People v. Martinez

Opinion

Filed 6/6/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E057976

v. (Super.Ct.No. FMB1200197)

DENNIS TERRY MARTINEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Daniel W.

Detienne, Judge. Reversed with directions.

Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Melissa Mandel, and Meredith S. White, Deputy Attorneys General, for Plaintiff and

Respondent.

Defendant Dennis Terry Martinez pled guilty to leaving the scene of an accident

1 (count 1; Veh. Code, § 20001, subd. (a))1 and admitted the offense constituted a violation

of his probation. In return for his plea, the People agreed to the low term of two years’

incarceration on count 1 and a concurrent midterm of two years on his violation of

probation. The sentencing court later indicated it would not permit the plea to the agreed

upon term. The court offered to allow defendant to withdraw his plea and set the matter

for a preliminary hearing or proceed with the plea with the understanding the court would

sentence defendant to the midterm of three years’ imprisonment with a concurrent three-

year term for the violation of probation. Defense counsel indicated defendant’s

acquiescence to the court’s proposed disposition.2

The court sentenced defendant to the three-year term, but reserved jurisdiction on

the issue of victim restitution. After a contested restitution hearing, the court ordered

victim restitution in the amount of $425,654.63. On appeal, defendant contends the court

abused its discretion in awarding victim restitution for the injuries sustained by the victim

because defendant did not plead to any criminal offense regarding the collision which

caused those injuries and no factual determination was made that he was responsible for

the accident. We reverse the restitution award. The matter is remanded to allow the

People to file a motion, in their discretion, for restitution in which they will bear the

burden of proving an amount, if any, which reflects the degree to which the victim’s

1 All further statutory references are to the Vehicle Code unless otherwise indicated.

2 No new plea was taken either orally or in writing to reflect the new, agreed upon disposition. Defendant did not personally indicate his acceptance of the new term.

2 injuries were exacerbated, if at all, by defendant’s flight. In all other respects, the

judgment is affirmed.

FACTS AND PROCEDURAL HISTORY3

On April 26, 2012, at approximately 6:30 p.m., defendant, driving his vehicle, and

the 12-year-old victim, riding on a scooter, collided in the street. Defendant stopped his

vehicle and checked on the victim. The victim’s mother came screaming over to her son.

Defendant fled when he discovered the victim’s injuries might be life threatening.

Defendant was on probation and driving without a license.

The victim was taken to the Intensive Care Unit (ICU) of Loma Linda University

Medical Center (LLUMC). He sustained multiple broken facial bones and a serious head

injury resulting in brain swelling.

Within 24 hours of investigation, officers discovered defendant’s identity.

Defendant voluntarily came forward thereafter. He admitted knowing that leaving the

scene of the accident was a criminal offense. Defendant admitted ingesting medical

grade marijuana at 8:00 a.m. the day of the accident, but said he no longer felt the effects

by 11:00 a.m. Defendant maintained the collision was an accident.

After defendant’s plea, a probation report prepared for sentencing recommended

defendant be sentenced to the upper term of four years, conflicting with the disposition

agreed upon in the plea agreement. Defendant’s felony probation had been previously

3 The parties stipulated the factual basis for the plea was contained in the felony complaint and police report. We take a portion of our factual recitation from those sources.

3 revoked once.

The probation officer noted the victim had been released from LLUMC’s ICU

after two weeks. The victim was transferred to the children’s rehabilitation center in

Orange County where he had since remained. The victim had no short-term memory and

was unable to walk without assistance. The victim was relearning to walk and talk. It

was anticipated the victim would undergo 12 weeks of intensive neurological therapy.

Defendant had been uninsured at the time of the collision. The bill for the victim’s stay

at LLUMC alone was $500,000. The victim’s mother’s insurance deductible was

$10,500.

The victim’s mother made a statement at defendant’s sentencing hearing. She

noted “The fact that my son collided with the vehicle was an accident.” The victim’s

mother indicated the victim had “multiple facial fractures, a fractured clavicle[,] and was

diagnosed with traumatic brain injury.” The victim suffered brain swelling for which

doctors had to insert a brain swelling monitor in his skull. The victim had been moved to

Orange County on May 11, 2012, and was sent home after five weeks.

