P. v. Moncada

Filed 3/20/07 P. v. Moncada CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Hector Moncada was convicted of a felony, leaving the scene of an accident. (Veh. Code  20001, subd. (a).) Moncada appeals an order of the trial court converting a condition of probation requiring restitution into a civil judgment. We affirm.

FACTS

On March 17, 2001, at about 6:30 p.m., 10-year-old Larry B. and his 4-year-old brother were on their way to a friend's house. After waiting for a car to pass, they began crossing the street. John began crossing the street first. Larry stopped when he saw a small car coming. Larry heard a "thud," as John was struck by the car. The car made an "err" sound, sped away, and did not return. Moncada was driving the car.

Daniel Rivera was behind Moncada when the accident happened. Moncada was going 15 to 30 miles per hour. When Moncada did not stop, Rivera wrote down his license plate number and gave it to the police.

When the police interviewed Moncada, he at first denied any involvement in the accident. But after the police informed him someone had taken down his license plate number, he admitted involvement. He said he was late for church when he saw someone crossing the street. He thought the person had reached the other side. But he heard a "thud" and believed he had hit someone. He did not stop because he did not have a driver's license or insurance. He was also afraid the neighborhood residents would hurt him.

After Moncada pled no contest to felony hit and run, the court placed him on three years' probation. On October 3, 2001, he was ordered to pay victim restitution of $49,919 plus a $4,991.90 service charge as a condition of probation. A payment plan required a minimum payment of $100 per month.

In February of 2004, Moncada admitted he violated probation by failing to make the minimum restitution payments. The court extended probation for another two years.

In February of 2006, the court granted the probation department's request to convert the unpaid balance of the restitution into a civil judgment. Moncada's probation was allowed to expire.

DISCUSSION

I

Moncada argues the restitution order was improper because the victim's losses were not caused by the commission of the crime of which he was convicted. Moncada points out the only crime of which he was convicted was leaving the scene of the accident.^[1]

Our Supreme Court rejected that argument in People v. Carbajal (1995) 10 Cal.4th 1114. The Court concluded that a restitution order is proper as a condition of probation, even where the victim's loss was not the result of the crime underlying the defendant's conviction. (Id. at p. 1122.) There the defendant pled no contest to leaving the scene of an accident after colliding with an unoccupied parked vehicle. The Court stated that a condition of probation requiring restitution is proper where it is reasonably related either to the crime of which the defendant was convicted or to the goal of deterring future criminality. (Id. at p. 1123.) The Court determined the restitution order was both reasonably related to the hit and run of which the defendant was convicted, and served to deter and rehabilitate by forcing the defendant to accept the responsibility he attempted to evade. (Id. at p. 1124.) The Court distinguished People v. Richards (1976) 17 Cal.3d 614, on the ground that there the restitution order was based on a count of which the defendant was acquitted; whereas Carbajaladmitted fleeing from the scene, and was convicted of that offense. ( People v. Carbajal, supra, at p. 1126.)

Moncada attempts to distinguish Carbajal in that here Moncada claims he was not at fault for hitting the small child. But Moncada misreads Carbajal. The court did not say restitution was proper because Carbajal admitted to hitting the parked car. The court said restitution was proper because Carbajal admitted to fleeing the scene and was convicted of that crime. The court's point was that, unlike Richards, Carbajal's restitution order was not based on a crime of which he had been acquitted. Here, like Carbajal, the restitution order was based on a conviction of fleeing the scene. Carbajal does not require a showing the defendant was at fault in the underlying accident.

Moncada argues converting the restitution order to a civil judgment violates federal and state constitutional prohibitions on excessive penalties. (U. S. Const., 8th Amend.; Cal. Const., art. I,  17.) But the primary purpose of a restitution order is to provide compensation to the victim. (See People v. Harvest (2000) 84 Cal.App.4th 641, 648.) It is confined to the victim's economic loss. (Ibid.) It is not a fine. (Ibid.) Nor does it constitute punishment. (Id. at p. 650.) Because restitution is confined to the victim's economic loss, it cannot be condemned as excessive. (Ibid.)

Moncada's argument that the judgment is excessive, in relation to his ability to pay, is without merit. He cites no authority in support of a constitutional requirement that a judgment awarding compensatory damages must take into account the defendant's ability to pay. Indeed, no civil judgment considers the defendant's ability to pay in awarding compensatory damages. People v. Hodgkin (1987) 194 Cal.App.3d 795, 804, determined it was error to impose a restitution order without considering the defendant's ability to pay. But that determination was made as a matter of statutory interpretation. (Id. at pp. 802-803.) Hodgkin was superseded by statutory amendment. The Legislature added subdivision (g) to Penal Code section 1202.4 in 1996. That subdivision provides, "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order." (Ibid.; Stats. 1996, ch. 629,  3.)

Moncada argues the judgment violates due process because he did not cause the victim's damages. He spends much time on appeal in an attempt to convince us the accident was the victim's fault. But such a factual determination is well beyond the scope of our review on appeal. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  316, p. 354.) Moncada points to no finding by the trial court that he was not at fault.

Nor does Moncada cite any authority that due process requires a showing of direct causation in order to impose liability. If any such showing is necessary, that Moncada fled the scene of the accident can be taken as an admission of liability.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

John Vernon Meigs, Judge

Superior Court County of Los Angeles

______________________________

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, John Yang, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]Moncada argues the imposition of a restitution order constituted an unauthorized sentence that can be challenged at any time. (Citing People v. Percelle (2005) 126 Cal.App.4th 164, 179-180.)