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State v. Rocha12/3/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
After a jury trial, appellant Jose Andres Rocha was convicted of aggravated driving while under the influence of alcohol (DUI); aggravated DUI with an alcohol concentration (BAC) of.10 or more, both while his driver's license was suspended, cancelled, or revoked; aggravated DUI with two prior DUI convictions within the previous sixty months; and aggravated DUI with a BAC of.10 or more with two prior DUI convictions within the previous sixty months, all arising from a single incident involving a car accident. The trial court sentenced Rocha to concurrent, presumptive prison terms of 2.5 years on each count. Following a restitution hearing, the court ordered Rocha to pay $3,156.25 to C.P., the owner of the vehicle that Rocha's car struck in the accident. On appeal, Rocha argues the conduct that formed the basis of his convictions did not cause the damages on which the restitution award was based. Therefore, he further argues, we must vacate the restitution order even though he raised no such objection below.
Testimony at trial established that at approximately 1:00 a.m. on January 1, 2001, B.P., driving C.P.'s truck, began to turn left into an apartment complex when Rocha's vehicle collided with the truck. B.P. testified that she had been unable to see Rocha's vehicle because he was driving without headlights on the dark street where the accident had occurred. The police officer who was called to the scene of the accident also testified that T.D., the passenger in B.P.'s vehicle, had told him that Rocha was driving without headlights. Rocha, however, testified that his headlights were on when the accident occurred.
Rocha concedes that he failed to contest the propriety of the restitution award below. But he argues he may challenge the award nevertheless because it resulted in the imposition of an illegal sentence, which is fundamental error that cannot be waived. Rocha is correct that " estitution is part of a defendant's sentence," State v. Barrs, 172 Ariz. 42, 43, 833 P.2d 713, 714 (App. 1992), and that " mposition of an illegal sentence constitutes fundamental error." State v. Thues, 203 Ariz. 339, , 54 P.3d 368, (App. 2002); see also State v. Whitney, 151 Ariz. 113, 115, 726 P.2d 210, 212 (App. 1985). We disagree, however, that the restitution award here was improperly imposed and must be vacated.
Section 13-603(C), A.R.S., provides that " f a person is convicted of an offense, the court shall require the convicted person to make restitution to the person who is the victim of the crime... in the full amount of the [victim's] economic loss as determined by the court." "Economic loss" does not include consequential damages. A.R.S. § 13-105(14). The Arizona Constitution defines " ictim" as "a person against whom the criminal offense has been committed." Ariz. Const. art. II, § 2.1(C). A victim has a right " o receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury." Id., art. II § 2.1(A)(8). Section 13-804(B), A.R.S., requires that a court ordering restitution "shall consider all losses caused by the criminal offense or offenses for which the defendant has been convicted." (Emphasis added.)
Our supreme court has identified three factors that must be present in order to find that particular criminal conduct caused a victim's loss: (1) the loss must be economic; (2) the loss must be one that the victim would not have incurred but for the defendant's criminal conduct, and (3) the criminal conduct must directly cause the economic loss. State v. Wilkinson, 202 A
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