Subsequent to sentencing, the parties briefed the issue of whether defendant could

be ordered to pay restitution for the medical costs incurred by the victim as a result of the

collision. The People noted the victim’s bill for his stay at LLUMC alone was

$425,654.63. At the contested restitution hearing, the court decided to follow the

decision in People v. Rubics (2006) 136 Cal.App.4th 452 (Fourth Dist., Div. One)

(Rubics), which held that a defendant convicted of fleeing the scene of an accident could

be ordered to pay restitution for costs incurred by the victim as a result of the collision.

4 The court continued the matter for a hearing on the amount of restitution to order.

Counsel filed a stipulation in the amount of $425,654.63 for a victim restitution order.

The stipulation reserved defendant’s right to appeal the court’s determination it could

order victim restitution for the results of the accident. The court granted victim

restitution in the amount stipulated.

DISCUSSION

Defendant contends the court erred in following Rubics because decades of

precedent have characterized the illegal act of hit-and-run as fleeing the scene, not

causing the actual collision. Thus, because defendant was not convicted for any offense

involving responsibility for the actual accident and no factual determination of his

responsibility for the collision or the victim’s injuries has been made, the court erred in

ordering restitution to the victim for treatment of the injuries he received as a result of the

accident. We agree.

We review a trial court’s order of restitution for abuse of discretion. (People v.

Giordano (2007) 42 Cal.4th 644, 663.) “While we review all restitution orders for abuse

of discretion, we note that the scope of a trial court’s discretion is broader when

restitution is imposed as a condition of probation.” (Ibid., fn. 7.) “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.” (Pen. Code, § 1202.4, subd. (a)(1).)

Penal Code “section 1202.4 contains no provision that permits an award of

restitution for losses caused by uncharged crimes when the defendant is sentenced to state

5 prison.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1248.) The rationale that

restitution may be imposed for economic loss not directly resulting from the commission

of a crime for which a defendant has been convicted “is inapplicable to a nonprobationary

sentence, in which the broad discretion to impose probationary conditions does not exist.”

(Ibid.) “[W]hen a defendant is sentenced to state prison, [Penal Code] section 1202.4

limits restitution to losses caused by the criminal conduct for which the defendant was

convicted.” (Id. at p. 1246 [Remanding for deletion a restitutionary award ordered for

acts occurring before the crimes for which the defendants were convicted].)

“The gravamen of a 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.” (People v. Escobar (1991)

235 Cal.App.3d 1504, 1508 [Restitutionary award of $2,000 for personal injuries

resulting in lost wages and out of pocket expenses in a hit-and-run case reversed as

“tantamount to an assignment of civil liability in violation of [defendant’s] civil due

process rights.”]; accord People v. Valdez (2010) 189 Cal.App.4th 82, 85, 90 [Noting this

“‘decisional law that unequivocally holds that the purpose of section 20001, subdivision

(a) is to punish “not the ‘hitting’ but the ‘running’”’”]; People v. Wood (2000) 83

Cal.App.4th 862, 866; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1340

[declining to follow Rubics]; People v. Carbajal (1995) 10 Cal.4th 1114, 1124; contra.

Rubics, supra.)

6 The court below understandably relied on Rubics in rendering its judgment that

defendant could be ordered to pay restitution for the effects of the collision. (McCallum

v. McCallum (1987) 190 Cal.App.3d 308, 315, fn. 4 [“As a practical matter, a superior

court ordinarily will follow an appellate opinion emanating from its own district even

though it is not bound to do so.”].) Nevertheless, we find Rubics factually

distinguishable from the instant case. Moreover, to the extent Rubics could be viewed as

binding on the court below, we disagree with its holding. Unlike the lower court, we are

not bound to follow Rubics. (Fenelon v. Superior Court (1990) 223 Cal.App.3d 1476,

1483, abrogated on another ground in Hagberg v. California Federal Bank (2004) 32

Cal.4th 350, 368.) We find that Rubics is an anomaly in an otherwise “unbroken line of

cases stretching back more than 50 years.” (People v. Valdez, supra, 189 Cal.App.4th at

pp. 85, 89.) Thus, we hold that a court cannot order a defendant pay victim restitution

when sentenced to prison for the effects of a collision, not exacerbated by his leaving,

when the defendant is solely convicted of fleeing the scene and no factual predicate for

the defendant’s responsibility for the accident can be found in the record. (People v.

