P. v. Brown

























Filed 1/9/13 P.
v. Brown CA4/3















>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. LISA RENE BROWN, Defendant and Appellant.

G045367 (Super. Ct. No. 08NF2798) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Kimberly Menninger, Judge.
Affirmed in part and reversed in part.

Penners
Bergen and Ann Bergen, under appointment by the Court of Appeal, for
Defendant and Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler,
James D. Dutton, and Ifeolu Hassan, Deputy Attorneys General, for Plaintiff and
Respondent.

Lisa
Rene Brown’s vehicle collided with Lynn Phillip’s vehicle in the middle of an
intersection. They had both taken drugs
before the crash, and they were both injured by the impact. Brown was charged with one count of driving
under the influence of drugs causing bodily href="http://www.sandiegohealthdirectory.com/">injury (Veh. Code,
§ 23151, count 1) and having suffered three prior convictions for driving
under the influence (Veh. Code, § 23152, subd. (a)). The trial on the priors was bifurcated. The trial court instructed the jury on the
elements of count 1, as well as the lesser included offense of driving under
the influence. The jury found Brown not
guilty of count 1, but guilty of the lesser included offense. The court sentenced Brown to the upper prison
term of three years and ordered she pay $47,531 restitution to Phillips. On appeal, Brown asserts the court should not
have ordered her to pay restitution for the crime for which she was
acquitted. We agree and reverse the
restitution order. In all other
respects, the judgment is affirmed.

I

One
early evening in July 2007, Phillips was driving her car westbound on Valencia
Mesa. She entered the intersection at Euclid, having a
green light. She suddenly heard a loud
noise and her airbag deployed. Phillips
did not see Brown’s car collide with hers in the middle of the
intersection. The front of both cars
were damaged. Phillips hurt her neck and
her knee, both requiring surgeries. She
also suffered bruises from her seatbelt.
Brown injured her head and her knee.
Brown was charged with driving under the influence of drugs causing
Phillips bodily injury.

At her
trial, the jury heard testimony from Edmundo Martinez Raucho, who witnessed the
collision. He was stopped at the red
light, southbound on Euclid, approximately six or eight feet from the
intersection. He initially told a police
officer he thought it was a head-on collision.
However, at trial, he testified Brown was making a left-hand turn and
collided with Phillips. Raucho said he
helped Brown out of her vehicle and she immediately blamed him for the
accident. When Raucho tried to make her
sit down by the curb, she “didn’t want to stand still,” and she was walking
around and “moving a lot.” Raucho stated
he tried to convince her to sit on the curb because he “didn’t want nobody else
[sic] to hit her while she walked
into the street.”

In
addition to describing the collision, Phillips admitted (on

cross-examination) she was taking 14 different prescribed
medications in July 2007, including Vicodin, Soma, and Celebrex. Phillips explained she had neck surgery
earlier that year and took the prescribed medication for pain. She took Vicodin, Soma, and Celebrex the
morning before the collision. She did
not take any Vicodin that afternoon, although her Vicodin prescription was for
500 milligrams three times a day. She
took Celebrex twice a day. Soon after
the accident, a police officer drove her home.

Phillips
stated she filed a civil lawsuit against Brown.
Phillips explained she did not receive any money because the case “was
closed because my surgery amounted to more than what her insurance had.” When asked to clarify the status of the civil
case, Phillips maintained it was not dismissed and she did not get a judgment
against Brown, but her attorney “closed it.”

Fullerton
Police Officer Roger Tonon testified he interviewed Brown soon after the
accident. Initially, Brown claimed the
other car ran a red light and was driving between 55 to 60 miles per hour,
causing the crash. After further
questioning, Brown explained she pulled into the intersection on a yellow
signal and had to wait for several westbound vehicles to clear before she
started her left hand turn. Brown said
she was in the intersection for approximately 30 seconds. The officer conceded he had never heard of a
yellow light that lasted 30 seconds.
Tonon also testified Brown did not appear injured. However, Tonon noticed her speech was slurred
and something appeared amiss with her eyes.


Fullerton
Police officer Paul Irish, a drug recognition expert, also responded to the
scene. Irish noticed Brown appeared
lethargic and she had slurred speech. He
observed Brown’s pupils were constricted and her eyes were bloodshot, “droopy,”
and watery. He did not detect the odor
of alcohol and Brown denied drinking alcohol.
Irish tried to examine Brown at the accident site but she “was
uncooperative.” He could not conduct a
field sobriety test because Brown could not stand up.

Irish
later saw Brown at St. Jude’s Hospital.
Based on her conduct at the hospital (she was slumped over, staggering,
sedated, and lethargic), Irish opined she was under the influence of a
depressant. He testified Brown was
unable to care for herself, let alone able to operate a motor vehicle. Irish asked a blood technician to take a
blood sample from Brown.

