(Super. Ct. No. MCYKCRBF05406)
The opinion of the court was delivered by: Hull , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
"Defendant Steven Andrew Dehle pleaded no contest to vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1); further undesignated statutory references are to the Penal Code.) In exchange, the court dismissed three other counts related to the incident in question and it was agreed defendant would not be sent to state prison for more than four years. Imposition of sentence was suspended and defendant was placed on probation for three years on the condition, among others, that he serve 365 days in the county jail. Following a hearing, the trial court ordered defendant to make restitution to the decedent's surviving spouse in the amount of $622,750.45." (People v. Dehle (2008) 166 Cal.App.4th 1380, 1383 (Dehle).) On defendant's appeal to this court, we reversed the restitution order because the trial court allowed the restitution hearing to go forward without the presence of the prosecutor. (Id. at pp. 1390-1391.)
In February 2011, following a contested restitution hearing in which the prosecutor participated, the trial court ordered defendant to pay $737,804.45 to the surviving spouse and $1,500 to the County of Siskiyou, for a total of $739,304.45.
Defendant again appeals contending (1) the trial court erred reversibly when it refused to consider the decedent's comparative fault, and (2) his trial counsel rendered ineffective assistance when he failed to challenge the trial court's determination that defendant owed restitution for the entire amount of attorney fees the surviving spouse had incurred in a civil wrongful death action and settlement.
The People cross-appeal contending the trial court erred when it reduced defendant's restitution obligation by $197,383.55, the amount the surviving spouse received in the civil settlement. We shall affirm the judgment.
Portions of our statement of facts are taken from our published opinion in Dehle. (Dehle, supra, 166 Cal.App.4th at pp. 1383-1386.)
On an evening in February 2005, California Highway Patrol officers arrived at a motor vehicle accident scene and found a Jeep resting on its side. John Bodine's head was crushed under the Jeep's roll bar.
The officers spoke to defendant, who was the driver, and his two backseat passengers. Defendant told an officer that the Jeep's throttle had stuck, causing the Jeep to accelerate. He swerved to avoid a pole and lost control of the Jeep at which point it overturned. An officer detected an odor of alcohol while talking to defendant. Defendant admitted that he had consumed several beers after the accident occurred but claimed he had not consumed any alcohol before the accident. He failed a field sobriety test; his blood alcohol content was 0.11 percent.
It appears that none of the occupants of the Jeep was wearing a seatbelt.
The two passengers told an officer that defendant did not drink any alcohol before the accident but, after the accident, he drank four to five beers in quick succession. The officer detected the odor of alcohol while talking to each of the passengers.
In a written statement prepared for the probation report, defendant explained that "the gas pedal stuck on the Jeep[.] I tried to get it unstuck as this had worked in the past." Perhaps in response to preliminary hearing testimony that the Jeep could have been stopped by depressing the clutch, defendant explained that, "having just put a new engine in the Jeep I didn't want to blow it up," evidently by removing the load from the fast-turning engine. Defendant did not address the alternative of turning off the ignition switch.
First Restitution Hearing
In October 2006, after the terms and conditions of defendant's probation were set, the prosecutor asked the trial court to "expressly authorize [counsel for the decedent's surviving spouse, Debra Bodine] to conduct the restitution hearing on behalf of the victim. . . . [H]is knowledge of the case will allow much more full and accurate airing of the issues involved than if I handle it with him assisting me." Defendant objected that private counsel should not be allowed to perform the functions of the district attorney. The trial court ruled: "First of all, I think it's necessary and appropriate for the district attorney's office to participate in the restitution portion of these proceedings, and so without necessarily implying that [Bodine's counsel] doesn't have a right to have a presence either, I think it's the district attorney's responsibility to be present. [¶] So I expect the district attorney's office to continue to participate in that." The prosecutor replied, "Oh, absolutely."
At a conference in November 2006, the prosecutor renewed his request to have Bodine's counsel represent Bodine at the restitution hearing, stating that her counsel was "in a much better position to concisely present the case than" was the prosecutor. Defendant again objected.
In January 2007, the court conducted the restitution hearing. Neither the district attorney nor any of his deputies were present. Again, defense counsel objected to the prosecutor's absence but this time the trial court overruled the objection. The court reasoned that the hearing was limited to the issue of direct victim restitution, and "I just kind of think we're wasting a resource to have some other person sit at the counsel table today."
Bodine's counsel called three witnesses: the decedent's employer, a retired economics professor, and Debra Bodine. Defendant called a certified public accountant.
In April 2007, the trial court found that Debra Bodine had suffered economic loss as a result of defendant's criminal conduct. Defendant's liability was reduced by the amount of a civil wrongful death settlement. Although it was undisputed that Debra Bodine's attorney received $100,000 and costs in fees for pursuing the settlement, the trial court did not award Debra Bodine attorney fees because her attorney "declined to submit an itemized statement setting forth actual time ...