People v. Dimacali

crime imposes on the nonfleeing driver the additional costs of locating the fleeing driver and, in some cases, the total costs of the accident. 'The cost of a "hit and run" violation is paid for by every law-abiding driver in the form of increased insurance premiums. The crime with which the defendant is charged is complete upon the "running" whether or not his conduct caused substantial or minimal (or indeed any) damage or injury; it is the running which offends public policy.' " ( Id . at p. 1124, 43 Cal.Rptr.2d 681 , 899 P.2d 67 , citing in part People v. McWhinney (1988) 206 Cal.App.3d Supp. 8 , 12, 254 Cal.Rptr. 205 ( McWhinney ).)

that it constitutes part of the conduct forbidden by the statute. [Citation.] Nor is any degree of fault required for conviction; a defendant who flees the scene of an injury accident has committed a crime even if the accident was solely the result of the victim's own negligence." (

department in O'Rear expressed its view that the California Legislature intended to subject to civil compromise only "those misdemeanors in which by their very nature there is an overlapping of the civil remedy and the public remedy by way of prosecution for a crime" and where the victim "would in almost every case have a civil action for damages" as in the commission of an assault or theft. ( Id . at pp. Supp. 930-931, 34 Cal.Rptr. 61 .) The court distinguished crimes such as speeding, which may or may not be committed without injury. ( Id . at p. Supp. 931, 34 Cal.Rptr. 61 .) The court held the latter types of crimes, including the hit-and-run offense-would not qualify: "We do not believe that the Legislature intended to rest this important matter of public policy upon the happenstance that in any particular case a private citizen might or might not suffer personal injury or property damage. The right to compromise the offense of speeding in a vehicle should not depend upon this incidental matter. Neither in our opinion did the Legislature intend that the right to compromise ... the offense of hit and run with property damage defined in the Vehicle Code Section 20002 [, subdivision] (a), should depend upon whether in a particular case the offender may be subject to a civil remedy for damages. He may or may not be negligent, and still commit the offense." ( Ibid . )

The court in O'Rear additionally found section 1377's language precluded civil compromise of the hit-and-run offense: "[S]ection 1377 ... authorizes such a dismissal only where a private citizen is 'injured by an act constituting a misdemeanor.' The gravamen of the offense defined by the Vehicle Code section 20002 [, subdivision] (a) is the failure to stop and make the necessary report after the accident or damage has occurred. This omission is not one which causes injury to the private citizen. Hence, the private citizen is, under the circumstances, technically not a 'person injured by an act constituting a misdemeanor' within the meaning of ... section 1377." ( O'Rear , supra , 220 Cal.App.2d at p. Supp. 931, 34 Cal.Rptr. 61 .)

information they need to pursue their civil remedies and thereby protect persons from financial loss caused by irresponsible drivers who damage a vehicle and seek to escape liability. ( Tischman , 35 Cal.App.4th at pp. 177-178, 40 Cal.Rptr.2d 650 .) The court adopted a dissenting appellate department panel member's reasoning that "civil compromise serves the public need for the efficient administration of justice by resolving relatively minor disputes by eliminating two proceedings-the criminal prosecution of the defendant and the victim's civil suit for financial compensation." ( Id . at p. 178, 40 Cal.Rptr.2d 650 ; see also id . at p. 177, 40 Cal.Rptr.2d 650 .) It agreed with a Washington state appellate court that policy considerations (giving restitution to victims of traffic offenses, as one) favored vesting discretion in trial courts to compromise minor offenses such as traffic offenses, which discretion would also operate as a check and balance against the police and prosecutor's powers to arrest and prosecute. ( Id . at pp. 179-180, 40 Cal.Rptr.2d 650 , citing State ex rel.Fitch v. Roxbury Dist. Court (1981) 29 Wash.App. 591 , 629 P.2d 1341 , 1342.) Tischman cited the Washington court's rejection (as " 'too facile' ") of the reasoning of O'Rear and other cases that the act constituting the hit-and-run crime was leaving the scene, which did