Brown
tested positive of Butalbital, a barbiturate and depressant. Forensic scientist, Ines Collison, testified
the Butalbital in Brown’s bloodstream was higher than therapeutic levels and
approximately 20 percent higher than expected in a chronic drug user. Collison stated the drug can cause dizziness
and has a sedative effect. She stated,
“[I]t slows down the functioning of the brain, starting [with] the conscious,
and the things that we want to do, and afterwards it starts to slow down the
functioning of the unconscious type of actions in our body.” She added the drug slows down a person’s
reflexes and impairs a person’s ability to perform interactions at the same
time.

On href="http://www.fearnotlaw.com/">cross-examination, Collison testified
about the general effects of Soma and Vicodin (consumed by Phillips the morning
of the accident) on the human body.
Collison stated Soma is a muscle relaxant and a depressant. It has the effect of slowing down the
functioning of the brain and nervous system.
She stated Vicodin is an opiate and an analgesic to help the body with
pain. She stated Vicodin can affect a
person’s ability to drive a vehicle because, depending on the concentration and
the person’s tolerance, it can cause drowsiness.

The
jury found Brown not guilty of driving under the influence causing bodily
injury. It found her guilty of the
lesser included offense of driving under the influence. At the subsequent court trial for the prior
offenses, the court found those allegations to be true. During the sentencing hearing, Phillips
stated Brown caused the accident because she attempted to make a left-hand turn
in front of her. The court sentenced
Brown to the upper term of three years.
In addition, it ordered her to pay $47,531.17 restitution to Phillips.

II

Brown
asserts the court erred in ordering restitution for Phillips’s medical expenses
because she was acquitted of driving under the influence causing bodily injury. She
claims Phillips is not entitled to restitution because her losses were
attributable to a crime for which she was not convicted. The Attorney General argues Brown forfeited
her claim when she failed to raise it below, and on the merits, the restitution
order was authorized because Brown’s conviction on the lesser offense was
related to the victim’s loss.

Addressing
the forfeiture argument first, we conclude Brown’s challenge to the restitution
order is purely legal and is not dependent on factual matters or determinations. She is claiming “that in this nonprobation
context, the court imposed the order in excess of its statutory
authority.” (People v. Percelle (2005) 126 Cal.App.4th 164, 179 (>Percelle).) Claims presenting a purely legal issue are
not subject to the waiver rule. (>Ibid.)

In
Percelle, defendant was sentenced to
state prison after he was convicted of numerous crimes but acquitted of one of
two charged vehicle thefts, in connection with the failure to return a rental
car that had been rented with another person’s credit card number. (Percelle,
supra, 126 Cal.App.4th at pp. 171, 178.)
The trial court ordered defendant to pay restitution to the owner of the
credit card that was the subject of defendant’s acquittal. (Id.
at p. 178.) The appellate court struck
the order because defendant had not been granted probation, and the restitution
order was not authorized based on defendant’s acquittal. In so concluding, the court noted that an
“objection may be raised for the first time on appeal where it concerns an
‘unauthorized’ sentence, i.e., one that ‘could not lawfully be imposed under
any circumstances in the particular case.’
[Citation.]” (>Id. at p. 179.) Similarly, we conclude Brown’s purely legal
challenge to the restitution order in this nonprobation case is not subject to
the waiver rule, and we proceed to the merits.

A trial
court’s restitution order is generally reviewed for abuse of discretion. (People
v. Giordano (2007) 42 Cal.4th 644, 663.)
A restitution order that demonstrably rests on an error of law
constitutes an abuse of discretion. (>People v. Jennings (2005) 128
Cal.App.4th 42, 49.)

In
California, restitution is constitutionally and statutorily mandated. (People
v. Mearns (2002) 97 Cal.App.4th 493, 498; Cal. Const., art. I, § 28,

subd. (b)(13).) “In pertinent
part, the California Constitution, article I, section 28, subdivision (b)
provides: ‘It is the unequivocal
intention of the People of the State of California that all persons who suffer
losses as a result of criminal activity shall have the right to restitution
from the persons convicted of the crimes
for losses they suffer.’ (Italics
added.) [Penal Code s]ection 1202.4,
subdivision (a), reflects that intention by providing that a ‘victim of a 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.’
(Italics added.) The court must
enter a victim restitution order in every case ‘in which a victim has suffered
economic loss as a result of the
defendant’s conduct.’ ([Pen. Code,]
§ 1202.4, subd. (f), italics added.)”
(Percelle, supra, 126
Cal.App.4th at p. 178.)

