PEOPLE v. CARBAJAL (1993)

Jose Carbajal was convicted of violating Vehicle Code section 20002 subdivision (a) commonly referred to as “hit-and-run.”   The sole issue is whether restitution to the owner of the parked car struck by respondent is a proper condition of probation.   We hold that the trial court, in the exercise of its sound discretion, may order restitution in a “hit-and-run” case.

We transferred the cause pursuant to California Rules of Court rule 62(a) after certification by the Appellate Department of the Ventura County Superior Court.

The municipal court concluded that it was without power to order restitution based on People v. Escobar (1991) 235 Cal.App.3d 1504, 1 Cal.Rptr.2d 579.   It did order respondent to pay any civil judgment rendered against him as a result of the collision.  People v. Escobar, supra, silent on the impact of Proposition 8, was officially published nearly contemporaneously with an opinion by the Appellate Department of the Ventura County Superior Court, People v. Dailey (1991) 235 Cal.App.3d Supp. 13, 286 Cal.Rptr. 772.   In People v. Dailey, supra, the appellate department analyzed the issue of restitution in the context of “hit-and-run,” noted the prior cases and the conflicts therein, considered the impact of Proposition 8, and held that restitution was permissible.

In the instant case, with one judge dissenting, the appellate department, relying on the Dailey analysis, held that the trial court had the power to order restitution in a “hit-and-run” case.

In its order for certification, the appellate department said:  “This court has chosen to follow a previously published decision of this court because of its persuasive reasoning and its application of Proposition 8.  (People v. Jeffrey Dailey (1991) 235 Cal.App.3d Supp. 13, 286 Cal.Rptr. 772.)   This court is aware of a published opinion by the Court of Appeal that came to the opposite conclusion but that court did not consider the application of Proposition 8.  (People v. Escobar (1991) 235 Cal.App.3d 1504, 1 Cal.Rptr.2d 579.)   This issue should be addressed by the Court of Appeal in this district to resolve the conflict.” ¹

 To the extent that the appellate department “chose” to follow its own previous published opinion as opposed to a contrary Court of Appeal opinion, it was simply without power to do so.   This was the identical situation which led our Supreme Court to decide Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.   “Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court.”  (Id., at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

In any event, we understand the legitimacy of the debate at both the trial court and appellate levels.   Although the appellate department asked us, to “resolve the conflict,” we point out that only the California Supreme Court can do so.   As we shall explain, we agree with the rule and rationale of People v. Dailey, supra.

Several Court of Appeal opinions have held that because fault is not an element of a hit-and-run offense, a trial court cannot impose restitution to the “victim.”  (See e.g., People v. Escobar, supra, 235 Cal.App.3d 1504, 1 Cal.Rptr.2d 579;  People v. Corners, supra, 176 Cal.App.3d 139, 221 Cal.Rptr. 387;  People v. Lafantasie (1986) 178 Cal.App.3d 758, 224 Cal.Rptr. 13;  contra People v. Walmsley (1985) 168 Cal.App.3d 636, 214 Cal.Rptr. 170 subsequently limited in People v. Lafantasie, supra, 178 Cal.App.3d 758, 224 Cal.Rptr. 13;  see also People v. Dailey, supra, 235 Cal.App.3d Supp. 13, 286 Cal.Rptr. 772.)

The settled statement indicates respondent collided with a lawfully parked vehicle causing damage to it and left without leaving his name and other information required by Vehicle Code section 20002 subdivision (a).   The obvious purpose of the statute is to protect the owner of the damaged property from financial loss and to prevent an attempt to escape potential liability on the part of the “hit-and-run” driver.   (Miglierini v. Havemann (1966) 240 Cal.App.2d 570, 573, 49 Cal.Rptr. 795.)   Both of these purposes may be served by a restitution order.

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and what conditions should be imposed.  [Citations.]”  (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)   In so stating, the Supreme Court recognized the many statutory directives regarding restitution, fines and costs.

Penal Code section 1203.1 provides in pertinent part:  “The court or judge thereof, in the order granting probation, ․ shall provide for restitution in proper cases․  [¶] The court shall consider whether the defendant as a condition of probation shall make restitution to the victim or the Restitution Fund․  [¶] ․  [¶] The court may impose and require ․ other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer․”

In People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545, our Supreme Court held:  “The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof.  (Pen.Code, § 1203 et seq.)   A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality․’  [Citation.]   Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”  (See also People v. Welch, supra, 5 Cal.4th at pp. 233–234, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

A year later our Supreme Court again considered the restitution issue, this time for a defendant who had been found not guilty of an offense for which restitution was sought.   The court indicated that “․ restitution may exceed the losses for which a defendant had been held culpable.  [Citations.]”   (People v. Richards (1976) 17 Cal.3d 614, 619–620, 131 Cal.Rptr. 537, 552 P.2d 97.)