leaving the scene without exchanging the requisite information. ( Martinez , supra , 2 Cal.5th at pp. 1102-1103, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 , quoting California v. Byers , supra , 402 U.S. at p. 431, 91 S.Ct. 1535 ; Carbajal , supra , 10 Cal.4th at p. 1124, 43 Cal.Rptr.2d 681 , 899 P.2d 67 .) And the Legislature used the narrow phrase " constituting a misdemeanor," rather than such language as "in the commission of," which is accorded a more broad meaning. (See People v. Canela (2014) 224 Cal.App.4th 703 , 710, 168 Cal.Rptr.3d 858 .) The Vehicle Code section 20002, subdivision (a) offense by definition involves an accident causing only injury in the form of property damage; a victim of a misdemeanor hit and run sustains property damage from the collision, not from the driver leaving the scene without providing

People v. Stephen , supra , 182 Cal.App.2d at p. Supp. 27, 227 Cal.Rptr. 380 .) A defendant driver's satisfaction of the amount of the victim's property damage stemming from the accident will not vindicate the public harm resulting from that defendant's failure to stop and exchange the required information.

(b)(13)(A) ), requires a defendant to pay restitution for losses resulting only from the criminal conduct supporting the crimes of which the defendant was convicted. (§ 1202.4 ["a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime"]; see Martinez , supra , 2 Cal.5th at pp. 1104-1105, 1107, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 ; People v. Lai (2006) 138 Cal.App.4th 1227 , 1247, 42 Cal.Rptr.3d 444 .) But an award of restitution is not so limited when imposed as a condition of probation. ( Martinez , at p. 1101, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 ; People v. Walker (2014) 231 Cal.App.4th 1270 , 1274, 180 Cal.Rptr.3d 700 ; Lai , at p. 1247, 42 Cal.Rptr.3d 444 .) Carbajal pointed out that "California courts have long interpreted the trial court's discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal." ( Carbajal , supra , 10 Cal.4th at p. 1121, 43 Cal.Rptr.2d 681 , 899 P.2d 67 ; see also Walker , at p. 1274, 180 Cal.Rptr.3d 700 ; Lai , at pp. 1247-1248, 42 Cal.Rptr.3d 444 .) Thus, Carbajal held the trial court did not err by ordering the defendant who had pleaded no contest to a violation of Vehicle Code section 20002, subdivision (a) to pay restitution to the owner of a car damaged in the accident, as the defendant was responsible for the loss and the damage he caused to the victim's vehicle was " 'reasonably related' " to the crime of hit and run. ( Carbajal , at pp. 1123-1124, 43 Cal.Rptr.2d 681 , 899 P.2d 67 .) Carbajal provides no basis to uphold the trial court's order in the present case.

DISPOSITION

The order is reversed and the matter remanded with directions that the trial court deny Dimacali's motion for dismissal under sections 1377 and 1378 and conduct such further proceedings as may be required in accordance with this opinion.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

damages as a result of the incident, Dimacali had reimbursed her that amount, and M.T. did not want Dimacali prosecuted. Dimacali argued that hit-and-run accidents qualified for compromise under Tischman , supra , 35 Cal.App.4th 174 , 40 Cal.Rptr.2d 650 because her criminal offense shared a common element-monetary damage-with the civil cause of action.

The People opposed the motion on three grounds. They argued (1) the hit-and-run offense did not qualify for civil compromise because the California Supreme Court in Martinez , supra , 2 Cal.5th 1093 , 218 Cal.Rptr.3d 140 , 394 P.3d 1066 held the act constituting the Vehicle Code section 20002, subdivision (a) offense was fleeing the scene, not the collision, implicitly overruling Tischman ; (2) Dimacali did not meet the statutory requirements for civil compromise because M.T. was not present before the court to acknowledge satisfaction; and (3) the public interest was not vindicated by a civil compromise so as to permit the court to exercise its discretion to grant Dimacali's requested relief. Following a hearing on the matter, the superior court granted Dimacali's motion and dismissed her case on condition she pay court fees and costs.

