P. v. Duato

Filed 11/28/07 P. v. Duato CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

David Allen Duato appeals from a trial court order imposing $353,687 victim restitution. Because the appeal is from a postjudgment order affecting substantial rights of appellant, it is authorized by Penal Code section 1237, subdivision (b).^[1] Appellants court-appointed counsel has filed a brief raising no issues and asking this court to make an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

FACTS AND PROCEEDINGS BELOW

On April 9, 2004, the Alameda County District Attorney filed a complaint charging appellant with felony arson of an inhabited structure. ( 451, subd. (b).) The facts giving rise to the charge were as follows:

On the evening of April 7, 2004, after he had been drinking heavily, appellant got into an argument with his roommate, Gian Ruggeri, which began when appellant wanted to stay in a bar longer than Mr. Ruggeri did. Later that night, while appellant was still drinking alcohol, Ruggeri left the apartment he shared with appellant and went to stay at his uncles house. The next day Ruggeri called appellant and told him he was moving out of their apartment. When appellant threatened to destroy his belongings, Ruggeri called the police. Ruggeri and the police were on their way to the five-unit apartment building, which was owned by Tom Terzian, when they saw it engulfed in flames.

Firefighters found appellant in a daze on an upper floor and brought him to safety. While at the hospital, appellant admitted he had burned Ruggeris clothes in the sink and in this manner unintentionally set fire to the building. The building and many tenants suffered significant damage from the blaze.

On June 21, 2004, pursuant to a negotiated disposition, appellant pled no contest to unlawfully causing a fire that causes an inhabited structure to burn ( 452, subd. (b)) as a stipulated lesser offense included in that charged. In exchange for his plea, appellant was promised a five-year probation term with a maximum six-month jail sentence. Appellant was told that the amount of restitution likely to be imposed would be quite substantial.

On August 16, 2004, the court committed appellant to the promised five-year term of probation. He was ordered to serve a four-month jail term and to make restitution payments as determined by the probation officer. The court also ordered victim restitution of $6,245.69 to Eyad Fayez Latif, $10,321.67 to Gian Ruggeri, both tenants of the building, and $4,200 to Tom Terzian, the owner. Total victim restitution was $20,767.36. The court also imposed a $200 restitution fine ( 1202.4) and reserved jurisdiction over restitution for further modifications.

When appellant completed his jail term and was released, his sole source of support was $717 per month in social security disability payments. As ordered by the court, he consistently paid $50 per month towards restitution. On March 10, 2006, the court reduced the required monthly payment to $25. The probation department reported on June 9, 2006 that appellant suffers a myriad of health problems, some of which include heart ailments, back and leg injuries, and that he attends Alcoholics Anonymous twice-weekly. The report also stated that appellant has diligently made [restitution] payments and further reported punctually as scheduled, expressed what appears to be genuine remorse, and exhibited positive strides toward complying with the terms and conditions of [probation].

In April 2005, Reliant Claims Service, Inc., an insurance company, made a restitution claim for $353,686.79 for repairs to the fire damage appellant caused to the apartment house, which was owned by the Hrayr Terzian Trust and insured by Reliant Claims Service, Inc. An identical claim subsequently submitted to the court by the Trust itself differs from the initial claim only in that it identifies the victim as the claimant.^[2] This claim was considered by the court at a May 25, 2007 hearing on the reserved issue whether to modify the amount of restitution required. The district attorney asked the court to approve the new claim, but to grant the award to the actual victim, the Hrayr Terzian Trust, not the insurer. Defense counsel opposed this request, arguing that, even if nominally made to the victim Trust, the requested award would benefit the insurance company and, under People v. Birkett (1999) 21 Cal.4th 226, the insurance company is not supposed to get the money.

The trial court ordered that the requested $353,686.79 be awarded to the Trust, not the Trusts insurer. Though it acknowledged that the insurance company, not the victim, would be the real beneficiary of its order, the trial court rejected defense counsels argument that the order was therefore legally unauthorized.

