People v. Soriano CA1/4 ( 2022 )


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  • Filed 6/30/22 P. v. Soriano CA1/4
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
    been certified for publication or ordered published for purposes of rule 8.1115.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
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,
    Plaintiff and Respondent,
    A161929
    v.
    OSCAR SORIANO,                                                   (San Francisco City &
    County Super. Ct. Nos.
    Defendant and Appellant.
    SCN222511, CT13023221)
    Early on the morning of August 17, 2013, defendant Oscar
    Soriano crashed into a Mack truck that was parked on the side of
    a street in San Francisco. Passenger Rachel E. was severely
    injured as a result of the accident, permanently losing use of her
    left arm. A second passenger, Daniel P., suffered less significant
    injuries.
    On July 22, 2016, over the prosecutor’s objection, defendant
    entered an open guilty plea to one felony count of driving under
    the influence causing injury, in violation of Vehicle Code section
    23153, subdivision (a), and one felony count of driving with a
    blood alcohol content (BAC) of .08 percent or greater causing
    injury, in violation of Vehicle Code section 23153, subdivision (b).
    As to both counts, he further admitted that he had personally
    1
    inflicted great bodily injury on a victim, in violation of Penal
    Code1 section 12022.7, subdivision (a), and caused bodily injury to
    more than one victim, in violation of Vehicle Code section 23558.
    At the initial sentencing hearing in August 2016, the court
    ordered imposition of sentence suspended and placed defendant
    on five years’ probation, ordering that defendant pay restitution
    but reserving jurisdiction to determine the amount. After
    numerous continuances, extensive briefing, and multiple
    restitution hearings , on January 13, 2021, the trial court ordered
    defendant to pay Rachel E. $1,615,972.99 in lost wages pursuant
    to section 1202.4(f), representing the loss of 25 years of full-time
    employment, plus an additional 20 years of half-time
    employment, all at minimum wage.2
    On appeal, defendant contends that the trial court abused
    its discretion in two ways: first, by failing to apply the doctrine of
    comparative negligence when determining the restitution
    amount; and second, by ordering a restitution amount that lacked
    a rational basis. Finding no prejudicial error, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    Prosecution, Plea, and Sentence
    Defendant was charged with and pled open to one felony
    count of driving under the influence causing injury, in violation of
    Vehicle Code section 23153, subdivision (a), and one felony count
    1Subsequent undesignated statutory references are to the
    Penal Code.
    2 The court also ordered defendant to pay additional
    restitution to Rachel E. and her mother, Mary E. ; those smaller
    amounts are not at issue in this appeal.
    2
    of driving with a blood alcohol content (BAC) of .08 percent or
    greater causing injury, in violation of Vehicle Code section 23153,
    subdivision (b). As to both counts, he further admitted that he
    had personally inflicted great bodily injury on a victim, in
    violation of section 12022.7, subdivision (a), and caused bodily
    injury to more than one victim, in violation of Vehicle Code
    section 23558. Defendant stipulated that there was a factual
    basis for his guilty pleas, based on the evidence at the
    preliminary hearing.3 The evidence at the preliminary hearing
    established that defendant was intoxicated when he drove into a
    Mack truck parked at the side of Evans Avenue in San Francisco.
    Defendant collided into the truck with such force that the front
    passenger wheel of the truck was pushed onto the sidewalk.
    Defendant’s car was almost completely crushed as a result of the
    collision, with significant damage everywhere but the trunk, and
    Rachel E. was severely injured, with the responding officer noting
    that her left arm was visibly bent at a non-joint area between the
    elbow and shoulder. Rachel E. was found lying in the back seat
    of the car, with her whole body sideways and her head pointing
    toward the passenger side. Passenger Daniel P. was found across
    the center console of the car, with half his body in the back seat of
    the car and the other half in the front.
    Based upon defendant’s pleas and admissions, the trial
    court suspended imposition of sentence and placed defendant on
    3 As this appeal concerns the propriety of the trial court’s
    restitution order, we summarize the facts only as necessary to
    address the issues on appeal.