Accordingly,
Penal Code section 1202.4 limits “restitution awards [in the non-probation
context] to those losses arising out of the criminal activity that formed the
basis of the conviction” because “the term ‘criminal conduct’ as used in
subdivision (f) means the criminal conduct for which the defendant has been
convicted.’ (People v. Lai (2006) 138 Cal.App.4th 1227, 1247 [(>Lai]).)”
(People v. Woods (2008) 161
Cal.App.4th 1045, 1049 (Woods).)href="#_ftn1" name="_ftnref1" title="">[1] As noted by the court in >Percelle, this means that “in the
nonprobation context, a restitution order is not authorized where the
defendant’s only relationship to the victim’s loss is by way of a crime of
which the defendant was acquitted.” (>Percelle, supra, 126 Cal.App.4th at p.
180.)

The >Lai case is also instructive. Defendant had been charged with numerous
counts of welfare fraud. The trial court
sentenced defendant to state prison and ordered restitution not only for the
loss incurred by acts committed within the charged period (1985 to 2000) but
also for amounts obtained beforehand.
The appellate court concluded that it was error to include amounts
within the restitution award that could not be attributed to the charged
crimes, holding that “when a defendant is sentenced to state prison, section
1202.4 limits restitution to losses caused by the criminal conduct for which
the defendant was convicted.” (>Lai, supra, 138 Cal.App.4th at pp.
1246-1249.)

Brown’s
reliance on the case >Woods, supra, 161 Cal.App.4th 1045,> is also appropriate. In Woods,
defendant was convicted as an accessory to murder after it was proven the
shooter gave him the murder weapon as the shooter ran away from the scene. The appellate court held defendant’s criminal
conduct, which took place after the murder had occurred, had no causal
connection to the victim’s economic loss and therefore it was improper to order
him to pay restitution for losses stemming from the murder. (Id at


pp. 1049-1052.)

In the
case before us, Brown was charged with driving under the influence causing
bodily injury in violation of Vehicle Code section 23153, subdivision
(a). For this crime, the prosecution had
the burden of proving not only that Brown was driving a vehicle under the
influence of drugs, but also that she “committed an illegal act [or] neglected
to perform a legal duty” and the illegal act “caused bodily injury to another
person.” (CALCRIM No. 2100.)

The prosecutor’s
theory of the case was Brown, while under the influence of drugs, violated
Vehicle Code section 21801 by failing to yield when making her left hand
turn. On this point, the jury was
instructed, “The driver of a vehicle intending to turn left or complete a
U-turn must yield the right-of-way to all vehicles approaching from the
opposite direction which are close enough to constitute a hazard at [anytime]
during the turning movement, and must continue to yield the right-of-way to the
approaching vehicles until the left turn or U-turn can be made with reasonable
safety.”

The
jury acquitted Brown of this charge, finding she was only guilty of the lesser
included offense of driving under the influence of a drug. Based on this verdict, it appears the jury
rejected the theory Brown committed an illegal act causing Phillips’
injuries. This is not entirely
surprising, given the evidence Phillips was also under the influence of an
array of prescription medications, and the conflicting reports from Phillips,
Brown, and the witness about the details of the accident. We agree with Brown’s argument that because
the jury acquitted her of all criminal responsibility for Phillips’ injuries,
the trial court should not have imposed financial responsibility for those
injuries based merely on the conviction she was driving under the
influence. To award restitution would
require the court to ignore the jury’s verdict Brown was not guilty of
“causing” bodily injury. Stated another
way, Phillips’ losses were beyond the criminal conduct of which Brown was
convicted.

The
Attorney General asserts that regardless of the jury’s verdict, it was Brown’s
burden to demonstrate the collision was not
caused by her extremely intoxicated driving. It offers no legal authority to support this
theory on appeal. Not surprisingly, we
also found no authority authorizing this court to reweigh the evidence and
ignore the jury’s verdict Phillips’ injuries (and resulting economic loss) were
not caused by Brown’s criminal
conduct. (Pen. Code, § 1202.4,
subd. (f) [for restitution victim must have suffered economic loss “as a result
of the defendant’s conduct”].)

Accordingly,
the restitution order directing payment of $47,531 to a victim is for criminal
conduct that is outside of the criminal acts of which Brown was convicted. (Lai,
supra, 138 Cal.App.4th at p. 1249.)
To this extent, the order exceeded the limits of Penal Code
section 1202.4, constituting an abuse of the trial court’s discretion.

III

The
judgment is modified to strike the order requiring Brown to pay $47,531 in
victim restitution. In all other
respects, the judgment is affirmed. The
trial court is directed to amend the abstract of judgment and forward a copy of
the amended abstract of judgment to the Department
of Corrections and Rehabilitation, Division of Adult Operations.







O’LEARY,
P. J.



WE CONCUR:







BEDSWORTH, J.







FYBEL, J.