Filed 3/7/18 P. v. Robinson CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JASON MATTHEW ROBINSON,

Defendant and Appellant.
C083893

(Super. Ct. No. 16CF05349)





Defendant Jason Matthew Robinson pleaded no contest to leaving the scene of an injury accident resulting in the death of a person in violation of Vehicle Code section 20001, subdivision (b)(2) (statutory section references are found in the Vehicle Code unless otherwise set forth), commonly known as hit-and-run, and misdemeanor driving under the influence of alcohol in violation of section 23152, subdivision (a). The trial court sentenced him to four years in prison and ordered him to pay direct victim restitution to the victim’s sister in the amount of $30,600.
On appeal, defendant’s sole contention is that the restitution order must be reversed because his criminal conduct, unlawful flight from the scene of the accident, did not cause the victim’s injuries and therefore the economic losses claimed by the victim’s sister were not incurred as the result of his criminal conduct. We will reverse the restitution order and remand this matter for further proceedings. In all other respects, we affirm the judgment.
FACTS AND PROCEEDINGS
A. Facts
The facts are taken from the probation report. As part of his written agreement to plead no contest to felony hit-and-run, defendant stipulated that the trial court could consider the facts from the probation report to establish the factual basis for his plea.
On the evening of November 5, 2016, defendant was driving his grandmother’s car in an alleyway near his residence in Chico when he struck Oren Coleman and continued to drive for a short distance. Because defendant knew something was under his car, he stopped and got out. When he looked under his car, he saw that Coleman was trapped and covered in blood. According to defendant, Coleman was “a mess” and making “gurgling and gagging noises.” Panicked and freaked out, defendant paced around for approximately 10 to 15 minutes trying to figure out what to do while his grandmother waited in the car. After he realized that Coleman had died, defendant decided to leave. He drove down the alleyway until Coleman became dislodged from underneath the car. He got out of his car and moved Coleman to the side of the alleyway and then drove to a Walmart with his grandmother and bought a plastic tarp around midnight. He returned to the alleyway and covered Coleman. However, because he “didn’t feel right” in covering Coleman, he removed the tarp, placed it in the trunk, and drove to his grandmother’s house. On the way, he discarded the tarp in a drainage ditch.
According to defendant, while he was at his grandmother’s house, he consumed about half a bottle of rum before deciding to return to the alleyway and contact the police. He called a cab for a ride to the alleyway.
Around 1:16 a.m. on November 6, 2016, police officers responded to a report of a possibly deceased person in the alleyway near defendant’s residence. The investigating officers determined that Coleman had injuries consistent with being struck by a car and then dragged underneath. The evidence at the scene--blood pooling, shoeprints in the blood, and the location of the body--was consistent with Coleman being struck and trapped under a car for “some time” and the driver of the car attempting to dislodge him. The appearance and location of Coleman’s body indicated that he came free from underneath the car on his own. Coleman was pronounced dead at the scene.
While officers were investigating the accident, defendant arrived. At that point, defendant decided not to confess because he had consumed a lot of alcohol and knew the officers would assume he was drunk when he hit Coleman. When defendant was questioned by a police officer, he explained that he lived nearby and had just been dropped off by a cab and could not get to his residence because of the police perimeter. In response to the officer’s question as to why he had torn clothing and blood on his shoes, defendant claimed his friend Max had struck a deer several hours earlier and he had stomped it to death to put it out of its misery. Defendant, however, was unable to tell the officer Max’s last name or contact information. He denied that he had driven a car that night.
As defendant was speaking with the officer, his grandmother arrived. She told the officer that she was there to pick up defendant because he was unable to get into his apartment. She also stated that defendant had borrowed her car earlier that evening and had returned it around midnight. After the officer noticed what appeared to be hair on the front bumper of the grandmother’s car, the officer asked defendant whether he had driven her car that night. Defendant initially denied doing so. However, he later changed his story. He admitted that he had driven his grandmother’s car to a bar earlier that evening but denied driving in the alleyway. After officers performed field sobriety tests and determined defendant had been drinking, he was placed under arrest for hit-and-run driving.
A further inspection of the grandmother’s car revealed blood on the back bumper and trunk. Hair and blood were also found on the front bumper and underneath the car. Defendant’s grandmother told officers that defendant had called her in the “early evening” and indicated he was drunk.
During his police interview, defendant was uncooperative and denied any involvement in the accident. However, about a month after the accident, he reluctantly admitted to the probation officer that he had struck Coleman in the alleyway with his grandmother’s car. According to the probation officer, defendant was evasive about his involvement in the accident for about 45 minutes. He made up an elaborate story about stomping a deer to death and only told his version of the truth when he could no longer keep his story straight.
