PEOPLE v. MARTINEZ

Respondent’s Petition for Review

Cal.July 17, 2014

5219970 Iu the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. 057976 SUPREME COURT v. FILED DENNIS TERRY MARTINEZ, | JUL 17 2014 Defendant and Appellant. Frank A. McGuire Clerk Fourth Appellate District, Division Two, Case No. FMB1200197 Deputy San Bernardino County Superior Court, Case No. The Honorable Daniel Detienne, Judge PETITION FOR REVIEW KAMALAD. HARRIS Attorney Generalof California JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING Supervising Deputy Attorney General MEREDITH S. WHITE Deputy Attorney General State Bar No. 255840 — 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone:(619) 645-2297 Fax: (619) 645-2271 Email: Meredith.White@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Petition for REVICW ....... cc ccccsessesessesecsssseseesseeeeeneseeestecesesseeseeseeeeeseseeseeseaeens 1 Issue Presented ..........cccscccsssecccesscceseecessececescecsecesseneeecsesagacsssnsssoeseeeeerseeseneees 1 Reasons for Granting REVICW 200... ccc eeseesscssesceseeessenessdsessesesseesseseeseseseeeenes 1 Statement of the Case..........ccsccsscscscesneseseeeeeeeceaeeeseeeeesssseesesesecsscessasseseseaaes 2 ALQUMEDL..........cccscsceseeeseecesssnceeenenessnecessscesesseeseseosscasseessessseesensneseseasesssecesses 3 I. This Court Should Grant Review to Resolve a Conflict in the Courts of Appeal and to Provide Guidanceto Lower Courts Tasked with Ordering Restitution in Hit ANd RUN CaSeS........cesccesesseeseeeeeeensaeeesssesedaceecesasecsesesssseeeeseeess 3 CONCIUSION...........cccccescesscesseccecsseccsaceeseseeterseessesesssaseseesesseeessnsussssensesseesesees 9 TABLE OF AUTHORITIES Page CASES Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308 oo... cccccscecseecesecceereeseecersteeeeeeenenes 5,6 People v. Carbajal (1995) 10 Cal.4th 1114occcceccesneceseeetecseeeeneseesenseeees passim Peoplev. Escobar (1991) 235 Cal.App.3d 1504 0... ceccscescceneceecseesceeceesaeeesesenseesentes 5,6 People v. Lent | (1975) 15 Cal.3d 481 ooo cccceccsscsseceeeseeeeecesseecseesesecserersseeseessneeresenes 3. People v. Rubics (2006) 136 CalApp.4th 452 oooccceeseecesrecsserercsseecsraseseseesaespassim People v. Valdez (2010) 189 CalApp.4th 82cccececeeessceeseeecereeseesceccsusescsneesessetsneees 5 People v. Wood (2000) 83 Cal-App.4th 862 ....ccccccccsssssscssssssessesssesssssessteseessteesesLeese, 6 STATUTES Code of Civil Procedure § 1021.4eecccscesecsssseceecesseseseeessesestecseersaeecteeseecaeeseeseaesesesesesseness 6 Penal Code § 667 SUbUS. (D)-(1) 0... ccc cceesccessecessseesseceseecersteeecseceeceesseseneeeetseeseseaeers 6 § 1202.4 subd.(f)........... Uhesennceaneuseneusnseessagecusesessanesanscasecauecetaceuansesgess 6 § 12022.7 subd. (8)occeccececseceesceccsersneceseceeceeseseenessneeseneeeneeaseacenseeas 6 § 20001 Sub. (8)oeeeeccsccseetcestsestececsecseesesessessceeeeesneeeeeenesenees 1,2 Vehicle Code § 20001 Subds.(a)...ee ecsscccsseeseecesseessceeeescecensnecseeesseseecesscesenseesseeeess 4 § 20001 subds. (D)(2).....ce eecccsesteeseesseeseceseeeseceeseeseneeceateaeeaeeaeeanenes 4 ii CONSTITUTIONAL PROVISIONS California Constitutiom Article I, § 28, subd. (BD)... eecceeseeerseeecseereeeseeeeseseeeesesssseeseessanenses8 COURT RULES California Rules of Court TUL) 8.500 .... ccc ccscccecccccccccccecsccccsccccesseccceuscececuvcceusseesssceereusccceessereeeeeees 1 Tule 8.500, subd. (D)(1) occ eeeceeeeeeeesseceeseeeseeeesseecesusossevenseessessessneeees 1 OTHER AUTHORITIES Slip Opinion D ceccceucscccccccccccccssceecccccceccessceseccucusnccauuceuavscscecssseceuuceceseceecseseuasessssateneees 5 1D iscscececccccccccuccccceccccceseeeesecececsuauscaceusucussecscsescsceeuuceececeeeceeseeusnseesseeeeeeees 5 O ceccccccsncecccuccesecccnscesccecceceaccectsccavssccssseseucusscsecsececessuseeessecuenesecenasssssenes 2,5 T ceccccccccnesceccausssccuenscecccccsccseaacseccacssscsccecsuucsecceeauucesssercceceeaeeceseauesessssenss 4 17 cceccsssscecccccccccasesecccecccesssenececcccseeccecseuecanesseeseccecenseseeseeeseeseugeseesesseees 3,5 iii PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Petitioner, the People of California, respectfully petitions this Court to grant review, pursuant to rule 8.500 of the California Rules of Court, of the above-entitled matter, following the issuance of a published opinion on June 6, 2010, by the Court of Appeal, Fourth Appellate District, Division Two, holding a victim of a hit-and-run (Veh. Code, § 20001, subd. (a)) cannotrecover,via restitution, economic losses suffered as a result of the collision. A copy of the Court of Appeal’s opinion is attached. ISSUE PRESENTED Cana trial court order victim restitution for injuries suffered as a result of the collision in a hit and run where the defendant is sentenced to prison, not probation? REASONS FOR GRANTING REVIEW Review ofthis case is necessary to secure uniformity of decision and to settle an important question of law. (Cal. Rules of Court, Rule 8.500, subd. (b)(1). This Court has previously resolved the issue of whethertrial courts can imposerestitution for losses resulting from the collision in a hit and run case as a condition of probation. (People v. Carbajal (1995) 10 Cal.4th 1114 (Carbajal).) That decision left unresolved the present question—whetherrestitution can also be imposedwhere the court imposes a prison sentence. Twodivisions of the Fourth District Court of Appeal have addressed this issue and reached contrary results. In People v. Rubics (2006) 136 Cal.App.4th 452 (Rubics), Division One of the Fourth District Court of Appeal concludedthat ordering restitution was permissible because the collision itself was an element of the offense. In the instant case, Division Two of the Fourth District Court of Appeal concluded restitution in hit and run casesis limited to the losses that flow from the defendant’s flight, because the “gravamen”ofthe offense is the “running,” not the “hitting.” (Slip Op.6.) Accordingly, respondent respectfully requests that this Court grant review to secure uniformity of decision in this inter-divisionalsplit andsettle this important question of law. Granting review will provide needed guidance