Opinion
D065694
07-31-2015
THE PEOPLE, Plaintiff and Respondent, v. AUSTIN GENE PENNINGTON, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD242900) APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Reversed in part and remanded for further proceedings. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Austin Gene Pennington pleaded guilty to hit and run causing injury stemming from an incident in which, while driving a car, he collided with a bicyclist, Andreas Heyde. The trial court sentenced Pennington to three years probation. After a hearing on victim restitution, the trial court determined Pennington was 100 percent at fault for the accident and ordered him to pay $1,398,422.32 in victim restitution. Pennington appeals the restitution award, arguing: (1) it was improper because Heyde's injuries were not the result of Pennington's unlawful conduct; (2) the procedure used to impose restitution violated his rights to due process and a jury trial; (3) his counsel provided ineffective assistance by failing to request a jury; and (4) the trial court's decision finding him 100 percent at fault constituted an abuse of discretion because it was not supported by substantial evidence. We conclude the trial court's determination that Pennington was the sole cause of the accident was not supported by sufficient evidence. Accordingly, we reverse the portion of the judgment imposing restitution in the amount of $1,398,422.32 and remand for further proceedings. We reject Pennington's remaining arguments.
FACTUAL AND PROCEDURAL BACKGROUND
On a night in June 2012, Pennington was driving on Nimitz Boulevard in San Diego. While he was driving, Pennington struck Heyde, who was riding a bicycle. Heyde was severely injured in the accident.
Prior to the collision, Pennington, Heyde, and another motorist, Christopher Burchfield, were all traveling northbound on Nimitz Boulevard. In that area, Nimitz Boulevard is a straight roadway with two northbound lanes and a bicycle lane. The number 1 lane was approximately 11 feet wide, the number 2 lane was approximately 13 feet wide, and the bicycle lane was approximately 6 feet wide.
Burchfield moved from the number 2 lane, which was closest to the bicycle lane, to the number 1 lane because he observed Pennington's vehicle following too closely from behind. Burchfield was driving approximately 40 miles per hour and Pennington was driving approximately 45 miles per hour, which was the speed limit. Just before the collision, Burchfield saw a blinking red light in the bicycle lane. He then heard a "crunch, like plastic exploding everywhere." Burchfield never saw Pennington apply the brakes, slow down, or swerve before the collision.
Pennington and Burchfield both stopped at the scene of the accident. Pennington called 911 and reported that a bicycle was hit by a car. Pennington provided his first name, phone number and location of the accident. Pennington did not identify himself as the driver of the vehicle involved in the accident.
While Pennington called 911, Burchfield attended to Heyde, who was unconscious and lying on the side of the road quite a distance from the bicycle. By the time Burchfield turned around to get Pennington's license plate number, Pennington was gone. Pennington had not provided his name or contact information to Burchfield.
Approximately three minutes after his initial 911 call, Pennington called 911 again. During this second call, Pennington said he had driven away from the accident scene. Again, Pennington did not identify himself as the driver of the vehicle involved in the collision. Instead, he stated he "saw a biker get hit" by a dark blue or dark green car. He also said he only saw the back of the vehicle.
San Diego traffic investigator, Henry Castro, responded to the scene of the accident. Burchfield told Officer Castro that Pennington was the person who hit Heyde and who had called 911. Officer Castro called the number the accident reporter had left with 911 and stated he knew Pennington hit the bicyclist and requested that he come back to the scene.
Based on marks on the road, Officer Castro determined that the point of impact was in the number 2 lane, 17 inches over from the left edge of the bicycle lane. Thus, Heyde was riding his bicycle outside of the bicycle lane. Officer Castro stated there was shrubbery along the curb line of the bicycle lane, but no overgrowth, debris, potholes or other obstacles that impeded the bike path.
Pennington was charged with leaving the scene of an injury accident in which he was involved without providing his identifying information (hit and run) with an allegation that he personally inflicted great bodily injury on Heyde. Pennington pleaded guilty to the hit and run. His guilty plea included waivers pursuant to People v. Harvey (1979) 25 Cal.3d 754 and Blakely v. Washington (2004) 542 U.S. 296, allowing the court to consider the entire factual background of the case, including unfiled charges or allegations in ordering restitution and the existence of any aggravating facts.
At Pennington's sentencing hearing, the prosecutor stated Pennington was "not being charged with causing the collision" and the People were not requesting prison time. In sentencing Pennington, the court stated this was an unusual case because based on the information before the court, "Pennington was not the cause of the accident. . . . [His] crime [was] leaving the scene." The court sentenced Pennington to three years probation with 120 days in local custody with a recommendation for work furlough. At the restitution hearing, the court imposed restitution in the amount of $1,528,133.23, which was stayed pending a full hearing on comparative fault. At a later comparative fault hearing, the court determined that Pennington was the sole cause of the accident and ordered him to pay restitution in the amount of $1,398,422.32.
