Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. Nos. SC148416 & SC154138
RIVERA, J.
Defendant Joseph Anthony Rael, Jr., appeals a judgment entered upon his plea of guilty to vandalism and cultivating and selling marijuana. He contends on appeal that the trial court erred in ordering him to pay restitution to a victim’s insurance company. The Attorney General concedes that restitution could not properly be ordered to the insurance company, but urges us to modify the order to require defendant to pay the restitution directly to the victim. We order the restitution order modified to direct defendant to pay restitution directly to the victim.
I. Background
Defendant pled guilty in case No. SC148416 to vandalism with damage of $10,000 or more (Pen. Code, § 594, subd. (b)(1)), and admitted a prior conviction. In case No. SC154138, he pled guilty to one count of cultivating marijuana and two counts of transporting or selling marijuana (Health & Saf. Code, §§ 11358, 11360, subd. (a)), and admitted a prior conviction. He was sentenced to six years four months in prison, and ordered to pay $33,500 in victim restitution to the victim’s insurance company, AAA, in connection with the vandalism conviction.
All undesignated statutory references are to the Penal Code.
The only relevant facts relating to the crimes are that defendant struck the car of Alessandro Boggio with a hatchet about 57 times, and that Boggio was compensated for the damage by his insurer.
Defendant’s counsel indicated that the insurance company had paid around $34,000 for the damage, and that defendant had made one $500 payment to the insurance company pursuant to an agreement. It appears that the trial court arrived at the amount of restitution by offsetting the $500 payment from the $34,000.
II. Discussion
Defendant’s only contention on appeal is that the trial court lacked authority to order him to pay restitution to the insurer. Section 1202.4, subdivision (f), requires the trial court to order restitution “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct.” The term “victim” includes family members of the actual victim and any person who sustains economic loss, and “[a]ny corporation . . . or any other legal or commercial entity when that entity is a direct victim of a crime.” (§ 1202.4, subd. (k).)
Our Supreme Court, in People v. Birkett (1999) 21 Cal.4th 226, 230 (Birkett), considered whether an insurer who has reimbursed the immediate victim under an insurance policy is a direct victim of the crime for purposes of restitution. After examining at length the history of the requirement of reimbursement, the court concluded that the insurer was not a direct victim. (Birkett, at pp. 230-246.) In doing so, it stated that the Legislature intended the 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 probationer 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 probationer.” (Id. at p. 246.) This result would prevent the offender from receiving a “windfall from the fortuity that the victim was otherwise reimbursed.” (Ibid.)
Birkett was decided under former section 1203.04, which contained provisions similar to those at issue here. (Birkett, supra, 21 Cal.4th at pp. 230-231, 247-248, fn. 21; see also People v. Hove (1999) 76 Cal.App.4th 1266, 1270-1271.)
Defendant contends, and the Attorney General concedes, that Boggio’s insurer was not a direct victim and that under Birkett, the order that defendant pay restitution to the insurer was unauthorized. The Attorney General, however, argues that rather than simply striking the restitution order, we should modify it to order the restitution to be paid directly to Boggio. Defendant disagrees with the remedy the Attorney General proposed, arguing that Boggio was fully compensated by his insurer and that ordering restitution to him would result in Boggio receiving a windfall.
We reject defendant’s suggestion that we simply strike the restitution order. Section 1202.4 requires the trial court to order restitution where the victim has suffered economic loss, and our Supreme Court in Birkett made clear that restitution is available “regardless of that victim’s reimbursement from other sources.” (Birkett, supra, 21 Cal.4th at p. 246; see also People v. Hamilton (2003) 114 Cal.App.4th 932, 944.) Indeed, section 1202.4, subdivision (f)(2), provides that the amount of restitution “shall not be affected by the indemnification or subrogation rights of any third party.” Were we to follow defendant’s suggestion, defendant would receive a windfall from Boggio’s insurance, a result our Supreme Court has disapproved. (Birkett, supra, 21 Cal.4th at p. 246.)
People v. Bernal (2002) 101 Cal.App.4th 155, 165-168, upon which defendant relies, considered an entirely different issue. There, the court ruled that payments made to the victim by the defendant’s insurance carrier must be offset against the defendant’s restitution obligation. Here, as in Birkett, the reimbursement at issue was made by the victim’s insurer.
In his reply brief, defendant suggests that rather than modifying the order to require him to pay restitution directly to Boggio, we should remand the matter for further proceedings, as the court did in Birkett where the order had incorrectly diverted portions of the restitution from the immediate victims to their insurers. (Birkett, supra, 21 Cal.4th at pp. 226, 247-248.) He argues that “AAA is in a much better position to absorb the monies paid” than he is, and that he is entitled to a new hearing to dispute the amount of restitution. In our view, a new hearing is unnecessary. On remand, the trial court would be required to award the same amount of restitution directly to Boggio that it previously ordered paid to the insurer: Section 1202.4, subdivision (f) provides that the trial court “shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” If defendant wished to challenge the amount of restitution on the ground that “compelling and extraordinary reasons” existed for the trial court to award less than full restitution, he should have done so when the amount was originally set. He did not, and his only contention in his opening brief was that the restitution order should be stricken in its entirety. In the circumstances, a remand for a new hearing would be a waste of judicial resources. We shall order the trial court to modify the abstracts of judgment to order restitution to be paid directly to Boggio rather than to AAA.
III. Disposition
The trial court is directed to modify the abstracts of judgment to change the payee of the $33,500 restitution order from AAA to Alessandro Boggio, and to forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.