to lower courts tasked with ordering restitution in such cases. STATEMENTOF THE CASE | On April 26, 2012, appellant was driving his truck when hecollided with a 12-year old boy riding a scooter. (CT 88 [police report].) Appellant initially stopped to check on the victim, but then got back in his car and fled the scene. (Ibid.) The victim received immediate medical attention, but was seriously injured and required an extended hospital stay. (CT 90, 99.) In July 20 12, appellant pleaded guilty to hit and run with injury (Veh. Code, § 20001, subd. (a); count 1), and was sentencedto three years in prison. (RT 6, 26-27.) The court conducted a restitution hearing on December31, 2012. (RT 29.) There, defense counsel argued the court could not impose direct victim restitution because appellant did not cause the accident, and the victim’s economic losses flowed from the injuries suffered as a result of the collision itself and not appellant’s flight from the scene. (RT 31-32.) | Relying on, Rubics, supra, 136 Cal.App.4th 452,the trial court found appellant could be ordered to pay restitution because the accident was an elementofthe offense, and thus, part of appellant’s criminal conduct. (RT 37.) At a separate hearing on April 2, 2013, the parties stipulated to the amountofrestitution owed, which was $425,654.63. (RT 39; CT 80-81.) Appellant appealed the imposition ofrestitution, asserting the same argumenthe presented below: he wasnotliable for the economiclosses suffered by the victim because the losses wereattributable to the collision, for which appellant claimed he wasnotat fault. He argued the “gravamen” of a hit and run offenseis the “running,” not the “hitting.” The Court of Appeal agreed and expressly disagreed with the holding in Rubics. (Slip Op. 10-11.) The court reversed the restitution award and remandedthe case to the trial court for a hearing to determineif any of the economic losses could beattributed to appellant’s flight. (Slip Op. 17.) ARGUMENT I. THIS COURT SHOULD GRANT REVIEW TO RESOLVE A CONFLICT IN THE COURTS OF APPEAL AND TO PROVIDE GUIDANCE TO LOWER COURTS TASKED WITH ORDERING RESTITUTION IN HIT AND RUN CASES In Carbajal, this Court held, “it is within the trial court’s discretion in { ] a [hit-and-run] case to condition probation on paymentofrestitution to the ownerof the property damaged in the accident from which the defendant unlawfully fled.” (Carbajal, supra, 10 Cal.4th at p. 1119, emphasis added.) The crux of the decision in Carbajal wasthat an award of restitution in a hit and run case is permissible becauseofthetrial court’s discretionto impose probation conditions that serve rehabilitative or deterrent purposes. (/d., at pp. 1123-1125.) Thus, this Court evaluated the restitution award underthe factors established in People v. Lent (1975) 15 Cal.3d 481, 486. (Carbajal, supra, 10 Cal.4th at p. 1124.) This case presents the obvious follow-up question: canrestitution be imposed where the defendantis not granted probation, but is instead sentenced to prison? In Rubics, the court answered the questionin the affirmative. (Rubics, supra, 136 Cal.App.4th at p. 454.) Here, a different division of the Fourth - District Court of Appeal reached the opposite conclusion. (Slip Op.7.) Both opinionsare published. | Similar to the instant case, the defendant in Rubics was involved in a collision. The defendanthit and killed a man on a motorcycle and eventually pleaded guilty to felony hit and run under Vehicle Code section 20001, subdivisions (a) and (b)(2). (/d., at p. 454.) On appeal, Rubics claimed he wasnot responsible for direct victim restitution because he did not cause the vehicle collision.bid.) He argued, as appellant did here, that his criminal conduct wasfleeing the scene of the accident, not the accident itself. And because the injuries to the victim resulted from the accident, and notthe flight, victim restitution could not be ordered. The Court of Appeal rejected this argument. The Rubics court concludedrestitution could be imposed because involvement in the accident was an elementofthe offense of which appellant was convicted. (Rubics, supra, 136 Cal.App.4th at p. 458.) In other words, there could be no “hit and run” without a collision. The Rubics court recognizedthe distinction between ordering restitution as a condition of probation, as in Carbajal, and ordering restitution where the defendantreceives a prison sentence: “Thus, in our case, restitution must be for economic damagesresulting from the crime of which Rubics was convicted, not merely those ‘reasonably related’ to the crime.” (dd.at p. 460.) Relying on language from Carbajal, Rubics noted this Court’s description of the nature of the criminalact of fleeing as follows: Byleaving the scene ofthe accident, the fleeing driver deprives the nonfleeing driver of his or her right to have responsibility for the accident adjudicated in an orderly way accordingto the rules of law. This commonly entails a real, economicloss, not just an abstract affront. Among other things, the crime imposes on the nonfleeing driver the additional costs of locating the fleeing driver and, in some cases, the total costs of the accident. “The cost of a ‘hit and run’violation is paid for by every law-abiding driver in the form of increased insurance premiums. The crime with which the defendantis chargedis complete upon the ‘running’ whether or not his conduct caused substantial or minimal(or indeed any) damageorinjury;it is the running which offends public policy.” (Rubics, supra, 136 Cal.App.4th at pp. 460-461, quoting Carbajal, supra, 10 Cal.4th at p. 1124.) Based in part on the language from Carbajal, the Rubics court concludedthe restitution award was permissible because the collision was an element of the offense, and the policy reasonsthat permitted the restitution award in Carbajal applied equallyto a restitution award where the defendantis sentenced to prison. (Rubics, supra, 136 Cal.App.4th at p. 461.) The Court of Appealin this case rejected the holding in Rubics, and held that restitution in a hit and run caseis limited to the economic losses that floweddirectly from the defendant’s flight, i.e. any exacerbation of