“But courts must tread lightly in this area lest they be reduced to ‘mere collection agencies' [citations] and restitution must in each case be narrowly tailored to serve a purpose described in section 1203.1.  [¶] The major goal of section 1203.1 is to rehabilitate the criminal.   Restitution imposed in a proper case and in an appropriate manner may serve the salutary purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole.  [¶] ․  [¶] Disposing of civil liability cannot be a function of restitution in a criminal case.   To begin with, the criminal justice system is essentially incapable of determining that a defendant is in fact civilly liable, and if so, to what extent.   A judge may infer from a jury verdict of guilt in a theft case that a defendant is liable to the crime victim.   But a trial court cannot properly conclude that the defendant owes money to a third party for other unproved or disproved crimes or conduct.”  (Id., at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97.)

The Supreme Court did, however, impose a limitation on the exercise of discretion.  “If a restitution order is to redirect a defendant to acceptance of responsibility for the crime he has committed, the order must be directly related to that crime.  [Citation.]   It is obvious that unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted, this salutary rehabilitative effect cannot take place․”  (People v. Richards, supra, 17 Cal.3d at p. 622, 131 Cal.Rptr. 537, 552 P.2d 97, emphasis added.)

 These rules permit an order of restitution to the victim of a “hit-and-run” where, as here, civil liability is clear.   The restitution is “․ directly related to that crime.”  (Id., at p. 622, 131 Cal.Rptr. 537, 552 P.2d 97.)   Since flight from the collision gives rise to an inference of fault and avoidance of liability as a state of mind when the offense was committed, the trial court in its discretion may determine that restitution would make a defendant accept responsibility for the harm he caused and the liability he sought to avoid.   This is a salutary rehabilitative purpose.   We therefore disagree with People v. Lafantasie, supra, and others to the extent they hold, as a matter of law, restitution is not appropriate on a conviction of hit-and-run.²

Restitution in the “hit-and-run” context is “reasonably related to the crime․”  (People v. Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.)   There is no requirement that the victim's loss be the direct consequence of each element of Vehicle Code section 20002, subdivision (a).  (See People v. Dailey, supra, 235 Cal.App.3d Supp. 13, 16, 286 Cal.Rptr. 772.)

Respondent microscopically analyzes each element of Vehicle Code section 20002 subdivision (a) and submits that it is not the “hitting” that is criminal, but it is the “running” which gives rise to criminal liability.  (People v. Corners, supra, 176 Cal.App.3d at p. 148, 221 Cal.Rptr. 387.)   To be sure, without the “running,” there is no violation of the statute.   Respondent sees a tree but has missed the forest.³  Here the restitution order is related to the forest even though it may not be directly related to one of its trees.   Here the order for restitution would be “․ directly related to that crime.”  (People v. Richards, supra, 17 Cal.3d at p. 622, 131 Cal.Rptr. 537, 552 P.2d 97.)

 At oral argument, respondent claimed that his civil due process rights would suffer if the sentencing court could order restitution.   A defendant at probation and sentence hearing is not entitled, for example, to a jury trial, pleadings, or discovery.  (See People v. Richards, supra, 17 Cal.3d at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97.) ⁴

Nevertheless, a defendant at probation and sentence hearing is afforded due process of law before restitution is ordered.   A “hit-and-run” defendant has the right to counsel and should be given adequate notice that the People are seeking restitution.   He or she has the opportunity not only to be heard, but to introduce evidence on the issue.  (People v. Welch, supra, 5 Cal.4th at p. 234, 19 Cal.Rptr.2d 520, 851 P.2d 802;  citing inter alia Pen.Code, § 1204;  cf., 5 Cal.4th at pp. 238–39 (conc. op. of Arabian, J.), regarding misdemeanors.)

Due process of law is a flexible concept and is satisfied by present statutory and decisional law.   The rights afforded defendants convicted of misdemeanors are not “fundamentally unfair.”  (See People v. Peterson (1973) 9 Cal.3d 717, 726, 108 Cal.Rptr. 835, 511 P.2d 1187.)   As aptly stated in People v. Rivera (1989) 212 Cal.App.3d 1153, 1160, 261 Cal.Rptr. 93:  “An order of restitution as a condition of probation is not an abuse of discretion as long as the defendant is given an opportunity to present evidence rebutting ․ [his] civil liability at the sentencing hearing.  [Citations.]”