Escobar, supra, 235 Cal.App.3d at p. 1509 [“Restitution is proper only to the extent that

the victim’s injuries are caused or exacerbated by the offender’s leaving the scene.”].)

In the first instance, Rubics is distinguishable from the present case for a number

of reasons. First, much of Rubics’s analysis of the issue was premised on the fact that, in

its case, the defendant had not only been convicted of fleeing the scene (§ 20001, subd.

(a)), but had also admitted an allegation under section 20001, subdivision (b)(2), that the

accident had resulted in death. (Rubics, supra, 136 Cal.App.4th at p. 454.) Rubics noted

7 one of the elements of the crime of which the defendant pled guilty required that it

resulted in the death of any person. (Id. at p. 458.) It noted the jury instruction for the

offense reflected knowing involvement in an accident resulting in the death of another

person. (Ibid.) It summarized its analysis by noting the defendant’s “involvement in an

accident causing [] death is an element of his felony hit-and-run offense.” (Ibid.) Here,

defendant did not admit an allegation the accident resulted in death because no such

allegation was charged as no one was killed.

Second, the restitution awarded in this case was of a different kind and in a much

larger amount than that awarded in Rubics. The lower court in Rubics awarded $44,414

to the victim’s family for funeral expenses. (Rubics, supra, 136 Cal.App.4th at p. 456.)

Here, the court awarded $425,654.63, apparently for the victim’s stay at LLUMC. Here,

it would be incongruous to apply the Rubics rule when the Rubics case involved the death

of the victim while the victim in the instant case did not die. In other words, a defendant

should not benefit from the fact that the victim in his case has died, thereby resulting in a

lesser amount of victim restitution than if that victim had lived, but required extended,

expensive hospitalization and care.

Third, there was a factual predicate for determining the defendant’s fault in the

accident at issue in Rubics. The defendant in Rubics admitted to smoking copious

amounts of marijuana and drinking five beers before the collision. (Rubics, supra, 136

Cal.App.4th at p. 455.) The defendant failed to stop at a stop sign, made an unsafe left

turn, and collided with the victim’s motorcycle. (Id. at pp. 455, 462.) The accident

investigator determined the defendant caused the accident by failing to yield to the

8 victim. (Id. at p. 462.) The defendant admitted leaving the scene of the accident

“because he was afraid that he was going to be arrested for driving under the influence.”

(Id. at p. 455.) Thus, the defendant in Rubics effectively admitted culpability for the

collision and his responsibility had also been independently determined.

We are in no way here making any factual determination as to whether defendant

was responsible for the collision which resulted in the victim’s injuries and damages.

Nevertheless, we note that no evidence below was adduced that defendant bore any

culpability for the collision itself or that his flight exacerbated the injuries to the victim.

The victim apparently collided with the defendant’s vehicle while riding his scooter in

the street. Although defendant admitted to using marijuana, he reported having done so

at 8:00 a.m. on the day of the accident. He indicated he had stopped feeling its effects by

11:00 a.m. on that day. The collision occurred at 6:30 p.m., 10 and a half hours after

using the intoxicant and seven and a half hours after its effects had worn off. Both

defendant and the victim’s mother described the collision as an accident.

Indeed, in People v. Woods (2008) 161 Cal.App.4th 1045, the court distinguished

Rubics on this very basis, i.e., that the fleeing driver may only be held responsible “‘for

the damages he or she has caused by being involved in the accident itself.’ [Citation.]”

