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People v. Durbin3/18/2004
Defendant Tracey Lynne Durbin pled no contest to one count of driving under the influence of alcohol (DUI) and causing injury (Veh .Code, § 23153, subd. (a)) and one count of driving with a license that was suspended or revoked for a DUI conviction (Veh.Code, § 14601.2, subd. (a)). She was placed on three years probation and ordered to pay restitution to the victim. On appeal, defendant argues that the trial court abused its discretion in setting the amount of victim restitution.
A. FACTUAL AND PROCEDURAL BACKGROUND [FN1]
FN1. In light of the limited focus of defendant's appeal we shall limit our recitation of the facts, which we take from the probation report and the transcript of the restitution hearing.
Around 9:30 in the evening on Wednesday, March 26, 2002, defendant drove into the back of James Garadis's maroon 1994 BMW 530i, which had been stopped behind two other cars at a red light. Defendant could not take a field sobriety test because she was unable to stand up. A blood test showed her blood alcohol content to be 0.37 percent, well above the legal limit.
The victim suffered a bruise to his forehead, neck and back pain, and a swollen right shin. He declined an ambulance and had his wife drive him to the emergency room later that evening where he was prescribed pain medicine and sent home. His car was a total loss. He lost some time at his work and within weeks of the accident learned that he would be receiving a two percent raise, rather than the seven percent raise he had received for the last two years.
At sentencing, the trial court made a general order of restitution and asked the parties to specify the amounts of victim restitution that were undisputed and those that were disputed. The disputed items were the subject of a restitution hearing. The victim submitted an itemized letter and appeared at the hearing to explain his claim. The trial court entered an order of restitution in the total amount of $31,355.67. There are two items that concern us here: the sum awarded for the loss of the 1994 BMW and that designated as compensation for a less than expected raise.
1. The BMW
The victim's 1994 BMW was declared a total loss. The insurance company paid him $17,751 for the loss. The victim replaced the car with a new, 2002 BMW 530i costing $50,890. To pay for the car, the victim used the insurance proceeds and took the balance ($33,129) out of his retirement savings. He explained that the 1993 and 1994 models he was able to find were not as well maintained as his had been, that BMW did not make the 530i from 1995 through 2000, and that he could not find a used 2001. Therefore, he "needed to replace this totaled 530i with a new 2002, and still could not get the same color." At the restitution hearing, the victim explained: "[T]he new still is not equal to what I lost as far as it's an emotional deal. It's purely emotional. I look at what's in my garage now, this is silly, it's not the color that I had...." The prosecutor argued that the car was "so unique" that the victim had been forced to buy a new car in order to replace it and so should be awarded the cost of the new car. The trial court ordered restitution for the BMW in the amount of $17,751 as the actual loss plus $10,000 toward the cost of the new car, stating: "It gives him $10,000.00 for what he had to get. He couldn't find the old one. I believe that...."
2. The Lost Salary Increase
*2 The victim claimed that he lost $4,427.50 because he was given only a two percent raise for the year beginning May 2002, rather than the seven percent he had received for the preceding two years. In support of the claim the victim explained that he had been working for IBM at the time of the accident. (The record does not contain any reference to his job t
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