People v. Carbajal

MOSK, J.

I dissent.

The majority conclude that when a defendant is convicted of violating Vehicle Code section 20002, subdivision (a) (hereafter section 20002), the trial court may impose restitution as a condition of probation even though the offense itself—leaving the scene of an accident—did not result in any property damage or injury. I dissent because, in my view, requiring such a defendant to pay civil damages for the underlying accident, which involved no criminal wrongdoing, serves no demonstrable rehabilitative or deterrent purpose. Instead, under these circumstances the majority would have the trial court function merely as a collection agency for the equivalent of a civil judgment imposed without a jury trial.

The majority reason that a restitution order is a proper exercise of discretion because the noncriminal conduct at issue—an accidental collision resulting in property damage—is “reasonably related” to the offense of which defendant was convicted. It is true there is a temporal and even a “but-for” relation between defendant’s involvement in the accident and his violation of section 20002. That is not, however, the sort of “reasonable relationship” we have previously required: under our precedents, the conduct must be substantially related in kind to the criminal offense for which the probationer was convicted. Although restitution could properly be ordered as a condition of probation in some section 20002 cases—e.g., when the very act of fleeing the scene of an accident results in damage, injury, or death—it is otherwise inappropriate unless the defendant acted with the same culpable state of mind in “hitting” the car as in “running” from the scene. 1

In People v. Richards (1976) 17 Cal.3d 614, 619 [ 131 Cal.Rptr. 537 , 552 P.2d 97 ], we held that although trial courts have broad discretion in creating *1128 conditions of probation, such discretion is not unbounded: a condition imposed must serve a purpose specified under Penal Code section 1203.1. We emphasized that “[t]he major goal of section 1203.1 is to rehabilitate the criminal.” ( 17 Cal.3d at p. 620 .) We expressly rejected an “additional and ill-conceived purpose: to resolve the civil liability of the criminal.” (Ibid.)

We also acknowledged that “[restitution may exceed the losses for which a defendant has been held culpable.” (People v. Richards, supra, 17 Cal.3d at pp. 619-620.) Indeed, we had previously held that a trial court may, as a condition of probation, require or forbid any conduct, so long as it is either related to the proved crime or would deter future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 [ 124 Cal.Rptr. 905 , 541 P.2d 545 ] [“a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality”].) We explained that in limited circumstances a trial court can also impose restitution not only for the proved crime, but also for other conduct of which the defendant was not convicted, provided that to do so would serve the ends of rehabilitation. We concluded, however, that it would do so only if “the act for which defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted.” (People v. Richards, supra, 17 Cal.3d at p. 622 .) That is, the other conduct must also be a dishonest or culpable act, and must be related to the proved offense. The reason for this rule is obvious: “No rehabilitative purpose can be served by forcing a person to confront tendencies which differ from those which induced his crime.” (Ibid.)

I continue to believe that our analysis in Richards is eminently sound. No rehabilitative or deterrent purpose is served by ordering restitution for an act that did not involve any dishonesty or other culpable mental state. By his plea of no contest to the charge of violating section 20002, defendant admitted only that he left the scene of an accident, not that he intentionally, or even negligently, caused the accident. Even defendant’s subsequent concession, in his brief on appeal, that he “committed a negligent act of driving,” is at best an admission of simple negligence. Monetary liability for an act of negligence is an issue for civil litigation, not for criminal sentencing. 2

Without analysis, the majority “disapprove” Richards—together with numerous decisions by the Court of Appeal addressing the precise issue *1129 presented here. (See People v. Escobar (1991) 235 Cal.App.3d 1504, 1509 [ 1 Cal.Rptr.2d 579 ] [“[A] plea of guilty to a ‘hit-and-run’ offense admits responsibility for leaving the scepe 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. Lafantasie (1986) 178 Cal.App.3d 758, 762 [ 224 Cal.Rptr. 13 ] [“The court did not conclude, nor from this record, could it find Lafantasie’s leaving the scene was committed with the same state of mind as his driving at the time of the collision. It follows that imposition of restitution for the act of driving cannot serve a valid rehabilitative purpose.”]; People v. Corners (1985) 176 Cal.App.3d 139, 148 [ 221 Cal.Rptr. 387 ] [“As there is no evidence in the present case that defendant’s criminal conduct in leaving the scene aggravated [the victim’s] injuries, the request for restitution for injuries caused by the defendant’s noncriminal conduct in hitting [the victim] is an attempt to impose civil liability through the back door.”]; People v. O’Rourke (1980) 105 Cal.App.3d Supp. 1, 4 [ 165 Cal.Rptr. 92 ] [“The crime of which defendant was convicted is the intentional act of leaving the scene of an accident in which property damage has occurred. The damage to the third party’s property was caused by acts which occurred prior to the criminal act, not as a result of the criminal act. . . . [Requiring the defendant to pay for the alleged property damage is not related to future criminality.”].)

