Opinion
A152878
11-16-2018
THE PEOPLE, Plaintiff and Respondent, v. MILIND KESHEWBHAI DESAI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-17-90122)
Defendant Milind Keshewbhai Desai appeals the trial court's restitution orders awarding $1,000 to Reliable Mill Supply (Reliable) and $7,587.42 to Travelers Insurance Company (Travelers Insurance). We vacate the Travelers Insurance order and modify the Reliable order to increase the award to $8,587.42.
BACKGROUND
After driving into a chain link fence surrounding Reliable while under the influence of alcohol, appellant pled no contest to driving under the influence with a blood alcohol level of 0.08 percent or more within ten years of a prior felony conviction for driving under the influence (Veh. Code, §§ 23152, subd. (b), 23550.5, subd. (a)(1)). The trial court sentenced appellant to one year four months in prison.
A restitution hearing was held. Beau Johnson, Reliable's vice president, testified that appellant damaged approximately 70 feet of fence. Reliable had not yet repaired the fence because it was waiting for necessary permits. Travelers Insurance, Reliable's insurance carrier, obtained an estimate of $8,587.42 for the repair. Reliable's deductible was $1,000, and Travelers Insurance would cover the remaining $7,587.42. The trial court ordered restitution of $1,000 to Reliable and $7,587.42 to Travelers Insurance.
DISCUSSION
The parties agree that the trial court's restitution award to Travelers Insurance was improper. They disagree on the appropriate award to Reliable in light of this conclusion. Appellant contends Reliable's award should remain $1,000, its deductible amount, while the People argue Reliable's award should be $8,587.42, the full cost of repair.
We need not decide whether appellant forfeited this issue by failing to object below, as the parties dispute, because we would excuse any forfeiture.
Penal Code section 1202.4 (section 1202.4) provides, with exceptions not relevant here, "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims . . . ." (§ 1202.4, subd. (f).) The restitution "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct," including "the value of . . . damaged property" as determined by its repair or replacement value. (Id., subd. (f)(3)(A).)
In People v. Birkett (1999) 21 Cal.4th 226 (Birkett), the trial court "split" a restitution award "between the victims themselves and the insurers who had partially reimbursed them." (Id. at p. 229.) The Supreme Court concluded that the restitution statutes did not authorize restitution for insurers "reimbursing crime losses under the terms of their policies," and further concluded that the statutory scheme gave victims "a right to restitution based on the full amount of their losses, without regard to full or partial recoupments from other sources except the Restitution Fund." (Ibid.) With respect to the second point, the court reasoned: "the Legislature intended to require [an offender], for rehabilitative and deterrent purposes, to make full restitution for all losses his crime had caused, and that such reparation should go entirely to the individual or entity the offender had directly wronged, regardless of that victim's reimbursement from other sources. Only the Restitution Fund was eligible to receive any part of the full restitutionary amount otherwise due to the immediate victim. [¶] Thus, except as against the Restitution Fund, the immediate victim was entitled to receive from the [offender] 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 other than the fund, 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 [offender]." (Id. at p. 246.) The result was not absurd, as "the Legislature could rationally conclude that the criminal restitution scheme should always require the offender to pay the full cost of his crime, receiving no windfall from the fortuity that the victim was otherwise reimbursed, but that the rights of reimbursing third parties, aside from the state's own Restitution Fund, should be resolved in other contexts." (Ibid.) Thus, the Supreme Court concluded that the trial court's order "correctly required defendant to make restitution of the full amount of the losses determined to have been caused by the crimes to which he pled guilty," but "incorrectly diverted portions of this restitutionary award from the immediate victims to their reimbursing insurers, thus leaving the immediate victims with less than 'full' restitution without regard to private insurance." (Id. at p. 247.)
Birkett construed a now-repealed statute which was in effect when the defendant's crimes occurred. (Birkett, supra, 21 Cal.4th at pp. 230-231, 247-248, fn. 21.) As both parties agree, Birkett's analysis of that statute applies equally to section 1202.4. (See Birkett, supra, 21 Cal.4th at p. 247, fn. 21 [subsequent amendments to the restitutionary scheme, including § 1202.4, "do not significantly alter our analysis"]; People v. Hove (1999) 76 Cal.App.4th 1266, 1271 [finding Birkett's analysis applied to § 1202.4].)
Subsequent cases have reiterated Birkett's analysis and conclusion: "[P]ayments to the victim by the victim's own insurer as compensation for economic losses attributed to a defendant's criminal conduct may not offset the defendant's restitution obligation. [Citations.] And, although a restitution order is not intended to give the victim a windfall [citation], a third party source which has reimbursed a direct victim for his or her loss may pursue its civil remedies against the victim or perpetrator. '[T]he possibility that the victim may receive a windfall because the third party fails to exercise its remedies does not diminish the victim's right to receive restitution of the full amount of economic loss caused by the perpetrator's offense.' " (People v. Hume (2011) 196 Cal.App.4th 990, 996 [no offset where victims of attorney defendant's embezzlement received reimbursement from the California State Bar Client Security Fund]; accord, People v. Hamilton (2003) 114 Cal.App.4th 932, 940-941 [no offset for payments or reimbursements for medical expenses made by victim's insurer].)
The above authority is clear. As in Birkett, the trial court's orders "correctly required defendant to make restitution of the full amount of the losses determined to have been caused by the crimes to which he pled guilty," but "incorrectly diverted portions of this restitutionary award from the immediate victims [i.e., Reliable] to their reimbursing insurers [i.e., Travelers Insurance], thus leaving the immediate victims with less than 'full' restitution without regard to private insurance." (Birkett, supra, 21 Cal.4th at p. 247.) The award to Travelers Insurance must be vacated, and the award to Reliable must be increased to reflect the full cost of repair.
Appellant argues Reliable's only "loss" was the $1,000 deductible. As the cases above make extremely clear, a victim's "loss"—which includes the cost of repairing damaged property (§ 1202.4, subd. (f)(3)(A))—is not reduced by any amount the victim's insurer has covered or will cover. Appellant also argues the cases involved reimbursement by insurers, and a different rule does or should apply when an insurer directly sends payment to the third party. Appellant cites no basis in statute or case authority for such a distinction, and we see none. Appellant contends policy reasons counsel against including payments made by an insurer in the victim's restitution award. All of the policy arguments discussed by appellant—for example, that such an award may confer a windfall on the victim—have been addressed in the cases discussed above.
The record is unclear as to how Travelers Insurance will cover its portion of the repair cost.
DISPOSITION
The order awarding restitution to Travelers Insurance Company is vacated. The order awarding restitution to Reliable Mill Supply is modified to provide the amount of the award is $8,587.42 and, as so modified, is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.