People v. Dailey

• Decision Date: 07 August 1991
• Docket Number: No. 2839,2839
• Citation: 286 Cal.Rptr. 772,235 Cal.App.3d Supp. 13
• Court: California Superior Court
• Parties: 235 Cal.App.3d Supp. 13 The PEOPLE, Plaintiff and Respondent, v. Jeffrey Dean DAILEY, Defendant and Appellant. Crim. A. Appellate Department, Superior Court, Ventura County, California

Page 772

286 Cal.Rptr. 772

235 Cal.App.3d Supp. 13

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Dean DAILEY, Defendant and Appellant.

Crim. A. No. 2839.

Appellate Department, Superior Court, Ventura County, California.

Aug. 7, 1991.

[235 Cal.App.3d Supp. 14] Michael Bradbury, Dist. Atty., and Larry Brown, Deputy Dist. Atty., for plaintiff and respondent.

Kenneth I. Clayman, Public Defender, and Neil B. Quinn, Deputy Public Defender, for defendant and appellant.

[235 Cal.App.3d Supp. 15] OSBORNE, Judge.

The defendant driver hit several unoccupied, legally parked cars causing property damage, and fled from the scene. Ultimately, he pleaded guilty to violation of Vehicle Code section 20002, subdivision (a). The court granted him probation, on the condition that he pay restitution to the owners for the damage to their cars.

Defendant appeals, arguing that, as a matter of law, the court is precluded from ordering restitution as a condition of probation for a violation of Vehicle Code section 20002. We disagree and affirm the judgment.

We briefly summarize the historical development of restitution, and review cases considering the validity of conditions of probation, especially in the light of the policies expressed in Proposition 8 adopted by the voters in June 1982.

THE DEVELOPMENT OF RESTITUTION

Restitution has been a feature of most legal systems as a substitute for personal retaliation or revenge. ¹ The English system of restitution developed so that the offender could buy back his peace by making a payment to the injured person and paying a fine to the king. As the process became an important source of revenue to the government, the payment of restitution to the victim was gradually absorbed by the fine paid to the state, and the victim's right to compensation through the criminal process declined.

Courts have rationalized the result by pointing to a supposed division between civil and criminal cases, and sometimes pejoratively disclaiming any function as a collection agency. ² See, for example, People v. Williams (1966) 247 Cal.App.2d 394, 405, 55 Cal.Rptr. 550, and People v. Richards (1976) 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 552 P.2d 97.

The emphasis turned so exclusively from the victim to the convicted criminal that restitution was justified by its perceived ability to rehabilitate the offender. This led to another pronouncement: "It is obvious that unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted, this salutary rehabilitative effect cannot take place." (People v. Richards, supra, 17 Cal.3d at p. 622, 131 Cal.Rptr. 537, 552 P.2d 97.)

On June 8, 1982, California voters rejected the approach to restitution focused only on the welfare of the offender. They enacted an initiative measure popularly known as "The Victims' Bill of Rights." The measure added article I, section 28, subdivision (b) to the California Constitution. ³ As required by the new constitutional provision, the Legislature enacted and the Governor signed the Crime Victim Restitution Program of 1983, ⁴ effective January 1, 1984.

As discussed herein, Proposition 8 and the Crime Victim Restitution Program of 1983 require and authorize a broader scope of restitution than was previously recognized by California cases.

PEOPLE v. LENT

Analysis of the validity of a condition of probation typically begins with the test enunciated in People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545. A condition of probation will not be held invalid unless (1) it has no relationship to the crime of which the offender was convicted, (2) it relates to conduct which is not in itself criminal, and (3) it requires or forbids conduct which is not reasonably related to future criminality. "Conversely, 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." (People v. Lent, supra, at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545.) That formulation validates a condition requiring conduct (here restitution) if it is "reasonably related to the crime" of which the defendant was convicted or to future criminality. It does not require that that relationship be a direct consequence of the precise act of which defendant was convicted.

In the present case, the victim owners were damaged when the defendant struck their unoccupied, legally parked cars. The act of striking and the resulting damage created liability which defendant tried to avoid by fleeing. Although the defendant's act of striking and damaging the parked cars did not alone constitute the crime of which defendant was convicted, the striking and damaging were elements of the crime. Although not the crime per se, the hitting, the damage, and the payment therefor clearly are "related to the crime" of which defendant was convicted. Applying the People v. Lent criteria (supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545), the trial court's imposition of a probation condition requiring payment of restitution is valid.

