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Crumps v. The Superior Court of Los Angeles County

California Court of Appeals, Second District, Eighth Division

July 9, 2019

DEMETRIUS CRUMP et al., Petitioners,
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent THE PEOPLE et al., Real Parties in Interest.

          ORIGINAL PROCEEDINGS in mandate Los Angeles County Super. Ct. App. Div. Nos. BR053255, 6SC00433. Patti Jo McKay, Tony L. Richardson, and Sanjay T. Kumar, Judges; Alan S. Rosenfield, Judge. Petition denied in part and granted in part with directions.

          Grignon Law Firm, Margaret M. Grignon, Anne M. Grignon; Brentford Ferreira; Parris Law Firm, R. Rex Parris, Patricia K. Oliver; Panish Shea & Boyle, Brian Panish and Robert Glassman for Petitioners.

          Mariam El-Menshawi, Victims of Crime Resource Center, for The National Crime Victim Law Institute as Amicus Curiaeon behalf of Petitioners.

          No appearance for Respondent.

          Jackie Lacey, District Attorney, Phyllis C. Asayama and Cassandra Thorp, Deputy District Attorneys, for Real Party in Interest The People of the State of California.

          Morgan, Lewis & Bockius, James J. Dragna, David L. Schrader, Yardena Zwang-Weissman, Thomas M. Peterson, Nathan Hochman; Latham & Watkins and Manuel A. Abascal for Real Party in Interest Southern California Gas Company.

          GRIMES, ACTING P. J.


         This case has its origin in a leak of natural gas from a Southern California Gas Company (SoCalGas) storage facility in Aliso Canyon, adjacent to the residential community of Porter Ranch, that began on October 23, 2015. The gas leak continued for months, causing damage to thousands of residents of the area, and generated a great deal of litigation. In addition to civil lawsuits brought by affected residents and businesses, the District Attorney for Los Angeles County filed a misdemeanor criminal complaint against SoCalGas (defendant).

         The resolution of the criminal charges by a plea agreement generated further litigation by residents of the Porter Ranch community (petitioners here). In the plea agreement, defendant pleaded no contest to a charge of failure to immediately report the release of a hazardous material, and obtained dismissal of other charges, including a count alleging the discharge of air contaminants. Petitioners, numbering more than 7, 000, sought to set aside the plea agreement and obtain restitution under the California Constitution, which gives victims the right “to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” (Cal. Const., art. I, § 28, subd. (b)(13)(A).) At the sentencing hearing, the trial court considered petitioners' written submissions, oral argument and testimony, but denied their motion to vacate the plea and require restitution. Further litigation in the Appellate Division of the Superior Court was likewise unsuccessful, leading to a petition for writ of mandate in this court.

         We hold that the Victims' Bill of Rights in the California Constitution (art. I, § 28), as amended in 2008 by Proposition 9 (Marsy's Law or section 28) does not authorize a victim to appeal from a judgment or order in a criminal case. Section 28 does require the court in every case to order restitution to crime victims “from the persons convicted of the crimes causing the losses they suffer.” (Id., subd. (b)(13)(A).) And section 28 does authorize a victim to enforce the right to seek and secure restitution (along with many other enumerated rights) “in any trial or appellate court with jurisdiction over the case as a matter of right, ” and further requires the court to “act promptly on such a request.” (Id., subd. (c)(1).) But nowhere does section 28 state or imply, nor does its history suggest, that a victim may enforce his or her right to restitution by direct appeal from a criminal judgment or order.

         Instead, in those rare cases where the trial court fails in its duty to order restitution from the convicted wrongdoer to the victims of the crime, the victims may do what petitioners have done in this case: seek a writ of mandate. This is consonant with section 28, and at the same time does not interfere with “the public prosecutor's exclusive discretion in the conduct of criminal cases.” (Dix v. Superior Court (1991) 53 Cal.3d 442, 451 (Dix).)