When defendant finally decided to tell the “truth,” he explained that he had walked to his grandmother’s house to ask for a ride home after consuming approximately two beers at a friend’s house. He admitted that he drove his grandmother’s car but noted that she should not have let him drive because she knew he did not have his glasses and was required to wear them when he drove. Defendant further explained that he knew Coleman because he had seen him in the alleyway in the past. He claimed that Coleman was homeless, and that he did not see Coleman before hitting him. Defendant explained that he assumed Coleman was sleeping in the alleyway because Coleman was a “drunk.” Defendant also claimed that when he got back into the car after hitting Coleman, he only drove 15 to 20 feet before Coleman became dislodged, not 100 feet as estimated by the police. He explained that he lied to the police about his involvement in the accident because he was scared and panicked, and because he had seen many of his friends falsely arrested and “beaten up for doing nothing.”
B. Proceedings
On November 9, 2016, defendant was charged by felony complaint with leaving the scene of an injury accident resulting in death of a person in violation of section 20001, subdivision (b)(2) (i.e., hit-and-run). On November 29, 2016, the complaint was orally amended to add a count for misdemeanor driving under the influence of alcohol in violation of section 23152, subdivision (a). Immediately following the amendment to the complaint, defendant pleaded no contest to both counts pursuant to two separate plea agreements. For purposes of a driving under the influence program, the parties stipulated that defendant’s blood-alcohol level was 0.08 percent.
The probation report recommended an upper term sentence. In recommending such a sentence, the report noted, among other things, that the hit-and-run offense involved great violence and defendant’s conduct disclosed a high degree of cruelty, viciousness, and callousness. The report stated that defendant committed the offense while under the influence of alcohol and left the victim dead or dying without rendering aid or calling for assistance. In addition, the report stated that defendant was uncooperative with law enforcement and was not remorseful for his conduct. The report also recommended the trial court award direct victim restitution in the amount of $30,600 to the victim’s sister, Janie Clark, pursuant to Penal Code section 1202.4, subdivision (f)(3)(G). A victim impact statement and a financial impact statement were attached to the probation report. The victim impact statement indicated that Coleman hung Clark’s Christmas lights every year and cut her lawn and landscaped her yard about every two weeks. The financial impact statement calculated Clark’s financial damages for the loss of her brother as $27,000 for lawn care and $3,600 for Christmas light installation and removal. The calculations were based on lawn care for 15 years at $150 per month and Christmas light installation and removal for 15 years at $240 per year. The 15-year time period was based on Clark’s life expectancy.
At the sentencing hearing, defense counsel argued that a midterm sentence was warranted based on, among other things, defendant’s early admission of wrongdoing, minimal prior record, and remorse. The prosecutor disagreed, arguing that an upper term sentence was appropriate given the nature of Coleman’s injuries, defendant’s failure to render assistance or contact emergency personnel for help, defendant’s failure to cooperate with law enforcement, and defendant’s lack of genuine remorse. In requesting such a sentence, the prosecutor acknowledged that defendant “unknowingly” hit Coleman.
The trial court sentenced defendant to the upper term of four years on the hit-and-run offense and a concurrent sentence of six months on the misdemeanor driving under the influence of alcohol offense. When defense counsel was asked whether he would like to be heard on Clark’s request for victim restitution, counsel stated that he did not believe the probation report contained “legitimate calculations” that could be used to order victim restitution. Counsel added that, “[T]he lack of specificity in terms of the dollar amount . . . is of great deal of concern, and I would object to that. . . .” Counsel, however, did not request a further hearing. Instead, he stated he wanted to proceed based on his objection and reiterated that the calculations presented to the court were insufficient to justify victim restitution in the amount of $30,600. In ordering victim restitution in the amount requested, the trial court stated that it had read the basis for the request and found that a sufficient showing had been made for the order.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the restitution order must be reversed because his criminal conduct, unlawful flight from the scene of the accident, did not cause the victim’s injuries and therefore the economic losses claimed by the victim’s sister were not incurred as the result of his criminal conduct. According to defendant, the victim’s injuries were caused by the accident (noncriminal conduct) and were not exacerbated by his criminal conduct, e.g., leaving the scene without rendering aid or reporting the accident. We shall reverse the restitution order and remand for further proceedings.
“Where, as here, a criminal defendant is convicted and sentenced to state prison, section 1202.4 of the Penal Code . . . provides that the defendant must pay restitution directly to the victim for losses incurred ‘as a result of the commission of a crime.’ [Citations.] ‘To the extent possible,’ direct victim restitution is to be ordered in an amount ‘sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.’ [Citation.]” (People v. Martinez (2017) 2 Cal.5th 1093, 1097-1098 (Martinez).) Thus, victim restitution pursuant to Penal Code section 1202.4 is limited to losses caused by the criminal conduct for which the defendant sustained the conviction. (People v. Rahbari (2014) 232 Cal.App.4th 185, 190; People v. Woods (2008) 161 Cal.App.4th 1045, 1050.)
Section 20001, subdivision (a) provides: “The driver of a vehicle involved in an accident resulting in injury to a person, other than himself or herself, or in the death of a person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004.” Section 20001, subdivision (b)(2) provides the penalties for an accident described in subdivision (a) that results in death or permanent, serious injury.
