Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA066624, James R. Brandlin, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendant Romel Jamal Gibson appeals from the judgment entered after a jury convicted him of driving under the influence causing injury, driving with a.08 or more percent blood alcohol content causing injury, feloniously evading a peace officer and leaving the scene of an accident. In a bifurcated proceeding, the trial court found defendant had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law. He contends the trial court erred by ordering him to pay victim restitution in the amount of $9,594.20 and by refusing to stay the sentences for feloniously evading a peace officer and for leaving the scene of an accident. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of Trial Evidence
On November 15, 2006, two Los Angeles County deputy sheriffs on patrol spotted defendant driving his car on surface streets at an excessive rate of speed and straddling two traffic lanes. The deputies activated the patrol car’s overhead lights, and defendant pulled to the curb. When one deputy started to approach on foot, defendant accelerated away, leading the deputies on a high-speed chase that was about three miles long and lasted about three minutes. Defendant drove up to 20 miles per hour over the speed limit and tossed a beer bottle and what appeared to be a gun out of his car. At an intersection, defendant drove through a red light without stopping, and nearly collided with other vehicles before accelerating to speeds in excess of 70 miles per hour.
After running another red light, defendant rear-ended a car driven by Crystal Lakey. Her car spun around several times and struck the curb. Defendant did not stop his car but continued driving at 70 miles per hour in a residential area, with deputies still in pursuit. After deputies halted their pursuit for safety reasons, defendant was discovered on the sidewalk near his now heavily damaged car. Defendant attempted to flee on foot and was arrested. Lakey was transported to the hospital with injuries to her knee, lower back and head. It was stipulated defendant was under the influence of an alcoholic beverage, and his blood alcohol level (0.16 to 0.17 percent) exceeded 0.08 percent on November 15, 2006.
Defendant did not testify in his own defense. Demetrius Baker, defendant’s cousin, testified defendant drove a friend to Baker’s house on November 15, 2006. During the evening, defendant consumed too much alcohol and became intoxicated, so Baker took defendant’s car keys and asked the friend to drive defendant home. When they left Baker’s house, defendant was in the passenger seat, and the friend was driving defendant’s car.
2. Sentencing Hearing
Defendant was sentenced to an aggregate state prison term of nine years eight months consisting of four years (the two-year middle term doubled under the Three Strikes law) for driving under the influence causing injury; a consecutive term of 16 months (one-third the two-year middle term doubled) for feloniously evading a peace officer; a consecutive term of 16 months (one-third the two-year middle term doubled) for leaving the scene of an accident plus two years for an enhancement under Penal Code section 12022.1 (for conviction of a secondary offense felony while on bail pending adjudication of a primary offense felony); and a consecutive term of one-year (one-third the three-year middle term) for a drug-related conviction in the case for which he had been released on bail. The court stayed defendant’s sentence for driving with a.08 or more percent blood alcohol content causing injury pursuant to section 654.
Statutory references are to the Penal Code unless otherwise indicated.
Los Angeles Superior Court case No. TA084959. Noting the prior strike allegation had been stricken in that case, the trial court declined to double the subordinate term for the drug-related offense in sentencing defendant in this case.
The court denied defense counsel’s request that the sentences be stayed for feloniously evading a peace officer and for leaving the scene of an accident and expressly found each of the three offenses was “a separate transaction, involving a separate intent.”
3. Restitution Hearing
Crystal Lakey requested that defendant be ordered to pay victim restitution in the amount of $9,594.20, plus 10 percent interest from the date of her loss. In support of her restitution claim, Lakey submitted a declaration in which she stated her 1995 Nissan Maxima sustained “major damage” in the November 15, 2006 collision; she obtained an estimated car repair cost of $4,711.30 on March 15, 2007; Lakey was told the Los Angeles County Sheriff’s Department would pay for “the damage to her car,” but her repair claim was rejected; her car had not yet been repaired; having no alternative means of transportation, Lakey rented a car; the car rental expense was $4,882.90; and Lakey had to miss work to testify at trial and to appear at the restitution hearing. Lakey provided the estimated car repair cost and rental receipts, and declared her statements were correct under penalty of perjury.