The California Supreme Court has characterized the crime as "leaving the scene of the accident." ( People v. Carbajal , supra , 10 Cal.4th at p. 1124, 43 Cal.Rptr.2d 681 , 899 P.2d 67 ; see also Martinez , supra , 2 Cal.5th at p. 1102, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 [describing Vehicle Code section 20001 offense as " 'more accurately described as fleeing the scene of an injury accident' "].) Vehicle Code section 20002 was " 'enacted by the Legislature to protect owners of unattended vehicles from financial loss caused by irresponsible persons who damage such vehicles and attempt to escape liability by departing from the scene of the accident without leaving any identification or evidence by which to trace them.' " ( Carbajal , at pp. 1124-1125, 43 Cal.Rptr.2d 681 , 899 P.2d 67 .) The statute is aimed at "all persons who drive automobiles in California" and thus is " 'directed at the public at large.' " ( California v. Byers , supra , 402 U.S. at p. 430, 91 S.Ct. 1535 .) It was "not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities arising from automobile accidents." ( Ibid . )

"The essential elements of a violation of [Vehicle Code] section 20002, subdivision (a) are that the defendant: (1) knew he or she was involved in an accident; (2) knew damage resulted from the accident; and (3) knowingly and willfully left the scene of the accident (4) without giving the required information to the other driver(s)." ( People v. Carbajal , supra , 10 Cal.4th at p. 1123, fn. 10, 43 Cal.Rptr.2d 681 , 899 P.2d 67 .) " 'The regulatory purpose of [Vehicle Code] section 20002, subdivision (a) is to provide the owners of property damaged in traffic accidents with the information they need to pursue their civil remedies.' [Citation.] By leaving the scene of the accident, the fleeing driver deprives the nonfleeing driver of his or her right to have responsibility for the accident adjudicated in an orderly way according to the rules of law. This commonly entails a real, economic loss, not just an abstract affront. Among other things, the

Id . at pp. 1102-1103, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 , quoting Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308 , 1340, 156 Cal.Rptr.3d 347 .)

The Supreme Court in Martinez rejected the direct restitution award based on this "long-settled understanding of the crime made punishable by Vehicle Code section 20001[subdivision] (a)" ( Martinez , supra , 2 Cal.5th at p. 1103, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 ) as well as a "straightforward reading of the statutory text" ( id . at p. 1105, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 ) of section 1202.4. It stated: "By its terms, section 1202.4 authorizes-indeed, requires-courts in Vehicle Code section 20001 cases to award direct victim restitution for losses resulting from the defendant's crime: that is, flight from the scene of the accident without identifying himself or herself, rendering aid, or otherwise fulfilling the statutory requirements. ... Section 1202.4 does not, however, permit courts to order direct victim restitution for losses that occur as a result of an underlying accident that involves no criminal wrongdoing." ( Id . at p. 1107, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 , see also id . at p. 1103, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 ["Restitution for losses incurred 'as a result of the commission of a crime' includes losses incurred as a result of the defendant's unlawful flight from the scene of the accident in which he or she was involved, but not losses solely as a result of the accident itself"].) It rejected the People's various policy-based arguments that would give the sentencing court discretion to determine fault at the restitution hearing, stating they "cannot be squared with the plain language of section 1202.4," which "refers to losses incurred 'as a result of the commission of a crime,' not as the result of attendant facts or circumstances the prosecution must prove in order to obtain a conviction. Involvement in an accident is precisely such a circumstance; it forms no part of the conduct proscribed by Vehicle Code section 20001 [, subdivision] (a), but instead describes an event that gives rise to the statutory duty to stop, provide identification, and render aid." ( Id . at p. 1104, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 .) Martinez thus reiterates long standing case law "defin[ing] the conduct criminalized in a hit-and-run with injury" as the flight. ( People v. Nuno (2018) 26 Cal.App.5th 43 , 52, 236 Cal.Rptr.3d 578 ; see also People v. Valdez (2010) 189 Cal.App.4th 82 , 87-90, 116 Cal.Rptr.3d 670 [summarizing cases, and reversing great bodily injury enhancement finding as to defendant committing hit-and-run with injury because defendant did not inflict such injury in fleeing the scene]; Corenbaum v. Lampkin , supra , 215 Cal.App.4th at p. 1340, 156 Cal.Rptr.3d 347 [citing cases, affirming denial of attorney fees authorized for a prevailing plaintiff in an action for damages "based upon that defendant's commission of a felony offense for which that defendant has been convicted" ( Code Civ. Proc., § 1021.4 ) because plaintiff's action for injuries suffered in an accident was not "based upon" the defendant's criminal conduct of fleeing the scene in violation of Vehicle Code section 20001, subdivision (b) ].) And this court has not limited Martinez 's holding in that respect to the direct restitution context. In Nuno , a panel of this court applied Martinez to hold that a defendant did not use a deadly weapon (a car) on a