The timely notice of appeal filed by appellant on June 1, 2007, indicates that the appeal is based on the sentence or other matters occurring after appellants plea, and is therefore authorized under rule 8.304 of the California Rules of Court. The notice of appeal specifically states that it is based on an order imposing restitution by defendant to the Hrayr Terzian Trust, in the amount of $353,687.

DISCUSSION

Appellants reliance at trial on People v. Birkett, supra, 21 Cal.4th 226 was misplaced. Birkett holds that an insurance company is not a direct victim of a crime unless the insurance company is the object of the crime. (Id. p. 229; and see People v. Ozkan (2004) 124 Cal.App.4th 1072, 1077, fn. 2.) Birkett does not, however, suggest that the court should look to whether the economic loss suffered by the entity was the intended consequence of the defendants criminal conduct. The question in Birkett was whether an insurance company was entitled to restitution for sums paid to reimburse the crime-related losses of its policy holder. The court held that it is not, distinguishing the situation where the insurance company is the object of the crime, meaning that the insurance companys loss was the immediate and direct result of the crime, from the situation where the insurance companys loss results from a contractual obligation to reimburse the object of the crime for crime-related losses. (People v. Birkett, at pp. 232, 245.) Nothing in Birkett implies that the defendants intent to cause harm to a particular person or entity is a factor in deciding whether the particular person or entity is a direct victim of the defendants criminal conduct. The issue there was the relationship between the criminal act and the party seeking restitution. If a partys loss is the direct result of the crime, the party is a direct victim, entitled to restitution. If someone else sustains the loss, and the party in question reimburses the loss as a result of a contractual obligation, the party is not a direct victim.

The opinion in Birkett makes clear that, apart from an exception inapplicable in this case, the immediate victim of a crime is entitled to receive from the defendant perpetrator the full amount of the loss caused by the crime, regardless of whether, in the exercise of prudence, the victim had purchased private insurance that covered some or all of the same losses. Third parties . . . such as private insurers, who had already reimbursed the victim were thus left to their separate civil remedies, if any, to recover any such prior indemnification either from the victim or from the [defendant]. [Citations.] (People v. Birkett, supra, 21 Cal.4th at p. 246, italics added.)

There is no doubt that the Hrayr Terzian Trust suffered injury as a result of appellants criminal act and was the victim of that act. It is therefore irrelevant whether the Trust carried insurance and may have been reimbursed by its insurer for some or all of the losses it sustained as a result of appellants criminal act.

A trial court must order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendants inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order. ( 1202.4, subd. (g).)

Furthermore, [a] restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter defendant and others. (People v. Crow (1993) 6 Cal.4th 952, 957.) Among other things, Californias restitution law ensures that amends are made to society for a breach of the law, serves a rehabilitative purpose, and acts as a deterrent to future criminality. [Citations.] Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine. [Citations.] (People v. Moser (1996) 50 Cal.App.4th 130, 135-136.) [] While a settlement agreement with, and release of, a defendants insurance company may reflect a victims willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of the People to accept that sum in satisfaction of the defendants rehabilitative and deterrent debt to society. A restitution order pursuant to a defendants plea is an agreement between the defendant and the state. (People v. Pitts (1990) 223 Cal.App.3d 606, 872.) The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence. (People v. Bernal (2002) 101 Cal.App.4th 155, 161-162.)

The victim restitution order in favor of the Hrayr Terzian Trust must be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law. (People v. Ozkan, supra, 124 Cal.App.4th at p. 1075.) The order reflects neither an abuse of discretion nor an error of law.

The record reflects that during the periods of time his plea was negotiated and the sentence, including restitution, was considered and imposed, appellant was represented by able counsel. The court fully informed appellant of the consequences of his plea and the rights he would be giving up by his plea before it was entered, and the record satisfactorily shows appellants plea was fully informed and freely made.

There was no sentencing error.

There are no legal issues that require further briefing.

The judgment and sentence imposed are affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^[1]All statutory references are to the Penal Code.

^[2]Unlike the claim submitted by the insurance company, the claim subsequently filed by the trust is not included in the Clerks Transcript. However, at the March 25, 2007 hearing, the parties agreed that the two claims were in all other respects identical.