P. v. Dehle
Filed 9/10/12 P. v.
Dehle CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Appellant,
v.
STEVEN ANDREW DEHLE,
Defendant and Appellant.
C067384
(Super.
Ct. No. MCYKCRBF05406)
“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.
Facts
Portions of our statement of facts are taken from our published
opinion in Dehle. (Dehle,
supra, 166 Cal.App.4th at pp. 1383-1386.)
The
Offense
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 spent on the case” and, therefore, the court did not have
“sufficient information to determine the reasonableness of the fees.”
Following a subsequent
hearing in which the district attorney’s office participated, defendant was
ordered to pay $500 per month toward his restitution obligation. Payment of those sums was made an express
condition of defendant’s probation.
Following our
remand, a restitution hearing was scheduled for September 2010. The prosecution’s witnesses were present, but
defendant did not appear. The
prosecution asked for an order requiring defendant to pay for its expert
witness fees for the hearing. At the
contested restitution hearing in February 2011, the court ordered defendant to
pay $1,500 to the County of Siskiyou for the missed appearance.
At the February
2011 hearing, evidence was presented on the issue of what Debra Bodine had lost
as a result of John Bodine’s death. (
644, 657-662.) There was no issue of
what John Bodine may have lost prior to his death and no issue of personal
economic loss he may have sustained following his death. (People
v. Runyan (2012) 54 Cal.4th 849.)
Defendant was
ordered to make restitution to Debra Bodine in the amount of $737,804.45. Further relevant facts are set forth in the
Discussion.
Discussion
I
Defendant contends
the trial court erred when it refused to consider the issue of comparative
fault in fixing the appropriate amount of restitution.
In
prejudice that may have flowed from the district attorney’s absence from the
first restitution hearing. We
remarked: “The district attorney, having left
the proceedings, did not allow the People to be heard on several issues that
may have affected a fair and just result on the question of victim
restitution. While we express no opinion
on the resolution of these issues, they include, among others, the following: given the fact that it appears that the
decedent was not wearing a seatbelt at the time of the accident, whether the
decedent’s own negligence contributed to his death and whether defendant should
be required to make restitution for economic harm caused in part by the victim
himself.” (Dehle, supra, 166 Cal.App.4th at pp. 1388-1389.)
At the second
restitution hearing, defendant’s counsel argued that Housley v. Godinez (1992) 4 Cal.App.4th 737 allows the trier of
fact to “establish[] a figure for comparative negligence, wherein somebody had
not complied, basically is not seatbelted in and that was in some way
attributable to the injuries [sic]. I think there’s left plenty of evidence for
the court to conclude that that is the case.
[¶] As the trier of fact the
court is in a position to put whatever percentage figure it wants on that
comparative fault issue.”
When the prosecutor
asked for “two minutes” to address the issue of comparative fault, the trial
court responded, “[o]n the comparative fault, you know what, I don’t believe
it’s appropriate. I am not going to
consider it. [¶] . . . [¶] . . . So that is where we are. [¶] . . .
[¶] . . . I know that the court of appeals [sic] suggested that maybe--I am familiar with the case that
[defendant’s counsel] gave me. I am
familiar with the concept. I think that
I’m going on restitution law and making the victim whole.”
The prosecutor
responded: “Factually, though, your
Honor, Mr. Bodine did have a statutory duty to have a belt on. But under [Vehicle Code section ]
235--27315(D), [defendant] had the exact same duty to insure that everyone in
his vehicle was belted. [¶] So to say one breached the duty necessarily
says the other one did. So we can’t
really assign fault either way. Both
breached the same duty. So it’s a
wash.”
The trial court
invited both counsel to “put more points” on the record after a recess. Following the recess, the court asked defense
counsel whether he had concluded his arguments.
Defense counsel indicated he had no further argument.
In its ruling, the
trial court did not reduce the restitution award based on John Bodine’s
comparative fault. Nor did it expressly
address the prosecution argument that the concurrent negligence of driver and
passenger was “a wash.”
Analysis
In his opening brief,
defendant conceded that the trial court “apparently accepted the prosecution’s
theory [that “the corresponding duties” of driver and passenger “nullified each
other”] as its authority to ‘not consider’” comparative fault; in defendant’s
view, this theory was “without merit or legal basis.” In his reply brief, defendant backtracks and
claims the trial court “summarily rejected the concept of comparative analysis
without regard to the evidence.” The
reply claim has no merit. The court’s
receipt of the prosecutor’s factual argument and solicitation of further
arguments from both sides make plain that comparative fault was not rejected
summarily. Rather, the court impliedly
rejected comparative fault after soliciting and hearing the proffered
arguments.