    3
    probation for a period of five years with various conditions. At
    the sentencing hearing, the court made a general order of
    restitution and reserved jurisdiction to determine the amount.
    Rachel E.’s Injuries
    Rachel E., who was twenty years old at the time of the
    incident, permanently lost use of her left arm. Rachel E. also
    suffered a severed vein in her heart, multiple fractures to her
    spine and neck, and severe injuries to her left leg.
    By the time of the sentencing hearing, which was three
    years after the accident, Rachel E. had undergone 22 surgeries
    and had been in four hospitals for a total of 112 days—including
    33 days in ICU and 17 days in a medically-induced coma while on
    a ventilator. She had medical hardware implanted in various
    parts of her body and suffered permanent nerve damage and a
    foot drop in her left leg. She was required to wear a brace on her
    left leg, and could not leave her home for more than a few hours a
    day. She was unable to work because she had not yet adapted to
    life skills she could accomplish with one arm.
    As of 2019 (approximately six years after the accident),
    Rachel E. had undergone two additional surgeries and her left leg
    had recently broken due to weakness. Her recovery from the
    broken leg lasted six to seven months. As of late 2020, she
    estimated that she could walk or bear weight on her left leg for
    less than 3 hours a day. She stated that no improvements in her
    health or prognosis were expected, and that if anything, her left
    leg was expected to further weaken. Rachel E. could not feel her
    left arm, and said it “just hangs at [her] side.” She had a
    4
    compromised immune system and was expected to need
    additional surgeries for the rest of her life.
    Restitution Briefing
    As noted, at the August 2016 sentencing hearing, the court
    made a general order as to victim restitution, reserving
    jurisdiction to determine the amount. After numerous
    continuances , the People filed a February 2019 brief seeking
    $3,861,367.50 in restitution for Rachel E.’s lost future earnings,
    which represented the lifetime earnings of a San Francisco public
    school teacher over the course of a career from the age of 22 to a
    retirement age of 67, with a “modest 2% annual growth.” To
    support that request, the People submitted a physician’s
    declaration of presumptive disability based on Rachel E.’s
    longstanding bed confinement and “immobility without a
    wheelchair, walker, or crutches”; salary information from the San
    Francisco Unified School District (SFUSD); and a chart showing
    a calculation of 45 years of teacher earnings with the 2 percent
    increase. As an alternative calculation, the People suggested a
    lost wages restitution amount of $2,250,601.29, which was based
    on the lifetime earnings of an individual earning minimum wage
    in San Francisco ($15/hour), at the same 2 percent annual growth
    over a 45-year career.
    Defendant submitted a brief opposing the People’s
    restitution request, arguing that the amount sought was
    “unsupported” and should be reduced based on Rachel E.’s
    comparative negligence. As to the latter point, he first contended
    that Rachel E.’s “negligent act of electing to not to utilize her
    5
    seatbelt contributed to her injuries and restitution owed [to
    Rachel] by Mr. Soriano should reflect this.” Citing his own
    declaration, the declaration of passenger Daniel P., Vehicle Code
    section 27315, subsection (e), BAJI No. 5.904, and a variety of
    cases discussing expert testimony in civil cases involving the
    “seat belt defense,” defendant argued that “we can assume that
    [Rachel E.’s] injuries would have been significantly less severe
    had she been wearing a seatbelt.” Defendant also argued that
    the restitution amount “should reflect” that Rachel E. allegedly
    contributed to her own injuries in two additional ways: first, by
    getting into a car with defendant, knowing that he had been
    drinking to excess; and second, by “bringing alcohol into the car
    and encouraging [defendant] to drink, knowing that [defendant]
    was already intoxicated.” Although defendant acknowledged that
    “[e]xpert testimony has been deemed necessary when a plaintiff
    has suffered severe, complex, and permanent injuries that are
    difficult to apportion between the collision and the failure to wear
    seat belts,” defendant did not submit an expert declaration or
    4 Vehicle Code section 27315, subdivision (e) provides: “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.” BAJI No. 5.90, the “Seat Belt Defense” jury
    instruction used in civil cases, states: “If you find that a seat belt
    was available to plaintiff and that plaintiff violated Vehicle Code
    § 27315, you may consider those facts in determining whether
    plaintiff exercised ordinary care under the circumstances.
