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People v. Jones

August 11, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
STEVE DOUGLAS JONES, DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of El Dorado County, Douglas C. Phimister, Judge. Reversed with directions. (Super. Ct. No. P07CRM1117).

The opinion of the court was delivered by: Robie, J.

CERTIFIED FOR PUBLICATION

In this driving under the influence case, the trial court ordered defendant Steve Douglas Jones to pay victim restitution in the sum of $4,468.40, but in doing so failed to make a clear statement of the calculation method it used to reach that figure. We conclude this failure amounted to an abuse of discretion and accordingly reverse the restitution order and remand the case for further proceedings on the issue of victim restitution. For guidance on remand, we address the application of proximate cause to an award of victim restitution.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a plea agreement, defendant pled no contest to driving with.08 percent or higher blood-alcohol concentration and admitted several prior convictions and that he had a blood-alcohol concentration in excess of.20 percent. As part of the agreement, a charge of hit and run (leaving the scene of an accident) was dismissed with a Harvey*fn1 waiver. The court granted defendant probation and ordered him to pay restitution to the victim of the hit and run, Cindy Townsend, in an amount to be determined.

At a later restitution hearing, the victim (now Shipman-Townsend) testified about the restitution she was seeking. Shipman-Townsend and her husband own a construction business working as subcontractors. The damage defendant caused in the hit and run accident was to a camper they use in their business. They had spent $11,000 on the camper, but it appeared to Shipman-Townsend that defendant's insurance company was not going to pay to repair it but instead would "total" it and pay her only its Kelley Blue Book value (approximately $4,000), so she sought someone who would repair the camper for less than that.*fn2 She spent a couple of weeks looking for a repair shop and eventually settled on the man who had sold her the camper, Ron (or Rod) Taylor. Taylor told her he could "probably wrap it up in a couple of months, no problem." Instead, it took him about nine months to complete the repairs.

Because the camper was unavailable for use while it was being repaired, Shipman-Townsend had to pay to stay in motels and eat out instead of using the camper. According to Shipman-Townsend, she had $4,166 in lodging expenses and $2,177.42 in meal expenses during that period, for a total of $6,343.42, but she was asking for only half of that amount, or $3,171.71, as restitution because "cheap motels are about twice as expensive as camping, and eating out is at least twice as expensive as cooking in your own kitchen." Shipman-Townsend also sought $1,461.12 for wages she had to pay another person to replace her in her business while she was attending four court appearances in the case. She also sought $892.79 for the cost to repair the bumper on her car, which was torn off one day when she came to court for a hearing and the bumper caught on a "little steel thing" sticking out of the concrete curb at the front of the parking space she was trying to use.*fn3 And she sought $81.00 for six hours her secretary spent (at $13.50 an hour) tracking down and photocopying documents relating to her restitution claim.

The foregoing amounts totaled $5,606.62. In addition to that amount, Shipman-Townsend sought compensation for having to pay someone to work for her (at $65.40 per hour) the day before the restitution hearing, which she spent "preparing documents that were demanded by [defense counsel]," and the day of the hearing.

Before hearing argument, the court stated that it thought Shipman-Townsend was "entitled to the [$]1,461.12" and to "the [$]65.40" "for today." The court also stated, however, that it "ha[d] a problem with the lodging and the meals" because the repair of the camper "took nine months." The court said that while Shipman-Townsend "cut the figure in half," "[t]he Court doubled the lodging and food figure and then divided it by three months versus nine months to come to what was reasonable." The court stated that it "ha[d] a number" from "add[ing] all these up," but did not say what the number was.

Defense counsel asked the court to consider using two months rather than three months in its calculation because Shipman-Townsend had testified the original estimate for the repair was 60 days ("a couple of months"), not 90 days. The prosecutor argued "you take your victim as you find them." After further argument, the court ordered restitution in the sum of $4,468.40, commenting that "[y]ou... have a duty... to mitigate your damages" and that the amount of time it took to fix the camper was "unreasonable in the Court's view." The court did not otherwise explain the calculation method it used to reach that figure.

DISCUSSION

Subdivision (a)(1) of Penal Code section 1202.4 provides that "[i]t 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." Consistent with this intent, subdivision (f) of the statute provides that (with certain exceptions not applicable here) "in 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, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record."

On appeal here, defendant contends the restitution order must be reversed for two reasons. First, noting that the trial court "did not identify what part of [the restitution the court ordered] represented the loss from food and lodging expenses," defendant speculates that the court followed the formula it stated tentatively on the record, taking the full amount Shipman-Townsend paid for food and lodging while the camper was unavailable ($6,343.42) (i.e., doubling the figure Shipman-Townsend was claiming as restitution) and dividing it by three (for three months instead of nine months), to arrive at $2,114.47 in restitution for the cost of food and lodging. Then, defendant speculates, the court added the $1,461.12 for wages and $892.79 for the car repair, which results in a total of $4,468.38, which is just two cents off from what the court actually ordered ($4,468.40). Based on this premise, defendant contends the trial court abused its discretion in doubling the figure that Shipman-Townsend sought as restitution for food and lodging.

Second, also based on the foregoing premise of how the court arrived at its restitution figure, defendant contends the trial court erred in ordering him to reimburse Shipman-Townsend for the damage to her car because "the loss had no causal relation to the criminal conduct of which [he] was convicted." Quoting Benard v. Vorlander (1948) 87 Cal.App.2d 436, 446-447, he contends "[e]ither the concrete parking stopper or Shipman-Townsend's driving, or both, were unforeseeable and independent intervening factors whose negligence caused the damage" and thus his "liability in ...


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