Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F07906388, Wayne R. Ellison, Judge.
Nuttall & Coleman, Roger T. Nuttall and Glenn Kottcamp, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
Appellant Thomas Christopher Kirby was the occupant of a motorboat driven by Roger Isaac Guzman that struck and severely injured an 11-year-old boy on Shaver Lake in 2006. Both Kirby and Guzman had been drinking heavily before the accident. They did not stop to render assistance but instead continued on to the marina, where they later told deputies they had not been involved in the accident.
Guzman’s appeal is before this court as case No. F057633.
Kirby eventually pled no contest to being an accessory after the fact, a felony violation of Penal Code section 32, and to a misdemeanor violation of Harbors and Navigation Code section 656, subdivision (d), failure to report the collision. The trial court reduced the Penal Code section 32 offense to a misdemeanor, suspended imposition of sentence, placed Kirby on informal misdemeanor probation on condition he serve 180 days in jail, which was suspended, and imposed a restitution order in the amount of $112,841.04.
All further statutory references are to the Penal Code unless otherwise stated.
Kirby contends the trial court abused its discretion in imposing restitution and that the restitution order constitutes an unlawful fine. We disagree and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
As Kirby pled no contest, we take the factual summary from the probation report. On September 2, 2006, Kirby and Guzman were at a cove on Shaver Lake with several friends. They had Guzman’s boat, a white and yellow Chaparral that had a distinctive customized wakeboard tower, which had yellow speakers with black grilles attached to the tower. Guzman’s boat was the only yellow and white boat in the area around the cove on that day.
Kirby and Guzman were observed drinking beer throughout the day, including late into the afternoon. It appeared to observers that they were intoxicated.
Around 4:30 p.m., Guzman left the cove in his boat. Guzman was piloting the boat; Kirby was his passenger. Witnesses saw the boat make a turn around the rocks at the mouth of the cove.
Shortly before 4:30 p.m., Jeff McEntire, a firefighter with experience as a paramedic, was piloting a jet ski and towing his 11-year-old son, who was on a kneeboard. McEntire saw a white and yellow boat leave the cove and head in his direction. Alarmed by the boat’s high speed and its nose being at a high attitude, McEntire stood up and began to wave and shout because the boat was bearing down on his son. The boat continued on its path and struck the victim in the head. After striking the victim, the boat continued without stopping.
McEntire could not see his son for several seconds, but then the child popped to the surface. McEntire jumped into the water and swam to his son. The victim had a massive wound that began below the left eye, continued over the bridge of the nose, and across the forehead. McEntire saw brain matter protruding from the victim’s skull. There were scallop-shaped strike marks on the victim’s life jacket and a similar scallop shape to his wound.
Rocio Pena and Pena’s mother and aunt were in an aluminum fishing boat. They saw the yellow and white boat bearing down on the boy and began yelling and waiving to warn off the boat. Pena watched as the boat continued on its course, struck the child, then continued on for a considerable distance. Pena saw the boat stop. The two men in the boat then went to the back of the boat, pulled up the propeller and outdrive, and examined them. Pena and others were yelling and pointing to the injured boy. Pena and her mother saw the two men in the boat look toward the injured child, talk briefly between themselves, put the propeller back in the water, head to the front of the boat, and take off toward the marina.
Kirby and Guzman’s friends left the cove on a rented pontoon boat shortly after Kirby and Guzman left. After arriving at the location where the victim had been struck, the occupants of the pontoon boat stopped, took the victim and his father on board, and transported them to the marina. Kirby and Guzman were not on the pontoon boat.
Boating deputies were at the marina when the injured child finally was brought to the dock. The deputies gathered information about the description of the boat that had struck the child and the occupants of the boat. The deputies boarded their patrol boat and began to leave the marina when they spotted a boat matching the description in a boat slip. The boat was Guzman’s.
As the deputies were observing the boat, Kirby and Guzman approached and both men denied any involvement in the collision that had injured the child. Both Kirby and Guzman claimed to have been on the pontoon boat that brought the injured child off the lake. They denied being on the boat that had struck the child.
In a later taped statement, Kirby again denied that the yellow and white boat had struck the child and denied stopping the boat to check the propeller. Kirby admitted hiding the red shirt Guzman had been wearing because witnesses said the driver of the boat that struck the child had been wearing a red shirt.
The propeller of Guzman’s boat was examined by an expert, who determined that the propeller had a bend in the blade and the shaft. The force that bent the blade was sufficient to bend the shaft. The propeller had to have struck something nonabrasive because the paint on the propeller blade still was glossy and not scuffed. The bend could not have been the result of striking anything metallic, wooden, or a rock. The bend in the blade and the shaft would have caused a strong vibration in the boat. The damage had to have occurred recently because the drive shaft seals had not failed yet and the cavitation burn was in the early stages.
