Filed 1/14/16 P. v. Amaya CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B259268

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. LA076502)
         v.

RENE ALVARADO AMAYA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Karen J.
Nudell, Judge. Affirmed.
         Marta I. Stanton, under appointment by the Court of Appeal for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Kimberly J.
Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.
                                        _________________________
       Defendant and appellant Rene Alvarado Amaya pleaded no contest to felony
leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). He was sentenced to
two years in prison and ordered to pay direct victim restitution. His sole contention on
appeal is that the restitution order must be reversed because his criminal conduct, leaving
the scene of an accident, did not cause damages. Because his contention has been
forfeited, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts1
       On December 23, 2013, Amaya was driving a black Ford truck at the intersection
of Burnet Avenue and Lanark Street when he collided with the victim, Dimitar
Batchiyski, who was riding a bicycle. Amaya left the scene. Batchiyski suffered severe
head trauma. On December 26, 2013, Batchiyski died from his injuries.
       On January 13, 2014, police officers received information from a witness that
eventually led them to locate Amaya’s truck and trace it to him. Amaya admitted that he
had been involved in the accident, and stated that a bicycle hit his truck while he was on
his way to work. He knew that he made a mistake by not reporting the accident, but he
wanted to get his windshield, which was damaged during the accident, fixed. He had
returned to the accident site and saw paramedics treating someone. Several days after the
accident, he had his windshield replaced.
       2. Procedure
       Pursuant to a negotiated disposition, Amaya pleaded no contest to felony leaving
the scene of an accident, Vehicle Code section 20001, subdivision (a). Defense counsel
stipulated to a factual basis for the plea. The trial court sentenced Amaya to two years in
prison. It imposed a restitution fine, a suspended parole revocation fine, a criminal
conviction fee, and a court security fee.



1
       Because Amaya pleaded no contest before trial, the facts are taken from the
probation report. (See People v. Rubics (2006) 136 Cal.App.4th 452, 454.)


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       At a subsequent restitution hearing, the People presented evidence of Batchiyski’s
lost earnings, funeral expenses, and bicycle cost. The trial court ordered Amaya to pay
$164,187.19 in direct victim restitution to Batchiyski’s wife, Emilia, pursuant to Penal
Code section 1202.4, subdivision (f).
                                        DISCUSSION
       Amaya argues that because the victim did not suffer a loss as the result of his
criminal conduct – leaving the scene of the accident – the restitution order must be
reversed. We conclude Amaya forfeited this contention because he failed to raise it in the
trial court.
       The California Constitution provides: “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 seek and secure restitution from the persons convicted of the
crimes causing the losses they suffer.” (Cal. Const., art. I, § 28, subd. (b)(13)(A).) This
constitutional mandate is codified in Penal Code section 1202.4, subdivision (f), which
states that “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.” (Italics added.)
A victim’s restitution right is to be broadly and liberally construed. (People v.
Weatherton (2015) 238 Cal.App.4th 676, 684; People v. Cowart (2015) 238 Cal.App.4th
945, 954.) When a court imposes a prison sentence, absent a Harvey waiver,2 Penal Code
section 1202.4 victim restitution is limited to losses caused by the criminal conduct for
which the defendant sustained the conviction. (People v. Rahbari (2014) 232
Cal.App.4th 185, 190; People v. Woods (2008) 161 Cal.App.4th 1045, 1050.)
       Vehicle Code section 20001, subdivision (a), states: “The driver of a vehicle
involved in an accident resulting in injury to a person, other than himself or herself, or in
the death of a person shall immediately stop the vehicle at the scene of the accident and