(Id. at p. 1053.) Similarly, the court in Corenbaum v. Lampkin, supra, 215 Cal.App.4th

1308, observed “[t]he occurrence of an injury accident is a condition precedent to the

imposition of duties upon the driver under [section] 20001, subdivision (a) . . ., but is not

an element of the crime . . . . [Citation.]” (Id. at p. 1340.) “To the extent that [Rubics]

suggested that a conviction under [section] 20001, subdivision (a) is based in part on the

9 defendant’s causing or being involved in an injury accident, we decline to follow it . . . .

(Id. at p. 1341, fn. 22.) Here, there was no evidence defendant caused the accident or

exacerbated the victim’s injuries by fleeing.

Although we find the decision in Rubics factually distinguishable from the present

case, we are also cognizant of the broad language in Rubics which would appear to make

its holding applicable to restitution for any damages sustained by a victim as a result of a

hit and run regardless of the facts. Indeed, Rubics held that “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.” (Rubics, supra, 136 Cal.App.4th at p. 459, italics added.) Similarly,

the court held 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 another, restitution is proper in such a situation because the loss

was incurred as a result of the commission of the crime.” (Id. at p. 454, italics added.)

Thus, the expansive language of Rubics’s holding would appear to give trial courts broad

discretion to order victim restitution for any damages sustained in a hit-and-run collision

regardless of whether the defendant has been convicted of any offense involving his

culpability in the collision, without any evidence of his responsibility for the accident,

without any evidence that his flight exacerbated the victim’s injuries, and in any amount.

We disagree with this holding.

Although Rubics acknowledged two cases cited to it by defendant which directly

10 contradict its own holding, the court did not distinguish or disagree with either.4 Indeed,

the court declined to discuss those cases, or any of the others establishing the “unbroken

line of cases stretching back more than 50 years” which ran contrary to its holding.

(People v. Valdez, supra, 139 Cal.App.4th at p. 89; Rubics, supra, 136 Cal.App.4th at pp.

458-459.) Instead, Rubics relied primarily on the decision of our Supreme Court in

People v. Carbajal, supra, 10 Cal.4th 1114. (Rubics, supra, at pp. 459-461.)

In Carbajal, the California Supreme Court held “it is within the trial court’s

discretion in [] a [hit-and-run] case to condition probation on payment of restitution to

the owner of the property damaged in the accident from which the defendant unlawfully

fled. A restitution condition in such a case can be reasonably related to the offense

underlying the conviction and can serve the purposes of rehabilitating the offender and

deterring future criminality.” (People v. Carbajal, supra, 10 Cal.4th at p. 1119, italics

added.) Carbajal acknowledged “that in the context of the hit-and-run statute, the

restitution condition may relate to conduct that is not in itself necessarily criminal, i.e.,

the probationer’s driving at the time of the accident.” (Id. at p. 1123 [fn. omitted].)

Nevertheless, the court held that “a trial court, in the proper exercise of its discretion,

may condition a grant of probation for a defendant convicted of fleeing the scene of an

accident on payment of restitution to the owner of the property damaged in the accident.”

(Id. at pp. 1126-1127, italics added.)

4 The court noted the defendant had exposited both People v. Escobar, supra, 235 Cal.App.3d at p. 1509, and People v. Wood (2000) 83 Cal.App.4th 862, 866, in support of his contention the court’s ordered restitution should be reversed. (Rubics, supra, 136 Cal.App.4th at pp. 458-459.)

11 Of course, the primary difference between Carbajal and Rubics is the former court

permitted victim restitution for a collision in a hit-and-run case, regardless of any

determination of the defendant’s culpability in the collision itself, only when it was

ordered as a condition of probation. (People v. Carbajal, supra, 10 Cal.4th at pp. 1119,

1126-1127.) In Rubics, the court permitted such victim restitution in a case in which the

defendant was sentenced to prison. (Rubics, supra, 136 Cal.App.4th at p. 454.) Rubics

acknowledged this difference, but found the policy reasons for permitting an order of

such restitution in a probation case did not differ from one in which the court sentenced a

defendant to prison. (Id. at pp. 459-461.)

