P. v. McKenzie

Filed 8/1/06 P. v. McKenzie CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Schuit, Judge. Affirmed as modified.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

Defendant and appellant Michael Francis McKenzie appeals from the judgment entered following his conviction of misdemeanor hit and run in violation of Vehicle Code section 20000, subdivision (a). We reject defendant's argument that the investigating officer was improperly allowed to express an opinion that the damage caused in the accident was consistent with the characteristics of defendant's truck. We also conclude the trial court properly awarded restitution for 12 days of lost wages to the victim and victim's spouse. Finally, we order the trial court to modify the restitution award to delete the restitution awarded to State Farm Insurance, but add an equal amount to the restitution awarded to the victim.

Defendant was charged by information with felony vandalism (Pen. Code, § 594, subd. (a))^[1] and misdemeanor hit and run. Defendant's motion to dismiss the felony charge was granted pursuant to section 995. A court trial resulted in a conviction on the hit and run charge. Defendant was placed on summary probation with conditions, including restitution in the amount of $5,631.96 to the victim and $1,883.43 to State Farm Insurance.

FACTS

Defendant resides around the corner from Christopher Barochiere in Tujunga. Defendant frequently parks his vehicles, including his flatbed diesel truck, on Cardamine Place where Barochiere reside. Defendant has been known to use Barochiere's driveway to turn his vehicles around. In the early morning hours of May 9, 2004, Barochiere and a neighbor heard the sound of a diesel truck coming down their street, followed by the sound of a collision. Barochiere looked down from a window of his home and observed defendant driving away in his flatbed diesel truck. Barochiere's garage door had been damaged, as were his two vehicles inside. Barochiere called 911.

Defendant never came to the Barochieres' residence to say he had caused the damage. Barochiere next saw the truck in the neighborhood two months later. There was $5,000 of structural damage to the house and $4,000 to $5,000 in vehicle damages. Barochiere had a $1,000 deductible on each vehicle and $500 on the homeowner's policy.

Officer Brandon Reese conducted the investigation of the incident. Officer Reese had three and one-half years experience as a collision investigator in the field, two and one-half years experience in follow-up investigations of hit and run accidents and fatalities, and had completed three training programs on collision investigation. Officer Reese examined defendant's flatbed truck, observing that the rear of the truck has a steel plate that protrudes out from the bottom of the flatbed and protects the license plate. There is also a steel frame that extends from below the truck and a ball hitch on the bottom. After measuring the distance from the license plate holder to the ball hitch, Officer Reese examined the damage to the garage door, which consisted of a sharp L-shaped cut and a dent that protruded into the door. The damage to the garage door fit perfectly with the configuration of the rear of the flatbed truck. Officer Reese was â€