Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRPB 05-5263
SIMONS, J.
A prison inmate assaulted a prison guard, causing him to miss work and incur medical and dental expenses. After the inmate pled guilty to the crime, the court ordered him to pay restitution to the prison for the workers’ compensation benefits the prison paid to the guard. Defendant argues the restitution order was unauthorized because the prison was not a direct victim of the crime. We order the trial court to modify the restitution order to change the payee to the injured guard.
BACKGROUND
On July 10, 2005, Lawrence Gutierrez was working as a correctional officer at Pelican Bay State Prison. Inmate Jonathan Grigsby approached him with an envelope and asked him to look at it. As Gutierrez looked at the envelope, Grigsby hit him on the right side of his face and again on the bridge of his nose, knocking him to the ground. Gutierrez sustained cuts on or near his nose and mouth and also a broken tooth. He received medical attention that day and later required dental work. At the time of Grigsby’s sentencing hearing, Guitierrez anticipated needing additional dental work in the future due to the assault.
Grigsby was charged by information with felony assault upon a peace officer (Pen. Code, § 245, subd. (c)) (count 1) and felony battery by a prisoner on a nonprisoner (§ 4501.5) (count 2). It was alleged that Grigsby had served a prior prison term for a violent felony within the meaning of section 667.5, subdivision (a). It was further alleged that Grigsby had a prior conviction within the meanings of sections 1170.12 and 667, subdivisions (b) through (i).
All undesignated section references are to the Penal Code.
The information identifies the charge as “battery on correctional officer.” The actual language of the Penal Code section is “Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony . . . .” (§ 4501.5.)
Pursuant to a negotiated agreement, Grigsby pled guilty to the battery charge on the understanding he would receive a midterm sentence and the remaining charge and allegations would be dismissed. During the plea colloquy, the court advised Grigsby that he might have to pay as much as $4,403.05 in restitution as a result of his plea. After he was assured he had a right to a restitution hearing, Grisby agreed to go forward with his change of plea.
In a presentencing report, the probation department recommended the court order Grigsby to pay $4,403.05 restitution to Pelican Bay State Prison. The prison’s return-to-work coordinator stated that the prison incurred $4,403.05 in workers’ compensation expenses as a result of Grigsby’s assault on Gutierrez. Gutierrez suffered no personal financial loss.
At the sentencing hearing, the court allowed Grigsby to cross-examine Gutierrez on the factual basis for the restitution request. Grigsby disputed whether Gutierrez’s dental injuries were caused by Grisby’s assault and whether Gutierrez’s injuries were severe enough to require him to take time off work. At the conclusion of the hearing, the court ordered Grigsby to pay $4,403.05 in restitution without specifying who should receive the restitution. The court reserved jurisdiction to order additional restitution upon proof of further damages. The abstract of judgment states that the $4,403.05 in restitution is to be paid to Pelican Bay State Prison.
The court sentenced Grigsby to a three-year middle term to run consecutively to the sentences he was already serving.
DISCUSSION
I. Certificate of Probable Cause
The People urge us to dismiss this appeal because Grigsby did not obtain a certificate of probable cause.
A certificate of probable cause is generally required when a defendant challenges a judgment of conviction following a plea of guilty or no contest. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(1), (2); People v. Panizzon (1996)13 Cal.4th 68, 74 [citing former rule 31(d)].) It is not required when a defendant seeks to appeal on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Rule 8.304(b)(4); see Panizzon, at p. 76.) Where a defendant agrees to a specified sentence in his or her plea agreement and later appeals imposition of that sentence, the appeal is in substance a challenge to the validity of the plea agreement itself and a certificate of probable cause is required. (Panizzon, at p. 76.) Where a defendant agrees to a maximum sentence and appeals the court’s exercise of discretion in imposing a sentence up to that maximum, a certificate of probable cause is not required. (People v. Buttram (2003) 30 Cal.4th 773, 777.)
All rule references are to the California Rules of Court.
Here, Grigsby pled no contest after being informed that he could be ordered to pay up to $4,403.05 in restitution but that he would have an opportunity to contest the factual basis for a restitution request at a subsequent hearing. That is, he was informed that an order to pay restitution of $4,403.05 was a possible consequence of his plea. He did not agree to pay $4,403.05 in restitution as a term of his plea bargain. It was expressly anticipated that Grigsby would have an opportunity to challenge the restitution request. The court’s decision to order Grigsby to pay $4,403.05 in restitution to the prison arose after entry of the plea. Because it was not a term of the plea bargain, Grigsby’s challenge to the order does not affect the plea’s validity. Grigsby was not required to obtain a certificate of probable cause.
We note further that Grigsby’s challenge to the restitution order is not forfeited, even though he failed to argue below that the trial court could not order him to pay restitution to the prison because the prison was not a direct victim of his crime. If Grigsby is correct that the prison was not a direct victim of the crime, the restitution order was not authorized by statute. (§ 1202.4.) An unauthorized sentence may be challenged for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534.)
