People v. Phillips

• Decision Date: 22 May 1985
• Docket Number: No. G000885,G000885
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jean PHILLIPS, Defendant and Appellant. Crim. 17450.
• Court: California Court of Appeals Court of Appeals

Page 417

214 Cal.Rptr. 417

168 Cal.App.3d 642

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jean PHILLIPS, Defendant and Appellant.

No. G000885.

Crim. 17450.

Court of Appeal, Fourth District, Division 3, California.

May 22, 1985.

Review Denied Sept. 11, 1985.

[168 Cal.App.3d 644] Glenn Durfee, Mendocino, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Frederick R. Millar, Jr. and Keith I. Motley, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

SONENSHINE, Acting Presiding Justice.

Appellant Jean Phillips attacks a condition of probation requiring her to pay restitution, imposed after her conviction for driving under the influence of alcohol. (Veh. Code, § 23152, subd. (a).) ¹ We affirm.

* * *

Phillips was originally charged with two felonies: driving under the influence of alcohol and causing bodily injury to another ( § 23153, subd. (a)), and driving with a blood alcohol content of 0.10 percent or more and causing bodily injury to another ( § 23153, subd. (b)). ² The act forbidden by law (see § 23153, subds. (a), (b)) alleged was failure to obey a red light ( § 21453, subd. (a)).

Phillips was a driver in a serious traffic accident involving several cars at a major intersection. She and another driver were seriously injured. The evidence conflicted on the status of the traffic light at the time of the collision. The prosecution established Phillips had a blood alcohol content of 0.15 percent, and showed other symptoms of alcohol intoxication. She admitted drinking two or three mixed drinks earlier that day, but denied being inebriated and presented a corroborating witness regarding her sobriety.

After lengthy deliberations, the jury returned verdicts of guilty on two lesser included misdemeanor offenses: driving under the influence of alcohol ( § 23152, subd. (a)) and driving with a blood alcohol content of 0.10 percent or more ( § 23152, subd. (b)). The jury actually returned no verdict on the felonies, but the trial court treated the verdicts on the misdemeanors as acquittals on the felonies. In addition, at the time of sentencing, the court struck the section 23152, subdivision (b), conviction.

Phillips was sentenced the same day the verdicts were returned. As one condition of probation, the court ordered Phillips to pay restitution, not to exceed a total of $1,000. She objected, contending the jury had absolved her of responsibility for the accident by returning verdicts of guilty on the lesser included misdemeanors rather than the charged felonies. Nevertheless, the court found Phillips' driving was a cause of the accident and concluded restitution would foster her rehabilitation.

I

Penal Code section 1203.1 gives a sentencing court broad discretion to describe conditions of probation to foster rehabilitation and protect the public. (People v. Pointer (1984) 151 Cal.App.3d 1128, 1136, 199 Cal.Rptr. 357.) The discretion is not boundless (id., at p. 1137, 199 Cal.Rptr. 357), but "[a] condition of probation will not be held invalid 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....' [Citation.] 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 (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545, fn. omitted.)

II

It is abundantly clear restitution has a relationship to the crime of which Phillips stands convicted. (See, e.g., People v. Washburn (1979) 97 Cal.App.3d 621, 158 Cal.Rptr. 822.) Civil Code section 1714, subdivision (a), provides, in pertinent part, "Every one is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person...." (See generally Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728.) This duty applies to drivers. (George A. Hormel & Co. v. Maez (1979) 92 Cal.App.3d 963, 966-967, 155 Cal.Rptr. 337.) Generally speaking, driving under the influence of alcohol is negligence as a matter of law (see Mehling v. Zigman (1953) 116 Cal.App.2d 729, 734-736, 254 P.2d 141; Evid. Code, § 669), and justifies punitive damages in an appropriate case (see Peterson v. Superior Court (1982) 31 Cal.3d 147, 181 Cal.Rptr. 784, 642 P.2d 1305; Taylor v. Superior Court (1979) 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854.) When alcohol intoxication contributes to an automobile accident and ensuing injuries, restitution is proper. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 262, 198 Cal.Rptr. 145, 673 P.2d 732.)