the victim’s injuries as a result of delayed medicalattention, etc. (Slip Op. 2-3, 17.) In sofinding, the court relied on a handfulof earlier opinions that concludedthat “[t]he gravamenofa [hit and run] offense ... is not the initial injury of the victim, but leaving the scene without presenting identification or rendering aid.” (Slip Op. 6; citing People v. Escobar (1991) 235 Cal.App.3d 1504, 1508 (Escobar); People v. Valdez (2010) 189 Cal.App.4th 82, 85 (Valdez); People v. Wood (2000) 83 Cal.App.4th 862, 866 (Wood); and Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1340 (Corenbaum).) With the exception ofEscobar, these cases addressed different, unrelated statutory interpretation issues. (Valdez, supra, 189 Cal.App.4th at p. 90 [whether injuries sustained in a hit and run accident were inflicted “in the commission ofafelony or attempted felony” under Penal Code! § | 12022.7, subd. (a)]; Wood, supra, 83 Cal.App.4th at pp. 863-864 [whether a conviction for hit and run, during which the victim is seriously injured, automatically qualifies as a serious felony under § 667, subds. (b)-(i)]; Corenbaum, supra, 215 Cal.App.4th at p. 1339 [whethera plaintiff in a civil lawsuit could recover attorney fees under Code of Civil Procedure section 1021.4].) | In Escobar, supra, 235 Cal.App.3d at p. 1512, the court held imposition of restitution was prohibited even as a condition of probation. Escobar predated Carbajal, and thus, has been overruled. | Relying on the language in these cases regarding the “gravamen”of the hit-and-run offense, the Court of Appeal here expressly limited the restitution award to any amountthat could be attributed to defendant’s flight. Practically speaking this would preclude a victim from recovering any losses that flow from thecollision itself in any hit and run case, even if it is abundantly clear from the record that the defendant wasat fault for the accident. This conclusion conflicts with section 1202.4, subdivision (f), which requires trial courts to imposerestitution for any economic losses suffered “as a result of the defendant’s conduct.” (§ 1202.4, subd. (f).) The statute says nothing ofrestricting restitution to only those losses that flow from the “gravamen”ofthe offense—thetest used by the court here. The facts of Rubics underscore the unfairness of the new rule espoused by Division Twoin the present case. In Rubics, the record indicated that on the morning of the accident, Rubics took onehit of marijuana, and then drove to the beach where he drank five beers and smoked another “bow!”of marijuana. Heleft the beach to drive home. He approachedanintersection, paused at a stop sign and turnedleft. As he was ' Future unlabeled statutory referencesare to the Penal Code. makingthe turn, he collided with a motorcycle. An accident reconstructionist determined the victim wastravelling over the speedlimit, but that Rubics caused the accident by failing to yield before he turned. (Rubics, supra, 136 Cal.App.4th at p. 454-455, 462.) The victim diedat the scene. (/d., at 455.) Presumably, Rubics could not be prosecuted for driving underthe influence of drugs and alcohol because he fled the scene and thus avoided having to submitto timely chemicaltests. If Rubics were governed by the opinion issuedin the instant case, the victim could not recover any restitution because noneofthe economic losses his family suffered (i.e. funeral costs, etc.) flowed from Rubics’ flight. The victim received immediate medicalattention, and died at the scene. The substantial evidence that Rubics was indeedat fault for the collision and caused the economic losses suffered by the victim’s family would not suffice to entitle them to recover anyrestitution because noneofthe victim’s injuries were exacerbated by the defendant fleeing the scene. Often, the difficulty in determining fault in a hit and run scenariois becauseofthe flight. As this Court recognized in Carbajal, a defendant’s flight prevents authorities from collecting contemporaneouswitness statements, shifts the focus of the investigation, and allows a defendant an opportunity to craft a fabricated story and to hide or destroy evidence. (Carbajal, supra, 10 Cal.4th at p. 1124.) That happenedin this case because the investigation focused on identifying appellant and his truck, rather than determining who wasatfault for the collision. (CT 88.) Thus, the flight is connected to the determination offault for the collision andit is equitable to hold the defendantresponsiblefor the restitution that flows from the collision. In addition,limiting restitution to the amountthat can betied to the flight creates an incentive for defendants to flee whereit is clear they are at fault for the collision itself, and the victim is likely to receive immediate or near-immediate medicalattention(i.e. if the defendant is underthe influence). Defendants may decide the risk of a conviction for a hit and run is better than the conviction andrestitution for the driving under the influence or reckless driving offense of which they know theyare guilty. The opinionin this case also creates an incentive that underminesthe purposeofa grant of probation for suitable defendants. Because Carbajal permits restitution in probation cases, prohibiting restitution in prison cases creates a perverse incentive for defendants to decline probation and choose prison, especially in cases like this one where the prison sentence was relatively short but the restitution award wasrelatively high. Finally, Proposition 8 established a constitutional right to restitution for crime victims. (Cal. Const., art. I, § 28, subd. (b).) Permitting restitution in probation cases, while prohibiting it in prison cases, necessarily meansthat the victim’s recovery ofrestitution is dependent on the trial court’s exercise of its sentencing discretion. This conflicts with the clear intent of the citizens in establishing a victim’s independent constitutional right to restitution. In sum, in addressing the very same issue, the Court of Appeal in this case and the court in Rubics reached opposite conclusions. For the reasons set forth above, the opinion here is incorrect. With two published cases