The victim’s skull was shattered and a substantial piece of the protective covering of the brain, the dura, was missing; he suffered permanent brain injuries. The area of the brain permanently damaged affected the child’s judgment and ability to engage in appropriate behaviors. He lost the sight in his left eye and sight in the right eye is impaired.
The victm was in the hospital for six weeks after the accident. He then had additional surgeries at UCLA and two years of physical therapy. He has no sense of smell because the boat smashed his nose. Three years after the incident, he still faced additional surgeries, including some to help correct disfigurement caused when he was struck by the boat.
Kirby eventually pled no contest to a felony count of being an accessory after the fact to a crime, a violation of Penal Code section 32. He also pled no contest to a misdemeanor violation of Harbors and Navigation Code section 656, subdivision (d), failing to render assistance to persons affected by a collision.
Sentencing occurred on July 23, 2009. The trial court reduced the felony charge to a misdemeanor, suspended imposition of sentence, and placed Kirby on three years’ probation on condition he serve 180 days in jail, which were suspended, and make restitution of $80,000.
Kirby filed a motion to modify the restitution order, which the People opposed. The trial court heard the motion and subsequently increased restitution to $112,841.04.
DISCUSSION
Kirby contends the trial court abused its discretion in imposing restitution because the injuries suffered by the victim were not a consequence of his offenses and the restitution order does not deter future criminality. He also contends the restitution order is an unlawful fine.
I. Abuse of Discretion
The trial court imposed restitution pursuant to sections 1202.4, subdivision (f), 1203.1, subdivision (l), and 1214 in the amount of $112,841.04, payable to the victim’s parents for medical expenses and lost wages. The disputed question is whether the economic loss suffered by the victim and his parents as a result of the victim’s injuries was caused by Kirby’s criminal conduct of being an accessory after the fact.
Standard of review
We review the trial court’s restitution order for abuse of discretion. “A restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court’s discretion. [Citation.]” (People v. Woods (2008) 161 Cal.App.4th 1045, 1048-1049 (Woods).) When there is a factual and rational basis for the amount of restitution ordered by the trial court, however, no abuse of discretion will be found on appeal. (People v. Prosser (2007) 157 Cal.App.4th 682, 686.)
Analysis
Crime victims in California have a right to restitution, but the right to recover from any given defendant is not unlimited. (Woods, supra, 161 Cal.App.4th at p. 1049.) Section 1202.4, subdivision (a)(1) states that a “victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” A trial court has broad discretion to order restitution as a condition of probation, even when the loss was not caused necessarily by the criminal conduct underlying the conviction. (Woods, at p. 1050.)
Section 32 provides: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.” An accessory must lend assistance to the principal after the commission of the offense with the intent of helping the principal escape capture, trial, or punishment. (People v. Nguyen (1993) 21 Cal.App.4th 518, 536.)
Kirby contends the restitution order does not serve as a deterrent to future criminality because Kirby denied, and continues to deny, any knowledge that the boat he was in struck the victim or that his conduct in any way contributed to the victim’s injuries or the economic loss suffered by the McEntires. Under certain circumstances, however, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction, conduct underlying dismissed and uncharged counts, and conduct resulting in an acquittal. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal).)
Carbajal held that trial courts have broad discretion in making restitution orders in cases where a defendant receives probation. In those cases where a defendant is sentenced to prison, the more restrictive rules set forth in People v. Lent (1975) 15 Cal.3d 481, 486 (Lent) apply. (Carbajal, supra, 10 Cal.4th at p. 1121, fn. 1.)
In Woods, the court addressed the validity of a victim restitution order where the defendant was convicted of being an accessory after the fact of a murder that occurred during a drive-by shooting. The conviction was based on the defendant’s conduct in receiving the gunman’s weapon after the murder. The defendant was sentenced to prison and ordered to pay full restitution to the victim’s family representing their economic losses resulting from the murder. (Woods, supra, 161 Cal.App.4th at pp. 1048-1049.) On appeal, the defendant argued the victim restitution order was unlawful because he was not convicted of murder but only of being an accessory after the fact, there was no nexus between his criminal act of handling the murder weapon and the family’s economic losses, and he was not convicted of being a coconspirator or aider and abettor to the murder. (Id. at p. 1049.)
Woods held the victim restitution order was invalid because the defendant was sentenced to prison, not probation. Woods noted that a charge of being an accessory after the fact is based on conduct taking place only after the loss was sustained, and that section 1202.4 limited “the scope of victim restitution to the operative crime that resulted in the loss. [Citation.]” (Woods, supra, 161 Cal.App.4th at pp. 1050, 1052.) The economic loss suffered by the victim’s family “occurred because of the murder committed by [the gunman]. Defendant was not convicted as a coconspirator or as an aider or abettor to the murder itself. Thus his criminal conduct did not cause the loss for which compensation was sought.” (Id. at p. 1052.)
