Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the of San Bernardino County, Super. Ct. No. FCH900336, Stanford E. Reichert, Judge.
HUFFMAN, Acting P. J.
A jury convicted Gabriel Alexander Baez of one count of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), one count of driving with a blood alcohol content of 0.08 percent or greater causing injury (Veh. Code, § 23153, subd. (b)), one count of leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), and one count of a hit and run with property damage (Veh. Code, § 20002, subd. (a)). The trial court sentenced Baez to credit for time served and probation. As a condition of probation, the court ordered Baez to pay restitution to the victims for property damages and losses incurred as a result of their injuries. Baez appeals, contending that the trial court erred by (1) refusing to let him cross-examine two witnesses about whether the victim was a member of a white supremacy gang, (2) ordering him to pay restitution for lost wages to a victim who had been receiving unemployment benefits, and (3) ordering him to pay restitution to a victim even though he was not convicted of causing the victim's injuries. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 2009, Baez spent the evening drinking alcohol at the Shamrock Bar in Chino Hills. Around 1:30 a.m., bar security officers accused him of writing graffiti on the bathroom wall and asked him to leave. Baez refused and acted belligerently toward the security officers. The security officers escorted Baez out of the bar, through the front door, and then out to the parking lot, followed by a large group of people including security and bar patrons. This led to a scuffle in the parking lot between Baez and a number of bar patrons and security officers.
Baez got into his truck and drove erratically through the parking lot toward the group of people who had gathered outside. Some witnesses said Baez appeared to intentionally drive toward the patrons, not even attempting to avoid them. In the process, he ran over patron Ryan Koscielski and injured patron Michael Krasch as he dove out of the way to avoid Baez. Baez also damaged a parked vehicle belonging to Brittany Volk.
A. Trial and Cross-Examination
At trial, Baez attempted to introduce character evidence during cross-examination of Koscielski that he was a member of a white supremacist gang who targeted Baez for his race and that Baez was driving erratically out of fear for his own safety. He sought to question him about his affiliations on cross-examination, specifically the significance of a tattoo of a shamrock on his neck, a tattoo of brass knuckles on his shoulder, and a mixed martial arts shirt he wore on the night of the incident. The People objected to the questioning on grounds of both relevance and prejudice. The court heard argument on the objection from both parties outside the presence of the jury and sustained the objection on grounds of irrelevance and its highly prejudicial nature. The court noted that if Baez wished to argue that Koscielski was a white supremacist, he would have to provide positive proof subject to a hearing outside the presence of the jury.
During cross-examination of Krasch, a friend of Koscielski's and victim of the incident, Baez sought to introduce photographs of Koscielski purportedly taken on the night in question making a hand gesture that Baez claims was a sign used by members of the Aryan Brotherhood, a white supremacy gang. The People objected and the court held a relevancy hearing outside the presence of the jury pursuant to Evidence Code section 402, subdivision (b) ("402 hearing"). Krasch testified that he did not believe that the photo in which Koscielski made the hand gesture was taken at the Shamrock Bar, and that he did not know what, if anything, the gesture symbolized. Krasch further testified that he and Koscielski were neither white supremacists nor members of the Aryan Brotherhood, and that they did not go to the bar with the intent to start a fight with Baez, a Hispanic male. The court sustained the objection to the photographs and testimony on grounds of irrelevance, and none of the photographs were admitted into evidence.
Evidence Code section 402, subdivision (b), states in part: "The court may hear and determine questions of admissible evidence outside the presence of the jury...."
After returning to proceedings before the jury, Baez questioned Krasch on whether Koscielski ever referred to himself as a modern day "Marcus Aurelius" or was involved in mixed martial arts fighting. Again the People objected on grounds of relevance, and again the parties met with the court outside the presence of the jury for argument on the objection. Baez argued that this line of questioning was necessary to establish that Koscielski had instigated an argument with Baez over race and Baez felt threatened by Koscielski. The People argued that this line of questioning was irrelevant. There was no evidence that Koscielski was involved in the fight or had even come into contact with Baez prior to being run over. The trial court sustained the objection on grounds of irrelevance and lack of proof.
As a result of these discussions held outside the presence of the jury, no cross-examination was allowed with regard to whether Koscielski was a white supremacist or at all affiliated with the Aryan Brotherhood. There was also nothing submitted or entered into evidence proving or disproving that Koscielski was in any way affiliated with these groups.
In his opening brief, Baez asserts that he was allowed limited cross-examination on the issue during the restitution hearing after the guilt phase of the trial. Our review of the record indicates that no such questioning occurred during the restitution phase.
B. Sentencing and Restitution Hearing
The court sentenced Baez to three years of supervised probation plus credit for time served. Baez was also ordered to pay restitution to Koscielski and Krasch for lost wages and to Volk for damage to her vehicle.
After sentencing, the court held a restitution hearing to determine the amount Baez would be required to pay to the victims. Baez objected to the imposition of restitution payments to both Koscielski and Krasch. Both claimed that they were unable to work due to their injuries and sought restitution for lost wages.
Since Koscielski had been unemployed for nearly a year at the time of the incident, Baez argues that he did not suffer a loss of wages and therefore restitution was inappropriate. The court disagreed, stating that Koscielski could not work as a result of his injuries and that restitution was appropriate. Koscielski presented evidence of a weekly income of $1,116 prior to losing his job. The court decided that it could not award restitution on this basis because Koscielski had not earned this much in nearly a year at the time of the incident, but not for future lost earnings. Using the disability payments Koscielski had been receiving since the incident as a baseline, the court doubled his disability payments ($452 per week for 27 weeks), reduced by the amount of disability he had received, plus an additional $3,616 ($904 per week) for the remaining four weeks, for a total of $15,820.
