Opinion
No.C042901. No. C043798.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DOUGLAS SPRINGER, Defendant and Appellant.
William Douglas Springer appeals from a judgment of probation following a plea agreement which included a victim restitution award of $10,685.04. He seeks to strike an $8,200 item from the award on the ground that it constituted an abuse of discretion and conferred on the victims an unfair windfall. Springer also contends there is an arithmetical error in the total amount of the award. We will correct the error in arithmetic but otherwise affirm the judgment.
BACKGROUND
Since this is an appeal from a judgment after a plea of guilty, our factual summary is taken from the police report.
On November 23, 2001, Lynn Strolz (Strolz) was driving eastbound on Glenshire Drive in Truckee with her husband Alfredo Strolz as a passenger in their 1999 Silver Dodge Durango SUV. Strolz noticed a gold pickup truck parked off the road and pulled over to a point just ahead of it.
Looking to her right, Strolz saw Springer approaching their vehicle. When her husband opened the door, Springer attacked him. He held a knife to her husbands throat, threatening to "fucking stab you" as they struggled. Springer led Mr. Strolz around to the drivers side of the Durango and let him go. He then tried to get into the vehicle through the open drivers side window, ordering Strolz to "get out."
Fearing for her safety, Strolz hit the gas pedal and accelerated to speeds of up to 70 miles per hour as Springer hung on the door post of the car. She slammed on her brakes and accelerated again, but Springer still hung on, waving a knife in her face and threatening to kill her if she did not stop. Strolz slammed on her brakes a second time and jumped from the car. She flagged down a passing motorist and summoned help.
By information, Springer was charged with carjacking (Pen. Code, § 215, subd. (a) [all further unspecified statutory references are to this code]), two counts of assault with a deadly weapon (§ 245, subd. (a)(1)), and one count of misdemeanor resisting arrest. (§ 148.)
Pursuant to a negotiated disposition, Springer entered a no contest plea to two counts of assault with a deadly weapon, with the understanding that he would receive probation and not more than one year county jail time.
Springer was sentenced to probation in accordance with the plea bargain. At a subsequent victim restitution hearing Strolz testified that, at the time of the incident, she and her husband were leasing the Durango. Although she had the body damage to the car repaired, as a result of the incident she experienced nightmares in which she saw Springer standing next to the car and had psychological difficulty even being around it. Consequently, the Strolzes turned the Durango in to the leasing company, but had to pay an $8,200 penalty for early termination of the lease. On redirect, Mrs. Strolz testified that they replaced the Durango with a newer, smaller version of the same car, "the sport."
Defense counsel, while not contesting that the Strolzes were entitled to compensation for the insurance deductible and for loss of use during the time the Durango was in the shop, argued that the restitution statute did not cover the $8,200 penalty for early termination of the lease. He urged that the Durango was restored to its prior condition and that the penalty resulted, not from his clients conduct, but from the victims "unilateral decision" to exchange it for another car. The court ruled as follows:
"All right. I read the transcript, and the victim stopped to render assistance and ended up going through an absolutely horrible experience, and its clearly understandable that she would not want to have to use that vehicle or look at that vehicle again. I think this was a foreseeable consequence, and the reason that she cant use the car anymore is because of the defendants conduct, and therefore if restitution is to make a victim whole restitution should be ordered for the loss under the lease. Ill set the restitution amount at $10,685.04."
APPEAL
I
The $8,200 Early Termination Penalty
Springer claims the courts award of $8,200 to compensate the Strolzes for the penalty they paid for early termination of the lease of the Durango was an abuse of discretion. The argument has two components, which we will address individually.
1. "Direct Consequence" Argument
Echoing trial counsels argument, Springer asserts that because the Strolzes did not have to turn their car in prior to the leases expiration, the award was not rationally justified as the direct consequence of his criminal conduct.
The California Constitution provides that "all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer." (Cal. Const., art. I, § 28, subd. (b).) Statutory provisions implementing this directive "have been broadly and liberally construed." (People v. Lyon (1996) 49 Cal.App.4th 1521, 1525.)
