People v. O'Rourke

• Decision Date: 25 March 1980
• Docket Number: Cr. A
• Citation: 165 Cal.Rptr. 92,105 Cal.App.3d Supp. 1
• Court: California Superior Court
• Parties: 105 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Respondent, v. George Robert O'ROURKE, Defendant and Appellant. 2676. Appellate Department, Superior Court, San Francisco County, California

Page 92

165 Cal.Rptr. 92

105 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Respondent, v. George Robert O'ROURKE, Defendant and Appellant.

Cr. A. 2676.

Appellate Department, Superior Court, San Francisco County, California.

March 25, 1980.

Alan Kornfeld, San Francisco, for defendant and appellant.

Arlo Smith, Dist. Atty. and Gilbert Y. Jay, Asst. Dist. Atty., San Francisco, for plaintiff and respondent.

I

SHAW, Judge.

This is an appeal from an order of the municipal court granting defendant, George Robert O'Rourke, probation on the condition that he make restitution to a third party for damage to the third party's automobile allegedly caused by defendant.

Defendant pleaded guilty to a violation of Vehicle Code § 20002, subdivision (a) ^* which requires the driver of any vehicle involved in an accident resulting in property damage to stop, locate the owner of the damaged property, and identify himself. Responsibility or liability for any property damage is not provided for in the statute.

The issue on this appeal is whether the trial judge abused his discretion in conditioning the defendant's probation on the defendant's paying the third party for property damage allegedly caused in the accident from which defendant unlawfully fled. For the reasons discussed below, we hold that the trial court did abuse its discretion.

II

Although trial courts have broad discretion to prescribe conditions of probation under Penal Code section 1203.1, that discretion is not without limitation. Any condition imposed must serve a purpose which is specified in section 1203.1 (People v. Richards (1976) 17 Cal.3d 614, 619, 131 Cal.Rptr. 537, 552 P.2d 97). A condition of probation will be invalid if 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 (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545).

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. There is no evidence in the record to show that the property damage arose from criminal conduct. The restitution order, therefore, requires payment for damage which was caused by noncriminal conduct. Furthermore, requiring the defendant to pay for the alleged property damage is not related to future criminality.

The relationship of a restitution order to the crime of which the defendant was convicted was analyzed from another perspective in People v. Richards (1976) 17 Cal.3d 614, 131 Cal.Rptr. 537, 552 P.2d 97. After determining that rehabilitation is the major goal of section 1203.1, the Supreme Court held in Richards : "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, (the) salutary rehabilitative effect cannot take place. No rehabilitative purpose can be served by forcing a person to confront tendencies which differ from those which induced his crime." (Id., at p. 622, 131 Cal.Rptr. at p. 542, 552 P.2d at p. 102.)

In the instant case, there is absolutely no evidence in the record to support a conclusion that the defendant damaged the third party's automobile with the same state of mind he had at the time he left the scene of the accident without identifying himself.

The state of mind of a defendant at the time he flees from the scene of an accident is obviously significantly different from his state of mind immediately prior to the collision, unless, of course, there were some evidence that the defendant intentionally collided with another vehicle with the specific intent of leaving the scene of the accident without complying with the provisions of section 20002, subdivision (a) of the Vehicle Code. In the present case the record is devoid of any evidence of what the defendant's state of mind was immediately prior to the collision and, therefore, there is no evidence that the act for which the defendant was ordered to make restitution was committed with the same state of mind as the offense of which he was convicted. No rehabilitative purpose can be served by the restitution order in question under the language of People v. Richards, supra.

III

Defendant has raised a constitutional issue in his brief which provides an additional ground for our conclusion that the trial judge abused his discretion in ordering restitution in this case. Defendant has asked this court to make the broad declaration that restitution for property damage can never be ordered as a condition of probation if the defendant was convicted of a violation of Vehicle Code section 20002, subdivision (a) because such an order violates the defendant's due process rights. We cannot agree with appellant entirely and do not hold that all restitution orders arising from a violation of section 20002, subdivision (a) of the Vehicle Code are unconstitutional. However, the record presented in this case, or rather the lack of it, compels us to reverse this particular restitution order.

In establishing the rule that a restitution order must relate to the crime of which the defendant was convicted, the Supreme Court recognized that a civil defendant has certain due process rights which are not available to a criminal defendant and that the lack of those rights in certain circumstances can invalidate a restitution order (People v. Richards, supra ).

"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 judge may infer from a jury verdict of guilt in a theft case that a defendant is liable to the crime victim. But a trial court cannot properly conclude that the defendant owes...