Friday, October 19, 2007

Victim Restitution for California Drunk Driving

California DUI criminal defense lawyers news



Plaintiff and Respondent,



Defendant and Appellant.
(Super. Ct. No. MF43167)



APPEAL from a judgment of the Superior Court of Merced County. Glenn Ritchey and Brian L. McCabe, Judges.‡

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.



Appellant, Ruth Maribel Hernandez, waived her rights pursuant to Boykin/Tahl3 and admitted allegations in a criminal complaint that she drove a vehicle with a blood alcohol level of at least .08 percent, causing injury, and running a red light (Veh. Code, § 23153, subd. (b), count two), committed a felonious hit and run (Veh. Code, § 20001, count three), and drove a vehicle with a suspended license (Veh. Code, § 14601.2, subd. (a), count five).4 Count two further alleged that Hernandez had two prior driving while under the influence convictions within the prior seven years.

On June 1, 2006, the court carefully advised Hernandez of the consequences of her plea, including the maximum prison term she faced.5 The court completely advised Hernandez of her constitutional rights. The parties stipulated to, and the court found, a factual basis for the plea.6

At sentencing on August 7, 2006, the court denied probation and sentenced Hernandez to the midterm of three years on count two and a consecutive term of eight months on count three. The court awarded custody credits of 207 days. The defendant was ordered to pay a restitution fine of $600. (Pen. Code, § 1202.4, subd. (b).)7 Without objection, the court imposed direct victim restitution of $19,194.02. (§ 1202.4, subd. (f).)

Defense counsel filed a motion requesting the trial court to recall its sentence on August 10, 2006. Counsel contended there was no discussion or argument concerning whether Hernandez should receive the low term instead of the midterm. Counsel also contended there was no argument at the sentencing hearing concerning whether the two felony counts should have been made concurrent rather than consecutive. Counsel noted the trial court also made a comment that the two sides were far apart and there seemed to be no middle ground, such as a suspended sentence.

On September 6, 2006, the trial court heard the Hernandez’s request to recall the sentence. Defense counsel argued that this was Hernandez’s first felony conviction, she was not tried on probation before her last conviction, and her son had just died. Counsel argued Hernandez could be placed on 90-day observation and that even if sentenced to prison, she could be given a concurrent sentence. Counsel argued there were no aggravating factors. Counsel did not address the two restitution fines.

The court reviewed Hernandez’s arguments and the facts of the case, including her flight from the scene. The court noted that Hernandez told the probation officer she was innocent and denied driving the vehicle. The court found Hernandez was never promised probation and had failed to take responsibility for her conduct. The court found that each felony count involved separate criminal intent, justifying consecutive sentences. The court believed the factors in aggravation outweighed any mitigating factors, justifying an upper term on count two. The court noted that it was limited to the midterm under the terms of the plea agreement. As aggravating factors, the court found the crime involved great bodily harm, Hernandez’s prior convictions as an adult are numerous and of increasing seriousness, and her prior performance on probation was unsatisfactory. The court denied Hernandez’s request to recall her sentence.

Hernandez’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Hernandez was advised she could file her own brief with this court. By letter on May 15, 2007, we invited Hernandez to submit additional briefing. To date she has not done so.


We initially note that Hernandez failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious errors in Hernandez’s change of plea hearing. Hernandez was fully advised of the consequences of her plea and her constitutional rights. She bargained for and received the lid on her sentence of three years eight months.8

Hernandez’s victim restitution fine was not subject to plea negotiations because the interested party, the victim, is neither the defendant nor the prosecutor. In contrast to plea negotiations over a restitution fine, “victim restitution is mandated by both the Constitution and section 1202.4, and a sentence imposed without such an award is invalid. [Citation.] Section 1202.4 requires ‘full restitution.’ An order providing less is similarly invalid. [Citation.]” (People v. Bernal (2002) 101 Cal.App.4th 155, 164-165.) Victim restitution is not a proper subject for plea bargains. (People v. Valdez (1994) 24 Cal.App.4th 1194, 1203.) “The terms of [a defendant’s] plea agreement do not circumscribe the mandatory duty of the trial court to order appellant to pay victim restitution. [Citation.]” (Ibid.) “The Legislature left no discretion or authority with the trial court or the prosecution to bargain away the victim’s constitutional and statutory right to restitution. As such, it cannot properly be the subject of plea negotiations.” (Ibid.) Furthermore, Hernandez did not raise the issue of the amount of direct victim restitution during her sentencing hearing or her hearing to request recall of her sentence.

According to the probation report, one victim suffered medical expenses of $7,416.70. The car insurance company paid the owner of the car $9,389.22 and the owner paid $1,388.10 in car rental fees. These sums total $18,194.02. The probation report set forth a total of $19,194.02, the amount awarded by the trial court. This appears to be computational error in both the probation report and the trial court’s award of direct victim restitution.

We notified the parties pursuant to Government Code section 68081 of this error and offered them an opportunity to submit briefs on this point. To date, they have not done so. We find there is a mathematical, or clerical, error in the amount of direct victim restitution that the amount of direct victim restitution should be reduced to $18,194.02.


We order the amount of direct victim restitution reduced to $18,194.02. On remand, the trial court shall amend the abstract of judgment reflecting this change and forward it to the appropriate authorities. The judgment is otherwise affirmed.

† Before Harris, Acting P.J., Levy, J., Gomes, J.

‡ Judge Ritchey presided over appellant’s change of plea hearing. Judge McCabe sentenced appellant and ruled on her request to recall her sentence.

3 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

4 Prior to entering her plea, Hernandez waived her right to a preliminary hearing.

5 Hernandez also executed a felony advisement, waiver of rights, and plea form (form). Hernandez agreed to a maximum sentence of three years eight months. Hernandez had a translator throughout the proceedings. At the end of the form, a translator declared that a true translation of the form was made in its entirety to the defendant in a language she understood.

6 The police report indicated that a witness named Alonso stated he was traveling northbound and stopped at a red light. Just as the light turned green, Alonso began to drive forward into the intersection when he saw Hernandez driving a Ford Tempo at high speed westbound. Hernandez failed to slow down for the red light and collided with a small blue vehicle. Two females staggered out of the blue vehicle. The females appeared to be stumbling and were dazed. Hernandez left the scene on foot, eventually running away. Hernandez was found by investigating officers and identified by Alonso. Hernandez did not have a valid driver’s license. Her blood alcohol level was tested at .16 percent. According to the probation report, one victim suffered medical expenses of $7,416.70. The car insurance company paid the owner of the car $9,389.22 and the owner paid $1,388.10 in car rental fees.

7 Unless otherwise noted, all further statutory references are to the Penal Code.

8 The trial court noted during the hearing on Hernandez’s request to recall her sentence that count two, running a red light while intoxicated, and count three, felonious hit and run, involved separate criminal objectives. Hernandez did not have to flee the scene in violation of Vehicle Code section 20001 to accomplish her violation of Vehicle Code section 23153, subdivision (b). Where a defendant commits multiple criminal acts with separate objectives and the acts are not merely incidental to each other, section 654 does not limit multiple punishment. (People v. Martin (2005) 133 Cal.App.4th 776, 781.)