People v. Appellate Department

Opinion

BOREN, P. J. The People seek a writ of mandate directing the appellate department of the superior court to set aside that portion of its February 8, 1996, judgment reversing that portion of a municipal court order of probation requiring that real party in interest Jerry Gonzales (Defendant) pay restitution.

I. Factual and Procedural Background

Defendant was convicted of fleeing the scene of an automobile accident which caused property damage, in violation of Vehicle Code section 20002, subdivision (a). The municipal court found Defendant to be liable for the collision, and granted probation on condition that he pay restitution for the property damage.

Relying primarily on People v. Richards (1976) 17 Cal.3d 614 [131 Cal.Rptr. 537, 552 P.2d 97] (Richards), Defendant appealed, taking the position that the trial court had no jurisdiction to order restitution as a condition of probation unless Defendant hit the vehicle with the same state of mind with which he fled the scene of the collision, i.e., with a culpable state of mind. While Defendant’s appeal was pending, our Supreme Court issued its decision in People v. Carbajal (1995) 10 Cal.4th 1114, 1126 [43 Cal.Rptr.2d 681, 899 P.2d 67] (Carbajal), ruling that a defendant’s intent is irrelevant to the trial court’s decision regarding restitution.

The appellate department of the superior court refused to apply Carbajal retroactively, and reversed the municipal court judgment. This petition followed.

II. Discussion

A. Contentions

The People contend that Carbajal must be applied retroactively because Richards (and the appellate court decisions following it) simply [87]misconstrued the restitution statutes.1 Carbajal, argue the People, merely gave effect to the statutory rule set forth in Penal Code section 1203.1, and thus did not change the law.

B. Did Carbajal Establish a New Rule of Law!

To determine whether a decision is to be given retroactive effect, we are required to undertake a threshold inquiry: does the decision establish a new rule of law? (People v. Guerra (1984) 37 Cal.3d 385, 399 [208 Cal.Rptr. 162, 690 P.2d 635].) “If the decision establishes a new rule of law, a second question arises: was there a prior rule to the contrary? If there was, the new rule . . . may or may not be retroactive.” (Ibid.)