving of the scene aspect of the hit and run contending that the running aspect of the hit and run did not impact the victim's injuries nor the expenses that were incurred. From the Court's perspective this is not persuasive. Additionally, the driving under the influence conviction could serve as a basis for restitution separate and distinct from the hit and run. So that's the first prong and I do believe the order of restitution should stand. But, secondly, if there remains an argument or dispute as to the claimed amount of restitution we can certainly proceed with a full hearing in that regard. I think counsel can make whatever arguments they deem are appropriate in light of whatever is being submitted by any of the family members at this point. There may indeed be other arguments concerning restitution separate and distinct from the running aspect of the hit and run that are appropriate under the circumstances. [¶] So, first of all, I'm looking at this as a two prong situation." The court then allowed defense counsel "to be heard" as to "the first aspect regarding the order of restitution remaining."
Defense counsel contended that defendant did not cause the accident, and that the record "pretty clearly show[ed]" that the victim caused the accident. Defense counsel argued that causation was a "civil issue," and that although the issue "could be litigated and argued both ways" there was "no evidence" that defendant caused the accident. Defense counsel contended that the prosecution had the option of filing a DUI with injuries or another charge involving causation, but "we don't have that here."
Regarding the forfeiture issue, defendant acknowledged that the trial court "did say at the sentencing it was ordering restitution, but at some point along the way the Court recognized that there was an issue as to restitution, took us at sidebar and we had a short discussion." Defense counsel stated that he did not intend to waive the restitution issue and that it was "always an issue." Lastly, defense counsel indicated that defendant was contesting the amount of restitution "in several respects."
The trial court stated that the tentative ruling "remain[ed] the same," and that the restitution order "should stand." The court further stated that it was "not necessarily finding that there was a waiver." The court believed that "some level of specification regarding restitution was not even provided until the presentencing report and even then there was some level of uncertainty [as] to exactly what was going to be claimed by various members of the family. So I certainly don't believe there was a waiver in that regard but I do believe the restitution order should stand and if indeed there's a good faith dispute regarding the amount of restitution then we should have a hearing in that regard."
The trial court ultimately ruled that "the order of restitution is appropriate" and that the order would "stand." A further hearing was set for July 2016.
2. July 29, 2016 Hearing
On July 29, 2016, a final hearing was held regarding restitution. The trial court explained that the parties and the court had exchanged e-mails regarding restitution. The court admitted into evidence the e-mails, which included claims for restitution by the victim's family members for funeral expenses and for lost wages to visit the victim in the hospital, to meet with the prosecution, to attend court hearings, and to attend medical appointments related to grief and grief counseling. The trial court indicated that its tentative ruling was to award restitution totaling $18,988 to the family members as follows: $403.84 to Diana Galvan; $1,676.16 to Victoria Galvan; $9,680.92 to Rebecca Galvan; and $7,227.08 to Victoria, Rebecca, and Dorothy Galvan.
The trial court determined that certain amounts requested by the family members would not be awarded as restitution, such as for taxes and for childcare. For example, regarding a claim by one of the family members for an amount to cover hours worked to maintain and then sell the deceased victim's family business, the court stated "there simply isn't the direct nexus" between those hours "to the subject incident."
The trial court acknowledged that defendant had argued the "nexus issue" and indicated that defense counsel would be allowed to "make his record." The court believed "the appropriate nexus has been made" and that the restitution it intended to award was "appropriately tied to either Counts 1 or 2 and [defendant] acknowledged and admitted at the time of her change of plea."
Defense counsel contended that a nexus did not exist. Counsel argued: "[T]he accident happened. Everything that followed was going to follow and the crime that was involved—the leaving the scene of the accident happened afterwards and so . . . none of the funeral experiences, hospital expenses, anything else have any real nexus to the charge that she ultimately pled to. Now she did plead to the sheet which included a misdemeanor DUI. We did not contest that but I again state that I do not believe that the DUI in and of itself provides the proper nexus to allow restitution in this case. It was a plead to the sheet so that she can get the benefit of the indicated sentence. Besides that there was no real nexus to tie the losses that have been claimed to her conduct."
