Opinion
H036156
09-09-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL GREGORY REID, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County
Super. Ct. No. CC818759)
Defendant Daniel Gregory Reid pleaded no contest to misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)) and misdemeanor fighting in public (Pen. Code, § 415, subd. (1)). The trial court suspended imposition of sentence and placed defendant on court probation for two years with various terms and conditions, including six days in jail with one day of credit. Defendant was also ordered to pay $17,920.92 in restitution to the victim.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant challenges the restitution award. First, he argues that there was no documentation to support a portion of the award and therefore it must be reduced by $494.60. Second, he contends that the trial court should have applied principles of comparative fault and that, based on the "victim's confrontational and provocative conduct" before defendant punched him, the restitution award should be further reduced by 50 percent. Based on these two asserted errors, defendant contends that his federal due process right was violated. He also argues that to the extent his trial counsel failed to raise these objections in the trial court, his counsel rendered ineffective assistance.
For reasons that we will explain, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the preliminary examination, which was based on testimony from the victim's wife and a police detective who interviewed defendant. On April 13, 2008, about 7:00 p.m., the victim and his wife were driving to a store. They were traveling about the speed limit, which was 25 miles per hour. An SUV suddenly pulled up behind them. The SUV was going "real fast" and was "right up on [their] bumper." The driver of the SUV was repeatedly breaking and honking. The victim and his wife pulled over to the right. The SUV swerved around them and drove away.
The victim and his wife proceeded to the store, where they saw the same SUV that had been behind them. The victim's wife entered the store and saw defendant in front of an ATM. She started yelling at him and told him that he "can't be driving like a bat out of hell" and that he "could have hit somebody." Defendant responded, "I didn't kill anybody, did I?" As the victim's wife "kept going on at him," defendant got mad and said, "shut up" and "bitch." The victim, who was behind his wife, "got mad and got in [defendant's] face." The victim and defendant then exchanged words. Defendant repeatedly told the victim to "hit him," and stated that he (defendant) was "only 17" and the victim would go to jail if he hit defendant. The victim stated that he was not trying to hit defendant and that he was "just telling [defendant] how fast [defendant was] driving."
The record on appeal reflects that defendant was 25 years old at the time of the incident.
The victim's wife went outside to write down the license plate number of defendant's SUV. When she went back inside the store, she told her husband that she had the license plate number, but she did not know whether he heard her. He was at the counter and still arguing with defendant.
Defendant eventually exited the store and walked towards his vehicle. Still inside the store, the victim asked for a pencil and paper to get defendant's license plate number. The victim then left the store, and his wife followed him. Although the victim did not say anything, defendant turned around and "rushed back" towards the victim. Defendant had his fist up and said, "motherfucker you want a part of me?" The victim then raised his fists, and both men had their fists up. Defendant swung at the victim, but the victim blocked the hit. Defendant then swung with his other hand while holding keys and hit the victim on the right side of the mouth. The victim "fell off the curb" and onto the ground. His eyes rolled back. The victim never took a "swing" at defendant at any time.
Defendant moved towards a wallet that was on the ground. The victim's wife thought the wallet belonged to her husband, so she approached defendant and told him to give her husband's wallet back. Defendant responded that it was not her husband's wallet. The victim's wife got mad and said, "I'll kick your fing butt." Defendant got into his vehicle and sped away.
The victim's injuries included a four centimeter laceration to his lower lip and a broken ankle. He required stitches for the lip and a cast for the ankle, and he lost time at work.
According to the police detective who interviewed defendant a few days after the incident, defendant stated that the victim had talked to him in the store about his driving. The victim stated that, had defendant hit the victim's car or hurt his wife, he "would have killed" defendant. Defendant claimed that he did not threaten the victim in any way. Defendant indicated that when they were outside the store, the victim "put his hands up as if in a fighting position." Defendant told the detective that he thought the victim was going to hit him, so to "resolve the situation," he hit the victim with his fist.
At the preliminary examination, the prosecution introduced into evidence a certified copy of a DMV printout to show that defendant was driving with a suspended driver's license on the date of the incident.
The Information and Defendant's Plea
In May 2009, defendant was charged by information with battery with serious bodily injury (§§ 242, 243, subd. (d); count 1) and misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 2).
In November 2009, the information was amended to add misdemeanor fighting in public (§ 415, subd. (1); count 3). Defendant pleaded no contest to that count (count 3) and to count 2, misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). He entered the no contest pleas with the understanding that, among other things, he would receive six days in jail with one day of credit for time served, the remaining battery count would be dismissed with a "Harvey stip[ulation]" (People v. Harvey (1979) 25 Cal.3d 754), and he would pay restitution which "would be worked out after documents are exchanged." Defense counsel stipulated that there was a factual basis for defendant's plea based on the preliminary examination and a police report. The trial court dismissed the battery count.