         Here, however, the trial court did not fail in its duty when it refused to order restitution for all losses caused by the gas leak. We reject the contention that the release of air contaminants was “encompassed in” the reporting failure of which defendant was convicted. We also decline to extend the right to restitution to dismissed charges that are “transactionally related” to the crime of which defendant was convicted. And although we find no error in the trial court's conclusion that there was no evidence or proffer of evidence to establish that defendant's failure to report the gas leak for three days was a substantial factor in causing the harm victims suffered from the gas leak, for the reasons set out below we do remand for a hearing on whether petitioners can prove damages from the three-day delay in reporting the leak, as charged in the criminal complaint.

         We note as well that no injustice results from any of the legal conclusions we have reached. Petitioners continue to have recourse against defendant in numerous pending civil suits and class actions, in a civil court specifically designed to handle complex proceedings.


         1. The Background and the Criminal Complaint

         SoCalGas owns a massive natural gas storage field in Aliso Canyon, near the Porter Ranch community. On October 23, 2015, a leak of natural gas began from a well at the Aliso Canyon facility. The leak continued for months, and was finally successfully controlled in February 2016.

         On February 2, 2016, the district attorney filed a misdemeanor criminal complaint against defendant, alleging violations of the Health and Safety Code and other state and county regulations. There were four counts.

         Count 1 alleged that, from October 23 to October 26, 2015, defendant failed to report the release of hazardous material, in violation of Health and Safety Code section 25510, subdivision (a), “to the California Emergency Management Agency and to the unified program agency.”[1]

         Counts 2 and 3 alleged failures to report the release of hazardous material, during the same period, under Los Angeles County Code section 12.56.030 and title 19 of the California Code of Regulations.

         Count 4 alleged that, from October 23, 2015 to the present (February 2, 2016), defendant committed the crime of discharge of air contaminants, in violation of Health and Safety Code section 41700, subdivision (a), by discharging natural gas or its components.[2]

         A few days after the complaint was filed, attorneys representing many of the victims of the discharge notified the district attorney's office that they sought restitution.

         On February 17, 2016, defendant waived arraignment and pleaded not guilty to all four counts.

         On September 12, 2016, the district attorney's office notified attorney Paul Kiesel that a proposed plea agreement had been reached with defendant to settle the criminal complaint. (Mr. Kiesel had been appointed as liaison counsel for the thousands of plaintiffs and 86 law firms involved in 157 coordinated civil suits and class actions filed against SoCalGas over the gas leak.) Mr. Kiesel was informed there would be a pretrial conference the following day. He said he would discuss the matter with co-leads of the plaintiff steering committee, and would send a representative from leadership to the hearing. He was not consulted about the terms of the plea or given advance notice of the terms.

         2. The Plea Agreement

         On September 13, 2016, the proposed settlement agreement was submitted to the trial court and its terms were read into the record.

         Under the plea agreement, defendant pleaded no contest to count 1, “for failing to timely report the natural gas leak to the proper authorities, specifically the California Office of Emergency Services... and... the Los Angeles County Fire Department.” The parties acknowledged that any subsequent violation of Health and Safety Code section 25510 “may be charged as a felony.” Other terms were:

         The court would impose the maximum fine of $75, 000 ($25, 000 per day of violation) in exchange for the plea to count 1. The court would also impose state penalty assessments “currently estimated to be approximately $232, 500”; $246, 672.88 for response costs; and “all mandatory fines and fees as required by the court, including any restitution fine to the State Restitution Fund.”

         Defendant agreed to comply with six other terms and conditions, all to be completed prior to sentencing. “In total, SoCalGas will be required to pay and commit approximately $4, 004, 172 to $4, 304, 172 to fully complete and satisfy the complete terms of this settlement agreement.”[3]

         “Provided the terms of this Agreement are complied with by SoCalGas, ” the district attorney agreed to dismiss the remaining three counts of the complaint at the time of sentencing. And “[g]iven that all of the terms and conditions of this agreement will be required to be completed at or prior to the date of sentencing, ” the district attorney agreed not to seek or require probation as a condition of the agreement.