After hearing argument from the parties, the trial court adopted its tentative ruling and awarded restitution in the amounts stated.
III. DISCUSSION
A. Forfeiture of Appellate Claim
The Attorney General argues that defendant forfeited her appellate claim regarding restitution because she did not object to restitution at the time of sentencing.
Defendant contends that she did not forfeit her appellate claim because she objected to restitution below, the trial court heard argument at a post-sentencing hearing, and the court ruled that its restitution order would remain. Defendant further argues that if this court determines that her appellate claim has been forfeited, then her trial counsel rendered ineffective assistance.
"[T]he right to challenge a criminal sentence on appeal is not unrestricted. In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.] These principles are invoked as a matter of policy to ensure the fair and orderly administration of justice. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 351, italics omitted.)
We determine that defendant has not forfeited her appellate claim regarding restitution. At a post-sentencing restitution hearing on May 6, 2016, the trial court entertained argument from defendant regarding whether the victim's family was legally entitled to restitution. The court rejected defendant's lack-of-causation argument between her crimes and the victim's injuries and expenses. The court ultimately determined that its prior order of restitution to the family members would "stand," and that a further hearing would be held regarding the amount of restitution. At the final restitution hearing on July 29, 2016, the court allowed defense counsel to "make his record" regarding the "nexus issue," and the court again stated that "the appropriate nexus has been made." In view of this record, in which the court (a) entertained argument from defendant after the sentencing hearing regarding the propriety of restitution to the family members and (b) reaffirmed its order that the four family members were entitled to restitution, we determine that defendant adequately preserved her appellate challenge to the restitution order.
B. Waiver of Right to Appeal
The Attorney General also contends that defendant waived her right to appeal the restitution order because she entered an appellate waiver at the sentencing hearing, after the court had already ordered her to pay restitution to the four family members.
Defendant contends that the Attorney General fails to show that the waiver was knowing, voluntary, and intelligent. Defendant argues that the record does not establish that she "knew what it meant to waive her right to appeal."
A defendant may waive the right to appeal orally or in writing. (People v. Panizzon (1996) 13 Cal.4th 68, 80 (Panizzon).) "To be enforceable, a defendant's waiver of the right to appeal must be knowing, intelligent, and voluntary. [Citation.]" (Ibid.) " '[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]' [Citation.] It ' "[i]s the intelligent relinquishment of a known right after knowledge of the facts." [Citation.]' [Citation.] The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.] The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. [Citation.]" (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662 (Vargas).)
"[A] waiver that is nonspecific, e.g., 'I waive my appeal rights' or 'I waive my right to appeal any ruling in this case,' " is considered a general waiver. (Panizzon, supra, 13 Cal.4th at p. 85, fn. 11.) "A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. [Citation.] Thus, a waiver of appeal rights does not apply to ' "possible future error" [that] is outside the defendant's contemplation and knowledge at the time the waiver is made.' [Citations.]" (People v. Mumm (2002) 98 Cal.App.4th 812, 815 (Mumm), italics added; accord, In re Uriah R. (1999) 70 Cal.App.4th 1152, 1160 [a general waiver does not preclude attacks on subsequent errors that are unforeseen or unforeseeable at the time the waiver was made].)
In Panizzon, the California Supreme Court addressed the scope of a sentencing-specific appellate waiver and its effect on a defendant's right to appeal. In Panizzon, the defendant pleaded no contest pursuant to a plea bargain that provided for a sentence of life with the possibility of parole, plus 12 years. (Panizzon, supra, 13 Cal.4th at p. 73.) In the written waiver and plea agreement, the defendant agreed that he was waiving his " 'right to appeal from the sentence [he would] receive in this case.' " (Id. at p. 82.) The defendant later challenged the sentence on the ground that it was disproportionate to the sentences his codefendants had received after him, and that therefore his sentence constituted cruel and unusual punishment. (Id. at pp. 74, 85.) The defendant also argued that the sentencing error was unforeseen or unknown at the time of his plea and appellate waiver, and that such future sentencing error was beyond the scope of his waiver. (Id. at p. 85.)