II. Restitution to Prison for Workers’ Compensation Costs
Grigsby argues that he cannot be ordered to pay restitution to the prison for the workers’ compensation benefits it paid to Gutierrez because the prison was not a direct victim of his crime.
In 1982, California voters passed Proposition 8, also known as “The Victims’ Bill of Rights,” which established a constitutional right to victim restitution: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case . . . in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. . . .” (Cal. Const., art. I, § 28, subd. (b).)
The Legislature enacted implementing legislation over a period of several years. (People v. Giordano (2007) 42 Cal.4th 644, 652.) In the mid-1990’s, the Legislature consolidated most of the victim restitution scheme in section 1202.4. (Giordano, at p. 653.) Section 1202.4, subdivision (a)(1), declares, “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” With one exception not applicable here, the statute provides that “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 in an amount established by court order . . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f), italics added.) The statute defines “victim” to include a governmental entity that is a “direct victim of a crime.” (§ 1202.4, subd. (k)(2).)
In Birkett, the California Supreme Court construed similar language in section 1203.04 as amended in 1994 (Stats. 1994, ch. 1106, § 4, p. 6550) (hereafter former section 1203.04). (People v. Birkett (1999) 21 Cal.4th 226, 230-231 & fn. 2.) At the time, former section 1203.04 governed restitution orders in cases where defendants were granted probation. (Birkett, at pp. 230-231.) In 1995, former section 1203.04 was repealed and its provisions incorporated into section 1202.4. (Birkett, at p. 231, fn. 2.) The court held that the “1994 statutory language [amending former section 1203.04] . . . created the inescapable inference that while the right to restitution was not confined to individual persons, entitlement arose only in favor of ‘actual’ or ‘direct’ victims—i.e., the real and immediate objects of the probationer’s offense—and their close family survivors.” (Birkett, at p. 233.) The court held that persons whose losses arose only as a result of crimes committed against others were not entitled to restitution, and trial courts did not have the discretion to award restitution to such persons. (Id. at pp. 243, 245.)
Former section 1203.04 included the following provisions. “It is the intent of the Legislature that a victim of a crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Former § 1203.04, subd. (a)(1).) “In every case where a person is convicted of a crime and is granted probation, the court shall require, as a condition of probation, that the person make restitution . . . [t]o the victim, if the crime involved a victim.” (Former § 1203.04, subd. (a)(2).) “The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record.” (Former § 1203.04, subd. (d), italics added.) “Nothing in this section shall prevent a court from ordering restitution to any . . . governmental [entity] . . . when that entity is a direct victim of a crime.” (Former § 1203.04, subd. (j).) (Stats. 1994, ch. 1106, § 4, pp. 6550-6552.)
Close family survivors were expressly included within the definition of “victims” in former section 1203.04, subdivision (h)(2) (Stats. 1994, ch. 1106, § 4, p. 6552), and are expressly included in the definition of victims in section 1202.4, subdivision (k)(1).
The specific issue before the court in Birkett was whether insurance companies that reimburse victims for their crime-related losses could be awarded restitution. (People v. Birkett, supra, 21 Cal.4th at pp. 233, 245.) The court concluded they could not. (Id. at pp. 234, 241-243.) With the sole exception of the state-created Restitution Fund, the statute requires courts to order full restitution paid directly to the direct victim of 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.” (Id. at p. 246.) “Insurance companies that suffered the consequences of crime only by reimbursing the crime-related losses of their policyholders did not reasonably fall within this definition [of victim].” (Id. at p. 233; see also id. at p. 242 [“ ‘an insurer who has incurred expenses solely by virtue of a contractual duty to indemnify the direct victim is not itself an “object” of the crime and hence not a direct victim,’ ” italics added].)
Former section 1203.04, subdivision (a)(2)(A) provided that victim restitution “[p]ayments shall be made to the Restitution Fund to the extent the victim has received assistance” from the fund. (Stats. 1994, ch. 1106, § 4, p. 6550.) Section 1202.4, subdivision (f)(2) contains a similar provision.
Among the cases discussed in Birkett is People v. Franco (1993) 19 Cal.App.4th 175. (People v. Birkett, supra, 21 Cal.4th at p. 238.) Franco held that a defendant convicted of assaulting a police officer could not be ordered to pay restitution to the city for the workers’ compensation benefits it paid to the injured officer. (Franco, at p. 185.) The court reasoned, “[U]nder the facts of [Franco], the [c]ity stands in the position of [the officer’s] insurer. That it made good on the obligation imposed upon it ‘does not make it the victim of a crime.’ [Citation.]” (Ibid.)
