People v. Smith CA6 ( 2013 )

Filed 12/23/13 P. v. Smith CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H038457
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS101361)
v.
JAMES WALTER SMITH,
Defendant and Appellant.
Defendant James Smith entered a negotiated no-contest plea to a count of
voluntary manslaughter (Pen. Code, § 192)1 with an enhancement for personal use of a
firearm (§ 12022.5, subd. (a)), and a count of attempted murder (§§ 187, subd. (a), 664).
The trial court imposed the agreed-upon term of 18 years and four months, ordered
defendant to register as a gang member under section 186.30, and ordered direct
restitution to one of the victims’ mothers in the amount of $5,703.37 to cover funeral
expenses. Defendant appeals, arguing that the gang registration requirement violated the
terms of his plea bargain and was unauthorized under law, and that he is entitled to a
hearing on restitution.
For the reasons set forth below, we find that defendant forfeited his argument that
the imposition of the gang member registration requirement violated the terms of his plea
bargain. However, we conclude that insufficient evidence supported the trial court’s
order that he register as a gang member pursuant to section 186.30. We further find no
1
Further unspecified statutory references are to the Penal Code.
error with the trial court’s order for restitution. As set forth below, we modify the
judgment to strike the gang registration requirement, and, as modified, affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are not relevant to the issues raised on appeal. We will
therefore provide only a brief description of the circumstances of defendant’s underlying
offense.2 On September 15, 2009, Andre Lee Van got into an argument with Troy Hill
after Hill teased Lee Van’s younger brother. 3 Lee Van left after warning Hill. Later, Lee
Van returned with defendant to shoot Hill, who was outside at the time. One witness said
he heard about 10 gunshots. Hill died from gunshot wounds after being airlifted to a
hospital. A second victim, Scott Reynolds, was shot in the foot. Reynolds was treated
for his injuries at a hospital and released.
On May 21, 2010, the grand jury indicted defendant and Lee Van on six counts
arising from the shooting. Defendant entered into a negotiated disposition on May 1,
2012. He agreed to plead no contest to voluntary manslaughter (§ 192) and admit the
allegation that he personally used a weapon during the commission of the crime (§
12022.5), with the understanding that he would serve no more than 18 years and four
months in state prison. Defendant signed and initialed a form titled “WAIVER OF
RIGHTS PLEA OF GUILTY/NO CONTEST.” Defendant wrote in an “X” next to the
statement that he understood he would be required to register with the local police agency
or sheriff’s department as a gang member. Defendant placed his initials next to the
statement that he understood he would have to pay a state restitution fine of not less than
2
The facts of the underlying offense are taken from a probation officer’s report,
which is based on a report by the Seaside Police Department, since defendant pleaded no
contest.
3
Andre Lee Van’s name is alternatively spelled “Andre Lee-Van” in certain parts
of the record.
2
$200 and no more than $10,000, and that he understood he would be ordered to “pay
restitution to those who suffered financially because of [his] conduct subject to a hearing
and court order.” Defendant also placed his initials next to a statement waiving his rights
to appeal and next to a statement indicating he understood that the plea was not binding
on the sentencing judge, but that if the sentencing judge withdrew his or her approval of
the plea, defendant would be permitted to withdraw his plea.
During a hearing on May 1, 2012, the trial court accepted defendant’s waiver of
rights, finding that he made the waiver knowingly, intelligently, and voluntarily. The
trial court then accepted defendant’s plea and dismissed the remaining charges against
defendant pursuant to section 1385. On June 8, 2012, the trial court sentenced defendant
to the agreed-upon term of 18 years and four months in prison. The trial court ordered
defendant to register as a gang member pursuant to section 186.30, over an objection by
defendant’s attorney.4 The trial court further ordered defendant to pay direct victim
restitution in the amount of $5,703.37. Defendant filed a notice of appeal.
Defendant filed an untimely request for a certificate of probable cause on August
23, 2012, which the trial court denied.