At the beginning of the restitution hearing, the trial court indicated it had read and considered Lakey’s declaration and supporting documentation, and invited argument from counsel. Defense counsel indicated he “wouldn’t disagree” with the $4,711.30 car repair cost, but disputed Lakey’s car rental expense claim of $4,882.90 as excessive and asked that it be modified by the court.
Although Lakey was at the restitution hearing and willing to testify, the parties stipulated the trial court could rely on Lakey’s declaration and supporting documentation in lieu of her testimony.
The trial court noted the issue before it was not whether Lakey’s expenses were actually incurred, but instead whether they were reasonable under the circumstances and appropriate under section 1202.4 as compensable “economic loss.” The court then ordered defendant to pay restitution to Lakey in the amount of $9,594.20, plus 10 percent interest from the date of the loss, November 15, 2006. In setting the amount of restitution, the court explained the $4,882.90 car rental expense was “appropriate, in order to make the victim whole. [Defendant’s] conduct on that particular night was egregious. Could have easily been a fatal collision. The fact [Lakey] didn’t have the ability to immediately replace the car I don’t think should inure to defendant’s benefit. I think that by renting a vehicle, it was appropriate under the circumstances, and was not excessive. So I am ordering the full rental cost as well as the full cost for the repair of the vehicle. Whether she ever has it repaired or not is legally irrelevant, because she was deprived of something that was of that value.”
DISCUSSION
1. The Trial Court Did Not Abuse its Discretion in Setting the Amount of the Restitution Award
The California Constitution directs the Legislature to adopt laws implementing the “right” of “all persons who suffer losses as a result of criminal activity” to receive “restitution from the persons convicted of the crimes,” and ensuring that “restitution shall be ordered” from convicted criminals in every case in which a crime victim suffers a loss “unless compelling and extraordinary reasons exist to the contrary.” (Cal. Const., art. I, § 28, subd. (b); see People v. Hamilton (2003) 114 Cal.App.4th 932, 939.) The Legislature passed section 1202.4, among other statutes, to implement that mandate. (See People v. Giordano (2007) 42 Cal.4th 644, 652-653 (Giordano).)
The version of section 1202.4 that governs here provided that “[i]n 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,” unless the trial court “finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f).) “To the extent possible, 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, including, but not limited to... [¶]... Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible [;]....” (§ 1202.4, subd. (f)(3)(A).) “The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).)
This case is governed by the version of section 1202.4 in effect when defendant committed his crimes on November 15, 2006. (People v. Hamilton, supra, 114 Cal.App.4th at p. 939, fn. 5.) All references to section 1202.4 are to that version. The Legislature has amended section 1202.4 several times since, but not in any respect material to this case. (See Stats. 2007, ch. 302 (S.B.425), § 14; Stats. 2008, ch. 468 (A.B.2750), § 1; see generally, Giordano, supra, 42 Cal.4th at pp. 651-654 [surveying history of § 1202.4].)
A trial court’s determination of the amount of restitution is reversible only if the defendant demonstrates a clear abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) No abuse of discretion is shown simply because the order does not reflect the exact amount of the loss. The determination of the economic loss must be reasonable, requiring the trial court to employ a method for calculating the amount of restitution, “that is rationally designed to determine the... victim’s economic loss. (Ibid.)
Defendant contends the trial court abused its discretion and erred as a matter of law by predicating Lakey’s economic loss on the cost of repairing her 1995 Nissan Maxima rather than on the cost of replacing it with a comparable vehicle, although defendant acknowledges the court’s method of calculation was authorized by section 1202.4, subdivision (f)(3)(A) While it is true the replacement cost of Lakey’s car may have been the more appropriate measure of her loss, there was no such showing in the trial court. Indeed, once Lakey had made a prima facie showing of loss based on the repair cost, the burden shifted to defendant to demonstrate the amount of loss was other than what Lakey claimed. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) Apart from Lakey’s car-rental expense, which the court found to be reasonable, defendant did not challenge the factual or legal basis of Lakey’s restitution claim. Nor did defendant offer any affirmative evidence of the replacement cost of a 1995 Nissan Maxima for the court to consider whether it more accurately reflected Lakey’s loss. Without this evidence, the court’s reliance on the evidence before it, the repair cost, was fully justified. It was neither an abuse of discretion nor an error of law for the court to determine the restitution award based on the evidence presented at the hearing.