from the same appellate district addressing the issue and reaching diametrically opposing conclusions, the quest for uniformity and consistency is impossible without guidance from this Court. This Court’s review is of the utmost importanceto resolve the conflict and give the lower courts guidance on their authority to imposerestitution awardsin these cases. CONCLUSION Forthe reasonsset forth above, petitioner respectfully requests that this Court grant review in the present case. Dated: July 16,2014 . Respectfully submitted, KAMALA D. HARRIS Attorney General of California JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING Supervising Deputy Attorney General, MEREDITH S. WHITE Deputy Attorney General Attorneysfor Plaintiffand Respondent $D2013805301 70908608.doc CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Romanfont and contains 2, 447 words. Dated: July 16, 2014 KAMALAD. HARRIS Attorney GeneralI(t MERREDITH S. WHITE Deputy Attorney General: Attorneysfor Plaintiffand Respondent ATTACHMENT CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT Court of Appeal DIVISION TWO Fourth Appellate District Division Two ELECTRONICALLY FILED THE PEOPLE, , ; 8:58 am, Jun 06, 2014 By: B. Gonzalez Plaintiff and Respondent, E057976 Vv. (Super.Ct.No. FMB1200197) DENNIS TERRY MARTINEZ, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Reversed with directions. Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Dennis Terry Martinez pled guilty to leaving the scene of an accident (count 1; Veh. Code, § 20001, subd. (a))! and admitted the offense constituted a violation of his probation. In return for his plea, the People agreed to the low term of two years’ incarceration on count | and a concurrent midterm of twoyears onhis violation of probation. The sentencing court later indicated it would not permit the plea to the agreed upon term. The court offered to allow defendant to withdraw his plea and set the matter for a preliminary hearing or proceed with the plea with the understanding the court would sentence defendant to the midterm ofthree years’ imprisonment with a concurrent three- year term for the violation of probation. Defense counsel indicated defendant’s acquiescenceto the court’s proposed disposition.” The court sentenced defendantto the three-year term, but reserved jurisdiction on the issue of victim restitution. After a contested restitution hearing, the court ordered victim restitution in the amount of $425,654.63. On appeal, defendant contends the court abused its discretion in awarding victimrestitution for the injuries sustained by the victim because defendantdid not plead to any criminal offense regarding the collision which caused those injuries and no factual determination was made that he was responsible for the accident. Wereverse the restitution award. The matter is remandedto allow the People to file a motion, in their discretion, for restitution in which they will bear the burden ofproving an amount, if any, which reflects the degree to which the victim’s 1 All further statutory references are to the Vehicle Code unless otherwise indicated. 2 No newplea wastakeneitherorally or in writing to reflect the new, agreed upon disposition. Defendant did not personally indicate his acceptance of the new term. 2 injuries were exacerbated, if at all, by defendant’s flight. In all other respects, the judgmentis affirmed. FACTS AND PROCEDURAL HISTORY? On April 26, 2012, at approximately 6:30 p.m., defendant, driving his vehicle, and the 12-year-old victim, riding on a scooter,collided in the street. Defendant stoppedhis vehicle and checked on the victim. The victim’s mother came screamingoverto her son. Defendant fled when he discovered the victim’s injuries mightbe life threatening. Defendant was on probation and driving without a license. The victim was taken to the Intensive Care Unit (ICU) of Loma Linda University Medical Center (LLUMC). He sustained multiple broken facial bones and a serious head injury resulting in brain swelling. Within 24 hours of investigation, officers discovered defendant’s identity. Defendant voluntarily came forward thereafter. He admitted knowingthat leaving the scene of the accident was a criminal offense. Defendant admitted ingesting medical grade marijuanaat 8:00 a.m.the day of the accident, but said he no longerfelt the effects by 11:00 a.m. Defendant maintained the collision was an accident. After defendant’s plea, a probation report prepared for sentencing recommended defendant be sentenced to the upper term of four years, conflicting with the disposition agreed uponin the plea agreement. Defendant’s felony probation had been previously 3 The parties stipulated the factual basis for the plea was contained in the felony complaint and police report. Wetake a portion of our factual recitation from those sources. revoked once. The probation officer noted the victim had been released from LLUMC’s ICU after two weeks. The victim wastransferred to the children’s rehabilitation center in Orange County where he had since remained. The victim had no short-term memory and wasunable to walk without assistance. The victim was relearning to walk andtalk. It wasanticipated the victim would undergo 12 weeksofintensive neurological therapy. Defendant had been uninsured at the time ofthe collision. Thebill for the victim’s stay at LLUMCalone was $500,000. The victim’s mother’s insurance deductible was $10,500. The victim’s mother made a statement at defendant’s sentencing hearing. She ‘noted “The fact that my son collided with the vehicle was an accident.” The victim’s motherindicated the victim had “multiple facial fractures, a fractured clavicle[,] and was diagnosed with traumatic brain injury.” The victim suffered brain swelling for which doctors had to insert a brain swelling monitor in his skull. Thevictim had been moved to Orange County on May 11, 2012, and was sent homeafter five weeks. Subsequent to sentencing, the parties briefed the issue of whether defendant could be ordered to pay restitution for the medical costs incurred by the victim as a result of the collision. The People noted the victim’s bill for his stay at LLUMC alone was $425,654.63. At the contested restitution hearing, the court decided to follow the decision in People v. Rubics (2006) 136 Cal.App.4th 452 (Fourth Dist., Div. One) (Rubics), which held that a defendant convicted of fleeing the scene of an accident could be ordered to pay restitution for costs incurred by the victim as a result ofthe collision. 