The California Supreme Court determined that defendant's claim fell within the scope of the appellate waiver and was not reviewable on appeal. (Panizzon, supra, 13 Cal.4th at p. 89.) The court explained: "Not only did the plea agreement in this case specify the sentence to be imposed, but by its very terms the waiver of appellate rights also specifically extended to any right to appeal such sentence. Thus, what defendant seeks here is appellate review of an integral element of the negotiated plea agreement, as opposed to a matter left open or unaddressed by the deal." (Id. at pp. 85-86.) The court further stated that "both the length of the sentence and the right to appeal the sentence are issues that cannot fairly be characterized as falling outside of defendant's contemplation and knowledge when the waiver was made." (Id. at p. 86.)
The California Supreme Court distinguished People v. Sherrick (1993) 19 Cal.App.4th 657, and Vargas, supra, 13 Cal.App.4th 1653, where a "general waiver of the right to appeal, given as part of a negotiated plea agreement," was "not . . . construed to bar the appeal of sentencing errors occurring subsequent to the plea," because "the defendants in those decisions were attempting to appeal sentencing issues that were left unresolved by the particular plea agreements involved." (Panizzon, supra, 13 Cal.4th at p. 85, fn. omitted, first italics added.) As explained by the California Supreme Court, "[i]n People v. Sherrick, . . . the defendant was permitted to argue on appeal that the trial court utilized a patently erroneous standard in determining his ineligibility for probation where the plea agreement and waiver of appellate rights evidently contemplated no specific sentence or probation eligibility. Similarly, in People v. Vargas, . . . the defendant was not barred from challenging an alleged misapplication of conduct credits on appeal where the plea agreement and waiver of appellate rights apparently made no mention of conduct credits. In each of those decisions, the appellate court viewed the sentencing issue as not being within the contemplation and knowledge of the defendant at the time the waiver was made and so refused to extend thereto a general waiver of the right to appeal." (Panizzon, supra, at p. 85.)
In this case, defendant orally agreed that she was "waiving any rights to appeal concerning this matter." Defendant's appellate waiver was nonspecific, and thus she only waived the right to appeal error occurring before, but not after, the waiver. (Panizzon, supra, 13 Cal.4th at p. 85 & fn. 11; Mumm, supra, 98 Cal.App.4th at p. 815.) Before she entered the appellate waiver, the trial court had ordered restitution in favor of the victim's family members but the court did not determine the amount of restitution. Because defendant entered only a nonspecific appellate waiver and because the trial court had not yet determined the amount of restitution, defendant is not precluded from challenging the amount of restitution awarded on appeal.
It is not clear from the record, however, whether the trial court in making its initial order of restitution "in an amount to be determined" had resolved the issue of whether each of the four family members in fact suffered economic loss as a result of defendant's criminal conduct. The victim restitution statute, section 1202.4, provides that "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).) The restitution order "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (Id., subd. (f)(3).) "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." (Id., subd. (f).) For purposes of restitution, "victim" includes the spouse and children of the actual victim. (Id., subd. (k)(1), (3)(A).)
It is not clear from the record that the trial court's order at the sentencing hearing awarding restitution in favor of the victim's family members "in an amount to be determined" included a determination that those family members incurred "economic loss . . . as the result of the defendant's criminal conduct." (§ 1202.4, subd. (f)(3).) It does not appear that defense counsel believed the issue had been resolved at the sentencing hearing, as defense counsel objected to restitution on the ground of causation in an e-mail to the court and the prosecution after the sentencing hearing. The trial court thereafter addressed the issue at the post-sentencing restitution hearing on May 6, 2016, explaining that restitution was potentially a "two-step" process and entertaining argument from defendant regarding the first step of whether the victim's family was legally entitled to restitution. Even at the final restitution hearing on July 29, 2016, the court allowed defense counsel to "make his record" regarding the "nexus issue." At that hearing, the court also denied part of the restitution requested by the family, explaining that there was not "the direct nexus" between the amount being claimed and the "the subject incident." It thus appears that the court's initial restitution order at the sentencing hearing did not completely resolve the issue of whether the family members incurred "economic loss . . . as the result of the defendant's criminal conduct." (§ 1202.4, subd. (f)(3).)
