People v. Arredondo CA6

Filed 6/28/16 P. v. Arredondo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041558 & H042003 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1117824)

v.

DAVID DOMINGO ARREDONDO,

Defendant and Appellant.

Defendant David Domingo Arredondo pleaded no contest to driving under the influence of alcohol (Veh. Code, § 23153, subd. (a)) and being involved in a hit and run accident (Veh. Code, 20001, subds. (a) & (b)(1)). The trial court ordered defendant to pay victim restitution for property damages resulting from the accident. On appeal, defendant challenges the restitution order, arguing that the trial court erred by failing to offset restitution by the settlement paid by his aunt’s insurance carrier. We conclude that the trial court did not abuse its discretion in denying the offset, and we affirm the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND On October 13, 2011, defendant was driving under the influence of alcohol when he rear-ended the victim’s car. Defendant drove away from the scene of the accident. The victim sustained injuries and her vehicle was damaged. Later, defendant’s aunt’s

insurance company paid a $15,000 settlement to the victim, releasing defendant and his aunt from all claims. Defendant pleaded no contest to one count of driving under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a)) and to one count of committing a hit and run that resulted in injury or death (Veh. Code, § 20001, subds. (a) & (b)(1)). He also admitted an allegation that he proximately caused injury to another person (Veh. Code, § 23558). The trial court sentenced defendant to three years of formal probation and ordered him to serve eight months in jail. On September 26, 2014, the trial court held a formal restitution hearing. The prosecution submitted the probation report, which included a recommendation that restitution be set at $9,108.57. The report also included supporting documentation for that amount. Defendant submitted a copy of his aunt’s insurance policy and a copy of the settlement check, which showed that the insurer paid the victim $15,000. The insurance policy provided that the insurer would pay for damages caused by those specified as “[p]ersons insured.” The policy defined “[p]ersons insured” to include “any other person using an owned automobile, provided it is used with the permission of the named insured, expressed or implied, and within the scope of such permission . . . .” The parties also stipulated that if called to trial, defendant’s aunt would testify that defendant had permission to drive her car. Based on the evidence and the stipulation, defendant argued that he was entitled to an offset because the policy expressly insured permissive drivers. After taking the matter under submission, the trial court issued an order denying the offset. The court found that there was no evidence that (1) defendant procured the insurance; (2) defendant paid premiums; (3) defendant had a contractual right to have payments made to the victim on his behalf; and (4) the insurer had no right of indemnity or subrogation against defendant. At a subsequent hearing in January 2015, the trial court formally ordered defendant to pay $9,108.57 in victim restitution.