DISCUSSION
I. Propriety of Victim Restitution Award
Pennington argues the restitution award was improper because his criminal conduct of leaving the scene of the accident did not cause Heyde's injuries. He also asserts that the large restitution award does not further rehabilitation or deterrence goals.
"Restitution has long been considered a valid condition of probation." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal).) "The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions." (Id. at p. 1120.) Courts have the discretion to impose victim restitution as a condition of probation, even if the victim's loss was not directly caused by the criminal conduct underlying the defendant's conviction. (Id. at p. 1121.) A probation condition is valid unless it " '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (People v. Lent (1975) 15 Cal.3d 481, 486.) We review a restitution order for abuse of discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) A restitution order resting upon ademonstrable error of lawconstitutes an abuse of discretion. (Ibid.)
"[Vehicle Code s]ection 20001, subdivision (a) requires the driver of any vehicle involved in an accident resulting in the injury or death of another to 'immediately stop the vehicle at the scene of the accident and . . . fulfill the requirements of Sections 20003 and 20004.' The driver's duty to stop and fulfill the requirements of sections 20003 and 20004 applies 'whether or not he is responsible for the accident. [Citation.]' [Citation.] 'Although a violation of section 20001 is popularly denominated "hit-and-run," the act made criminal thereunder is not the "hitting" but the "running." The legislative purpose of sections 20001 and 20003 is to prevent the driver of a vehicle involved in an injury-causing accident from leaving injured persons in distress and danger for want of medical care and from attempting to avoid possible civil or criminal liability for the accident by failing to identify oneself. This duty is imposed upon drivers whether or not they are responsible for the accident itself. [Citations.]' " (People v. Valdez (2010) 189 Cal.App.4th 82, 86-87.)
In Carbajal, our high court addressed restitution as a condition of probation in the context of a hit and run accident. (Carbajal, supra, 10 Cal.4th at p. 1118.) The defendant in that case pleaded no contest to leaving the scene of an accident after he collided with a parked car and fled. (Id. at p. 1119.) The Supreme Court concluded that restitution in that case was reasonably related to the defendant's conduct in leaving the scene of an accident because "[b]y 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." (Id. at p. 1124.) The Carbajal court held that a trial court "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," finding that "such a condition accords with the statutory goals of public safety, victim compensation, and offender rehabilitation." (Id. at pp. 1126-1127.) Further, the court concluded restitution "[was] also related to the goal of deterring future criminality" because it deterred the defendant's "future attempts to evade his legal and financial duties as a motorist and [served] as a rehabilitative measure tailored to correct the behavior leading to his conviction." (Id. at p. 1124; see also People v. Rubics (2006) 136 Cal.App.4th 452, 461 [affirming restitution award for funeral expenses where the defendant pleaded guilty to hit and run causing death because one of the purposes of the hit and run statute "is to make a driver face up to taking responsibility for the damages caused by the accident and the effect on society when he or she flees the scene without taking responsibility for that accident"].)
Here, we see no reason to depart from the reasoning in Carbajal. Pennington pleaded guilty to leaving the scene of an accident that resulted in injury. Thus, he impeded the investigation of the collision and deprived the victim of his "right to have responsibility for the accident adjudicated in an orderly way according to the rules of law." (Carbajal, supra, 10 Cal.4th at p. 1124.) As in Carbajal, "[b]y seeking to force [Pennington] to accept the responsibility he attempted to evade by leaving the scene of the accident without identifying himself, the restitution condition acts both as a deterrent to future attempts to evade his legal and financial duties as a motorist and as a rehabilitative measure tailored to correct the behavior leading to his conviction." (Ibid.)
Pennington attempts to distinguish Carbajal on the basis that there was no dispute that the defendant in Carbajal was at fault for hitting a parked car causing it damage whereas fault for Heyde's injuries is disputed in this case. We do not see this as a meaningful distinction. As we explained, Pennington's crime was fleeing the scene of the accident. " 'The crime with which [Pennington was] charged [was] complete upon the "running" whether or not his conduct caused substantial or minimal (or indeed any) damage or injury; it is the running which offends public policy.' " (Carbajal, supra, 10 Cal.4th at p. 1124.)