Vehicle Code
section 27315, the Motor Vehicle Safety Act, provides in relevant part: “(d)(1) A person shall not operate a motor
vehicle on a highway unless that person and all passengers 16 years of age or
over are properly restrained by a safety belt. . . . [¶] . . . [¶] (e) A person 16 years of age or over
shall not be a passenger in a motor vehicle on a highway unless that person is
properly restrained by a safety belt.”
Defendant’s claim that
the prosecution’s theory “was without merit or legal basis” is based on
1102 (Twohig), which remarked in
dictum that, “[s]ince the ‘seat belt defense’ in this state places the burden
of ‘buckling up’ on the passenger [citation], at minimum, an owner/operator
should not remove installed auto safety belts.”
(Id. at p. 1109.)
Twohig is inapposite, because it did not consider a statute similar
to the later-enacted Private Passenger Motor Vehicle Safety Act, which
now assigns a portion of “the burden of” ensuring seat belt usage to the
owner/operator rather than the passenger.
(Stats. 1992, ch. 122, § 2, operative Jan. 1, 1996.) Instead, Twohig
considered a common law defense applicable in civil cases. (Twohig,
supra, 168 Cal.App.3d at p. 1109; see Franklin
v. Gibson (1982) 138 Cal.App.3d 340, 342-344.)
Noting the trial
court’s stated intent to apply restitution law, which is based on “making the
victim whole,” defendant claims making Debra Bodine whole requires an exercise
of discretion, which, he argues, the court did not do with respect to
comparative fault. We disagree. The court’s implied finding that the
negligence of driver and passenger washed out, as argued by the prosecutor, is
a valid exercise of the court’s discretion.
There was no error.
The trial court’s
ruling finds ample support in the evidence.
This is not a case in which an owner/operator made seatbelts unavailable
or furnished ones that were inoperable.
Nor is it a case in which a victim refused an owner/operator’s request to
wear a seatbelt. Instead, it is a case
in which operable belts were made available, but neither driver nor passenger
made sure that they were fastened. The
trial court’s implied finding that both driver and passenger bore
responsibility for that choice, and that their comparative faults
supported by substantial evidence.
II
Defendant contends
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 obtaining the
civil wrongful death settlement.
In the civil
litigation, the Estate of John Bodine recovered $300,000 from defendant’s
insurer. From that sum, $100,000 was
paid to estate counsel as a contingency fee; and $2,616.45 was paid to estate
counsel for costs. Debra Bodine, as
personal representative of the estate, received the remaining $197,383.55.
In
prejudice that may have flowed from the district attorney’s absence from the
first restitution hearing identified the issue “whether it was just to deny
Debra Bodine restitution for her attorney fees in the underlying action against
the insurance carrier because her attorney refused to produce his billing
records.” (Dehle, supra, 166
Cal.App.4th at p. 1389.)
At the second
restitution hearing, the trial court ordered defendant to make restitution to
Bodine for her attorney fees.
Defendant claims
his trial counsel rendered deficient performance when he failed to object to
the order to make restitution for the attorney fees, to the extent that the
fees were attributable to Bodine’s civil recovery of noneconomic damages, such
as pain and suffering, which are not proper subjects of restitution in this
case. (See § 1202.4, subd. (f)(3)(F)
[allowing restitution for noneconomic losses only in cases of felony violation
of § 288].)
In his opening
brief, defendant claimed trial counsel failed to pursue this point because he
wrongly believed that victims are not entitled to restitution for attorney fees
under any circumstances. (See § 1202.4,
subd. (f)(3)(H) [actual and reasonable attorney fees are a proper item of
restitution].) Defendant relied on trial
counsel’s cryptic statement: “Looks like
the actual cost [of the underlying litigation] was 2,600. So the, essentially, the attorneys for what
looks like relatively small amount of work received a huge windfall, which is
the nature of personal injury work.
[¶] But that’s not [defendant’s]
problem if the decedent’s estate chose to pay somebody to accomplish
settlement. I am not aware of any
provision of the law that allows for a deduction [from the $300,000 offset
against restitution due to the prior civil recovery] for attorney fees based on
pursuit of restitution.”
However, in a
passage overlooked by defendant but cited by the Attorney General, trial
counsel acknowledged that the “[r]estitution statute says that the reasonable
costs of services employed by the victim in order to recover are part of
restitution.” Trial counsel’s theory
was that the $100,000 contingency fee for a recovery of $300,000 was not
reasonable. Defendant’s claim that the
record on its face shows trial counsel’s unawareness of the law (e.g.,
353, 361) must fail.
Defendant retorts
that trial counsel “provided no evidence or law for the court to make a
determination of reasonableness.” But
counsel noted at the second restitution hearing that the civil attorney had
“refused at the prior proceeding to disclose any of his records with regard to
how he earned that money and asserted the attorney/client privilege.”