Defendant’s assertion the trial court was obligated to find Lakey intended to repair her car prior to using the repair cost to calculate her loss is supported only by ipse dixit, not legal authority.
Defendant cites People v. Thygesen (1999) 69 Cal.App.4th 988 in urging us to reverse the restitution order and remand for a new restitution hearing; but his reliance on Thygesen is misplaced. In that case, our colleagues in Division Two concluded the victim was entitled under section 1202.4 to both the replacement cost of a stolen cement mixer the defendant had originally rented, and compensation for lost use but “there was absolutely no evidence presented to the trial court from which a rational determination as to either type of loss could have been made.” (Id. at p. 995, italics added.) Accordingly, the restitution order was reversed and the matter remanded for a new hearing to elicit evidence as to both types of loss. (Id. at p. 996.)
2. The Trial Court Did Not Err in Refusing To Stay Sentences for Feloniously Evading a Peace Officer and for Leaving the Scene of an Accident
Section 654 prohibits punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. James (1977) 19 Cal.3d 99, 119.) Whether the offenses are incident to one course of conduct depends on the intent and objective of the defendant. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Defendant contends the trial court erred in imposing consecutive terms for feloniously evading a peace officer and for leaving the scene of an accident. He argues those sentences should have been stayed under section 654 because his convictions for driving under the influence causing injury, evading a peace officer and for leaving the scene of an accident “share common facts.” According to defendant, the evidence shows in committing the offenses, he engaged in one indivisible transaction of “high-speed drunk- driving” causing injury, with the single objective of avoiding apprehension.
While it is true from the moment defendant sped away from the deputy sheriffs until he was finally detained while fleeing on foot, his objective was to avoid apprehension, it was not defendant’s sole objective. The evidence established that different conduct formed the factual basis for defendant’s crimes, and his criminal acts were motivated by independent—albeit consecutive or simultaneous—objectives. In launching the high speed chase, defendant’s objective was to evade pursuing deputies because he was driving while intoxicated and/or violating the terms of his release on bail. In colliding with Lakey’s car and causing her injury while driving recklessly and under the influence, defendant committed a separate criminal act from evading a pursuing peace officer, and a crime of general intent. Defendant’s third criminal act was to leave the scene of an accident. The gravamen of this offense is not the initial injury to the victim (People v. Wood (2000) 83 Cal.App.4th 862, 866), nor the departure from the accident scene, but rather the failure to stop to present identification and to render aid at the scene. (See, e.g., People v. Mosley (1961) 197 Cal.App.2d 513, 516-517 [motorist who fled after striking pedestrian, then backed-up his vehicle and remained at scene without identifying himself or rendering aid was guilty of leaving the scene of an accident].) In failing to stop after the collision, defendant’s objective was to avoid his obligations to Lakey for the consequences of his unsafe driving. The fact that he also was also fleeing the scene in furtherance of his objective to evade pursuing deputies is of no consequence. Separate objectives may exist under section 654 “when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous.” (People v. Britt (2004) 32 Cal.4th 944, 952.) Here the trial court properly found defendant had separate intents and objective in committing the offenses.
As explained in People v. Butler (1986) 184 Cal.App.3d 469, the purpose of section 654 “is to insure that a defendant’s punishment will be commensurate with his culpability. If multiple punishment is prohibited in this case, as a matter of law, there would be no incentive for a person who causes an accident [while fleeing from police] to stop and render aid as required by Vehicle Code section 20001. In fact, noncompliance would be rewarded. A defendant would suffer no greater criminal liability if he took his chances on escaping than if he stopped and rendered aid. Our Legislature could not and did not intend such an absurd result.” (Id. at p. 474.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.