In relevant part, section 1202.4, subdivision (f)(3) provides that the victim restitution award "shall be of a dollar amount that is sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, all of the following: . . ." In the ensuing subparagraphs, section 1202.4 lists certain categories of loss awards which are specifically authorized. However, because of the "including, but not limited to" language, a trial court may compensate the victim for any economic loss which is proved to be the direct result of the defendants criminal behavior, even if not specifically enumerated in the statute. (See People v. Mearns (2002) 97 Cal.App.4th 493, 499 (Mearns).)
"The trial `courts allocation of restitutionary responsibility must be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law." (People v. Draut (1999) 73 Cal.App.4th 577, 581, quoting In re S.S. (1995) 37 Cal.App.4th 543, 550.) "A trial court abuses its discretion when it determines an award amount using other than `a rational method that could reasonably be said to make the victim whole or when an award is arbitrary or capricious." (Id. at p. 582, quoting People v. Thygesen (1999) 69 Cal.App.4th 988, 992 (Thygesen).)
The threshold question is whether the trial court abused its discretion in ruling that the penalty incurred by the Strolzes for early termination of the Durango lease was an "economic loss" directly caused by Springers criminal conduct. We answer this question in the affirmative.
"The term `economic losses is thus entitled to an expansive interpretation." (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1133.) Strolz testified without contradiction that the ordeal she underwent as the result of the attempted carjacking traumatized her to the extent she had nightmares involving the car and could no longer stand to be around it. It was certainly foreseeable that Strolz would suffer this type of psychological harm as a consequence of Springers behavior. Thus, although the Durango was restored to its original state, the carjacking incident made it psychologically impossible for the Strolzes to continue driving it. The court could conclude that the Strolzes acted reasonably in turning the car in and that the penalty incurred for early termination of the lease was a recoverable loss. Mearns, which contains an analogous set of facts, supports this conclusion.
In Mearns, the victim was raped at knifepoint by the defendant in her mobile home. (97 Cal.App.4th at p. 496.) She sold the home to the "first available buyer," due to "a ton of bad memories" stemming from the incident, and moved to a more secure mobile home park. She admitted she might have been able to obtain a higher price for her mobile home had she utilized the services of a real estate agent. (Id. at p. 497.)
In addition to upholding the victims relocation expenses, which were covered under a specific subparagraph of section 1202.4, the Court of Appeal affirmed the trial courts award of the difference in price between the mobile home she sold and the one she moved in to, less certain excludable expenses. Said the court: "putting aside the specific wording in section 1202.4, subdivision (f)(3)(I) [authorizing relocation expenses], the trial court reasonably could have concluded that the increased costs incurred in the move was an `economic loss within the general language of the first sentence of section 1202.4, subdivision (f). She moved in order to prevent defendant from finding her again and reduce the fears engendered by the very mobile home where she was sexually assaulted at knife point. The trial court could reasonably conclude that the enormous emotional trauma resulting from the attack was such that Susan F. virtually had to move and this was an `economic loss resulting from defendants conduct without relying on the more specific language in section 1202.4, subdivision (f)(3)(I). No abuse of discretion occurred." (Mearns, supra, 97 Cal.App.4th at p. 503.)
Mearnss reasoning is controlling here. Given the intense emotional trauma associated with the vehicle, the trial court could conclude that the Strolzes had virtually no choice but to return it to the rental agency. The court did not abuse its discretion in determining that the termination fee was a foreseeable consequence of Springers criminal conduct.
2. "Windfall" Argument
Springer claims that because the Strolzes turned their Durango in for a newer, "sportier" version of the same vehicle and there was no evidence showing whether there would have been a penalty if the Strolzes had exchanged the car for an identical one of the same vintage, the $8,200 award amounted to a windfall, placing the Strolzes in a better position than they had been before the crime.
We accept as true the proposition that "[a]s to a victim, the purpose of the restitution statute is to make that victim whole, not to give a windfall." (Thygesen, supra, 69 Cal.App.4th at p. 995.) Nevertheless, there are two fundamental flaws in Springers thesis that recouping their early termination fee unjustly enriched the Strolzes.