"A Harvey waiver permits a trial court to consider facts underlying dismissed counts in determining the appropriate disposition for the offense of which the defendant was convicted." (People v. Moser (1996) 50 Cal.App.4th 130, 132-133.)
Restitution and Sentencing
According to the probation officer's "waived referral" memorandum, documents from the Victim Witness Assistance Center indicated that the victim sought $17,920.92 in restitution. The sum included $11,600 for lost wages, with the remainder for medical bills. The probation officer verified with the victim's wife by telephone that "this is the amount the victim is requesting to be reimbursed."
Attached to the probation officer's memorandum were documents concerning the victim's request for restitution. One document reflects that the victim missed 400 hours of work at $29 per hour, for a total wage loss of $11,600. The documents also reflect that the victim "had $486.60 in patient resp. charges for medical bills," while his insurance and/or benefit plan paid an additional $5,834.32 on his behalf for medical expenses. The victim's injuries included a broken ankle, which required a cast for three months, and damage to his lip, which required 10 to 12 stitches "from the inside and out."
The prosecution filed a written brief in support of the victim's request for restitution. Relying on Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335 (Heiner), the prosecution contended that comparative fault principles did not apply in this case, which the prosecution characterized as involving an act more similar to battery than negligence. The prosecution also distinguished People v. Millard (2009) 175 Cal.App.4th 7 (Millard),a case that defendant had apparently previously cited. The prosecution further argued that the instant case did not involve mutual combat, and that mutual combat is "not a defense to damages."
On September 16, 2010, the trial court heard argument concerning victim restitution. Defendant contended that comparative negligence principles precluded restitution to the victim to the extent the victim was the cause of his own injuries, based on Millard. According to defendant, section 415, subdivision (1), fighting in public, "does not define an intentional tort" and "there is almost by definition a contributory role played by the victim." Defendant argued that the parties were involved in mutual combat, where "the victim was the source of significant provocation." Defendant further asserted that the victim's "actual injury occurred not as a result of the striking but as a result of the [victim] then stepping or tripping off the curb and hurting his ankle." Defendant requested that the court award only one-half of the restitution requested by the victim.
The prosecution disagreed that Millard was the applicable precedent. Although the prosecution did not dispute that there was a "possibility [the victim] may have provoked and argued with [defendant] in that liquor store or prior to the battery" occurring, the prosecution contended that defendant's conduct was "more akin to a battery." The prosecution asserted that defendant "charged" at the victim and swung twice at him. Defendant made contact at least once, and the victim fell on the ground and broke his ankle. The case did not involve mutual combat, according to the prosecution, because the victim never took a "swing" at defendant.
Defendant replied that a conviction under section 415, subdivision (1), necessarily implies that the victim's "own actions were part of the problem." Defendant also argued that the prosecution "mischaracterize[d]" the evidence by stating that the victim fell and broke his bone. According to defendant, "the medical records seems to establish [the victim] either stepped off the curb, . . . or tripped, . . . and that was actually the cause of the injury," rather than "a direct injury where, for example, you punch somebody in the nose and then they break their nose."
The prosecution referred to defendant's Harvey stipulation and indicated that the dismissed battery count may be considered by the trial court for purposes of setting the victim restitution order.
After hearing argument from the parties, the trial court suspended imposition of sentence and placed defendant on court probation for two years with various terms and conditions, including six days in jail with one day of credit.
Regarding restitution, the trial court awarded $17,920.92, which was the full amount requested by the victim. The court stated: "Restitution in this matter I'm going to find in this particular case that the facts and circumstances of [Millard] are significantly different from this particular set of facts. [¶] In [Millard], as far as the Court was concerned, the victim in that case was intoxicated, driving a motorcycle which caused a slide, which Mr. M[i]llard happened to be driving. He was also intoxicated and severely injured or killed the victim in that case as a result of his conduct. [¶] I believe that this factual set of circumstances is more akin to the circumstances presented by the People in the Heiner case where it is an intentional type of situation, and I don't believe that under the law as it currently stands under 22.4(3) that is the defendant's criminal conduct [sic]. [¶] Court's finding that he has contributed to this particular set of circumstances and it was a natural and probable consequence of engaging in this kind of conduct where the broken ankle and the lost wages were appropriate. So, therefore, I am ordering $17,920.92 to [the victim]."
Defendant filed a notice of appeal on October 14, 2010, and an amended notice of appeal on October 29, 2010.
