Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SA058759 of Los Angeles County, Robert P. O’Neill, Judge.
Sylvia Whatley Beckham, 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, Lance E. Winters, Supervising Deputy Attorney General, and J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Salvador Ramirez was convicted by jury of misdemeanor reckless driving causing bodily injury (Veh. Code, §§ 23103, subd. (a), 23104, subd. (a)) and acquitted of felony leaving the scene of an accident resulting in injury (id., § 20001, subd. (a)). He appeals from the ensuing judgment (order granting probation), contending that the evidence was insufficient to support the judgment, the court’s response to jury questions created an improper inference, the jury should have been instructed on the lesser included offense of reckless driving without causing bodily injury, and restitution was ordered in excessive amounts as to two victims and one derivative victim. We agree that the restitution order as to the derivative victim was excessive and order the trial court to modify the order. In all other respects, we affirm.
BACKGROUND
Prairie Avenue in Hawthorne is a six-lane north-south street, much of which has a median area in the center marked by two sets of one solid and one broken yellow line. 138th Street is a two-lane residential street that joins Prairie from the west, forming a T-intersection. The median area of Prairie northbound approaching 138th is marked as a left-turn lane. The intersection of Prairie and 138th has no traffic control.
Around 3:00 p.m. on October 19, 2005, three cars were in the left-turn lane of northbound Prairie. There was a great deal of traffic, and the cars waited for southbound vehicles to clear the intersection before turning left onto 138th Street. A pickup truck being driven by defendant was facing southbound on Prairie, stopped in the median area just north of 138th. As the three northbound cars continued to wait to turn left, defendant started to drive his truck in a southerly direction on the northbound lanes of Prairie. He passed the three waiting cars on their right side and continued southbound diagonally across the three northbound lanes of Prairie. Defendant ultimately entered the driveway of a electric supply company on the east side of Prairie that was 94 feet from where he had been stopped in the median.
Meanwhile, 17-year-old Eljer Cervantes was driving northbound in the No. 2 (middle) lane of Prairie with two female passengers, at what Cervantes testified was “around 40” miles per hour. As Cervantes approached 138th Street, he saw defendant’s pickup truck being driven toward him, also in the No. 2 lane. To avoid defendant, Cervantes moved to his right, getting into the No. 3 lane (nearest the curb). At the same time, defendant moved to his left, also ending up in the No. 3 lane. Cervantes testified that he then “panicked,” swerved to his left, and “the next thing [he knew]” was that he had collided with one of the three cars that were waiting in the left-turn lane. That car then collided with the car in front of it. When Cervantes’s car came to a stop, it was hit by a car that was being driven on Prairie.
Karla Contreras, who was in the front car waiting to turn left, testified that after defendant drove past her car as he went southbound in the northbound lanes of Prairie, she continued to look at him through her rearview mirror. She then saw Cervantes hit the car behind her and thought, “‘Oh shit.’ I knew what was going to happen.”
As a result of the accident, the driver of the middle car, who was nine months pregnant, suffered a broken arm and broken ribs, was rendered unconscious, and delivered her baby by emergency cesarean section. A child passenger in the car suffered a broken arm and leg and had vision problems requiring therapy. An adult passenger in that car suffered a broken cheekbone. Cervantes and two passengers in his car were taken to the hospital, where Cervantes was treated for chest pains.
Defendant did not return to the scene of the accident. An officer who saw defendant’s truck parked in the driveway of the electric supply company located defendant. Defendant told the officer that he was traveling southbound on Prairie in the center median approaching 138th, “continued into the No. 1 southbound lane and made a left turn into the driveway [on the east side of] South Prairie.” When the officer told defendant that witnesses had described his route differently, defendant said that “he decided to travel into the northbound lanes of Prairie until he got to the driveway, and then made his left turn.” The officer next asked why defendant was driving on the wrong side of the street, and defendant “just looked at [the officer] and made no comment.” Defendant said that he did not stop because the accident occurred after he had made his left turn into the driveway.
Hawthorne Police Department traffic investigators concluded that defendant was at fault for the accident. One investigator testified that Cervantes was going more than 40 miles per hour but could not say if he was going over 50 miles per hour. A second Hawthorne traffic investigator approximated Cervantes’s speed at 45 to 50 miles per hour, but agreed that Cervantes could also have been going 60 to 70 miles per hour. There were no skid marks from Cervantes’s car. The investigators further testified that lack of skid marks was probably due to Cervantes not having “time to react and hit his brake and subsequently just swerved and became involved in a collision, therefore not having ample time to hit the brake and skid.” Whether “a diagonal left turn” constitutes “driving the wrong way” “depends on the distance.”
Testifying in his own behalf, defendant said that when he entered the intersection at 138th Street, he saw a car coming north on Prairie that was over a block away. Seeing that it was “safe for [him] to make [his] turn,” defendant did so. He heard a crash once the turn had been completed. A defense accident reconstruction expert was of the opinion that Cervantes was traveling between 60 and 70 miles per hour and was 300 feet from defendant when defendant made his left turn. The expert conceded that defendant had “contributed to the accident.”