Rubics discerned Carbajal’s overall approval of victim restitution where the

damages were reasonably related to the accident. (Rubics, supra, 136 Cal.App.4th at p.

460.) Rubics observed that Carbajal concluded restitution is related to the goal of

deterring future criminality which the restitution ordered in Rubics also served. (Id. at p.

461.) It also noted Carbajal found restitution ““an effective rehabilitative penalty

because it forces the defendant to confront, in concrete terms, the harm his actions have

caused.”’” [Citations.]” (Ibid.) 5 Thus, Rubics found Carbajal supported “the

conclusion that the court’s restitution order was proper in this case.” (Ibid.)

However, an examination of Carbajal itself reveals the fact that the underlying

court had ordered restitution as a condition of probation was not simply a factor in its

5 Though, notably, Carbajal made all these determinations within the People v. Lent (1975) 45 Cal.3d 481, framework analysis for determining whether a term or condition of probation is appropriate. (People v. Carbajal, supra, 10 Cal.4th at p. 1124.)

12 determination of whether such an order was appropriate, but the factor. Carbajal

observed “California courts have long interpreted the trial courts’ discretion to

encompass the ordering of restitution as a condition of probation even when the loss was

not necessarily caused by the criminal conduct underlying the conviction.” (People v.

Carbajal, supra, 10 Cal.4th at p. 1121, italics added.) As a condition of probation

“[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.” (Ibid.)

Carbajal disagreed with the defendant’s contention a court could not order victim

restitution for losses which did not result from the defendant’s criminal acts because the

statutory scheme could not “‘be construed to limit the authority of the court to grant or

deny probation or provide conditions of probation.’ [Citation.]” (People v. Carbajal,

supra, 10 Cal.4th at p. 1122.) Thus, it concluded that nothing in constitutional or

statutory law “purports to limit or abrogate the trial court’s discretion . . . to order

restitution as a condition of probation where the victim’s loss was not the result of the

crime underlying the defendant’s conviction, but where the trial court finds such

restitution will serve one of the purposes” of reformation or rehabilitation inherent in a

decision to grant probation. (Ibid., italics added.) The court spent the remainder of its

opinion analyzing whether the ordered victim restitution was appropriate within the

context of the Lent framework for determining the propriety of conditions of probation.

(Id. at pp. 1122-1127.) Therefore, Carbajal can in no way be construed as authority for

the proposition that victim restitution may be ordered in a hit-and-run case for a collision

13 for which the defendant has not been convicted of any criminal offense and no evidence

supports the defendant’s culpability for the collision or exacerbation of the victim’s

injuries due to defendant’s flight.

Indeed, Rubics itself acknowledged that “[a]t first blush, the Carbajal decision

does not appear helpful because courts have far greater leeway in selecting appropriate

restitution as a condition of probation. Our Supreme Court has observed that a trial court

has broad discretion to impose probation conditions to foster rehabilitation and protect

public safety. [Citation.]” (Rubics, supra, 136 Cal.App.4th at p. 459.) In fact, as noted

above, it has long been acknowledged that courts retain broader discretion to order victim

restitution when it is a condition of probation. (People v. Giordano, supra, 42 Cal.4th at

p. 663, fn. 7.) As Rubics further noted, the discretion afforded courts in prescribing

conditions of probation is broad “because probation is an ‘“‘act of clemency and grace,’”’

not a matter of right. [Citation.] ‘[T]he granting of probation is not a right but a

privilege, and if the defendant feels that the terms of probation are harsher than the

sentence for the substantive offense[,] he is free to refuse probation.’ [Citations.]

Because a defendant has no right to probation, the trial court can impose probation

conditions that it could not otherwise impose, . . . It is not limited to damages

specifically caused by the crime of which the defendant was convicted.” (Rubics, at pp.

459-460, italics added.)