    Evidence whether a party conformed to the seat belt law is
    relevant to that issue and ought to be considered, but is not
    necessarily controlling.”
    6
    other evidence in support of his claim that Rachel E.’s allegedly
    negligent acts contributed in some way to her injuries.
    The People submitted a September 2020 reply brief, which
    included a declaration from Rachel E. contradicting defendant’s
    claim that she was not wearing a seat belt while he was driving.
    She stated that defendant was “driving really recklessly” and she
    “didn’t see the crash happening, [she] just felt pain all over.” She
    did not feel thrown anywhere. Rachel E. remembered trying to
    move and believed she was trying to get out of the car, but her
    “whole left side couldn’t move.” She stated, “If my seat belt was
    not on when the medics got me out of the car, it must be because
    I took it off trying to get out.”5 She believed she was pinned in
    the car. Rachel E.’s declaration further refuted defendant’s claim
    that she had brought alcohol into defendant’s car and knew he
    was drunk before he started driving, stating that she did not
    know he was drunk until “he started to drive crazy.” The People
    also argued extensively against application of the doctrine of
    comparative negligence.
    Hearings and Order
    The trial court heard argument on the People’s restitution
    request over the course of several hearings in December 2020 and
    January 2021. The court commented that even “assuming this
    was an extraordinary case where [Rachel E.’s] fault reached the
    level that we should even begin to think about [the comparative
    fault doctrine],” the underlying facts as to Rachel E.’s actions
    5 In the recording of the 911 call, the caller repeatedly tells
    the “screaming, female passenger” not to move “too much.”
    7
    were “quite disputed.” The court further noted that it was not
    sure whether Rachel E.’s alleged actions rose to level of victim
    negligence in People v. Millard (2009) 
    175 Cal.App.4th 7
     (Millard) and that there were issues as to “how to value [Rachel
    E.’s] inability to work.” The court suggested that the parties
    begin their arguments “with the legal question of whether or not
    we should even be talking about comparative fault,” stating that,
    “to make it simple,” the parties should assume the disputed facts
    about Rachel E.’s conduct because if “comparative fault still
    wouldn’t be triggered” based on those alleged facts, there would
    be “no need to sit here and litigate the truth or falsity of those
    facts.”
    Defendant’s counsel responded, “I agree. That’s a threshold
    issue.” Counsel continued, “So then the question before the Court
    is whether this was an extraordinary circumstance” justifying the
    application of the comparative fault doctrine. After hearing from
    both sides, the trial court stated that it did not believe that
    “wearing a seatbelt or not actually rises to the level of
    extraordinary circumstances under Millard, that I’m required to
    find,” and therefore stated that it “did not believe that
    comparative fault is appropriate as a legal analysis here on the
    basis of the underlying facts that would give rise to it.”
    The court then turned to the question of how to calculate
    the amount of Rachel E.’s lost wages and the uncertainty as to
    various questions in that regard, such as Rachel E.’s ability to
    work, in what type of job she might be able to work, and for how
    many years of her life she might be able to work. The court felt
    8
    that it did not yet have sufficient information to make a rational
    calculation with respect to lost wages, and set another hearing
    date.
    The court subsequently received additional exhibits from
    the People relating to Rachel E.’s ability to work, including an
    updated statement from Rachel E. At the time of the incident,
    Rachel E. had completed one year of college classes and was
    working toward her degree, with a goal of becoming a teacher like
    her mother.