Given that prior to defendant entering her appellate waiver the trial court did not expressly address whether the victim's family members incurred "economic loss . . . as the result of the defendant's criminal conduct" (§ 1202.4, subd. (f)(3)), and given that defense counsel and the court addressed and considered whether the victim's family members were legally entitled to restitution in that regard after the initial restitution order and defendant's appellate waiver, the record fails to demonstrate that defendant knew and contemplated at the time of her appellate waiver that the amount of restitution would be included in her waiver.
Accordingly, because defendant's waiver of appellate rights was nonspecific and only encompassed error occurring prior to the waiver, and because the record is not clear as to the scope of the issues resolved by the court's earlier restitution order, we determine that defendant did not knowingly waive her right to appeal all errors concerning the amount of restitution, and that her appellate waiver does not bar the restitution claim she raises in this appeal. (See Panizzon, supra, 13 Cal.4th at pp. 85-86 & fn. 11; Mumm, supra, 98 Cal.App.4th at p. 815; Vargas, supra, 13 Cal.App.4th at p. 1662.)
C. Restitution Order
Defendant contends that the trial court abused its discretion by awarding restitution because "there was no basis to find [she] caused or exacerbated" the victim's injuries when she drove while intoxicated or left the scene of the collision. She argues that the restitution award therefore "impinged on her due process rights and improperly indebted her to the [victim's] family."
The Attorney General observes that the trial court found there was a nexus between defendant's acts and the victim's injuries, but "the trial court did not specifically make a finding of cause based on criminal conduct." The Attorney General contends that the record "shows there was videotaped evidence, as well as eyewitness accounts, that could establish whether [defendant's] criminal conduct caused the accident." The Attorney General requests that "the matter be remanded for a hearing to determine whether [defendant's] criminal conduct caused the accident that resulted in the victim's injuries."
Defendant contends that the matter should not be remanded for a further hearing because (a) the prosecution forfeited any claim that defendant's intoxication or criminal conduct caused the victim's injuries and (b) giving the prosecution another opportunity to provide evidence on the issue raises double jeopardy concerns.
1. General Principles Regarding Victim Restitution
Section 1202.4 declares "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." (Id., subd. (a)(1), italics added.) To that end, section 1202.4 generally provides that "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." (Id., subd. (f), italics added.) Section 1202.4 further provides that the restitution order "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (Id., subd. (f)(3), italics added.)
The defendant has the right to a restitution hearing "to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) " '[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
A trial court's restitution order is reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).) The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (Ibid.) "[A]n abuse of discretion arises if the trial court based its decision . . . on an incorrect legal standard." (People v. Knoller (2007) 41 Cal.4th 139, 156 (Knoller).) "To facilitate appellate review of the trial court's restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered." (Giordano, supra, at p. 664.)
2. Leaving the Scene of an Accident
After the trial court awarded victim restitution in this case for defendant's convictions for leaving the scene of an accident (Veh. Code, § 20001, subd. (a)) and misdemeanor DUI, the California Supreme Court in Martinez, supra, 2 Cal.5th 1093, addressed the circumstances in which a defendant convicted of leaving the scene of an accident may be required to pay restitution. The California Supreme Court held that in cases where the defendant is sentenced to state prison, restitution may be awarded for injuries that are "caused or exacerbated" by a defendant's criminal flight from the scene but not "for injuries resulting from the accident itself." (Id. at p. 1098, see id. at p. 1097.)
In reaching this holding, the California Supreme Court explained that it is not a crime to be involved in an accident, and that an accident may be the fault of someone else, or it may occur without the fault of any driver. (Martinez, supra, 2 Cal.5th at p. 1103.) Regarding the offense of leaving the scene of an accident, " ' "the act made criminal" ' under [Vehicle Code section 20001, subdivision (a)] ' "is not the 'hitting' but the 'running.' " ' [Citation.]" (Id. at p. 1102.) A conviction for the offense "does not . . . require any showing of 'the fleeing driver's responsibility' for the underlying accident. [Citation.]" (Id. at p. 1104.) The purpose of Vehicle Code section 20001, subdivision (a) is to prevent the driver " ' "from leaving injured persons in distress and danger for want of medical care and from attempting to avoid possible civil or criminal liability for the accident by failing to identify oneself." ' [Citation.]" (Martinez, supra, at p. 1102.) Under Vehicle Code section 20001, subdivision (a), " '[t]he occurrence of an injury accident is a condition precedent' to the imposition of a duty to stop, provide identification, and render aid—'but [it] is not an element of the crime' in the sense that it constitutes part of the conduct forbidden by the statute. [Citation.] Nor is any degree of fault required for conviction; a defendant who flees the scene of an injury accident has committed a crime even if the accident was solely the result of the victim's own negligence. [Citation.]" (Martinez, supra, at pp. 1102-1103.)