DISCUSSION
On appeal, defendant contends that the gang registration requirement imposed by
the trial court violated the terms of his plea bargain. Defendant also argues that the gang
registration requirement is not supported by sufficient evidence in the record. Lastly,
defendant argues that the victim restitution order must be set aside and remanded for a
hearing. We address each of these contentions seriatim.
4
According to defendant’s probation report, defendant was a known gang
member. The probation report further recommended that defendant register as a gang
member pursuant to section 186.30.
3
1. The Gang Registration Requirement5
A. Waiver of the Right to Appeal
Defendant makes the initial argument that the waiver of his right to appeal does
not apply to his contentions regarding the trial court’s imposition of the gang member
registration requirement. The People do not proffer an argument to the contrary, simply
stating that they “will not contend that [defendant’s] waiver of appellate rights bars his
appellate challenge to the gang registration imposed on him.” The People note only that
a waiver of a right to appeal does not apply to a “future error” that is “ ‘outside the
defendant’s contemplation and knowledge at the time the waiver is made.’ ” (People v.
Mumm (2002) 98 Cal. App. 4th 812, 815.)
We agree that defendant’s waiver has not foreclosed his ability to appeal the gang
registration requirement. A waiver of appeal may preclude a defendant from challenging
an aspect of his sentence that is imposed pursuant to a negotiated plea. (People v.
Panizzon (1996) 13 Cal. 4th 68, 84.) However, such a waiver does not apply in
circumstances such as the one presented here, wherein the gang registration requirement
was ordered after defendant waived his right to appeal. Finding no waiver, we proceed to
the merits of defendant’s claim. First, we address defendant’s argument that the
imposition of the gang member registration requirement violated the terms of the plea
bargain. For the reasons set forth below, we find that defendant forfeited this contention
on appeal.
5
Preliminarily, we note that defendant’s argument regarding the imposition of the
gang registration requirement does not attack the validity of defendant’s plea. Therefore,
his failure to obtain a certificate of probable cause does not bar review of this claim.
(Cal. Rules of Court, rule 8.304(b)(4)(B).)
4
B. Violation of Plea Bargain
a. Standard of Review
“A negotiated plea agreement is a form of contract, and it is interpreted according
to general contract principles.” (People v. Shelton (2006) 37 Cal. 4th 759, 767.) We
therefore “apply the ordinary standards of review applicable in cases involving the
interpretation of contracts generally.” (People v. Paredes (2008) 160 Cal. App. 4th 496,
507.) “Where the plea is accepted by the prosecuting attorney in open court and is
approved by the court, the defendant, except as otherwise provided in this section, cannot
be sentenced on the plea to a punishment more severe than that specified in the plea and
the court may not proceed as to the plea other than as specified in the plea.” (§ 1192.5.)
Interpretation of a plea agreement will therefore turn to the question: “to what did the
parties expressly or by reasonable implication agree?” (In re Uriah R. (1999) 70
Cal. App. 4th 1152, 1157.)
b. Forfeiture of Argument
We find that the issue of forfeiture is dispositive with respect to defendant’s
argument that the gang registration requirement violated the terms of his plea agreement.
On May 1, 2012, defendant executed a form titled “WAIVER OF RIGHTS PLEA OF
GUILTY/NO CONTEST.” In this form, defendant was advised pursuant to section
1192.5, that he would be permitted to withdraw his plea if the court withdrew its approval
of the plea after further consideration. The advisement stated: “I understand the terms of
this plea agreement are not binding on the sentencing judge. However, if the Court
withdraws approval of this plea agreement upon further consideration, the Court shall
permit me to withdraw my plea, subject to the condition set out in item number 6,
above.”6 Defendant placed his initials next to this statement. At the end of the form,
6
Item No. 6 in the form detailed the sentencing consequences that may occur if
defendant failed to appear for sentencing, absent good cause.
5
defendant signed and dated a statement that stated: “I have read, or have had read to me,
this form and have initialed each of the items that applies to my case. I have discussed
each item with my attorney. By putting my initials next to the items in this form, I am
indicating that I understand and agree with what is stated in each item I have initialed. . . .
