From Casetext: Smarter Legal Research

People v. Smith

California Court of Appeals, Sixth District
Jan 31, 2011
H035169, H035490 (Cal. Ct. App. Jan. 31, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ZOLLI GEORGE SMITH, Defendant and Appellant. H035169, H035490 California Court of Appeal, Sixth District January 31, 2011

NOT TO BE PUBLISHED

Santa Cruz County Super. Ct. No. F18077.

Mihara, J.

Defendant Zolli George Smith pleaded guilty to driving under the influence with injury (Veh. Code, § 23153, subd. (a)) and admitted personally inflicting great bodily injury (Pen. Code, § 12022.7, subd. (a)) in the commission of the driving offense. He was committed to state prison for a five-year term. At the sentencing hearing, over defendant’s objection to the setting of a restitution amount, the court ordered defendant to pay $285,525.65 in restitution for the medical bills of the boy who defendant’s vehicle had struck and seriously injured. At a subsequent hearing, the court modified the restitution order, again over defendant’s objection, so that, instead of the restitution being payable to the boy, the bulk of the money would go to “Healthy Families” and the remaining amount would be paid to the boy’s mother. Defendant was never afforded a hearing on the amount of restitution.

Defendant appeals from both the original restitution order and the amended one. He contends that the trial court erroneously deprived him of an opportunity to contest the amount of restitution. The Attorney General concedes, and he asks us to remand for a restitution hearing. We agree and do so.

I. Background

On the afternoon of July 7, 2009, defendant was careening along Highway 9 in his truck while under the influence of narcotics. His truck struck from behind and very seriously injured 15-year-old Zachary Taylor, who had been walking along the shoulder of the road.

Defendant was charged by information with driving under the influence with injury (Veh. Code, § 23153, subd. (a)), and reckless driving with great bodily injury and a prior conviction (Veh. Code, § 23104, subd. (b)). It was further alleged that he had personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) in the commission of the driving under the influence offense and that he was ineligible for probation because he had suffered two prior felony convictions (Pen. Code, § 1203, subd. (e)(4)).

On November 30, 2009, defendant entered into a plea agreement. He pleaded guilty to the driving under the influence count and admitted the great bodily injury enhancement allegation in exchange for the dismissal of the reckless driving count, the striking of the probation ineligibility allegation, and a cap on his sentence of five years in state prison. The court scheduled the sentencing hearing for January 12, 2010.

The January 5, 2010 probation report noted that “[t]he victim’s mother submitted a restitution claim form and is requesting restitution for estimated medical expenses of $282,635.32” and other expenses for “a total request for restitution” of “$285,525.65” “[t]hus far.” The probation report recommended that the court enter “a general order of restitution to the victim’s mother....” Attached to the probation report was 76 pages of documentation regarding the restitution request.

At the January 12, 2010 sentencing hearing, the court imposed a five-year prison term. The court then ordered defendant to pay $285,525.25 in restitution to Zachary Taylor. “Additionally, he’s obligated to make general restitution to Zachary Taylor and to his parents. At the current time just the medical bills are $285,525.65. There would be a minimum order of restitution in that amount, but that’s without prejudice to additional proof regarding Mr. Taylor’s pain and suffering and other expenses for treatment and rehabilitation that may be incurred in the future. There will also be a general order of restitution in favor of the Recovery and Compliance division.”

Defendant’s trial counsel objected to the court setting the amount of restitution. “[W]e don’t object to a general order which seems to be probation’s recommendation. I do object to a specific amount. I just received some additional records today but I did just receive those today.” The court responded: “I’m just making a general order for notice purposes indicating that the minimum amount is the amount of the claim which includes all the medical bills. That doesn’t include pain and suffering, doesn’t include other amounts that may be incurred in the future. In the event that a further claim is made and [defendant] requests a hearing, he will be entitled to a hearing with regard to restitution, but right now the minimum amount is in excess of $285,000.” Defendant’s trial counsel reiterated his objection “to that being the minimum amount....” The court ordered defendant to pay $285,525.65 in restitution to Zachary Taylor for his medical bills. Defendant timely filed a notice of appeal challenging this order.

In March 2010, the prosecutor submitted a request that the court change the restitution order. This one-page request stated: “Healthy families insurance has paid to date all of the victim’s medical expenses. [¶] Zachary is in need of medical attention that healthy families does not cover, and with the current restitution order, victim compensation will not be able to pay for his medical needs. [¶] Also, included in the total amount of restitution is the ‘out of pocket expenses’ that is not mentioned.” (Bold omitted.) The request asked the court to change the restitution order so that “$282,335.32” would go “to Healthy Families” and “$3,190.33” would go “to Lee Taylor for out of pocket expenses not covered by victim compensation.” (Bold omitted.) Lee Taylor is Zachary Taylor’s mother.

On April 1, 2010, defendant’s trial counsel was notified by telephone of the prosecutor’s request and told that the request would be heard on April 9, 2010. At the April 9 hearing, defendant’s trial counsel renewed his objection. “There hasn’t been a hearing with respect to the restitution, so we would renew the objection with respect to any restitution orders and certainly with respect to these amounts.” The court did not respond to the objection. It granted the prosecutor’s request. The court thereafter issued an order changing the restitution order as requested, which did not alter the total amount of restitution. Defendant timely filed a notice of appeal from this order.

This court ordered the two appeals to be considered together for purposes of oral argument and decision.

II. Analysis

Defendant contends that the trial court erroneously deprived him of a reasonable opportunity to be heard on the issue of the amount of restitution.

“The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (Pen. Code, § 1202.4, subd. (f)(1).) “A defendant must be afforded a reasonable opportunity to be heard on the issue of restitution.” (People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550 (Sandoval).) In Sandoval, the probation report noted the amount of damage but did not recommend that restitution be ordered in that amount. At the sentencing hearing, the court imposed restitution in that amount. Because this order was “unexpected, ” the Court of Appeal found that the defendant had been deprived of an opportunity to dispute the amount of restitution. (Sandoval, at p. 1550.)

Here, the probation report did not recommend that the court set the amount of restitution, and defendant’s trial counsel had apparently just received the documentation regarding the amount of restitution on the day of the sentencing hearing. Defendant objected and sought the opportunity to contest the amount, but the court did not afford him that opportunity. Hence, as in Sandoval, defendant was deprived of his statutory right to contest the amount of restitution. A remand for a restitution hearing is the appropriate disposition.

III. Disposition

The original and amended restitution orders are reversed, and the matter is remanded with directions to the trial court to hold a restitution hearing at which defendant may dispute the amount of restitution.

WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.


Summaries of

People v. Smith

California Court of Appeals, Sixth District
Jan 31, 2011
H035169, H035490 (Cal. Ct. App. Jan. 31, 2011)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ZOLLI GEORGE SMITH, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Jan 31, 2011

Citations

H035169, H035490 (Cal. Ct. App. Jan. 31, 2011)