MURRAY, J. —
Defendant Melissa Nicole Nichols appeals from a victim restitution order following a judgment of conviction. A jury found her guilty of one count of driving under the influence of alcohol causing injury in violation of Vehicle Code section 23153, subdivision (a) (count III). She was sentenced to two years in state prison. The trial court awarded full restitution to the parents of the victim for travel expenses and lost wages related to the parents' attendance at court proceedings. On appeal, defendant contends that the trial court erred in declining to apply the doctrine of comparative negligence to reduce the restitution award.
We conclude that the doctrine of comparative negligence does not apply to reduce Penal Code section 1202.4
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged in an information with the murder of James Anthony Payne (§ 187, subd. (a); count I), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count II), driving under the influence of alcohol causing injury to Payne and Kandis Maddox (Veh. Code, § 23153, subd. (a); count III), and driving with a 0.08 percent blood-alcohol level causing injury (Veh. Code, § 23153, subd. (b); count IV). It was also alleged as to counts III and IV that defendant personally inflicted great bodily injury upon Maddox (Pen. Code, § 12022.7, subd. (a)) and that defendant proximately caused death or bodily injury to more than one victim (Veh. Code, § 23558). Count I was dismissed, and the case proceeded to trial on the remaining counts.
While defendant was visiting her friends, Kandis Maddox and Matthew Larson, at Maddox's apartment, defendant informed them she had argued with her boyfriend, Anthony Payne, earlier that day. The two had an "off-again/on-again relationship." Defendant told Maddox that Payne was seeing another girl and had bought a motorcycle to impress her. During the
Maddox testified that at around 7:30 p.m. on this August evening, she and defendant decided to go to a bar with another friend, Jessica. Defendant drove her Pontiac Grand Am to pick up Jessica. They brought two or three cans of beer along with them because beer was expensive at the bar and they planned to drink them on the way to Jessica's house.
While driving east on Carson Road, in Camino, they saw Payne on his new motorcycle. They first noticed him when he had "flown" past them going eastbound on Carson Road. Payne got in front of them and then stopped in the vicinity of Jacquier Road and Carson Road. Defendant pulled over, and Maddox rolled down her passenger window to talk to Payne. Maddox told him to leave them alone and "go back to his little girl."
Joyce Chesser, a motorist, was also traveling eastbound on Carson Road. She saw Payne on the motorcycle, heading west on the same road, make a sharp U-turn ahead of her and drive east. Shortly after the motorcycle changed direction, Chesser saw defendant's car stopped in the middle of Carson Road at the junction of Jacquier Road and the motorcycle was stopped next to the passenger side of the car. Chesser stopped her car some distance behind to wait for defendant and Payne to clear the road. After a few minutes, she saw defendant's car proceed east on Carson Road, and Chesser continued eastbound as well. Chesser lost sight of defendant's car around a curve. Payne stayed put until Chesser got to the curve and then sped around her on the dirt bank to the right side of the road headed east. Chesser also lost sight of Payne's motorcycle around the curve.
About two or three miles up the road, Chesser came around the curve and saw dust, a wheel, and other debris flying in the air. Chesser and the driver in a car behind her pulled off the road. Chesser, who was a nurse, removed her CPR mask and gloves from her car and approached Payne, who was lying "quite a ways up the road" in the eastbound lane, but he was no longer alive. Then she approached defendant and Maddox, who were still in defendant's car. She saw Payne's detached leg in the front seat of the car, between defendant and Maddox. Chesser tried to calm defendant and Maddox, who were both injured and screaming, until the paramedics arrived. Chesser testified she did not remember what lane defendant's car was in, but recalled it "maybe was more in the middle."
Defendant and Maddox were transported by helicopter to the hospital. Maddox suffered a shattered eye socket and cheekbone on the right side of
Department of the California Highway Patrol (CHP) Officer Ronald Davenport responded to the crash scene. When he arrived, defendant's car was "in the westbound lane, facing an easterly direction, [on the] wrong side of the road." The car was damaged on the front passenger side. In particular, the front right wheel on the passenger side was kicked out and tapered in. Officer Davenport opined that the damage to the right passenger side of the car was unusual because normally, when a car crosses over a double yellow line, it only travels slightly over the line, resulting in "left side to left side damage." There were scrape marks on the pavement that started in the westbound lane and continued to the south end of an orchard, where the right front wheel of the car came to rest. Officer Davenport also observed two gouges in the center of the double yellow lines of the roadway that he opined were caused by the deflation of the right front wheel upon impact. There were no skid marks, and there were no visual obstructions in the roadway.