person "in connection with the perpetration" of his hit-and-run offense so as to be presumptively ineligible for probation because he did not use the

underlying policy was explained by that state's Commissioners: " 'There are many cases which are public offenses, but which are in reality rather of a private than a public nature, and where a public interest is better promoted by checking than by encouraging criminal prosecution.' " ( O'Rear , at p. Supp. 930, 34 Cal.Rptr. 61 ; see Moulton , at pp. Supp. 17-18, 30, 182 Cal.Rptr. 761 .) The Commissioners included in this category libels, as well as simple assaults and batteries. ( Moulton , at p. Supp. 20, 182 Cal.Rptr. 761 .)

O'Rear dealt specifically with a violation of Vehicle Code section 20002, subdivision (a). There, the People appealed after the court dismissed the case of a defendant charged with misdemeanor hit and run who had satisfied the victim's damages and sought civil compromise. ( O'Rear , supra , 220 Cal.App.2d at p. Supp. 928, 34 Cal.Rptr. 61 .) Reviewing the history of California's civil compromise statutes, the appellate

In People v. Moulton , supra , 131 Cal.App.3d Supp. 10 , 182 Cal.Rptr. 761 , the appellate department of the Los Angeles County Superior Court assessed the propriety of a dismissal of a grand theft charge under the civil compromise statutes. ( Id . at p. Supp. 14, 182 Cal.Rptr. 761 .) The question on appeal was whether the offense-which was punishable alternately as a felony or misdemeanor-was excluded from civil compromise as committed with felonious intent. ( Id . at p. Supp. 16, 182 Cal.Rptr. 761 .) The court observed that California's civil compromise statutes had always been restricted to misdemeanors, and excepted any offense committed "with intent to commit a felony." ( Id . at p. Supp. 20, 182 Cal.Rptr. 761 .) The court rejected a strict meaning of the term "felony" in the statute, holding that such an interpretation would unduly expand the availability of civil compromise. ( Id . at p. Supp. 21, 182 Cal.Rptr. 761 .) Reiterating the New York commissioners' expression of the policy underlying compromise statutes ( id . at p. Supp. 20, 182 Cal.Rptr. 761 ), Moulton ruled that purpose was furthered by interpreting the word " 'felony' in the sense of distinguishing between misdemeanor offenses subject to compromise and the more serious ones, the compromise of which would be contrary to the purpose of the criminal law." ( Id . at p. Supp. 21, 182 Cal.Rptr. 761 .)

Based in part on O'Rear , supra , 220 Cal.App.2d Supp. 927 , 34 Cal.Rptr. 61 , Moulton outlined factors for the court's exercise of discretion in granting a compromise, namely whether (1) the civil injury was coextensive with the criminal violation; (2) the circumstances were such that