In rebuttal, a prosecution accident reconstruction expert testified that the defense expert’s calculation of Cervantes’s speed was based on an inaccurate formula. In addition, there were too many variables to accurately determine the distance between Cervantes and defendant when defendant made his left turn. The primary cause of the accident was defendant having driven on the wrong side of the road into oncoming traffic.
DISCUSSION
1. Sufficiency of the Evidence
Vehicle Code section 23103, subdivision (a), requires a showing that a defendant drove a vehicle “in willful or wanton disregard for the safety of persons or property . . . .” Defendant contends that although the evidence may have established that his conduct was negligent, it was insufficient to show willful or wanton disregard for others. We disagree.
In support of his contention, defendant refers to evidence that Cervantes, a 17-year-old with two female passengers, was traveling faster than 40 miles per hour and admittedly “panicked” when he saw defendant’s truck. Defendant continues that “hitting the gas pedal, otherwise known as pedal error,” could account for the lack of skid marks, and that a diagonal left turn is not illegal per se but “depends on the distance.” Thus, urges defendant, willful or wanton disregard was not shown because “[n]obody could anticipate that oncoming traffic would not only be traveling in excess of the speed limit, but also an inexperienced driver would not be paying attention to [defendant’s] approach to the driveway, would panic, and would press the accelerator rather than the brake.”
Defendant’s argument ignores the fundamental rule that a reviewing court is required to view the trial evidence in the light most favorable to the judgment, accepting logical inferences that the trier of fact might have drawn, even if it would be reasonable to conclude otherwise. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnson (1980) 26 Cal.3d 557, 576–577.) “‘Wantonness’ is defined as having ‘consciousness of conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of the consequences.’ [Citation.] In the context of reckless driving, the term ‘willful’ refers to the intentional disregard for safety. [Citation.]” (People v. Dewey (1996) 42 Cal.App.4th 216, 221.)
The statute at issue in Dewey was Vehicle Code section 2800.2, which, like Vehicle Code section 23103, subdivision (a), prohibits driving “‘in willful or wanton disregard for the safety of persons or property.’” (People v. Dewey, supra, 42 Cal.App.4th at p. 221.)
The evidence summarized in the Background section of this opinion, including the distance that defendant traveled in a diagonal path while making his left turn, the speed of Cervantes’s vehicle, and the consciousness of guilt evinced by defendant’s initial mischaracterization of the trajectory of his turn to one of the officers who first responded to the scene, provided a sufficient basis to convince a rational trier of fact beyond a reasonable doubt that defendant violated Vehicle Code section 23104, subdivision (a).
2. Response to Jury Questions
Defendant contends that the court’s response to jury questions created an illogical permissive inference that violated his right to due process. We disagree.
In instructing the jury, the court preceded the instructions on the elements of the offenses with which defendant was charged by giving special instructions setting forth the language of five sections of the Vehicle Code. These included the requirement that a left turn be made from the left-hand edge of the extreme left hand lane (Veh. Code, § 22100, subd. (b)) and that a vehicle may not be turned from a direct course until the turn can be made with reasonable safety (id., § 22107). As to reckless driving causing bodily injury, the jury was instructed under CALCRIM No. 2200, in pertinent part, that to prove this offense a person must intentionally have driven with wanton disregard for the safety of others and that “[a] person acts with wanton disregard for safety when (1) he is aware that his actions present a substantial and unjustifiable risk of harm, and (2) he intentionally ignores that risk. The person does not, however, have to intend to cause damage.”
During deliberations, the jury asked with respect to the portion of the reckless driving instruction quoted above “whether it is relevant: [¶] 1. Whether the defendant’s actions violated the Vehicle Code? [¶] 2. What a reasonable person’s awareness of such risk would have been under the same circumstances?” The court responded to the first question, stating: “[Y]ou may take into consideration all the evidence and any violations that you may find in the context of whether the defendant himself was aware that his actions presented a substantial and unjustifiable risk of harm and he intentionally ignored that risk.” As to the second question, the court responded: “[W]hat you must determine is whether the defendant himself was aware that his actions presented a substantial and unjustifiable risk of harm and that he intentionally ignored that risk, and as the definition of wanton disregard for safety reads that person however does not have to intend to cause damage.”
Defendant argues that by including the words “and any violations that you may find” in its answer to the first question and failing to directly state that the reasonable person standard was inapplicable in answering the second question, “the jury was permitted to presume [defendant] intentionally drove in a reckless manner based upon finding he committed a traffic violation,” and that this permissive inference violated defendant’s right to due process. We do not agree that a presumption envisioned by defendant was ever created. Accordingly, his contention must be rejected.
3. Instruction on Reckless Driving Without Injury
Defendant contends that the trial court erred in failing to instruct, sua sponte, on the lesser included offense of reckless driving without causing injury under Vehicle Code section 23103. Again, we disagree.
The trial court has a duty to instruct on a defense if it is supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 157.) The court need not instruct when the evidence is “‘minimal and insubstantial.’ [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 201.)