Officer Davenport testified that he had worked 18 years for CHP, had advanced accident investigation training, and had investigated thousands of driving under the influence cases. Based on this training and experience, he opined that the collision occurred while Payne was traveling westbound and defendant was traveling eastbound on Carson Road, and defendant turned into Payne's westbound lane, striking Payne head on. Officer Davenport further opined that Payne was traveling at a high rate of speed, and swerved to the left to avoid defendant's car. As he swerved left, the right side of Payne's motorcycle collided into the right front bumper of defendant's car, ejecting the motorcycle over the car, and ejecting Payne in a southwesterly direction over the car. The motorcycle came down hitting the pavement and continued along the pavement until it finally came to rest 80 feet down the roadway on the south side shoulder of the road.
Sergeant Robert Snook testified that he worked for CHP for over 30 years and, before retiring, led a multidisciplinary accident investigation team (MAIT), which specializes in accident reconstruction. Sergeant Snook's team was tasked with determining the speeds, position of the vehicles in the roadway, and how the car and motorcycle interacted. His team performed three complete inspections of the car and motorcycle during the seven-month investigation, including one with a crane truck where the motorcycle was inverted and flown over the roof of the car. Based on this investigation, the
After Sergeant Snook retired, another member of his team, Sergeant Steven Day, took over the lead role in the MAIT investigation into defendant's collision. Sergeant Day was involved in the investigation from the beginning. Sergeant Day testified as an expert in accident reconstruction, and he also opined that defendant was traveling in the eastbound lane and turned into Payne's westbound lane. Sergeant Day also agreed that Payne was in the westbound lane and turned left, toward the double yellow line and eastbound lane, to avoid defendant's car. Sergeant Day testified that the evidence showed Payne was not traveling in the eastbound lane because if he had been in that lane, the debris would have gone in the other direction, north of the roadway. Additionally, physical evidence, including blood and fluid from the motorcycle, was found on top of the car, indicating that Payne went over the car in a straight direction from the westbound lane.
The MAIT investigation concluded that Payne's motorcycle collided into the right front bumper of defendant's car, the bumper collapsed, and the motorcycle's windscreen collided into the very front, right-hand corner of the car. The motorcycle then traveled rearward, until the top portion of the handlebars hit the right front rim of the right front wheel of the car, crushing that rim, and leaving a bolt imprint on it. The front forks, handlebars, and front wheel of the motorcycle exploded, shot off to the side of the car, and deflected down. The rear portion of the motorcycle pivoted about the front end of the car, along with the rider, standing the motorcycle on its nose at the front tire and inverted itself as it went over the fender, into the windshield, and up over the top of the car upside down. The motorcycle and rider continued straight off the back of the car because there was not anything on the car to diverge the path of travel. There was a hole in the windshield caused by Payne's right leg penetrating it. Plastic cowling and a tool bag from the motorcycle were also in the windshield. There was stamping in the sheet metal on the roof of the car and the top of the windshield, which the team attributed to the motorcycle's exhaust system.
David Barbieri, Ph.D., a forensic toxicologist, testified that Payne had methamphetamine and amphetamine in his blood. He opined that the levels of methamphetamine and amphetamine in Payne's blood were above the typical therapeutic levels. However, he also testified that methamphetamine stays in a person's system for "three-plus days."
James Tucker, a friend of defendant's family who knew Payne as an acquaintance, testified that he saw Payne on the day of the accident. He saw Payne at a mutual friend's house around 2:30 or 3:00 a.m. and stayed until around 6:30 a.m. People at the house were using methamphetamine, although Tucker did not see Payne using any.
Alfred Ferrari, a licensed mechanical engineer and a certified safety professional, testified as an expert on accident reconstruction. Ferrari testified that he worked as a forensic expert for attorneys and insurance adjusters, and he specialized in vehicle collisions, mechanical failures, walkway accidents, and personal injuries involving machinery or devices. He opined that Payne's motorcycle was traveling between 84 and 91 miles per hour at the time of impact. He agreed with the prosecution experts that Payne applied his front brakes. However, he opined that the point of impact occurred in the eastbound lane rather than the westbound lane. Ferrari opined Payne was traveling westbound in the eastbound lane, head on toward defendant at the time of the impact. In reaching this conclusion, Ferrari disputed evidence that the point of impact was denoted by a marking on the pavement left by defendant's right tire and opined the impact was six feet before the scrape in the pavement started. Ferrari further opined the collision was not quite head on; it was "a little bit angled." Finally, Ferrari opined it was "plausible that ... Payne's high speed was accompanied by other forms of risk-taking," and he could not rule out the possibility that Payne precipitated the accident because he believed the point of impact was within the eastbound lane.