The majority simply ignore this clear weight of authority. Indeed, they refer only in passing to Escobar and entirely overlook the holdings in Lafantasie, Corners, and O’Rourke . I would adhere to the persuasive analysis and conclusions of that consistent line of decisions. 3

Even under the Lent test applied by the majority, however, the restitution at issue is invalid. First, “restitution cannot be based on mere civil claims.” *1130 (People v. Lent, supra, 15 Cal.3d at p. 487 .) The restitution here is based on civil liability for property damages from an automobile accident. Second, we held that a condition of probation involving conduct that did not lead to criminal conviction will be held valid unless it “ ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’ ” (Id. at p. 486; see maj. opn., ante, at p. 1123, in. 9.) The restitution condition at issue here satisfies none of these requirements: (1) it relates to an act of driving that occurred prior to, not as a result of, the criminal offense; (2) it relates to conduct, i.e., driving at the time of an accident, that is not itself criminal; and (3) it requires conduct, i.e., payment of the equivalent of civil damages, which is not reasonably related to future criminality.

The majority acknowledge that the restitution condition relates to conduct “that is not in itself necessarily criminal, i.e., the probationer’s driving at the time of the accident.” (Maj. opn., ante, at p. 1123.) They conclude, however, that the restitution condition is “related to” the offense of leaving the scene of the accident and to future criminality. Neither conclusion is persuasive. First, the majority reason that restitution is related to the crime of leaving the scene of the accident because “[b]y 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 according to the rules of law. This commonly entails real, economic loss, not just an abstract affront.” (Maj. opn., ante, at p. 1124.) Section 20002, however, serves the regulatory purpose of providing owners of property damaged in traffic accidents with information necessary to pursue their civil remedies. 4 Once the property owner is provided with that information, he is placed in the same position that he would have been in had the driver not fled the scene. He is, therefore, no longer deprived of his “right to have responsibility for the accident adjudicated in an orderly way” and has suffered no “real, economic loss.” (Maj. opn., ante, at p. 1124.) 5

Second, the majority conclude that the restitution condition—presumably in addition to or in lieu of any fine imposed under section 20002—will serve *1131 to deter future violations of the provision by forcing the defendant to accept the “legal and financial duties as a motorist” he attempted to evade by leaving the scene of the accident. (Maj. opn., ante, at p. 1124.) To the extent that the defendant’s motive was to avoid civil liability, however, deterrence was already served by providing the name and address of the defendant to the property owner in order to allow the latter to pursue his civil remedy. 6 The defendant has thus already been forced “ ‘to confront, in concrete terms, the harm his actions have caused.’ ” (Ibid.)

In addition to serving no meaningful rehabilitative or deterrent purpose, the restitution endorsed by the majority is a poor substitute for civil litigation, particularly in an automobile accident case. As we explained in Richards , “Disposing of civil liability cannot be a function of restitution in a criminal case. To begin with, the criminal justice system is essentially incapable of determining that a defendant is in fact civilly liable, and if so, to what extent. ... A party sued civilly has important due process rights, including appropriate pleadings, discovery, and a right to a trial by jury on the specific issues of liability of damages. The judge in the criminal trial should not be permitted to emasculate those rights by simply declaring his belief that the defendant owes a sum of money.” (People v. Richards, supra, 17 Cal.3d at p. 620 .) 7

Although the majority note that the defendant is entitled to notice and a “meaningful opportunity to controvert the information to be considered and relied on by the court in sentencing” (maj. opn., ante, at p. 1125), he would be deprived of the panoply of rights and protections available to defendants in civil suits for damages. “Not only are the purposes of criminal and civil actions fundamentally different, but the procedures are also discordant. The round peg of civil damages simply will not fit into the square hole of criminal proceedings.” (In re Brian S. (1982) 130 Cal.App.3d 523, 530 [ 181 Cal.Rptr. 778 ].)

*1132 Unlike the defendant in a civil action for damages, a criminal defendant convicted under section 20002 is never afforded the right to have a jury make the determination that the accident was his fault or the amount of damages incurred. (See People v. Baumann (1985) 176 Cal.App.3d 67, 80 [ 222 Cal.Rptr. 32 ] [criminal defendant is not entitled to a jury trial on the amount of restitution].) Under section 20002, the jury need determine only whether the defendant was “involved in an accident,” i.e., whether an accident took place. The jury is not required to determine who caused the accident, or whether the accident occurred intentionally, negligently, or innocently. The same is true when a defendant pleads no contest to a charge of violating section 20002.

