People v. Rubics

• Decision Date: 06 February 2006
• Docket Number: No. D045636.,D045636.
• Citation: 38 Cal.Rptr.3d 886,136 Cal.App.4th 452
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marty Lewis RUBICS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

38 Cal.Rptr.3d 886

136 Cal.App.4th 452

The PEOPLE, Plaintiff and Respondent, v. Marty Lewis RUBICS, Defendant and Appellant.

No. D045636.

Court of Appeal, Fourth District, Division 1.

February 6, 2006.

Diane Nichols, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

NARES, J.

Marty Lewis Rubics pleaded guilty to one count of felony hit and run under Vehicle Code¹ section 20001, subdivision (a), and an allegation under section 20001, subdivision (b)(2), that the accident resulted in death. The court sentenced Rubics to a term of three years in prison and ordered him to pay $44,414 in funeral expenses as direct restitution to the victim's family.

On appeal Rubics asserts that the court erred in ordering restitution because restitution is limited to losses incurred as a result of the commission of the crime, and the economic loss to the victim's family was caused by the accident, not his criminal conduct in leaving the scene of the accident. Rubics also contends that even if restitution were permissible, there is insufficient evidence that he caused the accident and the victim's resulting death. We conclude that because an element of the crime of felony hit and run under section 20001, subdivisions (a) and (b)(2) is a defendant's involvement in an accident resulting in the injury or death of another, restitution is proper in such a situation because the loss was incurred as a result of the commission of the crime. We also hold that substantial evidence supports the court's finding that the defendant Marty Lewis Rubics caused the accident and the victim's resulting death.

FACTUAL AND PROCEDURAL BACKGROUND²

A. Facts Underlying Crime

On the morning of July 30, 2004, Rubics took one hit of marijuana at approximately 6:15 a.m. and then drove to the beach where he drank five beers and smoked a "bowl" of marijuana. Rubics left the beach to drive home. He approached the intersection of Thibido Road and Hilo Way in Vista, paused at a stop sign, and pulled out to make a left turn onto Thibido Road. As he was making the turn, he collided with a motorcycle driven by Shane Casey. Based upon an accident reconstruction, Casey was traveling approximately 64 miles per hour in a 40-mile-per-hour zone. Casey attempted to avoid Rubics's truck by swerving into oncoming traffic lanes, but was unable to do so. Rubics fled the scene of the accident.

Two witnesses stopped to assist Casey. One left the scene to follow Rubics, and the other, John Sikes, stayed with Casey. Casey was still breathing and his eyes were still open when Sikes reached him. Sikes tried to comfort and encourage him. Although paramedics arrived quickly, Casey was pronounced dead at the scene.

Rubics never contacted police. He was not identified until 10 days after the accident when his vehicle information was released on television, and Casey's family offered a $5,000 reward. When police contacted Rubics at his home, he denied any involvement. Sikes positively identified Rubics's truck as the one involved in the accident. Police did not arrest Rubics at that time, but impounded his truck.

When Rubics contacted police eight days later to request release of his truck, he was arrested. Rubics then admitted to police that he had been involved in the accident and that he had consumed five beers and marijuana that morning. He claimed that he thought he had hit a small car and left the scene because he was afraid that he was going to be arrested for driving under the influence. He also admitted that he fixed the front bumper on his truck and purchased a new headlight and trim pieces to cover up the damage to his vehicle.

B. Guilty Plea

In his written guilty plea to felony hit and run, Rubics admitted that he "was involved in an injury accident resulting in death to another and did not stop to identify myself or render reasonable assistance to the person injured." (Italics added.) At the hearing on his guilty plea, Rubics admitted on the record the same facts:

"[The Court:] You're admitting that on the date in question, sir, you did drive a vehicle involved in an accident . . . and that accident involved the death of another individual, and you fled the scene and failed to provide your identity or failed to render assistance to the person injured; is that correct, sir?"

"[Rubics:] Yes, ma'am." (Italics added.)

C. Sentencing Hearing

At sentencing, the probation officer recommended that the court, in addition to sentencing Rubics to prison, order restitution to the victim's family for funeral expenses. Rubics asserted that restitution was inappropriate because the hit and run offense was based upon his leaving the scene of the accident and did not cause the victim's death and the related funeral expenses. The court ordered restitution, stating:

"With regard to restitution, this is a crime involving fleeing the scene resulting in death. [¶] We don't really know, do we, if [Rubics] had stopped his vehicle and rendered assistance, immediately taken [Casey] to a hospital — we have no way of knowing if that would have made a difference. It may not have. We will never know that. But that's why we have this felony provision in place, because we really want people involved in accidents to take responsibility for their conduct and assist others that are injured. [¶] So I think the restitution ordered is appropriate based upon the death to [Casey] and normal funeral expenses, et cetera, for bringing family members to the funeral."

The court ordered Rubics to pay $44,414 in restitution directly to the victim's mother to pay for funeral expenses.

DISCUSSION

I PROPRIETY OF RESTITUTION FOR HIT AND RUN CRIME

Rubics asserts that the court erred in ordering restitution because the economic loss to the victim's family that supported the restitution order was caused by the accident, not his criminal conduct in leaving the scene of the accident. This contention is unavailing.

Article I, section 28, subdivision (b) of the California Constitution provides in part:

"It is the unequivocal intention of the People of the State of California 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. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section." (Italics added.)

The Legislature has implemented this constitutional provision in Penal Code section 1202.4, subdivision (a)(1) which provides:

"It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." (Italics added.)

Here, the court ordered restitution under subdivision (f) of Penal Code section 1202.4, which provides in part: "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order." (Italics added.)

Thus, in order for the court's restitution order to stand, the funeral expenses for Casey must be a loss incurred "as a result of the commission of a crime" for which Rubics was convicted. Whether restitution was properly ordered in this case requires an analysis of the elements of section 20001, under which Rubics was convicted.

Section 20001, subdivision (a) provides: "The driver of any vehicle involved in an accident resulting in injury to any person . . . or in the death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004." (Italics added.) Section 20003 requires the driver involved in an accident resulting in injury or death to stop and provide information and render aid to the victim. (§ 20003, subd. (a).)³ Section 20004 requires the driver, if there is no police officer present, to immediately report the accident to authorities.⁴

As stated above, one element of the crime of hit and run for which Rubics was convicted is that he was "involved in an accident resulting in . . . the death of any person." (§ 20001, subd. (a).) CALJIC No. 12.70, the jury instruction for section 20001, similarly requires the jury to find that Rubics was "knowingly involved in an accident resulting in [the death of] [or] [injury to] any person other than [himself]." (Italics added.) That instruction also lists the elements necessary to convict a defendant of felony hit and run as follows:

"1. A person while driving a motor vehicle was involved in an accident resulting in injury to another person; [¶] 2. That person knew that an accident had occurred, knew that [he] [she] was involved in the accident and either knew that the other person had been injured or that from the nature of the accident it was probable that another person had been injured; [¶] 3. That person willfully failed to perform one or more of the following duties: [¶] a. To immediately stop at the scene of the accident; [¶] b. To give [his][her] name, current residence address, the registration number of the vehicle and the name and current residence of the owner of the vehicle [and the name and current residence of any occupant of the driver's vehicle injured in the accident] to the person injured or to the driver or occupants of the other vehicle, if any, and to any traffic or police officer at the scene of the accident and though requested, failed to show [his] [her] available driver's...