DISCUSSION
On appeal, defendant contends that the restitution award of $17,920.92 was improper for two reasons. First, there was no documentation to support a portion of the award and therefore it must be reduced by $494.60. Second, the trial court "erred in disregarding the principles of comparative fault in light of the . . . victim's confrontational and provocative conduct which preceded the punch [defendant] threw." Defendant contends that the restitution award "should be reduced by a percentage commensurate with [the victim's] comparative fault," and thus the restitution award should be further reduced by 50 percent. Based on these two asserted errors, defendant contends that the restitution award was "in excess of the punishment authorized by law" and therefore violated his federal constitutional right to due process. He also argues that, to the extent his trial counsel failed to raise these objections in the trial court, his counsel rendered ineffective assistance.
The Attorney General responds that the documentation provided to the trial court supports the total restitution award of $17,920.92. The Attorney General further contends that the award should not be reduced by one-half.
General Principles Regarding Victim Restitution
The California Constitution provides that crime victims have a right to restitution when they suffer losses as a result of criminal activity. (Cal. Const., art I, § 28, subd. (b)(13)(A) & (B); see People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano)[discussing former Cal. Const., art. I, § 28, subd. (b)].) This constitutional mandate is implemented by section 1202.4 (see Giordano, supra, 42 Cal.4th at p. 656), which provides in pertinent part: "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court." (§ 1202.4, subd. (f); see also id., subd. (a)(1).) The restitution order "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 defendant's criminal conduct," including medical expenses and lost wages. (Id., subd. (f)(3); see also id., subd. (f)(3)(B), (D) & (E).) Crime victims " 'have a statutory right to restitution on the full amount of their losses without regard to the full or partial recoupment from other sources (except the state Restitution Fund). [Citations.]' [Citation.]" (Millard, supra, 175 Cal.App.4th at p. 26; see also People v. Garcia (2010) 185 Cal.App.4th 1203, 1216 [pursuant to section 1202.4, "the trial court was required to order full restitution regardless of whether insurance covered a portion of" the victim's losses].) "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so . . . ." (§ 1202.4, subd. (g).) Further, "[i]n every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to [section 1202.4] a condition of probation." (Id., subd. (m).)
"The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) "At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]' [Citation.]" (Millard, supra, 175 Cal.App.4th at p. 26.)
Standard of Review
A trial court's restitution order is ordinarily reviewed for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) The California Supreme Court has noted that "the scope of a trial court's discretion is broader when restitution is imposed as a condition of probation." (Id. at p. 663, fn. 7.) The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (Id. at p. 663.) " ' " 'When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " [Citations.]' [Citation.]" (People v. Baker (2005) 126 Cal.App.4th 463, 467.)
"As a practical matter, an appellate court's consideration of a claim that a trial court abused its discretion in awarding restitution because the lower court applied an incorrect legal standard is tantamount to independent or de novo review." (People v. Brunette (2011) 194 Cal.App.4th 268, 276.) "Accordingly, the standard of an appellate court's review of the ultimate question when the legal basis for a restitution award is under challenge is de novo or independent review. To summarize, in such circumstances we apply the abuse-of-discretion standard to the trial court's determination of predominantly factual matters regarding restitution and independent review to the legality of the restitution award in light of the applicable statutes and any relevant decisional law." (Id. at p. 277.)
" 'In reviewing the sufficiency of the evidence [to support a factual finding], the " 'power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings." [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. [Citation.]' [Citation.]" (Millard, supra, 175 Cal.App.4th at p. 26.)
Reduction of Restitution Award by $494.60
We first consider defendant's contention that there was no documentation to support $494.60 of the total restitution award. As we have stated, attached to the probation officer's "waived referral" memorandum were documents concerning the victim's request for restitution. The documents reflect that the victim's total wage loss was $11,600, that the victim was responsible for $486.60 in medical bills, and that the victim's insurance and/or benefit plan paid an additional $5,834.32 on the victim's behalf for medical expenses. The sum of these three amounts is $17,920.92, which is the same amount awarded as restitution by the trial court.
In defendant's opening brief on appeal, he refers to the victim's claimed wage loss of $11,600, as well as the $5,834.32 that was paid on the victim's behalf for medical expenses. He does not contest the factual support for these two amounts. He does not refer to the victim's responsibility for $486.60 in medical bills. The Attorney General argues that defendant "overlooks" the victim's "out of pocket medical expenses" of $486.60. In defendant's reply brief on appeal, he again does not mention the victim's responsibility for $486.60 in medical bills, nor does he contest the factual support for that amount.
The documents attached to the probation officer's provide factual support for the trial court's total restitution award. Defendant does not challenge the sufficiency of those documents as to the amounts set forth in the documents. We conclude that substantial evidence supports the court's total restitution award and that the trial court did not abuse its discretion by failing to award $494.60 less in restitution than it did.
Reduction of Restitution Award by 50 Percent
We next consider defendant's contention that the trial court should have applied principles of comparative fault and reduced the victim's restitution award by 50 percent, due to the victim's "confrontational and provocative conduct which preceded the punch [defendant] threw." In support of this argument, defendant cites, among other authorities, Millard, supra, 175 Cal.App.4th 7. Millard does not help defendant.