I understand each of the rights outlined above and I give up each of them to enter my
plea.” Defendant’s attorney also signed and dated the form, indicating that he had
reviewed the form with defendant and had explained each of the items on the form.
A validly executed written form is a proper substitute for an oral advisement by
the court. (In re Ibarra (1983) 34 Cal. 3d 277, 285, overruled on other grounds in People
v. Howard (1992) 1 Cal. 4th 1132, 1177-1178; People v. Panizzon, supra, 13 Cal.4th at p.
83.) When a defendant is advised prior to entering his plea pursuant to section 1192.5
that he may withdraw his plea if the court withdraws its approval of the plea, and he does
not object to the imposition of a sentence that exceeds or violates the plea bargain, he
forfeits the issue on appeal. (People v. Walker (1991) 54 Cal. 3d 1013, 1025, overruled
on other grounds as stated in People v. Villalobos (2012) 54 Cal. 4th 177.)
Here, defendant was advised in writing that he could withdraw his plea, as
required by section 1192.5. Defendant placed his initials next to the statement, and
indicated that he read and understood that the section containing the section 1192.5
advisement. During the sentencing hearing, defendant did not object to the imposition of
the gang member registration requirement on the ground that it violated or exceeded the
terms of the plea bargain. Defendant only made an objection to the gang member
registration requirement because he was not a gang member. The trial court was not
required to re-advise defendant of his right to withdraw his plea pursuant to section
1192.5 at the sentencing hearing, nor was the trial court required to specifically afford
defendant the opportunity to withdraw his plea. (People v. Murray (1995) 32
Cal. App. 4th 1539, 1546.)
6
Accordingly, having failed to object to the registration requirement on the ground
that it violated or exceeded the terms of the plea bargain and having failed to seek to
withdraw his plea, defendant has forfeited this argument on appeal.
C. Lack of Sufficient Evidence of Gang-Relatedness
Nevertheless, defendant did object below that the registration requirement was
erroneous because he was not a gang member. Defendant therefore has not forfeited this
claim on appeal, and we will address it on the merits.
a. Standard of Review
When an appellant contends that insufficient evidence supports a trial court’s
judgment or order, our review is circumscribed. (In re Jorge G. (2004) 117 Cal. App. 4th
931, 941 (Jorge G.).) “On appeal we review the whole record in the light most favorable
to the judgment to determine whether it discloses substantial evidence--that is, evidence
that is reasonable, credible, and of solid value--from which a reasonable trier of fact”
could make the required findings under the relevant standard of proof. (People v. Stanley
(1995) 10 Cal. 4th 764, 792; Jorge G., supra, at pp. 941-942.)
b. “Gang Related” Crime Under Section 186.30
Section 186.30 provides that any person who is convicted of any of the three
specified crimes in the statute shall register with law enforcement as a criminal street
gang member. (§ 186.30; People v. Martinez (2004) 116 Cal. App. 4th 753, 758-759
(Martinez).) The crimes specified in the statute are: (1) participation in a criminal street
gang in violation of section 186.22, subdivision (a); (2) any crime in which a gang
enhancement pursuant to section 186.22, subdivision (b) has been found to be true; or (3)
any crime that the court finds is “gang related” at the time of sentencing. (§ 186.30,
subd. (b)(1)-(3).) Here, it appears that the trial court imposed the gang registration
requirement after implicitly finding that the crime was gang related at the time of
sentencing. Defendant was not convicted or charged with participation in a criminal
7
street gang in violation of section 186.22, subdivision (a), and no enhancement pursuant
to section 186.22, subdivision (b), was found to be true. Therefore, the trial court must
have found that the crime was “gang related” at the time of sentencing in order to impose
the gang registration requirement.
