People v. Kimball5/19/2004
THE COURT
Summary of Proceedings Below
Appellant Joshua Kimball entered a plea of no contest to driving under the influence and causing injury (count 1, Veh. Code, § 23153, subd. (a)), vehicle theft (count 2, Veh. Code § 10851, subd.(a)), receiving a stolen motor vehicle (count 3, Pen. Code, § 496d, subd. (a)), evading a peace officer and causing injury (count 4, Veh. Code, § 2800.3), being under the influence of methamphetamine (count 5, Health & Saf. Code, § 11550, subd.(a)), possession of paraphernalia (count 6, Health & Saf. Code, § 11364) and driving without a license (count 7, Veh. Code, § 12500, subd. (a)). Appellant also admitted as to count 1 that he caused great bodily injury and that he caused bodily injury to more than one victim. (Veh. Code, § 23558 and Pen. Code, § 12022.7, subd. (a).)
Appellant was sentenced to a total term of seven years in state prison. The trial court imposed restitution fines of 400 dollars and ordered restitution to one victim in the amount of $14,380.85, reserving restitution for the remaining victims. Appellant's request for a hearing on the restitution order was denied.
The facts of the underlying offenses are not relevant to the issues on appeal. Suffice to say appellant, in an effort to evade police, caused an accident in which he hit two other vehicles while driving a stolen car without a license. The driver of one of the hit vehicles was seriously injured, with a broken pelvis and left foot. The driver and passenger in the other vehicle suffered lacerations and contusions.
DISCUSSION
Appellant raises a single issue on appeal. He contends the trial court erred when it refused to grant a hearing before ordering direct restitution to the victim. We agree and will remand for a restitution hearing.
The probation report prepared prior to sentencing initially recommended that restitution remain open as to all three victims because the department had been unable to contact any of the victims for a statement of loss. Later, a supplemental memo was filed in which the probation department recommended that $14,380.85 be awarded one of the victims. The memo itemized the damages, which included $5,000 for the vehicle, $6,305.85 for hospital expenses, other medical related expenses, and $1,000 for lost wages. The memo stated that, although the victim had applied for Medi-Cal, Medi-Cal had not to date covered any of the medical expenses and there was no other insurance coverage or recovery from the state Victim/Witness Bureau.
At sentencing, appellant requested a full restitution hearing.
His request was denied. This was error.
Section 1202.4, subdivision (f) provides in part as follows:
"(f) In every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.
"(1) The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or
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