4 The court continued the matter for a hearing on the amountofrestitution to order. Counselfiled a stipulation in the amount of $425,654.63 for a victim restitution order. Thestipulation reserved defendant’s right to appeal the court’s determinationit could order victim restitution for the results of the accident. the court granted victim restitution in the amountstipulated. DISCUSSION Defendant contendsthe court erred in following Rubics because decades of precedent have characterizedtheillegal act of hit-and-run as fleeing the scene, not causing the actual collision. Thus, because defendant was not convicted for any offense involving responsibility for the actual accident and no factual determination ofhis responsibility for the collision or the victim’s injuries has been made,the court erred in orderingrestitution to the victim for treatment of the injuries he received asa result of the accident. We agree. Wereview trial court’s order of restitution for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) “While we review all restitution orders for abuse of discretion, we note that the scopeofa trial court’s discretion is broader when restitution is imposed as a condition of probation.” (Jbid., fn. 7.) “It is the intent of the Legislature that a victim of crime who incurs an economiclossas result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.” (Pen. Code, § 1202.4, subd. (a)(1).) Penal Code “section 1202.4 contains no provision that permits an award of restitution for losses caused by uncharged crimes whenthe defendantis sentenced to state 5 prison.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1248.) The rationale that restitution may be imposed for economicloss not directly resulting from the commission of a crime for which a defendant has been convicted “is inapplicable to a nonprobationary sentence, in which the broad discretion to impose probationary conditions does not exist.” (Ibid.) “{W]hen a defendantis sentencedto state prison, [Penal Code] section 1202.4 limits restitution to losses caused by the criminal conduct for which the defendant was convicted.” (/d. at p. 1246 [Remandingfor deletion a restitutionary award ordered for acts occurring before the crimes for which the defendants were convicted].) “The gravamen ofa section 20001 offense . . . is not the initial injury of the victim, but leaving the scene without presenting identification or rendering aid. Thus, a plea of guilty to a ‘hit-and-run’ offense admits responsibility for leaving the scene but not for causing injury. Restitution is proper only to the extent that the victim’s injuries are caused or exacerbated by the offender’s leaving the scene.” (People v. Escobar (1991) 235 Cal.App.3d 1504, 1508 [Restitutionary award of $2,000 for personalinjuries resulting in lost wages and out of pocket expenses in a hit-and-run case reversed as “tantamountto an assignmentofcivil liability in violation of [defendant’s] civil due processrights.”]; accord People v. Valdez (2010) 189 Cal.App.4th 82, 85, 90 [Noting this “*decisional law that unequivocally holds that the purpose of section 20001, subdivision (a) is to punish “notthe ‘hitting’ but the ‘running’”’”]; People v. Wood (2000) 83 Cal.App.4th 862, 866; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1340 [declining to follow Rubics]; People v. Carbajal (1995) 10 Cal.4th 1114, 1124; contra. Rubics, supra.) The court below understandably relied on Rubics in rendering its judgmentthat defendant could be ordered to payrestitution for the effects of the collision. (McCallum v. McCallum (1987) 190 Cal.App.3d 308, 315, fn. 4 [“As a practical matter, a superior court ordinarily will follow an appellate opinion emanating from its own district even thoughit is not boundto do so.”].) Nevertheless, we find Rubics factually distinguishable from the instant case. Moreover,to the extent Rubics could be viewedas binding on the court below, we disagree with its holding. Unlike the lower court, we are not bound to follow Rubics. (Fenelon v. Superior Court (1990) 223 Cal.App.3d 1476, 1483, abrogated on another ground in Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 368.) We find that Rubics is an anomaly in an otherwise “unbroken line of cases stretching back more than 50 years.” (People v. Valdez, supra, 189 Cal.App.4th at pp. 85, 89.) Thus, we holdthat a court cannot order a defendant pay victim restitution whensentencedto prison for the effects of a collision, not exacerbated byhis leaving, when the defendantis solely convicted of fleeing the scene and no factual predicate for the defendant’s responsibility for the accident can be found in the record. (People v. Escobar, supra, 235 Cal.App.3d at p. 1509 [“Restitution is proper only to the extent that the victim’s injuries are causedor exacerbated by the offender’s leaving the scene.”].) In the first instance, Rubicsis distinguishable from the present case for a number of reasons. First, much of Rubics’s analysis of the issue was premised on the factthat, in its case, the defendant had not only been convicted of fleeing the scene (§ 20001, subd. (a)), but had also admitted an allegation undersection 20001, subdivision (b)(2), that the accident had resulted in death. (Rubics, supra, 136 Cal.App.4th at p. 454.) Rubics noted , one of the elements of the crime of which the defendant pled guilty required thatit resulted in the death of any person. (/d. at p. 458.) It noted the jury instruction for the offense reflected knowing involvementin an accidentresulting in the death of another person. (/bid.) It summarizedits analysis by noting the defendant’s “involvementin an accident causing [] death is an elementofhis felony hit-and-run offense.” (Jbid.) Here, defendant did not admit an allegation the accident resulted in death because no such allegation was charged as no one