Nothing in Hughey v. United States (1990) 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408, relied upon by respondent, compels us to curtail the broad discretion given to our sentencing courts.   In Hughey, pursuant to a negotiated disposition, the defendant pleaded guilty to one count of unauthorized use of a credit card and other counts of the federal indictment were dismissed.   In addition, the government agreed to forego prosecution for other uncharged offenses “ ‘as part of the scheme alleged in the indictment.’ ”  (Id., at p. 413, 110 S.Ct. at p. 1981.)   The issue was whether the trial court could impose restitution to the victims in the dismissed and related counts consistent with the Victim and Witness Protection Act of 1982.   This Act provided that “ ‘a defendant convicted of an offense’ may be ordered to ‘make restitution to any victim of such offense.’ ”  (Id., at pp. 415–416, 110 S.Ct. at p. 1982.)   The United States Supreme Court interpreted the statutory scheme and limited restitution to only the victim of the offense for which they defendant was convicted.  (Id., at p. 416, 110 S.Ct. at p. 1982.)   Thus the case is a federal statutory interpretation case.  (Id., at p. 415, 110 S.Ct. at p. 1982.)   It does not rest upon constitutional principles.

Here, by contrast, there is a state constitutional provision requiring restitution in “every case.”  (Cal. Const., art. I, § 28.)   In addition, the instant restitution stems from the offense for which the defendant was convicted, not a dismissed or related offense.

Our holding is supported by the fair import of Proposition 8 and the recent California Supreme Court opinion in People v. Broussard (1993) 5 Cal.4th 1067, 22 Cal.Rptr.2d 278, 856 P.2d 1134.

In 1982 the voters enacted Proposition 8, the “Victim's Bill of Rights.”   Article I, section 28, subdivision (b) was added to the constitution and provides:  “It is the unequivocal intention of the People of the State of California 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.  [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.   The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section.”   The Legislature subsequently enacted the Crime Victim Restitution Program of 1983 consisting of 10 bills:  Statutes 1983, chapters 408, 421, 932, 938, 939, 940, 954, 981 and 1092.   Other statutory additions and amendments have been added which mandate restitution as a condition of probation in some cases (Pen.Code, §§ 1203, subd. (b), 1203.1, 1203.04, subd. (a)), or an addition to imprisonment (Gov.Code, § 13967).

“The legislation implementing the constitutional right of restitution, interpreted reasonably in light of its evident purpose, authorizes trial courts to order criminals to compensate all crime victims, whether their loss results from a physical injury or from the theft or destruction of their property.”  (People v. Broussard, supra, 5 Cal.4th at p. 1069, 22 Cal.Rptr.2d 278, 856 P.2d 1134.   Emphasis added.)

Were we to credit respondent's theory, Proposition 8 would read:  “Restitution shall be ordered from the convicted person in every case except for violations of Vehicle Code section 20002, subdivision (a).”   It it not our prerogative to rewrite Proposition 8.

Since the Municipal Court erroneously determined that it was without power to order restitution, the matter is remanded for such a determination consistent with the views expressed in this opinion.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   We observe that People v. Corners (1985) 176 Cal.App.3d 139, 221 Cal.Rptr. 387, held that Proposition 8 did not change the rule that restitution in a “hit-and-run” case was not an appropriate term and condition of probation.  (Id., at pp. 148–149, 221 Cal.Rptr. 387.)   The appellate department appears to have not fully appreciated this holding.

2.   We hasten to point out the obvious:  where liability is questionable, the trial court, in the exercise of its sound discretion, may determine that restitution is not an appropriate term and condition of probation.   At oral argument, appellant posited the hypothetical situation of a defendant who was forced off the road by another motorist and jettisoned into a parked car but who thereafter fled from the scene of the collision.   This would be an apt illustration where the trial court, in the exercise of its discretion, might not order restitution.

3.   “Too much light often blinds gentlemen of this sort.   They cannot see the forest for the trees.”  (Christoph Martin Wieland, Musarion (1768) canto II.)

4.   People v. Baumann (1985) 176 Cal.App.3d 67, 80, 222 Cal.Rptr. 32, holds that a criminal defendant is not entitled to a jury trial on the amount of restitution.

YEGAN, Associate Justice.

STONE, P.J., and GILBERT, J., concur.