    She had not previously worked for pay (even at a part-time job),
    although she had helped in her mother’s classroom on a volunteer
    basis. In 2018 or 2019, Rachel E. began working with Ticket to
    Work, an agency that facilitates employment for people with
    disabilities. Despite going through the intake process, working
    with a series of case workers, and creating a resume with Ticket
    to Work, she had received no job referrals or job offers as of
    December 2020. Rachel E. found this demoralizing, and although
    she believed herself capable of working 20 hours a week from
    home (perhaps doing a “telephone job” or data entry), she felt
    “distraught” and “hopeless” about the prospect of ever holding a
    job. Her leg was permanently disabled, her arm was “destroyed,”
    and she felt her “career prospects were, too.” Rachel E. was
    seeking restitution in the amount of the salary a public school
    teacher would have earned until retirement, as that was the
    career she would have pursued and was “taken away from her—
    completely—by the crime.”
    9
    At the next hearing, the trial court reiterated the need to
    make a rational calculation of lost wages given certain
    “unknowable” things, such as when Rachel E. “might make
    peace” with “the fact that her life is tragically not what it should
    have been,” and “when more part-time jobs for very disabled
    people are going to open up.” The court initially stated that it
    seemed unfair to give Rachel E. a teacher’s salary because there
    was no way of knowing whether she would have achieved that
    goal, and stated that it was considering awarding lost wages
    restitution in the amount of minimum wage until the age of 70.
    After the defendant objected to that intended calculation (but
    admitted it had no evidence regarding issues such as Social
    Security disability benefits as a potential offset), the court
    ultimately ruled that the most rational way to calculate Rachel
    E.’s lost wages would be to award her 25 years of minimum wage,
    and the remainder at 50 percent of minimum wage until age 67
    (on the theory that she might in the future be able to find a job
    working part-time). Immediately prior to so deciding, the court
    specifically noted: “I would not [] rule today if I thought that I
    didn’t have all the information that I needed [or] that if I was in
    any way prejudicing Mr. Soriano, but I also think it’s fair to say
    that everyone has been given ample opportunity to put any
    additional information in front of this Court and there isn’t any.”
    DISCUSSION
    I.    Restitution – Governing Legal Principles
    “In 1982, California voters amended the state Constitution
    by way of initiative which established a new constitutional right
    10
    for crime victims to obtain restitution for losses suffered as a
    result of a criminal act and directed the Legislature to enact laws
    empowering the trial courts to issue such orders. Article I,
    section 28, of the California Constitution provides, ‘(b)
    Restitution. 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.’ ” (People v.
    Mearns (2002) 
    97 Cal.App.4th 493
    , 498.) Section 1202.4
    implements that constitutional mandate (Mearns, supra, at
    p. 498.), and provides in pertinent part: “It is the intent of the
    Legislature that a victim of crime who incurs an economic loss as
    a result of the commission of a crime shall receive restitution
    directly from a defendant convicted of that crime.” (§ 1202.4,
    subd. (a)(1).) The court “shall order full restitution” to a victim in
    “a dollar amount that is sufficient to fully reimburse the victim or
    victims for every determined economic loss incurred as the result
    of the defendant’s criminal conduct.” (§ 1202.4, subds. (f) &
    (f)(3)6.)
    6When Millard, supra, 
    175 Cal.App.4th 7
    , discussed at
    length by the parties and in sections I and II, post, was decided,
    section 1202.4, subdivision (f) provided that “ ‘[t]he court shall
    order full restitution unless it finds compelling and extraordinary
    reasons for not doing so.’ ” (Millard, at p. 25, quoting former
    § 1202.4, subd. (f), italics added.) The version of section 1202.4,
    subdivision (f) in effect at the time of the restitution hearings in
    this case did not contain the phrase “unless it finds compelling
    and extraordinary reasons for not doing so,” (former § 1202.4,
    subd. (f), Stats. 2018, ch. 142), nor does the current version of the
    statute. (§ 1202.4, subd. (f).) Because there is no significant
    11
    “At a restitution hearing, the People carry the initial
    burden of demonstrating the amount of the victim’s economic
    loss. [Citations.] Their showing establishes the amount of
    restitution the victim is entitled to receive, and the burden shifts
    to the defendant to prove by a preponderance of the evidence that
    the loss is other than that claimed.” (People v. Selivanov (2016)
    
    5 Cal.App.5th 726
    , 788.) “[T]he court’s discretion in setting the
    amount of restitution is broad, and it may use any rational
    method of fixing the amount of restitution as long as it is
    reasonably calculated to make the victim whole.” (People v.