First, Springer makes the unwarranted factual assumption that the Strolzes exchanged the Durango for the car they now drive. But Strolz stated only that "[w]e turned the car back in" and had to pay an $8,200 lease termination fee as a consequence. On redirect, she testified that they "replaced" the Durango with a newer but smaller version of the same car. There is no evidence that the Strolzes effectuated an "exchange" with the rental agency. Without such evidence, Springers suggestion that the Strolzes could have saved money by swapping the Durango for an identical version of the same car is based on impermissible speculation.
Second, Springers argument that the award was unsupported by substantial evidence because the Strolzes did not foreclose the possibility they could have avoided or minimized the penalty they incurred misconceives both the burden of proof and the standard of review on appeal.
The Strolzes carried their initial burden under section 1202.4 by showing that the lease penalty they paid was a direct consequence of Springers criminal conduct. Nothing more was required to justify the award: "Subdivision (f) of the restitution statute states that, where a crime results in an economic loss to the victim, the court shall order the person convicted of that crime to pay full restitution to the victim for his loss, unless the trial court finds `compelling and extraordinary reasons to order a lesser award." (People v. Draut, supra, 73 Cal.App.4th at p. 581, orig. italics.)
Just as a plaintiffs failure to mitigate damages is an affirmative defense which must be pleaded and proved in a civil action (Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69, 86, disapproved on another point in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510), when a valid item of economic loss is shown by the victim in a restitution proceeding, it is incumbent upon the defendant to introduce evidence that the victim unreasonably failed to mitigate or avoid the damage. Absent such evidence, the proof of loss stands unrefuted, and a restitution award based on it must be upheld if it is rationally calculated and supported by substantial evidence. (See People v. Thygesen, supra, 69 Cal.App.4th at p. 993; People v. Ortiz (1997) 53 Cal.App.4th 791, 797.)
Here, the Strolzes introduced evidence they incurred an $8,200 penalty for terminating the Durango lease, and that their conduct in returning the car was a direct consequence of Springers criminal conduct. Springer failed to conduct any cross-examination concerning the penalty, nor did he introduce any evidence that the Strolzes could have avoided or minimized the amount of the fee. Since the penalty for breaking the lease was a proximate cause of defendants conduct and reasonably incurred by the victims, there is no basis for disturbing the award.
Springers reliance on Thygesen, supra, 69 Cal.App.4th 988 for the purpose of showing that the Strolzes received a windfall is unpersuasive. In that case, the defendant rented a used cement mixer and failed to return it. The victim sought restitution based on section 1202.4, subdivision (f)(3)(A) authorizing "payment for the value of stolen or damaged property" measured by "the replacement cost of like property" (Id. at pp. 990-992, emphasis added.) He received a restitution award for the value of a new mixer. The court of appeal held that awarding the cost of a new mixer rather than the value of a mixer of similar age would violate the cited subparagraph and give the victim a windfall. (Id. at p. 995.)
II
Arithmetical Mistake
Springer points out that, even if all the items of compensation awarded are appropriate, the court erred in computing the loss at $10,685.04, a figure which was used in the probation report. As the Attorney General concedes, the point has merit.
The hearing transcript shows the Strolzes made three car payments of $461.68 each, paid $100 insurance deductible to repair the car, and were penalized $8,200 for early termination of the lease. The total of these items is $9,685.04, or $1,000 less than the court awarded. The judgment must be corrected to reflect this amount.
DISPOSITION
The judgment is modified by reducing the amount of the victim restitution award from $10,685.04 to $9,685.04. So modified, the judgment is affirmed.
We concur: DAVIS, J., HULL, J.
Here, the Strolzes were not seeking to "replace" a lost or stolen vehicle. The award was made under the more general provisions of the statute, entitling them to recover for economic losses resulting from the defendants crime. The penalty for terminating the lease qualified as such a loss, regardless of how the Strolzes satisfied their transportation needs after surrendering the car to the rental agency.