Defendant is correct that although “‘“[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating,”’” “[a]n intervening, superseding cause can relieve a defendant of criminal liability if the act ‘break[s] the chain of causation’ [citation] and the defendant’s act is no longer a substantial factor in producing the injury.” (People v. Burnett (2003) 110 Cal.App.4th 868, 877.) Thus, defendant’s jury was properly instructed that “[t]here may be more than one cause of the injury. An act causes injury only if it is a substantial factor in causing the injury. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the injury.” (See People v. Sanchez (2001) 26 Cal.4th 834, 847; People v. Brady (2005) 129 Cal.App.4th 1314, 1325.)
“[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus. [Citations.]” (People v. Roberts (1992) 2 Cal.4th 271, 320, fn. 11.) Here, the record is devoid of substantial evidence that any negligence on Cervantes’s part broke the chain of causation started when defendant drove on the wrong side of the street in the direction of oncoming traffic. Rather, as acknowledged by defendant’s own expert in conceding that defendant had contributed to the accident, defendant’s conduct was a proximate cause of the injuries suffered by the victims in this case. Defendant’s contention must therefore be rejected.
4. Restitution
The trial court ordered restitution for the victims of the accident. Defendant contends that the amounts awarded were excessive as to two victims and one derivative victim. We agree as to the derivative victim, but not as to the two direct victims.
“[T]he trial court is vested with broad discretion in setting the amount of restitution; it may ‘“use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole . . . .”’ [Citations.]” (People v. Tucker (1995) 37 Cal.App.4th 1, 6.) “There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. [Citation.]” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) The defendant must be permitted to dispute the amount and manner of restitution payment. (Id. at p. 1125.) Contributory negligence is not available as a defense to a crime. (People v. Schmies (1996) 44 Cal.App.4th 38, 46.)
a. Oscar Flores
Oscar Flores was driving the car that collided with Cervantes after Cervantes had run into one of the cars waiting to turn left on 138th Street. Among other damages, which included medical expenses, Flores claimed $19,000 for “‘[l]ost wages or profits,’” explaining in a declaration that the amount represented “‘time lost electrical work, five months. It’s the equivalent of 800 hours.’” At the hearing on restitution, defendant objected to the claim, arguing that it was based on “pure speculation,” “as hearsay, and it’s not in evidence.” The court responded that “that type of evidence is admissible in a restitution hearing” and overruled defendant’s objection. The court disallowed a portion of Flores’s claim, but granted the request for $19,000 for lost wages or profits.
Defendant argues that the $19,000 award was unfair and irrational because it was based on speculation rather than proof. In support of his contention, defendant relies on our opinion in People v. Friscia (1993) 18 Cal.App.4th 834, an embezzlement case where the authorities had refused to prosecute until the amount of loss was determined by an accounting. The victims then undertook the accounting themselves and sought reimbursement for the 222.25 hours they had spent preparing the case. (Id. at pp. 835–836.) But unlike Friscia, the reimbursement sought by Flores was not for extraordinary services. Rather, the claim was for money he would have received based on the work he did, computed at roughly 40 hours per week and $23.75 per hour. The trial court did not err in granting this restitution.
b. Eljer Cervantes
Restitution was ordered for Eljer Cervantes in the amount of his claimed losses. Relying on the theory that Cervantes was at least partially responsible for the accident, defendant asserts that the order was in error because, when defendant’s theory was argued to the trial court as a basis for reducing restitution to Cervantes, “the court appeared to give no consideration whatsoever to the facts which established without contradiction that Eljer Cervantes was speeding toward the intersection.”
Apart from the fallacy that Cervantes’s excessive speed was established without contradiction, there is nothing in the record to support the notion that the court gave no consideration to defendant’s argument. Rather, absent an indication to the contrary (and there is none here), “[i]t is presumed that official duty has been regularly performed.” (Evid. Code, § 664.) As such, we presume that the court took relevant factors into consideration in ordering restitution for Cervantes and rejected defendant’s argument to the contrary.
c. Laura Cervantes
Laura Cervantes is apparently the mother of Eljer Cervantes and Brenda Castilla, who was a passenger in Eljer Cervantes’s car. The court ordered $2,337.33 restitution to Castilla for medical services and $3,068.58 restitution to Cervantes, as a derivative victim of defendant’s crime, for medical and ambulance services provided to Castilla. (See Pen. Code, § 1202.4, subd. (k)(3)(A) [parent of victim who sustained economic loss qualifies as crime “victim”].) Defendant contends and the Attorney General aptly concedes that $2,337.33 of the amount awarded to Cervantes for Castilla’s medical services was duplicative of the amount that was awarded to Castilla for medical services. Thus, Cervantes’s restitution should have been limited to $731.25 ($3,068.58 minus $2,337.33) for the ambulance services provided to Castilla, which were not included in Castilla’s restitution award. We shall order the trial court to make the appropriate modification.
DISPOSITION
The trial court is ordered to reduce the restitution ordered in favor of Laura Cervantes to $731.25. In all other respects, the judgment (order granting probation) is affirmed.
We concur: VOGEL, J., ROTHSCHILD, J.