In Millard, the defendant crashed into a motorcycle being driven by the victim. The defendant was convicted of driving under the influence while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)). (Millard, supra, 175 Cal.App.4th at p. 13.) In determining the amount of restitution to award to the victim, the trial court considered comparative fault principles. The trial court noted that the defendant's offense was a " 'negligence[-]type crime' " and characterized the defendant's conduct as a " 'simple illegal left turn.' " (Id. at p. 37.) As for the victim's conduct, the trial court found that he was a " 'contributory cause of the accident' " because, among other things, he " 'was driving at a high rate of speed,' " " 'was untrained in motorcycle driving,' " and " 'took no evasive maneuvers' " to avoid the collision. (Ibid.)The trial court ultimately found that the victim was "25 percent comparatively at fault for the accident," and concluded that his "restitution amount should be reduced by 25 percent to reflect his comparative negligence in causing the accident." (Id. at p. 24; see also id. at p. 37.)
The appellate court determined that the trial court did not abuse its discretion in applying comparative negligence principles to reduce the victim's restitution amount. The Millard court held that a trial court may apply "the doctrine of comparative negligence to reduce the amount of Penal Code section 1202.4 victim restitution that a criminally negligent defendant must pay when the victim's negligence was also a substantial factor in causing his or her economic losses." (Millard, supra, 175 Cal.App.4th at p. 41, italics added; see also id. at p. 13.)
In this case, the record reflects that defendant's conduct in hitting the victim was not the result of negligence, but rather was an intentional act that caused injuries to the victim. Millard thus does not support the application of comparative fault principles in this case.
Defendant implicitly concedes that his conduct was intentional when he characterizes the incident as "more closely resembl[ing] the situation of two hot-headed antagonists engaging in a mutually-agreed-to fistfight." He does not, however, cite any California authority to support the proposition that comparative fault principles must be applied for the purpose of reducing victim restitution where, as here, the defendant intentionally hits the victim.
It has been stated that " 'a party who commits intentional misconduct should not be entitled to escape responsibility for damages based upon the negligence of the victim ____ [Citations.]' (Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, 7.) One court noted there is 'an unbroken line of authority barring apportionment [based on comparative fault] where . . . the defendant has committed an intentional tort [e.g., battery] and the injured plaintiff was merely negligent.' (Heiner[, supra,] 84 Cal.App.4th [at p.] 350; cf. Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, 1112 [recognizing deterrence and punishment policy reasons preclude a reduction of an intentional tortfeasor's liability in proportion to the plaintiff's contributory negligence].)" (Millard, supra, 175 Cal.App.4th at p. 38; see also id. at p. 41; Brunette, supra, 194 Cal.App.4th at p. 283 [the defendant's wanton disregard for the lives of his dogs "is close enough to the criminal equivalent of an intentional tort to bar invoking comparative fault principles"]; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1371, p. 792 [stating that a defendant's liability for an intentional tort "is not diminished by a victim's negligence," and that "sound policy" is not supported by a reduction of the plaintiff's damages under the comparative fault doctrine "where the plaintiff is merely negligent in encountering the defendant's deliberately inflicted harm," citing Heiner].)
In Heiner, the defendant's employee injured the plaintiff and the defendant was found liable for battery, among other torts, and ordered to pay compensatory damages. (Heiner, supra, 84 Cal.App.4th at p. 337.) On appeal, the defendant challenged "the trial court's refusal to apportion damages based on [the victim's] 'contributory negligence' with respect to the cause of action for battery." (Id. at p. 348.) After determining that the defendant waived the claim on appeal, the Heiner court nonetheless concluded in dicta that "apportionment of fault for injuries inflicted in the course of an intentional tort— such as the battery in this case—would have been improper." (Id. at p. 349.) After discussing various authorities, the Heiner court stated that "an unbroken line of authority" barred apportionment where a defendant committed an intentional tort and the injured plaintiff was merely negligent. (Id. at p. 350.)
Although the Heiner court's conclusion, that fault may not be apportioned for injuries resulting from an intentional tort, is dicta, we agree with its reasoning. We therefore conclude that the trial court was not required to reduce the restitution award by 50 percent where the victim's injuries were the result of defendant intentionally striking the victim.
In sum, we determine that the trial court did not err by failing to reduce the victim restitution award by either $494.60 or 50 percent. Because our conclusion is not based on a determination that defendant's trial counsel failed to raise a particular objection in the trial court, we need not address defendant's ineffective assistance of counsel claim.
DISPOSITION
The judgment (order granting probation) is affirmed.
BAMATTRE-MANOUKIAN, ACTING P. J. WE CONCUR: DUFFY, J. WALSH J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.