Martinez describes the requisite findings that must be made for a crime to be
considered “gang related” for the purpose of section 186.30, subdivision (b)(3). The
defendant in Martinez was a “ ‘certified Sureno gang member.’ ” (Martinez, supra, 116
Cal.App.4th at p. 757.) Martinez pleaded no contest to auto burglary. (Ibid.) At his
sentencing hearing, the trial court ordered Martinez to register as a gang member
pursuant to section 186.30, subdivision (b)(3). (Martinez, supra, at p. 758.) Martinez
appealed, arguing that although he had a past history of gang involvement, his current
crime for auto burglary was not “gang related.” (Ibid.) The appellate court agreed with
Martinez’s argument, finding that registration was an “onerous burden” that could result
in a misdemeanor due to noncompliance. (Id. at p. 760.) Therefore, the appellate court
concluded that the registration requirement could not be imposed on defendants whose
offenses did not specifically fall into one of the three specified categories under section
186.30. (Martinez, supra, at p. 760.)
Although Martinez had a prior history of gang involvement, the appellate court
held that “a crime may not be found gang related within the meaning of section 186.30
based solely upon the defendant’s criminal history and gang affiliations.” (Martinez,
supra, 116 Cal.App.4th at p. 761.) The Martinez court opined that in order for a gang
registration requirement to be valid, the underlying crime must have some connection to
gang activity. (Id. at p. 762.) “Gang,” in the context of section 186.30, means a
“criminal street gang” as defined in section 186.22, subdivisions (e) and (f). A crime
would therefore be “gang related” if it is committed for the benefit of, at the direction of,
or in association with, a criminal street gang. (Martinez, supra, at p. 762.) The Martinez
8
court stated that it did “not conclude that a defendant’s personal affiliations and criminal
record are without consequence in finding a ‘gang related’ crime within the meaning of
section 186.30. To the contrary, a defendant’s history of participation in gang activities
or criminal offenses may prove that a crime not otherwise or intrinsically gang related
nevertheless falls within the meaning of section 186.30. Thus, a crime committed by a
defendant in association with other gang members or demonstrated to promote gang
objectives may be gang related. However, the record must provide some evidentiary
support, other than merely the defendant’s record of prior offenses and past gang
activities or personal affiliations, for a finding that the crime was committed for the
benefit of, at the direction of, or in association with a criminal street gang.” (Ibid.)
In Martinez’s case, the appellate court determined that Martinez’s auto burglary
crime was not gang related as there was no evidence that connected the auto burglary
with Martinez’s gang activities. The probation report indicated that Martinez had
committed the auto burglary with an accomplice, but the accomplice was not identified as
a gang member. Furthermore, there was no evidence that the auto burglary was directed
by, was associated with, or benefited Martinez’s criminal street gang. (Martinez, supra,
116 Cal.App.4th at pp. 762-763.) The Martinez court therefore struck the gang
registration requirement.
Additionally, in order for a crime to be “gang related” pursuant to section 186.30,
it must be shown that the crime is somehow related to a criminal street gang. As
specified by the appellate court in Jorge C., supra, 117 Cal.App.4th at page 944 “[a]
crime is gang related if it is related to a criminal street gang as defined in section 186.22,
subdivisions (e) and (f). The elements of this definition require: (1) an ongoing
organization or group, (2) of three or more persons, (3) having as one of its primary
activities the commission of the crimes enumerated in section 186.22, subdivision (e)(1)-
(25), (4) having a common name or symbol, and (5) whose members individually or
9
collectively have engaged in a pattern of criminal gang activity. This pattern of gang
activity must consist of: (a) two or more of the offenses enumerated in section 186.22,
subdivision (e)(1)-(25), provided that at least one offense occurred after the effective date
of the statute; (b) the last offense occurred within three years of the one before it; and (c)
the offenses were committed on separate occasions or by two or more persons.”
c. Application to Defendant’s Crime
On appeal, defendant argues that that the trial court had no evidence on which it
could have based its finding that his convicted offenses were “gang related” under section
186.30. Specifically, defendant points out that though the probation report alluded to the
fact that defendant was associated with the “Seaside Crips,” there was nothing that
suggested the crime was somehow gang related. Defendant also argues that not a single
element of the definition of a criminal street gang was provided in the probation officer’s
report or in the grand jury proceeding that could have established that the Seaside Crips
was a criminal street gang. The People concede that the probation officer’s report and the
unsealed volume 2 of the grand jury transcript “do not contain substantial evidence to
support a preponderance-of-the-evidence finding that the crimes here were gang related.