Here, however, we are not discussing a condition of probation. Rather, the court

ordered defendant to pay victim restitution for the collision when he was not convicted of

any offense involving responsibility for the collision, no evidence in the record appears to

14 indicate any culpability on his part in the collision, no evidence demonstrates the victim’s

injuries were exacerbated due to defendant’s flight, and the court sentenced defendant to

three years’ imprisonment. Defendant was not afforded the freedom to refuse the ordered

restitution even if he believed it was harsher than the sentence for the substantive offense

because he was already sentenced for the substantive offense. Indeed, as Rubics further

observed “[a]n entirely different set of constitutional considerations comes into play

where, as here, the defendant is sentenced to prison. The constitutional guaranty of a jury

trial and due process requires that the jury decide all material issues in support of the

charges. [Citations.] A corollary to this guaranty is that a defendant will not be punished

for a crime for which a jury has not determined the defendant’s guilt.” (Rubics, supra,

136 Cal.App.4th at p. 460.) Here, defendant was not afforded any constitutional

protections in what amounted to a judicial determination of guilt and liability for the

collision. The ordered $425,654.63 in victim restitution would, to many people, be

deemed harsh punishment in and of itself.

Indeed, if the People believed defendant guilty for causing the collision, they

could have charged defendant for reckless driving (§ 23103), driving under the influence

(§ 23152, subd. (a)), or some other charge which would have incorporated at least some

culpability for the collision and not just fleeing afterward. If defendant was convicted of

such a charge, victim restitution for the collision would then be appropriate. In fact, even

if defendant was not convicted of such a charge, but the plea agreement included a

15 Harvey6 waiver, restitution could still be imposed for the consequences of the collision.

(People v. Snow (2012) 205 Cal.App.4th 932, 937, fn. 5.) Here, although defendant

executed a Harvey waiver as part of his plea, there were no other charges in the felony

complaint and defendant’s plea did incorporate any agreement by the People not to file

any further charges.

The People might argue that by fleeing, defendant ensured any evidence of his

culpability in the collision was thereby eradicated. (People v. Carbajal, supra, 10 Cal.4th

at p. 1124 [“By leaving the scene of the accident, the fleeing driver deprives the

nonfleeing driver of his or her right to have responsibility for the accident adjudicated in

an orderly way according to the rules of law.”) However, a review of the contents of the

police report reveal this is not the case.

At least two individuals witnessed the accident: the individual who gave police a

description of defendant’s vehicle and the victim’s mother. If defendant was driving

recklessly, evidence from these two sources could have been adduced to establish such.

As noted above, mother indicated it was the victim who collided with defendant.

Defendant likewise indicated the victim hit defendant’s vehicle when the victim failed to

stop. Moreover, defendant’s vehicle was found within 24 hours of the accident,

apparently before any repairs could have been or were made. Defendant’s vehicle had

only two small dents from the accident; no blood was on the car. A blood draw of

defendant was conducted, apparently for toxicology purposes, within 26 hours of the

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

16 accident. No results of this test appear in the record. (In re Alexis E. (2009) 171

Cal.App.4th 438, 448, fn. 6 [Information obtained by the social worker in a juvenile

dependency case reflected “marijuana’s negative [e]ffect on the user’s driving skills lasts

‘for at least 4-6 hours after smoking a single marijuana cigarette, long after the “high’’ is

gone.’”]) Unlike in Rubics, no evidence of any accident reconstruction appears in the

record. Thus, it would appear the evidence here, or lack thereof, was at best, for the

People, inconclusive and, at worst, negated any culpability of defendant for the collision.

Either way, no charges regarding the collision were brought against defendant. Because

no determination regarding defendant’s culpability for the collision had been made,

restitution for the victim’s medical care was an abuse of the court’s discretion.

DISPOSITION

The order granting the victim restitution is reversed. The matter is remanded to

allow the People to file a motion, in their discretion, for restitution in which they will

bear the burden of proving an amount, if any, which reflects the degree to which the

17 victim’s injuries were exacerbated, if at all, by defendant’s flight. (People v. Sy (2014)

223 Cal.App.4th 44, 63 [“[T]he standard of proof at a restitution hearing is by a

preponderance of the evidence . . . .”].)

CODRINGTON J.

We concur:

HOLLENHORST Acting P. J.

McKINSTER J.