Prosecution's Rebuttal Evidence
Sergeant Snook disputed Ferrari's opinion that the point of impact occurred in the eastbound lane, six feet away from the gouges in the road. Sergeant Snook opined that the evidence clearly showed that there was very little lateral displacement in the collision, contrary to Ferrari's assertion. He opined that defendant's car was straddling the double yellow line with the front of the car completely in the westbound lane at the point of impact. He opined that Payne was at or near the center of the double yellow line, just barely in the westbound lane, at the point of impact. Had the point of impact occurred in the eastbound lane as opined by Ferrari, then Payne would have traveled
Verdict and Sentencing
The jury found defendant guilty on count III, driving under the influence of alcohol causing injury to both Payne and Maddox (Veh. Code, § 23153, subd. (a)). The jury was unable to reach a verdict on the remaining counts and special allegations. The trial court declared a mistrial as to those charges and allegations.
Thereafter, the parties agreed that the defense would not challenge the jury's findings and the prosecution would dismiss the remaining charges and enhancements. The parties further agreed that defendant's conviction was not a strike. Pursuant to the agreement, the trial court dismissed the remaining counts and enhancements. The court sentenced defendant to the midterm of two years imprisonment on count III.
During the sentencing hearing, the trial court stated that it would impose victim restitution in accordance with the probation report recommendation, and ordered defendant to pay victim restitution to Payne's mother, Lisa Patterson, in the amount of $14,635.33.
Prior to the restitution hearing, the defense argued that the amount of restitution should be reduced under the comparative negligence doctrine pursuant to People v. Millard (2009) 175 Cal.App.4th 7 [95 Cal.Rptr.3d 751] (Millard). The trial court identified the issues here as whether the comparative negligence doctrine applied in Millard is applicable when a deceased victim's family is seeking restitution rather than the victim, and whether factually, the victim's negligence was a "substantial factor" in causing the economic loss.
Defense counsel argued that for comparative negligence purposes, there was no distinction between a victim and a victim's family. He further argued
The trial court ruled that comparative negligence does not apply to restitution ordered to be paid to the deceased victim's family. The court reasoned that if Payne had survived and claimed victim restitution, then Millard "would dictate that the doctrine of comparative negligence could be utilized to potentially reduce any restitution." The court observed that based on article I, section 28, subdivision (e), of the California Constitution and Penal Code section 1202.4, subdivision (k), immediate surviving family of the crime victim are separate victims. The court then noted that Millard stands for the proposition that "a victim's comparative negligence can be utilized against him or her in determining restitution." But the court further reasoned that Millard does not cover the victims (victim's parents) in this case: "Our victims were not comparatively negligent. The victims in this case did not contribute to this accident. The victims in this case are not subject to the rule of comparative negligence."
Defense counsel moved for reconsideration of the trial court's ruling. The court reiterated its prior reasoning, adding that its analysis was reinforced by
The court awarded restitution to the victim's parents in the amount of $16,330.72, based on the total economic loss of $24,750.53 and subtracting the $8,419.81 in burial expenses, which was paid for by the California Victim Compensation and Government Claims Board (VCB). The court found that the $16,330.72 in restitution should be offset by the $9,375 the Pattersons received directly from defendant's insurance company,
Comparative Negligence in Determining Victim Restitution
A. The Parties' Contentions
On appeal, defendant contends that the trial court erred in failing to apply the comparative negligence doctrine in determining the amount of victim restitution. Specifically, defendant contends that "[a] court cannot unreasonably dismiss civil law doctrines when applying its discretion to analyzing victim restitution." Defendant further argues, "There is no principled reason why the civil doctrine of comparative fault should be allowed to apply in the criminal restitution context, but only against a surviving victim who was to some degree at fault, but not against his heirs as would be done in a wrongful death case." The People contend that Millard was wrongly decided and regardless, it is inapplicable to the facts of this case because the victim's parents did not contribute to Payne's death and because Payne's own conduct was not a substantial factor in causing the collision.