Nor do the provisions for a sentencing hearing contemplate or require the equivalent of a full trial on these and other issues of liability and damages. The rules of evidence and other procedural requirements in civil trials are typically relaxed at a sentencing hearing; indeed, they would interfere with the expeditious disposition of such a hearing. In addition, compounding the problem of substituting a sentencing hearing for civil litigation is the fact that a criminal defendant is particularly vulnerable and may be disinclined to oppose or contest a restitution determination for fear of incurring a custodial sentence.

Moreover, the trial court “is not required to determine what damages might be recoverable in a civil action but may instead use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole and which is consistent with the purpose of rehabilitation.” (I n re Brian S., supra, 130 Cal.App.3d at p. 531 .) It need not apportion liability or determine comparative fault: “[T]here is no requirement that the [restitution] order be limited to the exact amount of loss in which the individual is actually found culpable.” (Id. at p. 534, fix. 4.)

In short, lest the trial courts in criminal cases “be reduced to ‘mere collection agencies’ ” for civil litigants (People v. Richards, supra, 17 Cal.3d at p. 620 ), I would reverse the judgment of the Court of Appeal.

The popular term—“hit-and-run”—is obviously a misnomer for a section 20002 violation. “Hitting” is not an element of the offense; nor is any level of fault for the accident required for conviction. A driver violates the statute if he knew he was in an accident involving damage and knowingly and willfully left the scene of the accident without providing the required information to the other drivers. (People v. Crouch (1980) 108 Cal.App.3d Supp. 14, 21 [ 166 Cal.Rptr. 818 ].) All these elements occur after the accident.

In adopting Proposition 8 in 1982, the people of California amended the Constitution to provide that “all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.” (Cal. Const., art. I, § 28, subd. (b).) Although, like the majority, I conclude that Proposition 8 did not directly abrogate our case law concerning restitution, it is instructive, because it recognizes that as a matter of “victim’s rights”—and apart from any rehabilitative or deterrent purpose— *1129 restitution serves the goal of making a victim whole for losses suffered as a result of criminal conduct.

The single case the majority cite in support of their contrary view is People v. Dailey (1991) 235 Cal.App.3d Supp. 13 [ 286 Cal.Rptr. 772 ], in which the appellate department of the superior court improperly affirmed an order conditioning probation on restitution after the defendant was convicted of violating section 20002. Significantly, as the Court of Appeal below observed, the appellate department in the present case had no power to follow Dailey , which was itself in direct conflict with the numerous Court of Appeal cases in point, including People v. Lafantasie, supra, 178 Cal.App.3d 758 . It is settled, of course, that “Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ], italics added.) Dailey is also unpersuasive, among other reasons, because it erroneously included “the striking and damaging [of several parked cars]” as “elements of the crime” (235 Cal.App.3d at p. Supp. 17) and concluded that Proposition 8 abrogated the case law concerning restitution in hit-and-run cases. (235 Cal.App.3d at p. Supp. 20.)

“The regulatory purpose of Vehicle Code section 20002, subdivision (a) is to provide the owners of property damaged in traffic accidents with the information they need to pursue their civil remedies.” (People v. Crouch, supra, 108 Cal.App.3d Supp. 14, 20 ; see also California v. Byers (1971) 402 U.S. 424, 430 [ 29 L.Ed.2d 9, 18 , 91 S.Ct. 1535 ] [“§ 20002(a)(1) was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities arising from automobile accidents”].)

To the limited extent that fleeing the scene of the accident resulted in additional financial loss to the property owner whose car was struck—e.g., the costs of locating the driver for the purpose of civil litigation—a condition of probation requiring payment of those expenses would be reasonably related to the defendant’s offense under section 20002.

There are also, of course, many reasons for “running” from the scene of an accident apart from avoidance of a lawsuit for damages, including such disparate motives as an illegal alien’s desire to avoid deportation or an adolescent’s misplaced fear of getting into trouble. There is no reason to believe that requiring restitution equivalent to civil damages would deter the same behavior in the future.

Significantly, in pointing to the weakness of such practice we drew in Richards on a decision by the Michigan Supreme Court in a hit-and-run case: “Striking down a probation condition requiring a defendant convicted of leaving the scene of an accident to pay the medical expenses of the pedestrians he hit, the court declared, ‘The liability ... is fixed by the [trial] court. How? Is it by a trial in open court, upon pleadings, defining the claims and issues, with the taking of testimony under oath, confrontation of witnesses, cross-examination, and assertion of defenses, including that of contributory negligence? Clearly not.’ ” (People v. Richards, supra, 17 Cal.3d at pp. 620-621, quoting People v. Becker (1957) 349 Mich. 476 [ 84 N.W.2d 833, 839 ].)