Several years later, a different panel of the Los Angeles appellate department that decided Moulton squarely held, using Moulton 's factors, that a violation of Vehicle Code section 20002, subdivision (a)"is not an offense that should be the subject of civil compromise." ( McWhinney , supra , 206 Cal.App.3d at p. Supp. 12, 254 Cal.Rptr. 205 .) McWhinney reasoned: "The injury to the public would not be fully vindicated by such a civil compromise. The cost of a 'hit and run' violation is paid for by every law-abiding driver in the form of increased insurance premiums. The crime with which the defendant is charged is complete upon the 'running' whether or not his conduct caused substantial or minimal (or indeed any) damage or injury; it is the running which offends public policy." ( Id . at p. Supp. 12, 254 Cal.Rptr. 205 .) The appellate department in McWhinney was additionally persuaded by O'Rear 's conclusion that the gravamen of the hit-and-run offense was the failure to stop and make a report, and thus the private citizen was not a person injured by an act constituting a misdemeanor within the meaning of section 1377. ( Ibid . ) McWhinney reversed the trial court's dismissal order. ( Id . at p. Supp. 13, 254 Cal.Rptr. 205 .)

In 1995, the Second District Division One Court of Appeal in Tischman disagreed with the appellate departments in both O'Rear and McWhinney to hold that a misdemeanor hit-and-run offense under Vehicle Code section 20002, subdivision (a) was not precluded from civil compromise as a matter of law, but was subject to compromise in the trial court's discretion. ( Tischman , supra , 35 Cal.App.4th at pp. 176, 181, fn. 4, 40 Cal.Rptr.2d 650 .) Tischman relied on cases (including Byers v. Justice Court (1969) 71 Cal.2d 1039 , 80 Cal.Rptr. 553 , 458 P.2d 465 , vacated by the court in California v. Byers , supra , 402 U.S. at pp. 424, 434, 91 S.Ct. 1535 ) pointing out that the regulatory purpose behind the offense was not to facilitate criminal prosecutions, but to give an injured person

information. Thus, the victim is not "injured by [the] act constituting" the crime, but by the noncriminal condition precedent to the crime. ( Martinez , at p. 1102, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 ; Corenbaum v. Lampkin , supra , 215 Cal.App.4th at p. 1340, 156 Cal.Rptr.3d 347 .) We cannot envision a scenario to the contrary. Moreover, even if a victim of the misdemeanor crime could be said to have suffered injury by the driver's failure to stop and provide identifying information, that injury would be the inability to file suit against the driver, which is not itself redressable in a civil action.

We conclude Tischman 's holding cannot survive Martinez . The policy rationales expressed by the Washington state court on which Tischman relied-including favoring restitution for victims of traffic offenses and placing a "check and balance" on police and prosecutors ( Tischman , supra , 35 Cal.App.4th at pp. 179-180, 40 Cal.Rptr.2d 650 )-while laudable, "cannot be squared with the plain language" ( Martinez , supra , 2 Cal.5th at p. 1104, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 ) of section 1377, permitting civil compromise only for persons injured by a misdemeanor criminal act for which that person has a civil remedy. We decline to follow the out-of-state authority. ( Episcopal Church Cases (2009) 45 Cal.4th 467 , 490, 87 Cal.Rptr.3d 275 , 198 P.3d 66 ["out-of-state decisions are not binding on this court"].) The decisions preceding Tischman gave effect to the Legislature's express language ( O'Rear , supra , 220 Cal.App.2d at p. Supp. 931, 34 Cal.Rptr. 61 ; McWhinney , supra , 206 Cal.App.3d at p. Supp. 12, 254 Cal.Rptr. 205 ) and we do so here as well. We must leave it to the Legislature to authorize civil compromise for injuries caused by a noncriminal act, even if such a compromise is in "the interests of justice, judicial economy, fairness [or] common sense." ( Tischman , at p. 181, 40 Cal.Rptr.2d 650 ; J.M. v. Huntington Beach Union High School District (2017) 2 Cal.5th 648 , 657, fn. 7, 214 Cal.Rptr.3d 494 , 389 P.3d 1242 [declining to rewrite statute contrary to its clear language; the Legislature "remains free to consider amending" the statute at issue].)