Sections 20003 and 20004 specify the information and aid that must be provided, and impose a reporting requirement. As particularly relevant here, section 20003 requires the driver of a vehicle involved in an injury accident to “render to any person injured in the accident reasonable assistance, including transporting, or making arrangements for transporting, any injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that treatment is necessary. . . .” (§ 20003, subd. (a).) Section 20004 requires the driver of a vehicle involved in an accident resulting in the death of a person to, without delay, report the accident to the police, unless there is a police officer at the scene of the accident. (§ 20004.)
“[A]lthough the Vehicle Code section 20001[, subdivision] (a) offense is commonly referred to as a hit and run, the term is something of a misnomer; the offense is ‘more accurately described as fleeing the scene of an injury accident.’ [Citation.] That is to say, ‘ “the act made criminal” ’ under the statute ‘ “is not the ‘hitting’ but the ‘running.’ ” ’ ” (Martinez, supra, 2 Cal.5th at p. 1102.) Under section 20001, subdivision (a), an injury accident is a condition precedent to the duty to stop, provide identification, and render aid, but it is not an element of the crime and does not constitute part of the conduct forbidden by the statute. (Martinez, at pp. 1102-1103; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1340.) A defendant who flees the scene of an injury accident has committed a crime even if the “accident was solely the result of the victim’s own negligence”; no degree of fault on the defendant’s part is required for conviction. (Martinez, at p. 1103 [“ ‘it is not a criminal offense under California law to be a driver “involved in an accident.” An accident may be the fault of others; it may occur without any driver having been at fault’ ”].)
Our Supreme Court granted review in Martinez to resolve the conflict about whether, in imposing a sentence for a violation of section 20001, subdivision (a), a trial court may order direct restitution for injuries the victim suffered as a result of the underlying accidental collision. (Martinez, supra, 2 Cal.5th at p. 1099.) The court held that, under the plain terms of Penal Code section 1202.4, restitution for losses incurred as a result of a violation of section 20001, subdivision (a) only includes losses incurred as a result of the defendant’s flight from the scene of the accident without identifying himself or herself, rendering aid, or otherwise fulfilling the statutory requirements, but not losses incurred solely as a result of an accident that involves no criminal wrongdoing. (Martinez, at pp. 1103, 1107.) In so holding, the court reasoned, “[A] conviction under . . . section 20001 does not, in fact, require any showing of ‘the fleeing driver’s responsibility’ for the underlying accident. [Citation.] And if restitution for accident-related injuries required nothing more than proof that the driver was ‘involved in an accident that caused serious injury or death,’ then [Penal Code] section 1202.4 would authorize an award of restitution even in cases in which the victim was solely at fault. To permit such an award based solely on the defendant’s passive involvement in the accident would serve no recognized restitutionary purpose. And, indeed, to require the defendant to compensate the victim for injuries for which the defendant bears no responsibility--much less for injuries the victim has in effect inflicted on him or herself--could raise significant constitutional questions. [Citations.]” (Id. at p. 1104.)
The Martinez court, however, concluded that “[w]here the flight leads to a delay in the victim’s access to medical care, for example, and the victim’s injuries are exacerbated as a result, those costs are properly characterized as the ‘result of the commission of a crime’ for the purposes of a restitution order. [Citation.] Similarly, the cost of tracking down a defendant who has fled the scene of the accident may be recoverable because such losses, too, result from the defendant’s unlawful flight.” (Martinez, supra, 2 Cal.5th at p. 1107.)
The Martinez court noted that while Penal Code section 1202.4 does not “permit courts to order direct victim restitution for losses that occur as a result of an underlying accident that involves no criminal wrongdoing[,]” “[a] different result might obtain if the defendant’s crimes included an offense, such as reckless driving (Veh. Code, §§ 23103, 23104) or driving under the influence (id., §§ 23152, 23153), that caused the accident that resulted in the victim’s injuries.” (Martinez, supra, 2 Cal.5th at p. 1107, fn. 3.)
We review a restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The order will not be disturbed so long as there is a factual and rational basis for the amount of restitution ordered by the trial court. (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.) An order resting on a demonstrable legal error constitutes an abuse of discretion. (People v. Hume (2011) 196 Cal.App.4th 990, 995.)
Under the circumstances of this case, we conclude that the restitution order must be reversed and the matter remanded for further proceedings. Although defendant was convicted of driving under the influence of alcohol and hit-and-run, there was no factual determination that either his driving under the influence of alcohol caused the accident or his not reporting the accident immediately when he became aware of it and then dragging his victim under his car for up to 100 feet after he became aware of the accident exacerbated the victim’s injuries. We will remand this matter to permit the People to seek restitution for any losses incurred as a result of defendant’s criminal conduct.
DISPOSITION
The victim restitution order is reversed and this matter is remanded for further proceedings in accordance with this opinion. In all other respects, the judgment is affirmed.



HULL , Acting P. J.



We concur:



ROBIE , J.



MAURO , J.