waskilled. Second, the restitution awarded in this case was ofa different kind and in a much larger amount than that awarded in Rubics. The lower court inRubics awarded $44,414 to the victim’s family for funeral expenses. (Rubics, supra, 136 Cal.App.4th at p. 456.) Here, the court awarded $425,654.63, apparently for the victim’s stay at LLUMC. Here, it would be incongruousto apply the Rubics rule when the Rubics case involved the death ofthe victim while the victim in the instant case did notdie. In other words, a defendant should not benefit from the fact that the victim in his case has died, thereby resulting ina lesser amountofvictim restitution than if that victim had lived, but required extended, expensive hospitalization and care. - Third, there was a factual predicate for determining the defendant's fault in the accidentat issue in Rubics. The defendant in Rubics admitted to smoking copious amounts of marijuana and drinking five beers before the collision. (Rubics, supra, 136 Cal.App.4th at p. 455.) The defendantfailed to stop at a stop sign, made an unsafe left turn, and collided with the victim’s motorcycle. (/d. at pp. 455, 462.) The accident. investigator determined the defendant caused the accident byfailing to yield to the 8 victim. (/d. at p. 462.) The defendant admitted leaving the sceneofthe accident “because he wasafraid that he was going to be arrested for driving under the influence.” (Id. at p. 455.) Thus, the defendant in Rubics effectively admitted culpability for the collision and his responsibility had also been independently determined. Weare in no way here making any factual determination as to whether defendant was responsible for the collision which resulted in the victim’s injuries and damages. Nevertheless, we note that no evidence below was adduced that defendant bore any culpability for the collisionitself or that his flight exacerbatedthe injuries to the victim. The victim apparently collided with the defendant’s vehicle while riding his scooter in the-street. Although defendant admitted to using marijuana, he reported having done so at 8:00 a.m. on the day ofthe accident. He indicated he had stoppedfeeling its effects by 11:00 a.m. on that day. Thecollision occurred at 6:30 p.m., 10-and a half hoursafter using the intoxicant and seven and a half hoursafter its effects had worn off. Both defendantandthe victim’s mother described the collision as an accident. Indeed, in People v. Woods (2008) 161 Cal.App.4th 1045, the court distinguished Rubics on this very basis, i.e., that the fleeing driver may only be held responsible “‘for the damages he or she has caused by being involvedin the accidentitself.’ [Citation.]” (Id. at p. 1053.) Similarly, the court in Corenbaum v. Lampkin, supra, 215 Cal.App.4th 1308, observed “[t]he occurrence of an injury accident is a condition precedentto the imposition of duties upon the driver under [section] 20001, subdivision (a)..., but is not an element of the crime... . [Citation.}” (Id. at p. 1340.) “To the extent that [Rubics] suggested that a conviction under[section] 20001, subdivision (a) is based in part on the 9 defendant’s causing or being involved in an injury accident, we decline to follow it... . (Ud. at p. 1341, fn. 22.) Here, there was no evidence defendant caused the accident or exacerbated the victim’s injuries by fleeing. Although wefind the decision in Rubics factually distinguishable from the present case, we are also cognizant of the broad language in Rubics which would appear to make its holding applicable to restitution for any damages sustained by a victim asa result of a hit and run regardless of the facts. Indeed, Rubics held that “although a primary focus of section 20001 maybethe act of leaving the scene, a conviction also acknowledgesthe fleeing driver’s responsibility for the damages heor she has caused by being involved in the accidentitself.” (Rubics, supra, 136 Cal.App.4th at p. 459, italics added.) Similarly, the court held that “because an elementofthe crime of felony hit and run undersection 20001, subdivisions (a) and (b)(2) is a defendant’s involvementin an accident resulting in the injury or death of another, restitution is proper in such a situation because the loss wasincurredas a result of the commission of the crime.” (/d. at p. 454, italics added.) Thus, the expansive language of Rubics’s holding would appear to give trial courts broad discretion to order victim restitution for any damages sustainedin a hit-and-run collision regardless of whether the defendant has been convicted of any offense involving his culpability in the collision, without any evidence of his responsibility for the accident, without any evidencethat his flight exacerbated the victim’s injuries, and in any amount. Wedisagree with this holding. Although Rubics acknowledged twocasescited to it by defendant which directly 10 contradict its own holding,the court did not distinguish or disagree with either.4 Indeed, the court declined to discuss those cases, or any of the others establishing the “unbroken line of cases stretching back more than 50 years” which ran contraryto its holding. (People v. Valdez, supra, 139 Cal.App.4th at p. 89; Rubics, supra, 136 Cal.App.4th at pp. 458-459.) Instead, Rubics relied primarily on the decision of our Supreme Court in People v. Carbajal, supra, 10 Cal.4th 1114. (Rubics, supra, at pp. 459-461.) In Carbajal, the California Supreme Court held “it is within the trial court’s discretion in [] a [hit-and-run] case to condition probation on paymentofrestitution to the ownerof the property damagedinthe accident from which the defendant unlawfully fled. A restitution condition in such a case can be reasonablyrelated to the offense underlying the conviction and canserve the purposes ofrehabilitating the offender and deterring future criminality.” (People v. Carbajal, supra, 10 Cal.4th at p. 1119,italics added.) Carbajal acknowledged “thatin the context of the hit-and-runstatute, the restitution condition mayrelate to conduct that is not in itself necessarily criminal,1.e., the probationer’s driving at the time of the accident.” (/d. at p. 1123 [fn. omitted].) Nevertheless, the court held that “atrial court, in the proper exercise ofits discretion, may condition a grant ofprobation for a defendant convicted of fleeing the scene of an accident on paymentofrestitution to the ownerof the property damagedin the accident.” (Id. at pp. 1126-1127, italics added.) 