Pennington also contends the magnitude of the restitution award in this case distinguishes Carbajal and its progeny. However, Pennington does not dispute that Heyde suffered significant injuries as a result of the collision nor does he argue that the court improperly calculated Heyde's losses or determined Pennington's ability to pay. Absent such a showing, we see no reason to limit the size of restitution award merely based on its magnitude.
II. Jury Trial and Ineffective Assistance
Pennington argues the procedure used to impose restitution violated his rights to due process and a jury trial. Specifically, he contends he had the right to a jury because the procedure used to determine his fault was conducted as a civil court trial. Alternatively, he argues if restitution was not a civil remedy, he was entitled to a jury based on principles of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) because the restitution order increased his punishment. We reject these arguments. A. Civil Jury Trial
A restitution hearing is "part and parcel" of the defendant's sentencing (People v. Cain (2000) 82 Cal.App.4th 81, 87; e.g., People v. Rivera (1989) 212 Cal.App.3d 1153, 1160-1161 (Rivera)) and as such requires fewer due process protections than civil hearings or criminal hearings of guilt. (People v. Giordano (2007) 42 Cal.4th 644, 662, fn. 6 [enumerating cases but observing they were decided before the U.S. Supreme Court decided Cunningham v. California (2007) 549 U.S. 270].) In Rivera, the defendant argued that "ordering restitution to a crime victim [was] essentially the same as an award of damages in a civil proceeding." (Rivera, at p. 1159.) The court rejected the argument, reasoning that "a defendant's due process rights are protected if he is given notice of the amount of restitution sought and an opportunity to contest that amount; the rigorous procedural safeguards required during the guilt phase, including the right to a jury, are not required." (Rivera, at p. 1161; see also People v. Baumann (1985) 176 Cal.App.3d 67, 79-80 [holding defendant was not entitled to a jury trial as to the amount of restitution to a victim because the purposes of criminal restitution orders differ from civil damages].)
Here, Pennington contends he was entitled to a jury because the court determined his fault for the accident. We disagree because the court's factual finding regarding fault did not turn the restitution hearing into a civil proceeding. Although victim restitution is often referred to as a "civil remedy" (see, e.g., People v. Harvest (2000) 84 Cal.App.4th 641, 649), the purposes of restitution orders include not only compensating the victim for his losses but also rehabilitating the offender and deterring criminal conduct (People v. Baumann, supra, 176 Cal.App.3d at p. 80). These purposes differentiate victim restitution awards from traditional civil damages. In the case of victim restitution awards, " '[t]he requirements of due process are satisfied by providing the defendant a hearing on ability to pay as well as the extent of loss occasioned by the defendant's criminal conduct.' " (Rivera, supra, 212 Cal.App.3d at p. 1160.) As we explained, victim restitution was proper in this case because it was related to Pennington's criminal act of leaving the scene of the accident and served a deterrent to future criminal activity. For these reasons, Pennington's argument that he was entitled to a jury is without merit. B. Apprendi Challenge
Under Apprendi and its progeny, a defendant has the right to have the jury, not the trial court, decide any facts that increase the defendant's punishment beyond the maximum punishment that could otherwise be imposed based on the jury verdict alone. (Alleyne v. United States (2013) ___ U.S. ___ [133 S.Ct. 2151, 2158, 2160] (Alleyne); Southern Union Co. v. United States (2012) ___ U.S. ___ [132 S.Ct. 2344, 2350]; People v. Black (2007) 41 Cal.4th 799, 812.) The Apprendi rule is designed to safeguard a defendant's right to have a jury decide all the elements of an offense beyond a reasonable doubt, and it extends the jury factfinding requirement to sentencing factors that are viewed as akin to elements of the offense because they increase the punishment for the offense above what is otherwise statutorily prescribed. (Alleyne, supra, 133 S.Ct. at pp. 2157-2160; see Oregon v. Ice (2009) 555 U.S. 160, 170.) Thus, when a statute requires the trial court to increase the punishment based on a finding beyond the jury's verdict, or forbids the trial court from increasing the penalty without the particular finding, the finding is deemed to equate with an element of the offense that must be decided by the jury, not the court. (See Alleyne, at pp. 2153-2161; People v. Black, at p. 812; People v. Kramis (2012) 209 Cal.App.4th 346, 350-351.)
However, direct victim restitution awards fall outside the parameters of the Apprendi jury factfinding requirement. (People v. Wasbotten (2014) 225 Cal.App.4th 306, 308-309 [Apprendi does not apply to direct restitution award for economic losses]; Millard, supra, 175 Cal.App.4th at pp. 35-36.) " '[T]o the extent a victim restitution order has the secondary purposes of rehabilitation of a defendant and/or deterrence of the defendant and others from committing future crimes, those purposes do not constitute increased punishment of the defendant . . . .' " (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184.)