2
       People v. Harvey (1979) 25 Cal.3d 754.


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shall fulfill the requirements of Sections 20003 and 20004.”3 “Many courts have
concluded that the conduct made criminal by Vehicle Code section 20001,
subdivision (b) is fleeing the scene of an injury accident without providing the required
information or rendering assistance, rather than causing or being involved in the accident
itself.” (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1340; see People v.
Valdez (2010) 189 Cal.App.4th 82, 90.)
       Amaya points to People v. Escobar (1991) 235 Cal.App.3d 1504 (Escobar) in
support of his argument. The defendant there pled guilty to a violation of Vehicle Code
section 20001 and was placed on probation. (Escobar, at p. 1507.) The court ordered
him to pay restitution as a condition of probation. The appellate court concluded
conviction of the “hit and run” offense was, by itself, legally insufficient to support such
an order. (Ibid.) It reasoned that the “gravamen” of a Vehicle Code section 20001
offense “is not the initial injury of the victim, but leaving the scene without presenting
identification or rendering aid. Thus, a plea of guilty to a ‘hit-and-run’ offense admits
responsibility for leaving the scene but not for causing injury. Restitution is proper only
to the extent that the victim’s injuries are caused or exacerbated by the offender’s leaving
the scene.” (Escobar, at p. 1509.) In other words, Vehicle Code section 20001 focuses
on the “running,” not on the “hitting.” (Escobar, at p. 1509.)
       The People argue the restitution order here was proper under People v. Rubics,
supra, 136 Cal.App.4th 452. There, the defendant pleaded guilty to violating Vehicle
Code section 20001, subdivisions (a) and (b)(2), and was sentenced to prison.
(Rubics, supra, at p. 454.) He was ordered to pay direct restitution to the deceased
victim’s family. On appeal, he contended that leaving the scene of the accident did not
cause the victim’s economic loss; the accident did. Rubics concluded that “because an
element of the crime of felony hit and run under section 20001, subdivisions (a) and
(b)(2) is a defendant’s involvement in an accident resulting in the injury or death of


3
       Vehicle Code sections 20003 and 20004 set out the duties of a driver involved in
an accident causing injury or death.


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another, restitution is proper in such a situation because the loss was incurred as a result
of the commission of the crime.” (Rubics, at p. 454.) Rubics reasoned that “a necessary
element of section 20001 is that [the defendant] was involved in an accident that caused
serious injury or death. Thus, although a primary focus of section 20001 may be the act
of leaving the scene, a conviction also acknowledges the fleeing driver’s responsibility
for the damages he or she has caused by being involved in the accident itself.” (Id. at
p. 459.)
       Other authorities have criticized Rubics’s reasoning. (See People v. Cowart,
supra, 238 Cal.App.4th at p. 955 [disagreeing with Rubics to the extent it suggests that a
charge of violating Vehicle Code section 20001, subdivision (a) is based on a defendant
causing an accident that results in injury or death]; Corenbaum v. Lampkin, supra,
215 Cal.App.4th at p. 1341, fn. 22 [declining to follow Rubics to the extent it suggests a
Vehicle Code section 20001, subdivision (a) conviction is based in part on the
defendant’s causing or being involved in the accident].) The issue of whether a
defendant, who is convicted of hit and run and sentenced to prison rather than placed on
probation, can be required to pay restitution for the injuries the victim suffered in the
collision, is currently pending before our Supreme Court. (People v. Martinez (2014)
226 Cal.App.4th 1156, review granted Sept. 10, 2014, S219970.)
       We need not determine whether People v. Rubics, supra, 136 Cal.App.4th 452
correctly states the law in the context presented here, because we agree with the People
that Amaya has forfeited his contention. At the restitution hearing, Amaya contended
future earnings were not a valid form of restitution, but did not otherwise object to the
restitution award. A defendant forfeits a challenge to a restitution order by failing to
object at sentencing unless the order was unauthorized. (People v. Anderson (2010) 50
Cal.4th 19, 26 & fn. 6; People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.) “ ‘[T]he
“unauthorized sentence” concept constitutes a narrow exception to the general
requirement that only those claims properly raised and preserved by the parties are
reviewable on appeal. [Citations.]’ ” (People v. Anderson, supra, at p. 26.) A sentence
is unauthorized where it could not lawfully be imposed under any circumstance in the