Those documents contain nothing regarding specifics of the ‘Seaside Crips,’ the gang
[defendant] was allegedly a member of.” However, the People “submit the present
substantial-evidence issue to this Court’s review of the sealed [grand jury] transcript,” as
that transcript was reviewed by the trial court prior to sentencing.
Having reviewed the sealed grand jury transcript and the confidential clerk’s
transcript including the probation report and the second volume of the grand jury
transcript, we find that there is no substantial evidence that indicates defendant’s crime
was gang related. Additionally, there is nothing in the sealed grand jury transcripts or
other documents before the court that contains specifics about the “Seaside Crips,” the
gang that defendant was allegedly a part of. Therefore, there is nothing in the record to
10
support the conclusion that the Seaside Crips is a “criminal street gang” as defined under
section 186.22, subdivisions (e) and (f). (Jorge C., supra, 117 Cal.App.4th at p. 944.)
The probation report includes only generalized information about gangs, with no specific
reference or information about defendant’s gang affiliation.
We therefore strike the order that defendant register as a gang member pursuant to
section 186.30 due to insufficiency of the evidence.
2. Victim Restitution
Defendant contends that the trial court’s order that he pay Mozel Hill, victim Troy
Hill’s mother, $5,703.37 for funeral expenses should be reversed and remanded for a
hearing. 7 The People contend that defendant waived this argument on appeal in his plea
agreement. We first address the issue of waiver.
A. Waiver of Appeal Over Victim Restitution
In his waiver and plea agreement form, defendant initialed a statement that read:
“I understand that I will be ordered to pay a state restitution fine of not less than $200 nor
more than $10,000 and may have a like amount suspended. I understand that I will be
ordered to pay restitution to those who suffered financially because of my conduct
subject to a hearing and court order.”
At the time defendant initialed this waiver, the amount and nature of any victim
restitution was an open issue. Though defendant indicated that he understood he would
be liable for restitution, he specifically agreed to the terms that any restitution order made
would be subject to a hearing and a court order. Therefore, any future error with respect
to victim restitution was not within defendant’s “contemplation and knowledge” when
7
The trial court ordered restitution under section 1202.4, subdivision (f). Section
1202.4, subdivision (f), provides that a court “shall require” restitution to the victim or
victims for economic loss resulting from the defendant’s criminal conduct. Section
1202.4, subdivision (k) specifies that “victim” includes the immediate surviving family of
the actual victim. (§ 1202.4, subd. (k)(1).)
11
the waiver was made. (People v. Vargas (1993) 13 Cal. App. 4th 1653, 1662.)
Defendant’s waiver does not bar his right to appeal the victim restitution issue.
B. Hearing on the Restitution Fine
Defendant argues that the restitution fine should be set aside and the matter
remanded for a hearing because the trial court failed to conduct a hearing on the
restitution issue. We find this argument to be flawed, because it appears defendant was
in fact afforded a hearing on the matter.
Pursuant to section 1202.4, subdivision (f), a trial court is required to order
restitution to a victim who has suffered economic loss as a result of the defendant’s
crimes. The amount of restitution should be “based on the amount of loss claimed by the
victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).) Defendants
have a right to a hearing to dispute the amount of restitution. (Id., subd. (f)(1).) A
defendant’s right to notice and a hearing is satisfied if the amount of restitution claimed
by the victim is stated in a probation report, and the defendant has the opportunity to
challenge the figures in the probation report during the sentencing hearing. (People v.
Cain (2000) 82 Cal. App. 4th 81, 86; People v. Resendez (1993) 12 Cal. App. 4th 98, 113.)