    Baker (2005) 
    126 Cal.App.4th 463
    , 470.) Importantly, “ ‘[t]here is
    no requirement the restitution order be limited to the exact
    amount of the loss in which the defendant is actually found
    culpable, nor is there any requirement the order reflect the
    amount of damages that might be recoverable in a civil action.’ ”
    (Millard, supra, 175 Cal.App.4th at pp. 26–27, quoting People v.
    Carbajal (1995) 
    10 Cal.4th 1114
    , 1121.)
    We review a restitution order for an abuse of discretion.
    (Millard, supra, 175 Cal.App.4th at p. 26.) “No abuse of that
    discretion occurs as long as the determination of economic loss is
    reasonable, producing a nonarbitrary result.” (People v. Giordano
    (2007) 
    42 Cal.4th 644
    , 665 (Giordano).) “ ‘ “A victim’s restitution
    right is to be broadly and liberally construed.” [Citation.]
    “ ‘Where there is a factual and rational basis for the amount of
    difference between the current version of section 1202.4,
    subdivision (f) and the one in effect at the time of the restitution
    hearings in this case, we cite the current version for purposes of
    clarity.
    12
    restitution ordered by the trial court, no abuse of discretion will
    be found by the reviewing court.’ ” [Citations.] . . . ‘In reviewing
    the sufficiency of the evidence [to support a factual finding], the
    “ ‘power of the appellate court begins and ends with a
    determination as to whether there is any substantial evidence,
    contradicted or uncontradicted,’ to support the trial court’s
    findings.” [Citations.] Further, the standard of proof at a
    restitution hearing is by a preponderance of the evidence, not
    proof beyond a reasonable doubt.’ ” (Millard, at p. 26.)
    In addition, it is the “well established rule in this state that
    ‘an appellate court will never indulge in presumptions to defeat a
    judgment. It will never presume that an error was committed, or
    that something was done or omitted to be done which constitutes
    error. On the contrary, every intendment and presumption not
    contradicted by or inconsistent with the record on appeal must be
    indulged in favor of the orders and judgments of superior
    courts.’ ” (Walling v. Kimball (1941) 
    17 Cal.2d 364
    , 373; accord,
    Giordano, 
    supra,
     42 Cal.4th at p. 666.) Accordingly, the
    appellant bears the burden of affirmatively establishing
    prejudicial error that requires reversal. (Freeman v. Sullivant
    (2011) 
    192 Cal.App.4th 523
    , 527-528; Cal. Const., art. VI, § 13;
    see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409
    [presumption of correctness; “error must be affirmatively
    shown”].)
    I. Comparative Fault
    To support his contention that the trial court erred,
    defendant relies extensively on Millard, supra, 
    175 Cal.App.4th 13
    at p. 13, where the court “conclude[d] a trial court may apply the
    doctrine of comparative negligence in awarding victim restitution
    against a criminally negligent defendant when the court finds the
    victim’s contributory negligence was a substantial factor in
    causing his or her injuries.” In that case, as here, the defendant
    was convicted of violating Vehicle Code section 23153,
    subdivision (a). (Millard, at p. 13.) In a case of first impression,
    the Millard court held that the trial court did not abuse its
    discretion in applying the doctrine of comparative fault to reduce
    the section 1202.4, subdivision (f) restitution award by 25 percent
    to account for the victim’s own negligence in driving his
    motorcycle at an unsafe rate of speed, taking no evasive
    maneuvers, and essentially driving “ ‘straight into the
    defendant’s car without even a minimal amount of avoidance
    taken.’ ” (Millard, supra, at pp. 36–39, 41–42.) The court
    explained that section 1202.4, subdivision (f)(3) “should be
    interpreted as requiring a criminally negligent defendant to
    reimburse a victim only to the extent his or her criminal conduct
    caused the victim’s economic losses, thereby implicitly allowing
    the application of the doctrine of comparative negligence to
    preclude restitution to the extent the victim's own negligence was
    a cause of his or her injuries. A criminal defendant is required to
    reimburse his or her victim only for those economic losses
    suffered ‘as the result of the defendant’s criminal conduct.’
