Metropolitan News-Enterprise


Friday, March 1, 2019


Page 1


Court of Appeal:

Civil Compromise Not Available Where Charge Is Misdemeanor Hit-and-Run


By a MetNews Staff Writer


A charge of misdemeanor hit-and-run is not subject to a civil compromise where the driver who abandoned the scene of an accident pays damages to the other motorist, Div. One of the Fourth District Court of Appeal held yesterday.

The opinion, by Justice Terry B. O’Rourke, repudiates a contrary result reached by Div. One of this district’s Court of Appeal in the 1995 case of People v. Tischman. That case, O’Rourke declared, is “no longer good law” in light of the California Supreme Court’s 2017 pronouncement in People v. Martinez that the essence of the misdemeanor hit-and-run statute is leaving the scene, not the collision.

O’Rourke pointed to the statutory scheme. Penal Code §1377 authorizes a civil compromise where a person who is the victim of a misdemeanor has a civil remedy.

Discretionary Relief

Section 1378 provides:

“If the person injured appears before the court in which the action is pending at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the same offense.”

 Section 1379 prohibits civil compromises not comporting with those provisions.

Flight Doesn’t Injure

O’Rourke wrote:

“[A] victim of a misdemeanor hit and run sustains property damage from the collision, not from the driver leaving the scene without providing information. Thus, the victim is not ‘injured by [the] act constituting’ the crime, but by the noncriminal condition precedent to the crime….We cannot envision a scenario to the contrary. Moreover, even if a victim of the misdemeanor crime could be said to have suffered injury by the driver’s failure to stop and provide identifying information, that injury would be the inability to file suit against the driver, which is not itself redressable in a civil action.”

The opinion reverses a decision by San Diego Superior Court Judge Margo Lewis Hoy granting a motion for dismissal filed by defendant Lourdes Ortiz Dimacali pursuant to Secs. 1388 and 1378.

The case is People v. Dimacali, D074680.


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