Opinion
C075825
05-18-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN WILLIAM GORDON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CM038133) OPINION ON TRANSFER
This appeal originated as a review pursuant to People v. Wende (1979) 25 Cal.3d 436, after defendant Kevin William Gordon entered a negotiated plea of no contest to leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a); count 1) and admitted a strike prior (1989 kidnapping; Pen. Code, §§ 667, subds. (b)-(i), 1170.12) in exchange for dismissal of the remaining counts (possession of marijuana for sale, transportation of marijuana) and four prior prison terms with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
The trial court sentenced defendant to state prison for the upper term of three years, doubled to six years for the strike prior, and awarded 428 days of presentence custody credits. The court ordered defendant to pay $7,689 in victim restitution and various other fines, fees, and assessments. Defendant appealed.
Counsel filed a brief pursuant to Wende, and we subsequently filed our opinion in this case finding no arguable error favorable to defendant and affirming the judgment. (People v. Gordon (July 31, 2014, C075825 [nonpub. opn.].) After defendant filed a petition for rehearing, arguing that the victim restitution order was not proper and citing People v. Martinez (2014) 226 Cal.App.4th 1156, we granted the petition and vacated our opinion. We requested supplemental briefing on the propriety of the restitution order for losses from the collision.
The California Supreme Court subsequently granted review in People v. Martinez. (People v. Martinez, supra, 226 Cal.App.4th 1156, review granted Sept. 10, 2014, S219970.) While review was pending, we again affirmed the judgment in this case, concluding that the victim restitution order was proper. (People v. Gordon (Feb. 18, 2015, C075825 [nonpub. opn.].)
On March 26, 2015, defendant filed a petition for review with our Supreme Court.
On May 25, 2017, our Supreme Court issued its decision in People v. Martinez (2017) 2 Cal.5th 1093 (Martinez). On April 11, 2018, the case was transferred back to us with directions to vacate our decision and to reconsider in light of Martinez, supra, 2 Cal.5th 1093. The parties submitted supplemental briefing and agree that the victim restitution order must be reversed in accordance with Martinez. We agree, and shall modify the judgment accordingly.
FACTS
We take this summary directly from our previous opinion in People v. Gordon (Feb. 18, 2015, C075825 [nonpub. opn.]).
On November 2, 2012, defendant turned his car in front of an oncoming van driven by John Foley. Foley attempted to stop but was unable to do so and crashed into defendant's car. Foley's three young children, who were in the van, suffered minor injuries. Defendant's car sustained damage to the front and passenger side and Foley's van had extensive front end damage. Defendant fled the scene after the accident. A search of defendant's car revealed over 75 grams of marijuana (net weight) and a digital camera containing defendant's photograph, which led to his arrest.
Defendant entered a negotiated plea of no contest to leaving the scene of an injury accident, a violation of Vehicle Code section 20001, subdivision (a), which provides: "The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004." The court ordered defendant to pay $7,689 in victim restitution to Foley for the damage to his car. (People v. Gordon (Feb. 18, 2015, C075825 [nonpub. opn.], slip opn. at pp. 2-3.)
DISCUSSION
The parties agree that the factual predicate for the victim restitution ordered is the probation report and attachments, including Foley's sentencing statement and loss statement. The parties also agree that the factual basis for the restitution order shows only losses from the actual collision and not defendant's subsequent flight. (People v. Gordon (Feb. 18, 2015, C075825 [nonpub. opn.], slip opn. at p. 3.)
Martinez held that a trial court was not authorized to order victim restitution for injuries not caused or exacerbated by the defendant's flight from the scene of the hit-and-run accident. A trial court is not authorized to award restitution for injuries resulting from the accident and not the flight itself. (People v. Martinez, supra, 5 Cal.5th at p. 1107.)
Here, it is undisputed that the losses resulted from the actual collision, not the subsequent flight. Thus, we agree with the parties that the victim restitution order must be reversed.
DISPOSITION
The victim restitution order is reversed. The trial court is directed to prepare an amended abstract of judgment omitting the order and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Butz, J.