4 The court noted the defendant had exposited both People v. Escobar, supra, 235 Cal.App.3d at p. 1509, and People v. Wood (2000) 83 Cal.App.4th 862, 866,in support of his contention the court’s ordered restitution should be reversed. (Rubics, supra, 136 Cal.App.4th at pp. 458-459.) 11 Of course, the primary difference between Carbajal and Rubicsis the former court permitted victim restitution for a collision in a hit-and-run case, regardless of any determination of the defendant’s culpability in the collision itself, only when it was ordered as a condition ofprobation. (People v. Carbajal, supra, 10 Cal.4th at pp. 1119, 1126-1127.) In Rubics, the court permitted such victim restitution in a case in which the defendant was sentencedto prison. (Rubics, supra, 136 Cal.App.4th at p. 454.) Rubics acknowledgedthis difference, but found the policy reasons for permitting an order of suchrestitution in a probation case did not differ from one in which the court sentenced a defendantto prison. (/d. at pp.459-461.) Rubics discerned Carbajal’s overall approval of victim restitution where the | damages were reasonably related to the accident. (Rubics, supra, 136 Cal.App.4th at p. 460.) Rubics observed that Carbajal concludedrestitution is related to the goal of deterring future criminality which the restitution ordered in Rubics also served. (Jd. at p. 461.) It also noted Carbajal foundrestitution ““an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused.””” (Citations.}” (Ibid.) 5 Thus, Rubics found Carbajal supported “the conclusion that the court’s restitution order was properin this case.” (/bid.) However, an examination of Carbajalitself reveals the fact that the underlying court had ordered restitution as a condition ofprobation was not simply a factorin its 5 Though, notably, Carbajal madeall these determinations within the People v. Lent (1975) 45 Cal.3d 481, framework analysis for determining whether a term or condition ofprobation is appropriate. (People v. Carbajal, supra, 10 Cal.4th at p. 1124.) 12 determination of whether such an order was appropriate, but the factor. Carbajal observed “California courts have long interpreted thetrial courts’ discretion to encompassthe ordering ofrestitution as a conditionofprobation even when the loss was not necessarily caused by the criminal conduct underlying the conviction.” (People v. Carbajal, supra, 10 Cal.4th at p. 1121, italics added.) As a condition ofprobation “t]here is no requirementtherestitution order be limited to the exact amountofthe loss in which the defendant is actually found culpable, noris there any requirementthe order reflect the amount of damagesthat might be recoverable in a civil action.” ([bid.) Carbajal disagreed with the defendant’s contention a court couldnot order victim restitution for losses which did notresult from the defendant’s criminal acts because the statutory schemecouldnot “‘be construed to limit the authority of the court to grant or deny probation or provide conditionsofprobation.’ {Citation.]” (People v. Carbajal, supra, 10 Cal.4th at p. 1122.) Thus, it concluded that nothing in constitutional or statutory law “purports to limit or abrogate the trial court’s discretion .. . to order restitution as acondition ofprobation where the victim’s loss wasnottheresult ofthe crime underlying the defendant’s conviction, but where the trial court finds such restitution will serve one of the purposes”of reformation or rehabilitation inherent in a decision to grantprobation. (Ibid., italics added.) The court spent the remainderofits opinion analyzing whetherthe ordered victim restitution was appropriate within the context of the Lent framework for determining the propriety of conditions of probation. (id. at pp..1122-1127.) Therefore, Carbajal can in no way be construedasauthority for the proposition that victim restitution may be orderedin a hit-and-runcase for a collision 13 for which the defendant has not been convicted of any criminal offense and no evidence supports the defendant’s culpability for the collision or exacerbation of the victim’s injuries due to defendant’s flight. Indeed, Rubicsitself acknowledged that “[a]t first blush, the Carbajal decision does not appear helpful because courts have far greater leeway in selecting appropriate restitution as a condition of probation. Our Supreme Court has observedthat trial court has broad discretion to impose probation conditions to foster rehabilitation and protect public safety. [Citation.]” (Rubics, supra, 136 Cal.App.4th at p. 459.) In fact, as noted above,it has long been acknowledged that courts retain broader discretion to order victim restitution whenit is a condition ofprobation. (People v. Giordano, supra, 42 Cal.4th at p. 663, fn. 7.) As Rubics further noted, the discretion afforded courts in prescribing conditions of probation is broad “because probation is an “act of clemency and grace,’””’ not a matter of right. [Citation.] ‘{T]he granting of probation is not a right but a privilege, and if the defendantfeels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation.’ [Citations.] Because a defendant has noright to probation, the trial court can impose probation conditions that it could not otherwise impose, ... It is not limited to damages . specifically caused by the crime of which the defendant was convicted.” (Rubics, at pp. 459-460,italics added.) Here, however, we are not discussing a condition of probation. Rather, the court ordered defendantto pay victim restitution for the collision when he wasnot convicted of any offense involving responsibility for the collision, no evidence in the record appears to 14 indicate any culpability on his part in the collision, no evidence demonstrates the victim’s injuries were exacerbated due to defendant’s flight, and the court sentenced defendant to three years’ imprisonment. Defendantwasnot afforded the freedom to refuse the ordered restitution even if he believed it was harsher than the sentence for the substantive offense because he wasalready sentencedfor the substantive offense. Indeed, as Rubics further observed “[a]Jnentirely different set of constitutional considerations comesinto play where,as here, the defendant is sentenced to prison. The constitutional guaranty of a jury trial and due process requires that the jury decideall material issues in support of the charges. [Citations.] A corollary to this guaranty is that a defendant will not be punished for a crime for which a jury has not determined the defendant’s guilt.” (Rubics, supra, 136 Cal.App.4th at p. 460.) Here, defendant was not afforded any constitutional protections in what amounted to a judicial determination of guilt and liability for the collision. The ordered $425,654.63 in victim restitution would, to many people, be deemedharsh punishmentin andofitself. Indeed, if the People believed defendantguilty for causing thecollision, they could have charged defendantforreckless driving (§ 23103), driving underthe influence (§ 23152, subd. (a)), or some other charge which would have incorporated at least some culpability for the collision and notjust fleeing afterward. If defendant was convicted of such a charge, victim restitution for the collision would then be appropriate. In fact, even if defendant was not convicted of such a charge, but the plea agreementincluded a 15 Harvey® waiver,restitution couldstill be imposed for the consequencesofthe collision. (People v. Snow (2012) 205 Cal.App.4th 932, 937, fn. 5.) Here, although defendant executed a Harvey waiveras part of his plea, there were no other charges in the felony complaint and defendant’s plea did incorporate any agreement by the People notto file any further charges. The People might argue that by fleeing, defendant ensured any evidenceofhis — culpability in the collision was thereby eradicated. (People v. Carbajal, supra, 10 Cal.4th | at p. 1124 [“By leaving the scene of the accident, the fleeing driver deprives the nonfleeing driver of his or her right to have responsibility for the accident adjudicated in an orderly way accordingto the rules of law.”) However, a review of the contents of the police report reveal this is not the case. Atleast two individuals witnessedthe accident: the individual who gavepolice a description of defendant’s vehicle and the victim’s mother. If defendant was driving recklessly, evidence from these two sources could have been adducedto establish such. As noted above, mother indicated it was the victim who collided with defendant. Defendantlikewise indicated the victim hit defendant’s vehicle when the victim failed to stop. Moreover, defendant’s vehicle was found within 24 hoursofthe accident, apparently before any repairs could have been or were made. Defendant’s vehicle had only two small dents from the accident; no blood wason the car. A blood draw of defendant was conducted, apparently for toxicology purposes, within 26 hoursofthe © People v. Harvey (1979) 25 Cal.3d 754. 16 accident. Noresults of this test appear in the record. (dn re Alexis E. (2009) 171 Cal.App.4th 438, 448, fn. 6 [Information obtained by the social workerin a juvenile dependencycasereflected “marijuana’s negative [e]ffect on the user’s driving skills lasts ‘for at least 4-6 hours after smoking a single marijuanacigarette, long after the “high’’ is gone.’”]) Unlike in Rubics, no evidence of any accidentreconstruction appearsin the | record. Thus, it would appear the evidence here,or lack thereof, was at best, for the People, inconclusive and,at worst, negated any culpability of defendant for the collision. Either way, no charges regardingthecollision were brought against defendant. Because no determination regarding defendant’s culpability for the collision had been made, restitution for the victim’s medical care was an abuse of the court’s discretion. DISPOSITION The order granting the victim restitution is reversed. The matter is remanded to allow the People to file a motion,in their discretion,for restitution in which they will bear the burden of proving an amount, if any, which reflects the degree to which the 17 victim’s injuries were exacerbated,if at all, by defendant’s flight. (People v. Sy (2014) 223 Cal.App.4th 44, 63 [“[T]he standard of proofat a restitution hearing is by a preponderanceof the evidence .. . .”].) CERTIFIED FOR PUBLICATION CODRINGTON Weconcur: HOLLENHORST Acting P. J. McKINSTER J. 18 declaration OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v, Dennis Terry Martinez Case No.: E057976 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney Generalis deposited with the UnitedStates Postal Service that same day in the ordinary course of business. On July 16, 2014,I served the attached PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 WestA Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Court of Appeal ofthe State of California The Honorable Michael A. Ramos Fourth Appellate District San Bernardino County District Attorney's Division Two Office 3389 Twelfth Street 303 West 3rd Street, 6th Floor Riverside, CA 92501 San Bernardino, CA 92415-0042 Tressa S. Kentner - Court Executive Officer Thomas E. Robertson, Esq. San Bernardino County Superior Court Attorney at Law . Appellate Division . Law Office of Thomas E. Robertson 401 N. Arrowhead Avenue 225 Broadway, Ste. 1460 San Bernardino, CA 92415-0063 San Diego, CA 92101 For Delivery to the Honorable Counselfor Dennis T.Martinez - Daniel Detienne ADIParticipant and, furthermore I declare, in compliance with California Rules of Court, rules 2.25(1)(1)(A)-(D)- and 8.71 (f)(1)(A)-(D), I electronically served a copy of the above document from Office of the Attorney General's electronic service address ADIEService@doj.ca.gov on July 16, 2014 to Appellate Defenders,Inc.'s electronic service address eservice-criminal@adi-sandiego.com and to Appellant's attorney, Thomas Robertson, at thomas@robertsonsdlaw.com by 5:00 p.m. on the close of business day. I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on July 16, 2014, at San Diego, California. - Lp—4 Claudia Chavez-Estrada GyeLAELUE, Declarant Sighatdire