Based on this understanding of the offense of leaving the scene of an accident, the California Supreme Court explained that "[r]estitution for losses incurred 'as a result of the commission of a crime' [citation] includes losses incurred as a result of the defendant's unlawful flight from the scene of the accident in which he or she was involved, but not losses incurred solely as a result the accident itself." (Martinez, supra, 2 Cal.5th at p. 1103; see § 1202.4, subd. (a)(1).) For example, "[w]here the flight leads to a delay in the victim's access to medical care, . . . and the victim's injuries are exacerbated as a result, those costs are properly characterized as the 'result of the commission of a crime' for the purposes of a restitution order. (§ 1202.4, subd. (a)(1).) Similarly, the cost of tracking down a defendant who has fled the scene of the accident may be recoverable because such losses, too, result from the defendant's unlawful flight. Section 1202.4 does not, however, permit courts to order direct victim restitution for losses that occur as a result of an underlying accident that involves no criminal wrongdoing." (Id. at p. 1107.) "[I]f restitution for accident-related injuries required nothing more than proof that the driver was 'involved in an accident that caused serious injury or death,' then section 1202.4 would authorize an award of restitution even in cases in which the victim was solely at fault. To permit such an award based solely on the defendant's passive involvement in the accident would serve no recognized restitutionary purpose. And, indeed, to require the defendant to compensate the victim for injuries for which the defendant bears no responsibility—much less for injuries the victim has in effect inflicted on him or herself—could raise significant constitutional questions. [Citation.]" (Id. at p. 1104.)
The defendant in Martinez was sentenced to prison. (Martinez, supra, 2 Cal.5th at p. 1098.) The California Supreme Court in Martinez expressly distinguished a trial court's broader discretion to award restitution in probation cases. In probation cases, a trial court has "the power to order restitution 'even when the loss was not necessarily caused by the criminal conduct underlying the conviction,' including in cases in which 'the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation].' [Citation.]" (Id. at p. 1101.) Thus, "a trial court does not abuse its discretion in a hit-and-run case by conditioning the defendant's probation on the payment of restitution to the owner of property damaged in the underlying accident. Such a condition, . . . 'can be reasonably related to the offense underlying the conviction and can serve the purposes of rehabilitating the offender and deterring future criminality.' [Citation.]" (Id. at p. 1102.) --------
3. Driving Under the Influence of Alcohol
In a footnote in Martinez, the California Supreme Court stated that "[a] different result might obtain if the defendant's crimes included an offense, such as reckless driving (Veh. Code, §§ 23103, 23104) or driving under the influence (id., §§ 23152, 23153), that caused the accident that resulted in the victim's injuries." (Martinez, supra, 2 Cal.5th at p. 1107, fn. 3.) The California Supreme Court had no occasion to consider the issue further, as the defendant in the case before it had not been charged or convicted of reckless driving or DUI. (Ibid.)
In People v. Phillips (1985) 168 Cal.App.3d 642 (Phillips), the defendant was involved in a traffic accident and the jury convicted her of misdemeanor DUI (Veh. Code, § 23152, subd. (a)). (Phillips, supra, at p. 645.) On appeal, the defendant challenged a condition of probation requiring her to pay restitution. She argued that the jury's acquittal on a felony charge of DUI causing injury (Veh. Code, § 23153, subd. (a)) "absolved her of responsibility for the accident, rendering restitution for the damage and injuries improper." (Phillips, supra, at p. 647.)