Further, as the California Supreme Court pointed out in Carbajal , supra , 10 Cal.4th 1114 , 43 Cal.Rptr.2d 681 , 899 P.2d 67 , a misdemeanor hit and run involving property damage is uniquely a public offense in that every law-abiding driver suffers injury in the form of increased insurance premiums. ( Carbajal , at p. 1124, 43 Cal.Rptr.2d 681 , 899 P.2d 67 , quoting People v. McWhinney , supra , 206 Cal.App.3d at p. Supp. 12, 254 Cal.Rptr. 205 .) It is not the sort of offense described in O'Rear , McWhinney and Stephen , where the public interests are better served by a settlement between the defendant and victim. ( O'Rear , supra , 220 Cal.App.2d at p. Supp. 930, 34 Cal.Rptr. 61 ; Moulton , supra , 131 Cal.App.3d at pp. Supp. 17-18, 182 Cal.Rptr. 761 ;

Dimacali's arguments do not convince us otherwise. In part, she points to Tischman 's rejection of O'Rear and McWhinney and the policy benefits to extending compromise to a Vehicle Code section 20002 violation. She points out Tischman has not been overruled and asserts it is "controlling." Those arguments do not persuade us for the reasons expressed above. Moreover, we are free to disagree with Tischman , which is from another district Court of Appeal. (See County of Kern v. State Dept. of Health Care Services (2009) 180 Cal.App.4th 1504 , 1510, 104 Cal.Rptr.3d 43 .) Dimacali additionally argues that a noncriminal act can be both an essential element of a crime and also a condition precedent. She points to the Judicial Council jury instruction, CALCRIM No. 2150, for the Vehicle Code section 20002 offense to assert that an accident is within each of the four elements required for a conviction. A pattern jury instruction is not itself the law, and it is not binding. ( People v. Alvarez (1996) 14 Cal.4th 155 , 217, 58 Cal.Rptr.2d 385 , 926 P.2d 365 ; People v. Mojica (2006) 139 Cal.App.4th 1197 , 1204, 43 Cal.Rptr.3d 634 ["although pattern jury instructions are prepared by distinguished legal scholars and provide a valuable service to the courts, they are not the law and are not binding"].) Martinez disposes of both of these arguments in any event. It squarely holds the collision in a hit-and-run accident is not an element of the offense; it "forms no part of the conduct proscribed by" the law and "involve[s] no criminal wrongdoing" ( Martinez , supra , 2 Cal.5th at pp. 1102-1103, 1104-1105, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 ) but is only "an event that gives rise to the statutory duty to stop, provide identification, and render aid." ( Id . at p. 1104, 218 Cal.Rptr.3d 140 , 394 P.3d 1066 .)

Dimacali further argues that the People have misinterpreted Martinez , because that case involves victim restitution pursuant to section 1202.4, and not the civil compromise statutes. The proposition that California's hit-and-run statutes target a defendant's flight, and not his or her accident-causing conduct, is a long-settled principle expressed not only in Martinez but in numerous other cases. And as we have explained, Martinez 's point concerning the conduct made criminal by the hit-and-run statutes is applicable more broadly to instances where the Legislature has required a nexus between an injury or loss and the criminal act. (See People v. Nuno , supra , 26 Cal.App.5th at pp. 49-50, 52, 236 Cal.Rptr.3d 578 .)

Finally, Dimacali argues the regulatory purpose of Vehicle Code section 20002, subdivision (a) should compel us to affirm the judgment, pointing to the holding in People v. Carbajal , supra , 10 Cal.4th 1114 , 43 Cal.Rptr.2d 681 , 899 P.2d 67 that restitution as a condition of probation for a violation of the statute may include the damages stemming from the collision that lead to the "run." Carbajal , however, confirms our view that the question at hand is governed by the plain language of the misdemeanor hit-and-run statute. There is a key distinction between the direct victim restitution at issue in Martinez and restitution as a condition of probation at issue in Carbajal . As Martinez explained, the unambiguous

language of section 1202.4, which implements the state constitutional right to receive restitution for losses "as a result of criminal activity" from defendants "convicted of the crimes causing the losses they suffer" ( Cal. Const., art. I, § 28, subd.