From the Trenches – Attorney Jane Gaskell follows cases all the way to the California Supreme Court.

In February of 2008, a pedestrian was crossing the street away from any marked crosswalk.  It was raining and the defendant did not see her, striking her with his vehicle.  While the pedestrian did not suffer any life-threating injury, her injuries were serious, and her medical expenses were extensive.  Although the police investigation into the accident determined the pedestrian victim was at fault. The defendant had a suspended license and left the scene of the accident.  As a result, he entered a no contest plea to a felony ‘hit and run’ and was placed on three years of formal probation.

As a condition of probation the defendant was ordered to pay around $12,000 in victim restitution to cover medical costs.  Around 18 months later, the pedestrian made an additional request through probation to have the restitution increased to over $200,000.  The request was based on claimed business losses in the two years following the accident.

Due to the extreme increase in claimed restitution, a hearing was requested by the defendant to contest the surprisingly high restitution demand.  Many months went by during which time the accident victim was unable to produce appropriate documentation to support her claimed amount.  The hearing on the issue was reset numerous times for different reasons outside of the defendant’s control.

Eventually documentation was produced, witnesses were available and a hearing date was set.  However, the hearing was not completed in one day, and a new date was set to conclude the hearing.  However, witness unavailability required that the hearing be delayed yet again.  Then, a third time, on the day before the defendant’s formal probation was due to terminate, the prosecutor was again unable to proceed with the final day of the hearing due to her own unavailability. The new date for the conclusion of the hearing was set nine days after the defendant’s probation term expired.

In a bold move for justice, instead of appearing for the conclusion of a restitution hearing, Jane returned to court and contested the court’s jurisdiction to order any further restitution, arguing our client was no longer subject to probation, therefore modifying the restitution amount was unallowable.   After vigorous litigation on the issue, and a hearing took place, the trial judge disagreed with our position, issuing a new restitution order in excess of $250,000.   

Ever tenacious, our office would not go down without a fight. We saw an issue that needed to be decided, where the law was unclear, and our client was being directly affected as a result. We immediately appealed the order and the case was transferred to the First District Court of Appeal. 

Oral argument was heard on July 10, 2013.   Unfortunately, the justices sided with the trial judge, holding the modified restitution order to be valid, despite the expiration of the defendant’s probation. 

Once again, we appealed the decision – this time by filing a Petition for Review with the California Supreme Court.  In acknowledgment of the importance of the issue the California Supreme Court granted review.

It must be understood, the Supreme Court only grants review in response to around 1% the petitions that are filed.   That review was granted in this case is a measure of how significant the Supreme Court considers this question to be.  The Appellate Court’s decision essentially allows victims to claim money damages from criminal defendants indefinitely, regardless of the successful completion of probation, or whether the defendant is actually under the jurisdiction of the court.  This would be an unprecedented extension of the court’s authority and is completely at odds with the general purpose of probation, namely rehabilitation.

We are currently waiting for the Supreme Court to notify us of a date when oral argument is to take place. Stay tuned.

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