The Court of Appeal determined that restitution was proper. The court stated that "[w]hen alcohol intoxication contributes to an automobile accident and ensuing injuries, restitution is proper." (Phillips, supra, 168 Cal.App.3d at p. 646.) The court considered the effect of the jury's acquittal on the felony charge of DUI causing injury (Veh. Code, § 23153, subd. (a)), and the jury's finding of guilt on the lesser included misdemeanor offense of DUI (id., § 23152, subd. (a)). (Phillips, supra, at pp. 644, 647-648.) The court explained that the elements of the felony offense include that (1) the defendant drove under the influence of alcohol, (2) did an act forbidden by law or neglected a duty imposed by law in the driving of the vehicle, and (3) the act or neglect proximately caused bodily injury to another person. (Id. at p. 647.) In the case before the court, the act forbidden by law was defendant's alleged failure to obey a red light. (Id. at p. 645.) The court determined that the jury's guilty verdict on the misdemeanor DUI (Veh. Code, § 23152, subd. (a)) reflected the jury's belief that the defendant drove under the influence of alcohol. (Phillips, supra, at p. 647.) At the same time, the jury's failure to find the defendant guilty of the felony offense (Veh. Code, § 23153, subd. (a)) meant that it either did not believe she ran a red light or did not believe a red light violation was the proximate cause of the injuries to others. (Phillips, supra, at p. 647.) The court explained that the jury was "not called upon to consider any other proximate cause of the accident," such as whether the defendant's intoxication proximately caused the accident and injuries. (Id. at p. 648.) As a result, the jury's acquittal on the felony "did not resolve this issue." (Ibid.) At the same time, however, the jury's finding of guilt on the misdemeanor DUI did not necessarily establish that the defendant was culpable for the loss resulting from the accident. (Id. at pp. 648, 649.)
The Court of Appeal explained that "[t]he fact the jury did not resolve [the defendant's] culpability for the accident as a drunk driver did not bar the trial court from so doing." (Phillips, supra, 168 Cal.App.3d at p. 648, fn. omitted.) The Court of Appeal ultimately determined that, based on the evidence at trial, the trial court did not abuse its discretion in finding that "the manner in which [the defendant] drove, affected by her intoxication, was a cause of the accident and ensuing injuries." (Id. at p. 650.)
4. Analysis
As we have set forth above, the California Supreme Court in Martinez stated that in nonprobation cases, a defendant may be ordered to pay restitution for losses incurred "as a result of the commission of a crime." (§ 1202.4, subd. (a)(1); see id., subd. (f) & (f)(3); Martinez, supra, 2 Cal.5th at p. 1097.) In the context of a conviction for leaving the scene of an accident, this means that restitution may be awarded for injuries that are "caused or exacerbated" by the defendant's criminal flight from the scene but not "for injuries resulting from the accident itself." (Martinez, supra, 2 Cal.5th at p. 1098; see id. at p. 1103.) Martinez was decided after the trial court awarded restitution in this case, and it does not appear that the trial court applied this standard. At the May 6, 2016 hearing, where the court determined that its order of restitution to the victim's four family members would stand, the court stated: "The Court notes that the defendant wishes to make a causation argument concerning the leaving of the scene aspect of the hit and run contending that the running aspect of the hit and run did not impact the victim's injuries nor the expenses that were incurred. From the Court's perspective this is not persuasive." (Italics added.) Martinez, however, requires that the defendant's flight cause or exacerbate the victim's injuries in order for restitution to be awarded for the injuries. (Martinez, supra, 2 Cal.5th at pp. 1098, 1103.)
Regarding the misdemeanor offense of DUI, a defendant's conviction does not necessarily establish that the defendant was culpable for a collision. (Phillips, supra, 168 Cal.App.3d at pp. 648, 649.) In such a case, however, the trial court in determining restitution may properly "resolve [the defendant's] culpability for the accident as a drunk driver." (Id. at p. 648.) Specifically, the court must determine whether the victim's losses were "incurred as the result of the defendant's criminal conduct" (§ 1202.4, subd. (f)(3), italics added; see id., subds. (a)(1) & (f)), meaning that "the manner in which [the defendant] drove, affected by her intoxication, was a cause of the accident and ensuing injuries." (Phillips, supra, at p. 650.) In this case, the record reflects that the court believed "the appropriate nexus" existed between the DUI offense and the losses suffered by the victim's family solely based on defendant's no contest plea to the DUI offense. In particular, at the the final restitution hearing on July 29, 2016, the court stated that the restitution being awarded was "appropriately tied to either Counts 1 or 2 and [defendant] acknowledged and admitted at the time of her change of plea."