As to Krasch, Baez argued that restitution was inappropriate because no verdict had been reached as to count 1 of the indictment, the only count in which Krasch was named as a victim. Therefore, Baez argues, Krasch is not a victim of any crime and is not entitled to restitution. The court awarded restitution on the grounds that Krasch's injuries arose out of the offenses for which Baez was convicted, even if Krasch was not a named victim.
DISCUSSION
I
CROSS-EXAMINATION
We evaluate claims that cross-examination about a particular subject was appropriate and should have been allowed under an abuse of discretion standard. (People v. Foss (2007) 155 Cal.App.4th 113, 126.) Baez must affirmatively show that the court's denial of his attempt to cross-examine Koscielski about whether he was a white supremacist or gang member was arbitrary, capricious, or that the denial resulted in a manifest miscarriage of justice. (Ibid.) We find that the cross-examination on that subject was properly denied.
Only relevant evidence is admissible in a criminal proceeding. (Evid. Code, § 350.) Evidence of the victim's character or propensity for violence may be relevant, but the defendant must offer proof of that character. (Evid. Code, § 1103, subd. (a).) Even if evidence is relevant and grounded in fact, the court may exclude it if its probative value is substantially outweighed by the risk of undue prejudice. (Evid. Code, § 352.) In this case, for Baez's cross-examination on the subject of whether Koscielski was a member of the Aryan Brotherhood, Baez must offer evidence to prove the fact and show that it is relevant. (Evid. Code, § 403, subd. (a).)
Baez urges us to consider the factors delineated in Delaware v. Van Ardsall (1986) 475 U.S. 673 (Delaware)) in our analysis of whether cross-examination was improperly denied. Delaware involved a defendant who had been prohibited from asking a witness if it was true that the prosecution had dropped charges against him in exchange for his testimony against the defendant. (Id. at p. 676.) The Delaware court found that the question was highly relevant with regard to potential bias on the part of the witness. (Id. at p. 679.) The situation here is very different. No witnesses testified that Koscielski was a white supremacist, and Baez failed to otherwise offer proof of the fact. (Evid. Code, § 403, subd. (a).)
The "Delaware factors" require consideration of (1) the importance of the witness's testimony, (2) whether the testimony was cumulative, (3) the presence or absence of corroborating or contradicting testimony on material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the prosecution's case. (Delaware, supra, 475 U.S. at p. 684.)
Given the record before us, the trial court could reasonably have concluded that the evidence was irrelevant, purely speculative, and prejudicial. Three separate times, Baez attempted to cross-examine the People's witnesses as to the significance of Koscielski's tattoos, clothing, and hand gestures. Each time, the court held a hearing outside the presence of the jury to determine the relevance of this line of questioning. After each hearing, it was clear that the questions were purely speculative, and Baez offered no proof of the truth of the allegations of white supremacy in the questions.
The trial court must be cautious before denying cross-examination on a particular topic, and did so by holding two arguments on the relevance of the questions outside the presence of the jury as well as a full 402 hearing on the admissibility and relevance of photographs purportedly taken on the night in question. During this hearing, Baez was able to conduct the cross-examination he wanted to conduct, and the trial court found the questions and responses speculative, of an inflammatory nature, and irrelevant to the issues at hand. Baez was not denied the right to offer evidence of Koscielski's affiliation with the Aryan Brotherhood; Baez failed to present any.
II
RESTITUTION
We evaluate claims that restitution was improperly awarded under an abuse of discretion standard. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The trial court enjoys broad discretion in awarding restitution with the goal of rehabilitating and deterring the defendant from future reckless conduct. (People v. Hove (1999) 76 Cal.App.4th 1266, 1273 (Hove).) The trial court abuses that discretion if it assigns an award using a method that is irrational or making an award that is arbitrary and capricious or otherwise not in accordance with law. (People v. Draut (1999) 73 Cal.App.4th 577, 582.) Baez challenges restitution awards to both Koscielski and Krasch as exceeding the court's discretion. We find that the trial court properly exercised its discretion in awarding restitution to both victims.
A. Restitution to Koscielski for Lost Wages Was Properly Granted
Baez argues that restitution for lost wages to Koscielski is inappropriate because Koscielski was receiving disability benefits at the time of the incident, and therefore he did not incur an economic loss as a result. We find restitution was properly awarded.
The trial court enjoys broad discretion in awarding restitution. (Hove, supra, 76 Cal.App.4th at p. 1274.) State benefits may be used as a basis for calculating a victim's restitution, even if it does not reflect the victim's actual loss, because restitution would still serve the purpose of deterring and punishing the defendant. (Id. at pp. 1272-1273.) As a result of Baez's actions, Koscielski has been injured and unable to work as a plumber, thereby impairing his ability to earn a living. The court did not award restitution to cover state benefits, but rather used the benefits as a basis for calculating the proper amount of restitution. Since Koscielski cannot work as a direct result of Baez's actions, we agree that Koscielski has suffered an economic loss and the award of restitution is appropriate.
B. Restitution to Krasch Was Properly Awarded
Baez asserts that Krasch was not a victim of the crime because he was not a victim of any of the charges Baez was convicted of. He argues that only victims of the actual charges convicted of may recover restitution for lost wages. We disagree.
A victim is entitled to restitution even if the injuries resulted from conduct that did not result in a conviction. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) While Baez may not have been convicted of specifically injuring Krasch, he was convicted of driving while intoxicated through a parking lot full of people and causing injuries and property damage. Krasch's injuries arose from him diving out of the way to avoid Baez's truck, and as a result he is unable to work as a mechanic. Krasch's injuries arose out of the same conduct that led to Baez's conviction, and therefore the trial court properly awarded restitution to Krasch for lost wages.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: HALLER, J.O'ROURKE, J.