As she did in the trial court, on appeal, defendant relies primarily on Millard, supra, 175 Cal.App.4th 7, to support her contention that the comparative negligence doctrine should be applied here to reduce the restitution owed to the victim's parents. At issue in Millard was the amount of restitution owed to the injured victim of the defendant's driving under the influence with injury conviction. The victim there survived and sought restitution for his medical expenses and future lost earnings. (Id. at pp. 20-24.) The trial court in Millard reduced the victim's restitution by 25 percent because of the victim's comparative negligence. (Id. at p. 36.) The Millard court held that the trial court did not abuse its discretion by reducing the restitution award, because "a trial court is not precluded from applying the doctrine of comparative negligence to reduce the amount of Penal Code section 1202.4 victim restitution that a criminally negligent defendant must pay when the victim's negligence was also a substantial factor in causing his or her economic losses." (Millard, at p. 41.)
The Millard court reasoned that criminal defendants are required to reimburse their victims only for those economic losses suffered "`as the result of the defendant's criminal conduct,'" and "[i]f the doctrine of comparative negligence were not applicable, a criminally negligent defendant could be required to reimburse a victim for economic losses that were
The instant case is distinguishable from Millard. Here, the people seeking restitution are the direct crime victim's parents. Under the California Constitution and section 1202.4, they are separate victims and they sought restitution for their own personal economic loss, not that of their son.
Despite whatever fault the deceased victim may have had here, defendant nevertheless committed a crime and was convicted of that crime. The prosecution of that crime resulted in criminal proceedings attended by the victim's parents. But for the commission of that crime, there would not have been court proceedings and the victim's parents would not have personally incurred any economic losses. (See People v. Crisler (2008) 165 Cal.App.4th 1503, 1509 [81 Cal.Rptr.3d 887] (Crisler) [victim's mother, father, and stepfather were entitled to expenses and wages lost as a result of attending court proceedings in the defendant's prosecution; these expenses would not have been incurred had the defendant not killed their son].) The parents' attendance at the court proceedings and the costs associated with that attendance were a direct result of defendant's criminal conduct. (See Moore, supra, 177 Cal.App.4th at p. 1233 [the trial court did not abuse its discretion in ordering the defendant to pay a nontestifying burglary victim for the wages he lost while attending court proceedings; such losses were a "direct result" of the defendant's conduct].) There was no negligence by the parents here that could be said to have "caused in part" their losses. (See Millard, supra, 175 Cal.App.4th at p. 39.) Thus, the parents, standing in their own shoes as separate victims, were entitled to restitution for the cost of attending court proceedings and lost wages.
Defendant relies on discussion from this court's opinion in People v. Dehle (2008) 166 Cal.App.4th 1380 [83 Cal.Rptr.3d 461] (Dehle) in further support
Similarly, before the voter's 1986 enactment of Civil Code section 1431.2 in Proposition 51, damages for loss of consortium were not reduced because of the negligence of the deceased spouse. (Lantis v. Condon (1979) 95 Cal.App.3d 152, 157-159 [157 Cal.Rptr. 22] (Lantis).) In Lantis, the court reasoned that reducing a widow's damages for loss of consortium by the amount of contributory negligence attributable to her husband would "force a plaintiff, who was herself free from fault, to pay a penalty for the negligence of another." (Id. at p. 159.) Additionally, the Lantis court observed, "If the injury [the wife] suffered were a broken leg while riding in a vehicle driven by her contributorily negligent husband, there would be no question but that his contributory negligence would not destroy or mitigate her right to full recovery. [Citation.] There is no reason why injury to her psychological and emotional state should be treated any differently than injury to her physical well being." (Id. at p. 157, citing Wilkins, supra, 232 Cal.App.2d at p. 462.) We find the reasoning in Lantis persuasive here.
Defendant also cites civil law principles. She argues that since a surviving heir's damages can be reduced by the application of the comparative negligence doctrine in a wrongful death case, so too should the parents' restitution award be reduced here. Defendant relies on Craddock, supra, 89 Cal.App.4th 1300,
We conclude that the trial court appropriately exercised its discretion in declining to apply comparative negligence to the parents' restitution claim.
The judgment is affirmed.
Butz, Acting P. J., and Duarte, J., concurred.