    (§ 1202.4, subd. (f)(3).) If the doctrine of comparative negligence
    were not applicable, a criminally negligent defendant could be
    required to reimburse a victim for economic losses that were
    14
    comparatively the result or the fault of the victim’s own
    negligence.” (Millard, at pp. 39 & 41 [applying the doctrine of
    “comparative negligence holds a criminally negligent defendant
    responsible for the full amount of the victim’s economic losses
    that resulted from the defendant’s proportionate fault. In such
    circumstances, we do not believe the application of comparative
    negligence is contrary to either the express provisions or the
    purposes of [California Constitution, article I, section 28] and
    Penal Code section 1202.4. The victim will still receive full
    reimbursement for economic losses attributable to the criminally
    negligent defendant's offense (i.e., in proportion to the
    defendant’s fault in causing the victim’s losses)”].)
    In the course of this reasoning, Millard also stated: “ ‘Once
    the victim has [i.e., the People have] made a prima facie showing
    of his or her loss, the burden shifts to the defendant to
    demonstrate that the amount of the loss is other than that
    claimed by the victim.’ ” (Millard, supra, 175 Cal.App.4th at
    p. 26, brackets in original.) And as noted above, Millard made
    clear that “ ‘[t]here is no requirement the restitution order be
    limited to the exact amount of the loss in which the defendant is
    actually found culpable, nor is there any requirement the order
    reflect the amount of damages that might be recoverable in a civil
    action.’ ” (Id. at pp. 26–27, quoting People v. Carbajal, 
    supra,
    10 Cal.4th at p. 1121.)
    We agree with defendant that the trial court may have
    misunderstood Millard to the extent the court believed it was
    required to find “extraordinary” circumstances before considering
    15
    application of the comparative fault doctrine. Millard stated that
    “a trial court need not first find such ‘compelling and
    extraordinary reasons’ as a prerequisite to application of the
    doctrine of comparative negligence in exercising its discretion in
    determining the amount of Penal Code section 1202.4 victim
    restitution a criminally negligent defendant must pay.” (Millard,
    supra, 175 Cal.App.4th at p. 42, fn. 16.)* But that error in the
    trial court’s reasoning does not compel reversal, because Millard
    does no more than hold that a court may apply the doctrine of
    comparative negligence in determining section 1202.4 restitution
    when a court finds that a victim’s contributory negligence was a
    substantial factor in causing his or her injuries, and a defendant
    sustains his burden of proving that the loss caused by the
    defendant’s criminal conduct is other than the amount
    established by the prima facie case. (Millard, at pp. 13, 26.)
    Millard did not hold that a trial court was required to apply
    principles of comparative fault whenever a defendant baldly
    asserts that the victim’s conduct was a substantial factor that
    caused the victim’s injuries in some unspecified way.
    Here, although defendant contended that Rachel E.
    engaged in contributory negligence by, e.g., drinking with
    defendant and not wearing a seatbelt (alleged conduct that
    Rachel E. factually disputed), in his briefs before the trial court
    and in his arguments during the several restitution hearings he
    never explained which of, or to what degree, Rachel’s many
    injuries were purportedly attributable to her conduct, nor did he
    *
    16
    ever attempt to assign a percentage of the claimed losses to
    Rachel E.’s alleged negligence. Instead, without benefit of
    testimony or a declaration from an expert (such as the accident
    reconstruction witnesses in Millard, supra, 175 Cal.App.4th at
    pp. 15–16), he offered only the conclusory assertion that the
    restitution amount “should reflect” Rachel E.’s alleged
    contributory negligence—based on some unexplained theory of
    causation and in some unstated percentage.