In People v. Goulart (1990) 224 Cal.App.3d 71 (Goulart), the defendant was convicted of unlawfully interfering with a line erected and maintained by a public utility company for transmitting electricity and “similar charges” were dismissed with a Harvey waiver. (Goulart, at p. 77.) The appellate court upheld an order that the defendant pay more than $42,000 in restitution as a condition of probation, even though the restitution order reflected “energy thefts during time periods which [the defendant] was not, and some of which he could not have been, charged.” (Id. at p. 79.) The court concluded the restitution order would serve to rehabilitate the defendant. (Ibid.)
People v. Harvey (1979) 25 Cal.3d 754.
Goulart illustrates the following principle: “That a defendant was not personally or immediately responsible for the victim’s loss does not render an order of restitution [as a condition of probation] improper.… [T]he question simply is whether the order is reasonably related to the crime of which the defendant was convicted or to future criminality.” (In re I.M. (2005) 125 Cal.App.4th 1195, 1209 (I.M.).)
The case of I.M. also is instructive. There, the juvenile court sustained a wardship petition alleging a minor had been an accessory after the fact to a murder and that in committing that offense he had acted with the specific intent to benefit, promote, further or assist the unlawful conduct of a criminal street gang (§ 186.22, subd. (b)(1)). The juvenile court placed the minor on probation and ordered as a condition of probation that the minor pay $15,184.43 in restitution to cover the cost of the victim’s funeral. (I.M., supra, 125 Cal.App.4th at p. 1199.)
The appellate court concluded that although the minor’s conduct did not cause the loss upon which the restitution order was based, the trial court did not abuse its discretion in ordering restitution for that loss. The court stated that because the minor had been found to have been promoting and assisting gang conduct, the restitution order served the rehabilitative purpose of making the minor aware of the consequences of his choice of participating in gang activities, including the emotional and financial impact of gang violence on the family members of the victims. (I.M., supra, 125 Cal.App.4th at p. 1210.)
The rationale of Lent and Woods does not apply. Kirby received probation, not prison. Carbajal, Goulart, and I.M. are controlling.
Kirby argues that a court may not order a defendant to pay restitution for losses that reasonably are not attributable to his conduct. The language of section 1202.4, subdivision (f), however, does not limit restitution orders to those defendants whose conduct directly results in the victim’s loss. There is a clear and rational relationship, however, between requiring restitution as a condition of probation and Kirby’s conduct.
Kirby also argues that the case of I.M., supra, 25 Cal.App.4th 1195, is distinguishable. We disagree. Despite the absence of gang affiliation, the rationale employed is equally applicable. The restitution order serves a rehabilitative purpose by bringing home to Kirby the consequences of his decision to protect Guzman’s actions from discovery.
The order here was appropriate because there was overwhelming evidence demonstrating Kirby’s involvement in the overall course of conduct. Kirby must have seen the injured child when he and Guzman stopped the boat to see what was wrong with the propeller; yet, they continued on to the marina. Kirby lied to deputies when they inquired whether Guzman’s boat had been involved in the accident. Kirby knowingly lied and told deputies he and Guzman had been on the pontoon boat that rendered assistance. Kirby hid the red shirt that Guzman had been wearing in an effort to avoid identification as the people in the boat who had struck the child. These facts reflect a clear failure to accept responsibility.
Courts impose conditions of probation for a number of reasons, one being “the reformation and rehabilitation of the probationer.” (§ 1203.1, subd. (j).) Similarly, the restitution order in this case forces Kirby to take financial responsibility for his actions and their repercussions. An accessory after the fact, however, assists the perpetrator in getting away with the crime and, in that respect, by actions taken after the crime, assists in the criminal enterprise. Kirby’s actions as an accessory after the fact were designed to allow Guzman to avoid culpability for his crimes.
II. Unlawful Fine
In a related argument, Kirby contends the restitution order was a judicially created fine in excess of that authorized by law and therefore was an abuse of discretion. We disagree.
Section 1202.4, subdivision (f) requires that in every case where a victim has suffered an economic loss, the defendant shall be required to make restitution to the victim for the amount of the loss. Section 1202.4, subdivision (f) is not a judicially created fine. Under section 1203.1, subdivision (j), the restitution order is a condition of probation that serves a rehabilitative purpose. As discussed in part I., ante, the restitution order here is appropriate as it brings home to Kirby the consequences of his actions and his decision to protect Guzman’s actions from discovery.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J., FRANSON, J.