Based on the foregoing, we conclude the court's factual findings concerning the direct victim restitution award did not invoke the Apprendi rule. Given our holding that Pennington was not entitled to a jury, we also reject his argument that his counsel's failure to request a jury constituted ineffective assistance.
III. Assignment of Fault
A. Facts
At the comparative fault hearing, the court heard evidence regarding the accident. Officer Castro testified that Heyde caused the accident by improperly riding outside of the bicycle lane and in the roadway.
Heyde's coworkers testified that Heyde regularly commuted to and from work on his bicycle. They described him as a safe rider. To their knowledge, Heyde's bicycle had a rear light that was visible from a quarter mile away.
The prosecution's accident reconstruction expert, Ernest Phillips, testified that based on the damage to the bicycle and Pennington's vehicle, Heyde had not suddenly swerved into the traffic lane because Pennington did not hit the bicycle at an angle. Phillips also stated that the flashing red light on the back of Heyde's bicycle would have been apparent to any reasonably attentive driver from 600 feet or 10 seconds of approaching the bicycle. Given the width of the roadway, Pennington's vehicle had enough space to move to the left to avoid the collision and should have given Heyde wider berth.
Phillips opined that Pennington's unsafe speed and inattention caused the accident because Pennington ran into a bicyclist that had reflectors to the rear and a flashing red strobe. According to Phillips, Pennington could have avoided the accident if he had been more attentive and driving at a safer speed. When asked if Heyde had any responsibility for the collision, Phillips stated, "It would depend on why he was out of the bike lane." Phillips stated it would have been helpful to have a photograph of the area from Heyde's direction of travel because it might have explained why Heyde was outside of the bicycle lane. The photographs that Phillips had seen did not necessarily depict the conditions on the date and time of the incident. Instead, Officer Castro's testimony was the only evidence of the conditions at that time.
Despite Burchfield's testimony that he saw the flashing red light on Heyde's bicycle just before the collision, Phillips testified that Burchfield's recollection does not mean that was the first time he actually saw the flashing red light. Phillips stated that a motorist sees many things that he does not process as being important, such as a flashing red strobe light at night with 600 feet of visibility, so the driver does not store the information in his memory. Rather, a driver filters out information until it becomes important. Accordingly, Burchfield "filtered out" seeing the flashing red light until the collision happened.
Thomas Greenstone, the District Attorney's investigator, agreed with Phillips that Pennington caused the collision due to Pennington's violation of the basic speed law. Greenstone based his opinion on facts that Heyde's bicycle had reflectors, Heyde was wearing reflective clothing, a witness saw the flashing red light on Heyde's bicycle, and Pennington ran Heyde over. Greenstone did not believe Heyde riding outside the bicycle lane was a primary factor in the collision. Like Phillips, Greenstone did not believe Heyde suddenly swerved into the traffic lane. Instead, Heyde was in the number 2 lane long enough to be riding with the flow of traffic. Greenstone concluded that Pennington should have seen Heyde because Burchfield saw him.
At the conclusion of the comparative fault hearing, the trial court determined Pennington was "the sole cause of the collision" because he "was not exercising reasonable care when driving." The court further concluded that Heyde was operating his bicycle in a lawful fashion and "[t]here [was] no evidence that he was not traveling in the bicycle lane other than at the actual point where this collision occurred." The court relied on photographs of the scene showing overgrowth and debris in the bicycle lane and evidence that Heyde was wearing reflective pants and had a red light on his bicycle that was visible from one quarter to one mile away. The court found that although Heyde was riding 17 inches into Pennington's traffic lane, there was plenty of room for Pennington to drive defensively and give Heyde enough space. Further, the court stated that while it was possible that Heyde darted out into the lane of traffic, there was no evidence to indicate he did so. Accordingly, the court ordered Pennington to pay restitution in the amount of $1,398,422.32. B. Analysis
As a threshold matter, we reject Pennington's contention that the trial court prejudged the issue of fault based on its own personal experience and other extraneous matters. Although the trial court stated that it was familiar with the area where the accident occurred and indicated that "[f]requently people [leave the scene of an accident] because they are, in fact, under the influence," the trial court did not rely on these matters in awarding restitution. Rather, the court made these statements at the original restitution proceeding prior to the hearing on comparative fault. Further, in stating its reasoning assigning fault to Pennington, the court did not indicate that it was relying on anything other than the testimony and evidence at the comparative fault hearing.
Pennington also argues the trial court's decision assigning 100 percent fault for the accident to him was not supported by substantial evidence because the trial court relied on speculative testimony and improper evidence. We agree.