    Defendant implicitly acknowledges this failing when he
    argues on appeal that the trial court misapplied Millard and “as
    a result, it abused its discretion in ordering restitution that was
    potentially well beyond the economic losses she incurred ‘as a
    result of’ Soriano’s drunk driving.” Put simply, if defendant does
    no more than show that the trial court “potentially” may have
    erred in determining the restitution amount, he has failed to
    establish the requisite prejudice entitling him to reversal.
    (People v. Gemelli (2008) 
    161 Cal.App.4th 1539
    , 1545 [defendant
    failed to sustain burden of rebutting victim’s claimed amount of
    loss; “[i]f defendant believed supporting documentation or
    additional information was necessary to effectively rebut the
    amount claimed, it was up to her to obtain it. Having failed to do
    so, she did not meet her burden of proof”]; cf. Soto v. BorgWarner
    Morse TEC, Inc. (2015) 
    239 Cal.App.4th 165
    , 202 [comparative
    fault doctrine is a flexible concept allowing trier of fact to
    consider and evaluate the relative responsibility of various
    parties for an injury to arrive at an equitable apportionment or
    allocation of loss; “[t]he defendant bears the burden of
    17
    establishing that some nonzero percentage of fault is properly
    attributable” to others]; Phipps v. Copeland Corporation LLC
    (2021) 
    64 Cal.App.5th 319
    , 332–335 [defendant failed to sustain
    burden of proving jury’s apportionment of fault was “ ‘illogical,
    unfair, and unsupported by evidence’ ” for several reasons,
    including that jury was “ ‘permitted to consider the relative
    culpability of the parties in assessing comparative fault’ ”].)
    Defendant resists this conclusion by arguing that expert
    testimony is not always necessary in cases where a defendant
    seeks to limit its restitution exposure by pointing to the injured
    party’s failure to wear a seat belt. While that is an accurate
    statement of a legal proposition, the cases cited by defendant are
    factually distinguishable. In McNeil v. Yellow Cab Co. (1978)
    
    85 Cal.App.3d 116
    , 118, the court held that expert testimony was
    not required to establish causation “on the record before us,”
    where the plaintiff admitted he was not wearing a seat belt, and
    “the impact of the collision threw him from the right rear seat of
    the taxicab to its left front area where his head and arm struck
    some objects with the result that, presumably among other
    injuries, he broke an arm.” In Lara v. Nevitt (2004)
    
    123 Cal.App.4th 454
    , 458 (Lara), not only did Nevitt offer
    testimony from an orthopedic expert that “if Lara had been
    harnessed, it would have been less likely that he would sustain
    significant neck injuries,” the record established that a seat belt
    in the compartment of the truck where Lara was sleeping,
    unbelted, “prevented a sleeping passenger from moving at all.”
    There was no similar evidence before the trial court in this case,
    18
    where Rachel E.’s body remained in the back of the car where she
    was seated, and there was no obvious connection between her
    injuries and the alleged lack of seat belt.
    Franklin v. Gibson (1982) 
    138 Cal.App.3d 340
    , cited by
    defendant and discussed in Lara, makes clear the flaw in
    defendant’s position. In Franklin, the court reversed the jury’s
    “mysterious[]” findings that the two injured plaintiffs’ failure to
    wear seat belts contributed to 30 percent and 35 percent of their
    injuries, explaining that defendant’s failure to offer any expert
    testimony meant that the jurors’ “verdict is explicable only as a
    guess, since the jury was not guided by evidence.” (Id. at p. 344.)
    The court held, “Where the defendant raises the issue of the
    contributory negligence of the plaintiff for his failure to use
    available seat belts, expert testimony is necessary to establish the
    nature of the injuries the plaintiff would have sustained if he had
    used seat belts,” because it was defendant’s burden to prove “what
    injuries plaintiffs would have sustained, according to expert
    testimony, if the seat belts had been used.” (Id. at pp. 343–344,
    italics added.) Lara noted that the plaintiffs in Franklin
    “suffered severe, complex and permanent injuries that were
    difficult to apportion between the collision and the failure to wear
    seat belts,” and the defendant failed to prove “what the
    consequences to plaintiffs would have been if they had been
    wearing seat belts.” (Lara, supra, 123 Cal.App.4th at p. 460
    [discussing Franklin].) In those circumstances, Lara explained,
    the Franklin court appropriately “reversed the jury’s
    apportionment of liability to plaintiffs because there was no
    19
    evidence that certain injuries were aggravated or made worse by
    plaintiffs’ failure to use available seat belts,” which rendered “the
    jury’s apportionment of negligence to plaintiffs [] sheer
    guesswork.” (Ibid.)