Grigsby argues a straightforward application of Franco to this case requires reversal of the restitution order, which compensates the prison for its workers’ compensation costs. The People do not address Franco, but they argue that the prison was a direct victim of the crime because “an inmate’s battery on a correctional officer performing his duties is directed not merely at the individual, but also directly at the administration of the state’s prison system.” They note that Grigsby’s crime is included in a section of the Penal Code that is devoted to offenses relating to prisons and prisoners. (Pen. Code, part 3, tit. 5 [“Offenses Relating to Prisons and Prisoners”].)
The People’s argument has some force. Birkett holds that a mere contractual indemnitor of a crime victim is not a direct victim of the crime entitled to restitution. It does not rule out the possibility that an indemnitor could be a direct victim of a crime for reasons other than its act of indemnifying another victim. In insurance fraud cases, for example, insurers are direct victims entitled to restitution even though they reimburse insureds who are also victims of the defendants’ conduct. (People v. Moloy (2000) 84 Cal.App.4th 257, 258-260; People v. O’Casey (2001) 88 Cal.App.4th 967, 969-971.) Similarly, in People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1083-1084, 1086-1087, a bank that reimbursed its account holder for losses caused by the defendant’s fraudulent transaction was found to be a direct victim of the crime entitled to restitution. Arguably, the prison was a direct victim of the crime even though it reimbursed Gutierrez for his crime-related losses.
Nevertheless, we follow Franco for two reasons. First, both Franco and this case can be distinguished from Moloy, O’Casey, and Saint-Amans. In the latter cases, the defendants were convicted of crimes that identified the insurers or the bank as the victims of the crimes. In Moloy, the defendant was convicted of knowingly presenting a false or fraudulent insurance claim (Pen. Code, § 550, subd. (a)(1)). (People v. Moloy, supra, 84 Cal.App.4th at p. 258.) In O’Casey, the defendant was convicted of knowingly making a false statement for the purpose of obtaining workers’ compensation benefits (Ins. Code, § 1871.4, subd. (a)(1)). (People v. O’Casey, supra, 88 Cal.App.4th at p. 968.) In Saint-Amans, the defendant was convicted of commercial burglary (Pen. Code, § 459), which indicated that the victim was a business entity. (People v. Saint-Amans, supra, 131 Cal.App.4th at p. 1087.) In Franco, on the other hand, the defendant was convicted of assault with a firearm on a peace officer and resisting an executive officer (Pen. Code, §§ 245, subd. (d)(1), 69), among other charges. (People v. Franco, supra, 19 Cal.App.4th at p. 177.) The elements of the Franco crimes identify the police officer, not the police department or city, as the victim of the crime. Similarly, Grigsby was convicted of battery on a nonprisoner (Pen. Code, § 4501.5); the crime identifies the nonprisoner (Gutierrez) not the prison as the victim.
In fact, the employers in Franco could at least argue that the elements of the crime impliedly identified the police department as the victim because the crime is committed against a peace officer performing his or her official duties. The crime Grigsby was convicted of does not even impliedly suggest that the prison is a victim.
Second, in the years since Franco was decided, no other appellate court has disagreed with the decision. (See Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485 [“we ordinarily follow the decisions of other districts without good reason to disagree”].) Nor has the Legislature responded to Franco with legislation authorizing restitution to law enforcement agencies for workers’ compensation costs incurred when an officer is injured by a defendant. (Cf. § 4600, subd. (b).) That legislative silence is some indication that the Legislature agrees with the analysis in Franco.
Thus, the trial court was not authorized to order restitution to the prison to cover the workers’ compensation costs it incurred as a result of the assault on Gutierrez.
III. Remedy
In Franco, the court struck the restitution award to the city and refused to order an equal amount of restitution to be paid to the injured officer, arguing it would result in a double recovery for the officer contrary to the intent of the restitution laws. (People v. Franco, supra, 19 Cal.App.4th at p. 185.)
This part of Franco is no longer good law. In Birkett, the California Supreme Court held that the intent of the restitution statute is “to make full restitution for all losses [the offender’s] 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.” (People v. Birkett, supra, 21 Cal.4th at p. 246.) In Birkett, the court reversed an award of restitution to a victim’s insurer and remanded the matter to the trial court for further proceedings. (Id. at p. 248.) As the passage quoted above makes clear, on remand the trial court would have been required to order the same amount of restitution directly to the victims, even though they had already received reimbursement from their insurance companies. (Id. at p. 246.)
Because the trial court would be required on remand to order restitution to Gutierrez in the full amount of his losses (§ 1202.4, subd. (f); see also Cal. Const., art. I, § 28, subd. (b)), and the court has already determined the amount of those losses, a remand is unnecessary. We shall order the trial court to modify the abstract of judgment to order restitution be paid to Gutierrez rather than the prison.
DISPOSITION
The trial court is directed to modify the abstract of judgment to change the payee of the $4,403.05 restitution order from Pelican Bay State Prison to Lawrence Gutierrez. As modified, the judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.