A victim's restitution right is to be broadly and liberally construed." [Citation.] " 'Where there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " [Citations.]' [Citation.] . . . 'In reviewing the sufficiency of the evidence [to support a factual finding], the " 'power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings." [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. [Citation.]' [Citation.]" (Millard, supra, 175 Cal.App.4th at p. 26.)
Here, it was undisputed that the accident occurred while Heyde was riding outside of the bicycle lane and 17 inches into the number 2 lane of traffic. On roadways where there is an established bicycle lane, bicyclists must ride in that lane except when passing another bicycle if passing cannot be done safely within the lane, when preparing to turn left, when reasonably necessary to avoid debris or other hazards, or when approaching a place where a right turn is authorized. (Veh. Code, § 21208, subd. (a).) Even when leaving the bicycle lane is authorized, a bicyclist shall not do so until the movement can be done with reasonable safety and then only after giving an appropriate hand signal if a vehicle may be affected by the bicycle's movement. (Id. at subd. (b).) Heyde's reason for riding outside the bicycle lane was unknown. Regardless, the trial court determined that Pennington was the sole cause of the accident because Heyde's bicycle was visible to a reasonably attentive driver and there was no evidence that Heyde darted out into traffic.
The trial court based its decision in part on expert testimony that was speculative and unsupported. "An expert's opinion . . . 'may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]' " (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.)
Phillips, the prosecution's accident reconstruction expert, testified that the flashing red light on Heyde's bicycle was visible from 600 feet or 10 seconds away. This testimony was inconsistent with Burchfield's testimony that he saw the blinking red light only "right before [Heyde] got hit, so maybe two car lengths." Phillips explained Burchfield's testimony by stating Burchfield must have "filter[ed] out" seeing the red light because the information was unimportant until the time of the collision. Based on the record before us, Phillips did not have any experience with cognitive psychology or in the area of how people process and store information in their memories. Rather, Phillips's education and experience was in the fields of criminal justice, manufacturing engineering and accident reconstruction. "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720.) Phillips did not have the requisite experience to form an admissible opinion that Burchfield's memory of seeing the red light was faulty. Accordingly, Phillips's opinion in that regard was conjecture and mere speculation.
The trial court also relied on photographs of the location of the accident that showed overgrowth and debris in the bicycle lane to explain why Heyde may have been riding in the traffic lane. However, as Phillips conceded, the photographs of the accident scene did not necessarily depict the conditions on the date and time of the incident. Rather, Officer Castro's testimony was the only evidence of the conditions at that time. Officer Castro testified that there was shrubbery along the curb line of the bicycle lane, but no overgrowth, debris, potholes or other obstacles that impeded the bike path. Thus, Officer Castro testified that the cause of the accident was Heyde's act of improperly riding outside of the bicycle lane and in the roadway. Other than Officer Castro's testimony, there was no competent evidence of the condition of the bicycle lane at the time of the accident. Accordingly, the trial court's conclusion that there was overgrowth and debris in the bicycle lane at the time of the accident was not supported by the evidence.
As we stated, it was undisputed that Heyde was riding in the number 2 traffic lane when the accident occurred. Phillips outlined three scenarios as to why Heyde may have been outside the bicycle lane. Specifically, Heyde may have been preparing to turn left, avoiding a hazard, or simply riding for a significant period outside the lane. In regard to turning left, Greenstone testified that there was a raised concrete center median in the area of the collision and no left turns were permitted at the approaching intersection. As for avoiding a hazard, Officer Castro stated there were no obstacles impeding a bicyclist's travel in the bicycle lane. The only remaining scenario was that Heyde was riding in the number 2 traffic lane for a significant period of time. Although pursuant to Vehicle Code section 21208, subdivision (a), Heyde should have been riding in the bicycle lane except under specific circumstances not shown here, the trial court nevertheless concluded that Heyde did not share any fault for the accident.
Based on the record before us, we conclude the evidence was insufficient to support the trial court's conclusion that Pennington was 100 percent at fault for the accident as this conclusion ignored competent evidence and instead favored unsupported evidence. Moreover, the trial court improperly ignored evidence regarding Heyde's role in the accident. Accordingly, we remand to the trial court to determine restitution in light of the views expressed herein.
DISPOSITION
The portion of the judgment imposing restitution in the amount of $1,398,422.32 is reversed and the matter is remanded for rehearing on the amount of restitution. In all other respects, the judgment is affirmed.
MCINTYRE, J. WE CONCUR: MCCONNELL, P. J. HUFFMAN, J.