III

Phillips' complaint focuses on the second of Lent's requirements: she contends, relying primarily on People v. Richards (1976) 17 Cal.3d 614, 131 Cal.Rptr. 537, 552 P.2d 97, the condition relates to conduct which is not in itself criminal. Richards was charged with two counts of grand theft arising out of separate transactions; he was convicted of one and acquitted of the other. The trial court, however, required restitution on both transactions as a condition of probation. The Supreme Court held "absent extraordinary circumstances probation for a defendant may not be conditioned on restitution of sums involved in a purported crime of which he [or she] was acquitted." (Id., at p. 616, 131 Cal.Rptr. 537, 552 P.2d 97; see also In re Maxwell C. (1984) 159 Cal.App.3d 263, 205 Cal.Rptr. 310; People v. Takencareof (1981) 119 Cal.App.3d 492, 497-500, 174 Cal.Rptr. 112; People v. O'Rourke (1980) 105 Cal.App.3d Supp. 1, 165 Cal.Rptr. 92.) Phillips argues acquittal ³ on the felony charges absolved her of responsibility for the accident, rendering restitution for the damage and injuries improper.

Resolution of the issue requires us to examine the nature and elements of the felony offenses with which Phillips was charged. "In order to prove felony drunk driving, the People had the burden of establishing beyond all reasonable doubt the following elements of the offense: (1) that the defendant drove a vehicle on the public highway; (2) that he [or she] was then and there under the influence of intoxicating liquor; (3) that he [or she] did some act forbidden by law or neglected a duty imposed by law in the driving of such vehicle; and (4) that such act or neglect proximately caused bodily injury to a person other than himself [or herself]." (People v. Clark (1962) 202 Cal.App.2d 513, 516, 20 Cal.Rptr. 803.) ⁴ The act forbidden by law or neglect of duty (see § 23153, subd. (c)) must be a proximate cause of the bodily injury to establish culpability under section 23153. (Ibid.; see also People v. Lares (1968) 261 Cal.App.2d 657, 665, 68 Cal.Rptr. 144; People v. Baxter (1958) 165 Cal.App.2d 648, 650, 332 P.2d 334; People v. Graybehl (1944) 67 Cal.App.2d 210, 216-217, 153 P.2d 771; People v. Dawes (1940) 37 Cal.App.2d 44, 48-49, 98 P.2d 787; see generally Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134; People v. Lobaugh (1971) 18 Cal.App.3d 75, 79, 95 Cal.Rptr. 547.) The terms "any act forbidden by law" or "neglects any duty imposed by law" refer to acts forbidden by the Vehicle Code and duties imposed by the Vehicle Code. (People v. Clenney (1958) 165 Cal.App.2d 241, 252-253, 331 P.2d 696.)

The section 23152, subdivision (a), guilty verdict reflects the jury's belief Phillips drove under the influence of alcohol. The failure to find her guilty of the felony offenses can only be based on one, or both, of two possible conclusions: the jurors did not believe Phillips ran the red light in violation of section 21453, subdivision (a), or, they did not believe the section 21453, subdivision (a), violation was a proximate cause of the injuries to others. They were not called upon to consider any other proximate cause of the accident: no other independent violation was alleged, nor was the jury instructed on the concept of "neglect[ing] any duty imposed by law in the driving of the vehicle." But this does not mean the jury, by acquitting Phillips on the felonies, absolved her of responsibility for the accident. The jury was not called upon to decide whether Phillips' intoxication was a proximate cause of the accident and ensuing injuries. Consequently, the acquittal on the felonies did not resolve this issue.

People v. Richards, supra, 17 Cal.3d 614, 131 Cal.Rptr. 537, 552 P.2d 97 is distinguishable because it involved restitution for a transaction reflected in a criminal accusation of which the defendant was found not guilty. The Supreme Court said: "Trial courts are granted broad discretion under Penal Code section 1203.1 to prescribe conditions of probation. [Citation.] However, a condition imposed must serve a purpose specified in the code section. [p] This requirement presents no problem for a court ordering a convicted defendant to make restitution to the victim for damages actually caused by the crime. Section 1203.1 expressly allows courts to impose reparation conditions 'for any injury done to any person resulting from such breach.' A closer question arises, however, when the court imposes a probationary condition requiring a defendant to pay a third party for losses not actually caused by the defendant's crime. In those circumstances the defendant is in effect required to choose between accepting incarceration and righting a wrong he [or she] may not in fact have committed." (Id., at p. 619, 131 Cal.Rptr. 537, 552 P.2d 97.)

But in the present case the court did not "impose[ ] a probationary condition requiring a defendant to pay a third party for losses not...