Because it appears that the trial court did not determine whether the losses incurred by the victim's family members were "as a result of" defendant driving under influence of alcohol and/or leaving the scene of the accident, we determine that the matter must be remanded to the trial court. (§ 1202.4, subds. (a)(1) & (f), (f)(3).)) We observe that the parties stipulated to a factual basis for defendant's pleas based upon the preliminary examination transcript, and the judge who presided over defendant's preliminary examination also presided over defendant's change-of-plea, sentencing, and restitution hearings. Although the parties at the sentencing hearing made conflicting factual assertions about the victim's conduct before he was struck by defendant's truck, the trial court did not expressly resolve that conflict. In order to allow the trial court in the first instance to make the necessary findings under the correct legal standard, we will reverse the restitution order and remand the matter to the trial court with directions to reconsider whether restitution should be awarded to the family members. (See Knoller, supra, 41 Cal.4th at pp. 143, 158; Martinez, supra, 2 Cal.5th at p. 1108.) Regarding a conviction for leaving the scene of an accident, restitution may be awarded for injuries that are "caused or exacerbated" by the defendant's criminal flight from the scene but not "for injuries resulting from the accident itself." (Martinez, supra, at p. 1098; see id. at p. 1103.) Regarding a conviction for DUI, restitution may be awarded for injuries resulting from the defendant's driving if "the manner in which [the defendant] drove, affected by [his or] her intoxication, was a cause of the accident and ensuing injuries." (Phillips, supra, 168 Cal.App.3d at p. 650.)
Defendant contends that the prosecution forfeited the claim that her intoxication caused the accident that resulted in the victim's death, because the prosecution never requested a hearing or finding in this regard. We are not persuaded by defendant's argument. The prosecutor contended in the May 4, 2016 motion for victim restitution that defendant's "DUI charge can be viewed as . . . the cause of the victim's injury." The court thereafter held contested restitution hearings on May 6 and July 29, 2016. No forfeiture appears on this record.
We are also not persuaded by defendant's contention that remanding the matter raises double jeopardy concerns. Defendant argues that the prosecutor only changed her with DUI (Veh. Code, § 23152) and not DUI causing injury (id., § 23153). She contends that the prosecutor "should not get 'a second bite at the apple' " to prove that she was at fault for the accident and the victim's injuries. First, defendant fails to provide legal authority for the proposition that double jeopardy principles apply to a restitution hearing. (See People v. Harvest (2000) 84 Cal.App.4th 641, 650 ["victim restitution does not constitute punishment for double jeopardy purposes"].) Second, resolution of a charge of DUI causing injury does not necessarily resolve whether defendant's intoxication was a cause of her hitting the victim. (Phillips, supra, 168 Cal.App.3d at pp. 647-648, 650.) And the fact that her conviction for DUI "did not resolve [her] culpability for the accident as a drunk driver did not bar the trial court from so doing." (Id. at p. 648.) Because the trial court did not clearly determine causation, that is, whether the losses incurred by the victim's family were "as a result of the commission of a crime" by defendant, remand to the trial court for reconsideration of the issue is appropriate. (§ 1202.4, subd. (a)(1); see Knoller, supra, 41 Cal.4th at pp. 143, 158; Martinez, supra, 2 Cal.5th at p. 1108.)
IV. DISPOSITION
The order of restitution is reversed. The matter is remanded to the trial court with directions to reconsider the amount of victim restitution, based on whether the claimed losses were incurred "as a result of the commission of a crime" by defendant. (Pen. Code, § 1202.4, subd. (a)(1); see id., subd. (f) & (f)(3).)
/s/_________
Bamattre-Manoukian, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.