    The cases on which defendant relies thus serve to
    demonstrate the consequences of his failure to submit any
    evidence supporting his contention that “not wearing a seatbelt
    contributed in some proportion to the severity of [Rachel E.’s] own
    injuries.” Like the victims in Franklin (and unlike those in
    McNeil and Lara), Rachel E. suffered injuries were
    unquestionably severe, complex, permanent, and difficult to
    apportion between the impact of the collision and her alleged
    failure to wear seat belts. (Lara, supra, 123 Cal.App.4th at
    p. 460 [discussing Franklin].) On this record, defendant’s appeal
    is doomed by his failure to present any evidentiary support for
    his assertion that Rachel E.’s alleged negligence contributed to
    her injuries.
    In sum, we reject defendant’s contention that the
    restitution award “should be reversed and the matter remanded
    to the trial court to determine what proportion, if any, of Rachel’s
    injuries were caused by her own negligence.” Remand here would
    be fruitless, because defendant failed to present the trial court
    anything beyond his repeated assertion that the restitution
    amount “should reflect” that Rachel’s alleged negligence
    contributed to her injuries in some unspecified way. Defendant
    has failed to show prejudice from the trial court’s claimed
    20
    misapprehension of Millard and the comparative fault doctrine,
    and there is no basis for his requested reversal and remand.7
    II. Amount of Restitution Award
    Defendant also argues that the trial court abused its
    discretion in determining the lost wages to which Rachel E. was
    entitled, claiming that there was no rational basis for the
    restitution amount. This argument is meritless.
    While the trial court acknowledged the seemingly obvious
    point that there were certain “unknowable” factors relevant to
    calculating a precise lost wages amount, such as when Rachel E.
    might overcome the emotional difficulties associated with her
    injuries and find a job she could do, the restitution amount it
    awarded was in no way arbitrary or irrational. (Giordano, 
    supra,
    42 Cal.4th at p. 665; Millard, supra, 175 Cal.App.4th at p. 26.)
    The court’s restitution determination was supported by evidence
    as to Rachel E.’s education and plans prior to the incident; the
    permanent and ongoing injuries that continued to severely limit
    Rachel E.’s ability to work or leave the house, nearly seven years
    after the accident; her statement as to the efforts she had made
    with Ticket to Work (and the absence of any job offers, years after
    she began working with that agency); and her belief that she
    might be able to use her one good arm to work in some type of
    home-based job for a few hours each day. The trial court’s lost
    wages determination was further supported by the People’s
    proffered calculation based on the San Francisco minimum wage,
    7In light of this conclusion, we need not address the
    Attorney General’s contention that Millard was wrongly decided.
    21
    multiplied by the annual number of working hours suggested by
    the United States Office of Personnel Management, with an
    assumed 2 percent annual growth in wages and a reasonable
    estimate that Rachel E. would have retired at age 67. . On this
    record, the court did not abuse its discretion by acting
    irrationally in calculating the lost wages amount.
    DISPOSITION
    The order is affirmed.
    BROWN, J.
    WE CONCUR:
    STREETER, ACTING P. J.
    NADLER, J.
    People v. Soriano (A161929)
    
    Judge of the Superior Court of California, County of
    Sonoma, assigned by the Chief Justice pursuant to article VI,
    section 6 of the California Constitution.
    22
    

Document Info

Docket Number: A161929

Filed Date: 6/30/2022

Precedential Status: Non-Precedential

Modified Date: 7/1/2022