CASES AFTER LENT AND DIRECT CONSEQUENCE ANALYSIS

There have been four reported California cases since People v. Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545, considering the issue of restitution orders as a condition of probation following conviction of hit and run. They are People v. O'Rourke (1980) 105 Cal.App.3d Supp. 1, 165 Cal.Rptr. 92, People v. Walmsley (1985) 168 Cal.App.3d 636, 214 Cal.Rptr. 170, People v. Corners (1985) 176 Cal.App.3d 139, 221 Cal.Rptr. 387, and People v. Lafantasie (1986) 178 Cal.App.3d 758, 224 Cal.Rptr. 13.

In People v. O'Rourke, supra, 105 Cal.App.3d Supp. 1, 165 Cal.Rptr. 92, the San Francisco Superior Court Appellate Department reversed a probation order requiring restitution after a conviction of violation of Vehicle Code section 20002, subdivision (a). ⁵ We question the analysis in O'Rourke. The court stated that the crime is the act of leaving the scene of the accident whereas the damage to property was caused by acts which occurred prior to the criminal act. As we read the first element stated in People v. Lent, supra, 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545, it does not require that restitution be for damage only from the crime of which the offender was convicted, but only that it be related to the crime. Indeed, Lent affirmed restitution for conduct not resulting in conviction.

In People v. Walmsley, supra, 168 Cal.App.3d 636, 214 Cal.Rptr. 170, the court upheld a probation condition requiring restitution to the victim after the defendant pleaded guilty to hit and run driving with an injury involved (Veh.Code, § 20001). "Restitution as a condition of probation is favored by public policy both as a means of doing justice to the victim (Cal. Const., art. I, § 28, subd. (b)), and for rehabilitation of the offender (Pen.Code, § 1203.1; Charles S. v. Superior Court (1982) 32 Cal.3d 741, 748 [187 Cal.Rptr. 144, 653 P.2d 648] )." (People v. Walmsley, supra, 168 Cal.App.3d at p. 639, 214 Cal.Rptr. 170.)

In People v. Corners, supra, 176 Cal.App.3d 139, 221 Cal.Rptr. 387, the defendant was convicted of violation of Vehicle Code section 20001, but was acquitted of a related assault with the vehicle. The trial court did not impose restitution. The People appealed. The Court of Appeal followed O'Rourke, supra, 105 Cal.App.3d Supp. 1, 165 Cal.Rptr. 92, and affirmed. The court noted that the crime occurred in July of 1982 so that Proposition 8 applied, but that the restitution provision was not self-executing and the Legislature had not yet adopted Penal Code section 1203.04. (Corners, supra, 176 Cal.App.3d at p. 143, fn. 3, 221 Cal.Rptr. 387.)

In People v. Lafantasie, supra, 178 Cal.App.3d 758, 224 Cal.Rptr. 13, the court reversed a restitution order in a Vehicle Code section 20001 case. There was serious injury, but the victim was jaywalking when struck by the defendant. The trial court disclaimed knowing whether the defendant was 2 percent or 98 percent at fault. In the present case, there is no question regarding fault. ⁶ The court in Lafantasie did not discuss Proposition 8 or the Crime Victim Restitution Program of 1983.

O'Rourke, Corners, and Lafantasie all appear to test the validity of probation conditions for restitution by requiring compensable damages to be the direct consequence of the act constituting the crime of which the defendant was convicted, rather than related to the crime. Such a test would call into question conditions of probation that are indisputably proper. Valid conditions of probation that do not mesh neatly with such requirements include the following:

1. Have your fingerprints taken and preserved. Penal Code section 1203.1; People v. Municipal Court (1956) 145 Cal.App.2d 767, 773, 303 P.2d 375. (Unless otherwise indicated, all section references are to the Penal Code.)

2. Be under the supervision of and report to a judge or probation officer. Section 1203b; People v. Municipal Court, supra, at p. 773, 303 P.2d 375.

3. Obey all laws. Section 1203.2; People v. Municipal Court, supra, at page 774, 303 P.2d 375; compare section 1203.4a.

4. Do not become abandoned to improper associates or a vicious life. Section 1203.2; People v. Municipal Court, supra, at page 774, 303 P.2d 375. Live an honest and upright life. Compare section 1203.4a.

5. Go to work and earn money for the support of dependents or pay any fine or reparation, keep an account of earnings, report them and apply them as directed by the court.

Section 1203.1.

6. Pay the costs of an emergency response pursuant to Government Code section 53150 et seq. Sections 1203.1 and 1203.11.

7. Pay the cost of the presentence investigation and report. Section 1203.1b.

8. Pay the cost of probation services. Section 1203.1b.

9. Pay the cost of incarceration. Section 1203.1c....