Here, the probation report specifically stated that Hill’s mother was requesting
restitution in the amount of $5,703.37 for the cost of funeral expenses. The probation
report therefore recommended that restitution in the amount of $5,703.37 be made to
Troy Hill’s mother. Defendant and his attorney received the probation report before the
sentencing hearing.8 During the sentencing hearing, the trial court ordered defendant to
pay restitution to Troy Hill’s mother in the amount of $5,703.37. Defendant’s attorney
8
Defendant’s attorney even requested a continuance on the sentencing hearing so
he could go over the probation report with defendant and so he could look into some
recently provided information that could be exculpatory.8 The court granted the
continuance, and set the sentencing hearing for the following week.
12
objected, and requested a separate hearing because he believed that “much, if not all, of
[the funeral] was paid by community contributions.” The court asked for clarification,
and defendant’s attorney argued that because the funeral expenses were paid for by
community contributions, defendant may not be required to pay the full amount of
restitution. The court responded by stating that “the collateral source rule” applies in
criminal cases, and likened the situation to having an insurance company pay for the
costs.
Afterwards, the court clarified that the restitution fine would be joint and several,
and would be enforceable against both defendant and Lee Van. Defendant’s attorney
objected to the characterization of the restitution fine as joint and several. The following
colloquy then took place between the court and defendant’s attorney:
“[Attorney]: All right. So, I just lodge my objection as to the Court’s reasoning
on the collateral source in this case. [Sic.]
“[Court]: Well, this is your opportunity to explain why the Court is wrong.
“[Attorney]: Well, this was not out-of-pocket loss, Your Honor. And, I don’t
believe that asking him to pay $5,703.37--
“[Court]: For killing somebody?
“[Attorney]: --joint and liable [sic] is proper under the circumstances.
“[Court]: You think the community ought to bear the cost, not him? That’s the
order.
“[Attorney]: Well, I don’t have any opinion on that. Thank you.”
Defendant’s attorney made no further objections, and did not request an additional
hearing. In the beginning of the sentencing hearing, defendant did initially request a
separate hearing on the restitution issue on the basis that he believed that some of the loss
suffered by Troy Hill’s mother was already paid for through charitable donations. The
trial court considered this argument during the sentencing hearing and rejected it.
13
However, after the trial court concluded that the collateral source rule applied, defendant
did not request an additional restitution hearing either to contest the amount of the
restitution or to ascertain the identity of those who paid for the funeral expenses. Thus,
we conclude that contrary to defendant’s claims, he was afforded a hearing on the matter.
To the extent that defendant requested an additional hearing on the restitution issue, he
failed to renew his request after the trial court rejected his argument on the collateral
source rule.
Since we find that the trial court did not deny defendant his right to a hearing on
the restitution issue, we turn to the merits of defendant’s claim that the trial court erred in
its determination that the collateral source rule applies in criminal proceedings.
C. “Windfall” from the Victim Restitution Order
“[W]e review the trial court’s restitution order for abuse of discretion.” (People v.
Giordano (2007) 42 Cal. 4th 644, 663.) The trial court does not abuse its discretion “as
long as the determination of economic loss is reasonable, producing a nonarbitrary result.
Factors relevant to that determination will necessarily depend on the particular
circumstances before the court.” (Id. at p. 665.) Here, defendant does not dispute the
amount of the restitution, only that the trial court incorrectly determined that the
possibility that community donations paid for the funeral expenses was irrelevant to the
amount of victim restitution to be awarded under section 1202.4, subdivision (f). We
find that the trial court did not err in its determination, and therefore reject defendant’s
argument.
During the hearing, defendant raised the issue that he believed there was evidence
that some of the funeral expenses might have been paid by charitable donations from the
community. The trial court rejected defendant’s argument that such donations would
reduce the amount of restitution that could be ordered by the defendant. As defendant
notes, the Legislature has determined that defendants are not to receive a “windfall” in
14
the form of a lowered restitution payment when a victim’s insurance company has made
payments. (§ 1202.4, subd. (f)(2).)