         After discussion and questions from the court, the court accepted defendant's plea of no contest to count 1, and signed the settlement agreement. The court set the matter for sentencing on November 29, 2016.

         3. Proceedings After the Plea

         On October 18, 2016, attorneys for victims filed a request for withdrawal of the plea agreement. They pointed out victims have a constitutional right to be heard, and a right to restitution under section 28. They contended the district attorney failed to notify or confer with them before entering the plea agreement, and the plea should be withdrawn. They requested a hearing to consider their claims for restitution “before the court sentences SoCalGas or accepts the plea agreement.” They contended a sentence without an award of victim restitution is invalid, and the court has discretion to retain jurisdiction to provide for full restitution to the victims.

         On November 7, 2016, the trial court issued a minute order stating the victims “have standing to be heard and express their views concerning the negotiated disposition at the sentencing hearing.” The minute order stated that on November 29, 2016, “the court will hear input, comments and objections by victims, and further argument by the parties before proceeding with the sentencing.”

         On November 22, 2016, defendant opposed the request for withdrawal of the plea agreement. Defendant contended, among other things, that a third party has no right to compel or control the prosecution of an offense, and that restitution was not available on the only count of which defendant was convicted. The district attorney also opposed the request for withdrawal of the plea agreement. The district attorney argued the victims had a right to be heard at sentencing, and a right to lawful restitution, but that count 1 was the only crime from which a victim could receive restitution and there were “no natural direct victims of Count One.”

         The victims filed a reply, arguing they were entitled to restitution for the failure to report conviction because failure to report an emission cannot occur without an emission, so count 4 was “transactionally related” to count 1.

         4. The Sentencing Hearing

         Four attorneys, plus Mr. Kiesel as liaison counsel for plaintiffs in the civil actions, appeared at the sentencing hearing, representing more than 7, 000 victims.[4] The court stated that “the whole point of the hearing today was to allow people who wish to be heard to be heard about their concerns with regard to victim restitution as an issue in the case.” The court recognized it had “an independent duty to make an order which satisfies the interests of the victim and protects the victim.”

         The four attorneys presented arguments to the court on behalf of victims, and six victims also addressed the court.

         After the victim statements and argument, the court imposed the agreed sentence and dismissed the remaining counts. The court explained governing principles of prosecutorial discretion and control of the case by the parties to the litigation. While the victims had the right to be heard at the sentencing hearing to express their views on the propriety of the negotiated disposition, they had no right to intervene in the negotiated disposition itself. “So really this boils down to whether the prosecutor has properly exercised their discretion, whether the court should approve the disposition finally.”

         The court concluded that “in the final analysis... the People have not abused their discretion. They actually did something quite constructive to move forward immediately with protective measures, which have been accomplished....”[5] The court issued a detailed written order, including a finding that the prosecutors complied with their duty under Marsy's Law to give notice to the victims prior to the taking of the plea; that it could not impose a Harvey waiver[6] (under which a dismissed charge may be considered at sentencing on charges to which the defendant has pleaded guilty) because a defendant's Harvey waiver must be voluntary; and there was no basis for restitution under count 1 because the delay in notification “did not cause the damage occasioned by the leak.”

         The court concluded: “The District Attorney's Office has chosen terms that include proactive, extensive and costly repairs, hiring of additional personnel, testing, monitoring, and inspection and safety protocols, all funded by the defendant moving forward into the future for the general protection of a vast number of citizens in the Northern San Fernando Valley.... [T]he Court is persuaded that the District Attorney has acted to protect the greater public interest to achieve a result that protects not only the potential direct victims in this case, but the larger general citizenry, and does so by agreement thereby avoiding costly and protracted efforts at achieving the same remedies through the courts with civil, eminent domain, condemnation, or injunctive relief litigation.... Count 4's dismissal is warranted without a Harvey waiver in ...

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