On appeal,
defendant claims trial counsel “should have pursued” the attorney’s records in
order to determine, first, whether the $100,000 fee for the $300,000 settlement
was “‘reasonable’”; and second, whether the settlement documents or some other
portion of the attorney’s work product contains an “apportionment between economic
and noneconomic damages.” This claim is
not properly before us.
“‘“[I]n order to
demonstrate ineffective assistance of counsel, a defendant must first show
counsel’s performance was ‘deficient’ because his ‘representation fell below an
objective standard of reasonableness . . . under prevailing
professional norms.’ [Citation.] Second, he must also show prejudice flowing
from counsel’s performance or lack thereof.
[Citation.] Prejudice is shown
when there is a ‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citations.]”
[Citation.]’” (
Cal.4th 394, 418.)
“‘“[If] the record
on appeal sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation,” the claim on appeal must be rejected.’ [Citations.]
A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding.
[Citations.]” (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
In this case, trial
counsel was not asked to explain why he did not challenge the civil attorney’s
invocation of attorney/client privilege.
Nor does defendant suggest any
reasonable attorney would have known that the claim of privilege could be
overcome. Thus, defendant’s claim that
trial counsel was ineffective for having failed to pursue the records of the
underlying civil matter in the face of the claim of privilege, and that counsel
thus “argued unreasonableness without evidence or law” to support his argument,
must be asserted in habeas corpus proceedings.
(See People v. Mendoza Tello, supra, 15 Cal.4th at pp.
266-267.)
III
In their
cross-appeal, the People contend the trial court abused its discretion when it
reduced defendant’s criminal restitution obligation by $197,383.55, the net
amount of Debra Bodine’s recovery in the underlying litigation. We disagree.
As noted, the
Estate of John Bodine recovered $300,000 from defendant’s insurer in the
wrongful death settlement. After
deduction of attorney fees and costs, Debra Bodine received $197,383.55.
In ordering
defendant to make restitution to Debra Bodine, the trial court reduced its
gross restitution award by $197,383.55, because there had been “enough of a
showing” that the restitution order reflected the same items of loss as the
civil recovery. As to the People’s
argument that defendant had the burden of proving that the criminal restitution
order was duplicative of an amount already paid in the civil settlement, the
court stated “we respectfully disagree.”
Settlement
payments made to a victim by a defendant’s insurer are an offset to the
defendant’s restitution obligation to the extent that those payments are for
items of loss included in the restitution order. (People
v. Bernal (2002) 101 Cal.App.4th 155, 168.)
We review the
trial court’s restitution order for abuse of discretion. (People
v. Giordano, supra, 42 Cal.4th at p. 663.)
The People claim
the trial court abused its discretion because there was no substantial evidence
that the $197,383.55 payment from the insurer, or any portion thereof, was for
items of loss later included in the restitution order. However, the only item of evidence discussed
by the People in their cross-appeal is the “Disbursal Statement” from Debra
Bodine’s civil attorney. The People
correctly note that the disbursal statement does not include the requisite
information.
However, the trial
court also had before it the “Settlement and Release of All Claims” between
Debra Bodine and defendant. That
document states that the settlement extends to “all claims for any kind of
injury, damage or death directly or indirectly arising out of the incident that
occurred on February 26, 2005.” Thus,
the settlement included economic damages.
Neither the parties at the hearing, nor the Attorney General on appeal,
have identified what portion, if any, of the settlement had been for losses
later omitted from the criminal
restitution order.
When reviewing a
claim that a trial court abused its discretion, because its ruling is not
supported by substantial evidence, the appellate court “must review the
evidence in the light most favorable to the [judgment], and must presume every
fact the [fact finder] could reasonably have deduced from the evidence.” (People
v. Boyer (2006) 38 Cal.4th 412, 479; see id. at pp. 479-480.)
Here, the economic
loss compensated for in the restitution order was more than twice the amount of
the civil settlement. The trial court
reasonably could deduce from the evidence that the civil settlement was for
items of loss included in the criminal restitution order. (People
v. Boyer, supra, 38 Cal.4th at pp. 479-480.) Had Debra Bodine’s counsel focused his civil
collection efforts on noneconomic damages,
for the purpose of minimizing a future offset against a criminal restitution
order, he would have had an incentive to produce sufficient records to show
this had occurred. Instead, Debra
Bodine’s counsel did the opposite, claiming his records were shielded by
attorney/client privilege.
“If the
circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People
v. Albillar (2010) 51 Cal.4th 47, 60, citing People v. Lindberg (2008) 45 Cal.4th 1, 27.) The fact the court could have deduced that a
portion of the civil settlement was for noneconomic damages does not warrant
reversal of the judgment.
Disposition
The judgment is affirmed.
HULL , Acting P. J.
We concur:
MAURO , J.
HOCH , J.