Nonetheless, defendant argues that payments made by an insurance carrier are
different from donations made by members of the community. Defendant asserts that
unlike charitable donations, insurance payments do not result in a windfall to the victim
because the victim and his or her insurer are in a contractual relationship. Defendant
argues that this contractual relationship includes a requirement that the insured individual
agrees to indemnify the insurer for any mitigation due to a recovery from the convicted
offender.
Defendant relies on People v. Birkett (1999) 21 Cal. 4th 226 (Birkett) in his effort
to distinguish community contributions from insurance payments. In Birkett, the
Supreme Court considered whether a court could split a restitution award between the
victims and the insurance companies who had partially reimbursed them. The Supreme
Court found that “the Legislature intended to require a probationary 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
has directly wronged, regardless of that victim’s reimbursement from other sources . . .
[t]hus, . . . 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. . . .” (Id. at p. 246.)
Defendant specifically cites a footnote in Birkett discussing the possibility of
indemnity or subrogation from the reimbursed victim. The court in Birkett made an
analogy to the collateral source doctrine in tort law in support of the notion that “[t]here
is no great novelty” that a “person injured or damaged by the wrongful conduct of
another may obtain full recovery from the wrongdoer even after partial or full
15
reimbursement from an independent source.” (Birkett, supra, 21 Cal.4th at p. 247, fn.
19.) The Birkett court then went on to explain that in the tort setting, the tortfeasor
should not receive a windfall just because the victim “had the thrift and prescience to
purchase insurance, and the investment represented by the victim’s payment of insurance
premiums would earn no benefit if they served to mitigate his tort damages.” (Ibid.,
citing to Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal. 3d 1, 9-10.) There,
the victim would obtain “no double recovery to the extent his contractual arrangement
with his insurer calls for subrogation or refund of insurance benefits in light of a recovery
in tort.” (Birkett, supra, at p. 247, fn. 19.) “That a tort victim’s insurer typically can
assert such rights in the tort lawsuit itself [citation] does not mean the Legislature must so
provide in the context of criminal restitution.” (Ibid.)
Contrary to defendant’s claims, we find that the rationale advanced in Birkett does
not distinguish community donations from insurance payments. Preliminarily, Birkett is
not entirely on point for two reasons: (1) Birkett involved a different restitution statute,
former section 1203.04, whereas defendant here was ordered to pay restitution under
section 1202.4, and (2) Birkett was primarily concerned with whether a private insurer
could be awarded restitution for payments made to a victim. However, the reasoning set
forth in Birkett is applicable in some respects to the present case, as Birkett held that
victims are entitled to full restitution for the amount of their loss, regardless of whether
they were reimbursed by insurance policies. (Birkett, supra, 21 Cal.4th at pp. 228-229;
People v. Hove (1999) 76 Cal. App. 4th 1266, 1271 [finding Birkett applicable in case
involving former section 1203.04 where victim’s medical bills were partially paid by
Medi-Cal].)
As articulated by the court in Birkett, insurers typically have the right to a
subrogation or indemnification action to recover amounts reclaimed in tort actions by a
victim. However, any such action would be limited to the provisions of the contract
16
between the insurer and the insured. Therefore, a tort victim will not obtain a double
recovery to the extent that subrogation or indemnification rights, if any, are exercised by
the insurer. Birkett does not stand for the proposition that a victim of a crime should
receive full restitution only if they are contractually obliged to fully reimburse his or her
insurance company for any benefits received.
Furthermore, it does not serve the purpose of the restitution statute to reduce a
defendant’s restitution obligation simply because the victim or the victim’s direct family
was fortuitous enough to receive donations from concerned members of the community.
The purpose of the restitution statute, as elucidated by the court in Birkett, is to have the
defendant make full restitution for losses incurred by his or her crime.
We therefore find no error with the trial court’s rejection of defendant’s argument
on this point.
DISPOSITION
The judgment is modified to strike the gang registration requirement pursuant to
Penal Code section 186.30. As modified, the judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
17