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particular case. (Ibid.) “ ‘An obvious legal error at sentencing that is “correctable
without referring to factual findings in the record or remanding for further findings” is
not subject to forfeiture.’ [Citation.]” (Ibid. at p. 26; People v. Scott (1994) 9 Cal.4th
331, 354.) “Appellate courts are willing to intervene in the first instance because such
error is ‘clear and correctable’ independent of any factual issues presented by the record
at sentencing.” (People v. Scott, at p. 354.)
       In People v. Anderson, our Supreme Court held that a defendant had not forfeited
his claim that a restitution order was improperly imposed. The defendant contended that
the trial court had exceeded its statutory authority by ordering restitution to a party who
was not an authorized victim under the relevant statutes. (People v. Anderson, supra,
50 Cal.4th at p. 26.) As framed, the claim fell within the narrow “unauthorized sentence”
exception. (Ibid.) In contrast, his claim that the amount of restitution was improper was
forfeited because it had not been raised in the trial court. (Ibid., fn. 6.)
       Here, the restitution order was not unauthorized. Even assuming Rubics was
wrongly decided, victim restitution may be awarded when the defendant is convicted of
violating Vehicle Code section 20001 if the damages arose from or were exacerbated by
his act of leaving the scene. (See Escobar, supra, 235 Cal.App.3d at p. 1509 [restitution
is proper to the extent the victim’s injuries are caused or exacerbated by the defendant’s
leaving the scene]; Corenbaum v. Lampkin, supra, 215 Cal.App.4th at p. 1340 [the
damages recoverable in a civil action for violation of Veh. Code, § 20001 “are limited to
those caused by fleeing”]; Bailey v. Superior Court (1970) 4 Cal.App.3d 513, 521
[a purpose of Veh. Code, § 20001 is to prevent aggravation of or further injuries]; cf.
People v. Valdez, supra, 189 Cal.App.4th at p. 90 [great bodily injury allegation may
attach to a Veh. Code, § 20001, subd. (a) offense when the injury was caused or
aggravated by the defendant’s failure to stop and render aid].) Thus, if evidence at the
restitution hearing had demonstrated the victim’s injuries were aggravated or exacerbated
by Amaya’s conduct of fleeing, at least a portion of the order might have been properly
imposed. Because Amaya did not object on this ground, however, the People had no
reason to develop such evidence. The record before us is limited, and does not disclose

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whether the victim could have been saved by earlier medical treatment. It is clear that he
survived for several days after the accident. The record does not reflect how long he laid
in the street awaiting help. However, his widow stated, in her victim impact statement,
that the “most disturbing” image that haunted her was “the image of my husband laying
unconscious and bleeding in that intersection with no one around to help.” Thus, the
question of whether any portion of the restitution order was proper depended upon factual
findings. (See Bailey v. Superior Court, supra, at p. 521 [“Reasonable and prompt
assistance may prevent aggravation of or further injuries, or may save a life”].) Under
these circumstances, the claim is subject to forfeiture. (See People v. Anderson, supra,
50 Cal.4th at p. 26.)
       Amaya contends the issue is not forfeited because his objection to an award of
future earnings fairly apprised the trial court of the issue presented. It did not. (See, e.g.,
People v. Partida (2005) 37 Cal.4th 428, 433-434 [an objection on one ground does not
preserve an appellate challenge made on a different ground].) The issue of whether
future earnings was a proper component of a restitution order is entirely different than the
question of whether the victim’s harm was caused by Amaya’s conduct of leaving the
scene. Objecting to the inclusion of future earnings in the restitution order did nothing to
put the court or prosecutor on notice of the contention Amaya now raises.
       Citing People v. Belmares (2003) 106 Cal.App.4th 19, 27, Amaya also avers that
there was no forfeiture because his claim presents a “constitutional issue of due process.”
Amaya did not raise a due process claim below, and he neglects to explain how the
restitution order implicated a fundamental right, like the right to jury trial at issue in
Belmares. In any event, a due process claim can be forfeited by a failure to object. (See,
e.g., People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332; People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 424; People v. Linton (2013) 56 Cal.4th 1146, 1197;
People v. Partida, supra, 37 Cal.4th at p. 431.)




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                                     DISPOSITION
      The judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                ALDRICH, J.


We concur:




             EDMON, P. J.




             JONES, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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