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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. John T. GREGG, Defendant and Appellant.

No. C010037.

Decided: February 18, 1992

Donald E. Wharton, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting, r. Asst. Atty. Gen., and Michael J. Weinberger, Deputy Atty. Gen., for plaintiff and respondent.

As pertinent, defendant pled guilty to welfare fraud (Welf. & Inst. Code, §§ 10980/11483) based upon his receipt of welfare benefits in 1990.

Defendant was sentenced to state prison.   The trial court also ordered defendant to pay restitution to the Placer County Welfare Department in the amount of $4,548.

On appeal defendant attacks the restitution order.   He contends:  (1) restitution may not be paid to a public agency and (2) no substantial evidence supports the magnitude of the order of restitution.   In the published portion of this opinion, we conclude the trial court properly ordered defendant to make restitution to the Placer County Welfare Department.   In an unpublished portion, we conclude substantial evidence supports the restitution order.



 Defendant argues restitution may not be made payable to a public agency.

It is undisputed that the trial court entered the restitution order pursuant to the authority of Government Code section 13967.  (Further statutory references are to this code unless otherwise indicated.)   Subdivision (a) of that statute provides for the imposition of a restitution fine to be deposited in the statewide Restitution Fund.   Subdivision (c) of the statute—which controls here—provides in pertinent part:  “In cases in which a victim has suffered economic loss as a result of the defendant's criminal conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine, the court shall order restitution to be paid to the victim.”

For purposes of section 13967, an eligible victim is defined by section 13960.  (People v. Miller (1989) 216 Cal.App.3d 758, 762, 265 Cal.Rptr. 77;  People v. Williams (1989) 207 Cal.App.3d 1520, 1523, 255 Cal.Rptr. 778.)   Section 13960 provides in relevant part:

“As used in this article:

“(a) ‘Victim’ means any of the following residents of the State of California, or military personnel and their families stationed in California:

“(1) A person who sustains injury or death as a direct result of a crime.”

We have no doubt that the pecuniary loss in this case constituted an “injury” within the meaning of the statute.   Indeed, subdivision (c) of section 13967 expressly provides for payment of restitution, “In cases in which a victim has suffered economic loss as a result of the defendant's criminal conduct․”  The more difficult question is whether the Placer County Welfare Department is a “person” having rights to restitution.

Section 17 provides:  “ ‘Person’ includes any person, firm, association, organization, partnership, business trust, corporation, or company.”   We do not think the Welfare Department fits any of these definitions.   However, we are obliged to give literal meaning to these terms “Unless the provision or the context otherwise requires․”  (§ 5;  see Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 617, 225 Cal.Rptr. 651.)   Moreover, the term “includes,” as used in section 17, is ordinarily a word of enlargement and not of limitation.  (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 639, 268 P.2d 723.)   Thus, for example, in Oil Workers In'tl. Union v. Superior Court (1951) 103 Cal.App.2d 512, 570–571, 230 P.2d 71, an unincorporated association was held to be a “person” for purposes of section 17 of the Code of Civil Procedure even though the statute defined “person” as including a corporation but not an unincorporated association.

Here, we believe the term “person” in section 13960 must include an artificial public agency, such as the County Welfare Department, for several reasons.

First, we are aware of “the rule that general language in a statute such as ‘person’ ․ should not be construed to apply to governmental entities in the absence of explicit legislative direction where such construction would infringe upon sovereign governmental powers.   Where there would be no such infringement on sovereign power, however, the reason underlying that rule ceases to exist and it may properly be held that the Legislature intended the statute to apply to governmental entities even though it used only general language.  [Citations.]”  (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1979) 88 Cal.App.3d 43, 56, 152 Cal.Rptr. 153.)   Making public entities eligible for restitution involves no infringement of sovereign powers.

Second, under section 17 a municipal corporation (i.e., a city) expressly qualifies as a “person.”  (See People v. City of Oakland (1891) 92 Cal. 611, 614, 28 P. 807 [decided under former Political Code].)   It would be anomalous to have cities, but not counties or their departments, eligible to receive restitution.  “When uncertainty arises in a question of statutory interpretation, consideration must be given to the consequences that will flow from a particular interpretation.  [Citation.]  In this regard, it is presumed the Legislature intended reasonable results consistent with its expressed purpose, not absurd consequences.”  (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1165–1166, 278 Cal.Rptr. 614, 805 P.2d 873.)

Third, a public entity should qualify for restitution under section 13967 in order to avoid a further anomaly.   Thus, Penal Code section 1203.04 requires restitution to a victim where a defendant is granted probation.   A public entity is eligible to receive restitution under Penal Code section 1203.04.  (People v. Narron (1987) 192 Cal.App.3d 724, 732, 237 Cal.Rptr. 693 [county eligible for restitution].)   It would be anomalous to have a public entity's eligibility for restitution depend upon whether the defendant was granted probation.

Finally, allowing the Welfare Department to obtain restitution of its losses furthers an interest in judicial economy by avoiding an additional civil action to recoup misappropriated funds.  (See Welf. & Inst. Code, § 11004.)

In support of his argument that restitution cannot be paid to a public entity, defendant cites People v. Wardlow (1991) 227 Cal.App.3d 360, 278 Cal.Rptr. 1;  People v. Miller, supra, 216 Cal.App.3d 758, 265 Cal.Rptr. 77;  and People v. Williams, supra, 207 Cal.App.3d 1520, 255 Cal.Rptr. 778.

Wardlow holds that neither Medi–Cal nor the victim's assistance fund was a direct victim as required for restitution under Penal Code section 1203.1g.  (227 Cal.App.3d at p. 371, 278 Cal.Rptr. 1.)   The statute construed in Wardlow is not at issue here and, in any event, here the Welfare Department was a direct victim of defendant's fraud.

In People v. Miller, supra, 216 Cal.App.3d 758, 265 Cal.Rptr. 77, the trial court entered an order, pursuant to section 13967, which, as pertinent, ordered defendant to pay $540 to the Napa Special Investigations Bureau (NSIB).   The court of appeal struck the restitution order, concluding that the NSIB is not a crime victim under section 13960.  (216 Cal.App.3d at p. 762, 265 Cal.Rptr. 77.)   However, it is unclear how the court of appeal arrived at its conclusion.   If the $540 represented ordinary costs of investigation incurred by NSIB, then we agree that NSIB was not a crime victim.   If, however, the court meant to exclude NSIB from eligibility for restitution, on the ground NSIB was a public agency, then we must respectfully disagree with Miller.

In People v. Williams, supra, 207 Cal.App.3d 1520, 255 Cal.Rptr. 778, the court voided an order for restitution made to an insurance company.   Williams is inapposite here, where only direct, not indirect, losses are claimed by the Welfare Department.

 Citing People v. McGee (1977) 19 Cal.3d 948, 140 Cal.Rptr. 657, 568 P.2d 382, defendant argues that, as a matter of law, public entities must pursue civil efforts to collect monies unlawfully paid to welfare recipients before a criminal prosecution may be brought.   This argument is in the nature of a defense to the prosecution that was waived by defendant's guilty plea.   Moreover, McGee was decided under Welfare and Institutions Code section 11483 as it then read.  (Id. at pp. 960–961, 140 Cal.Rptr. 657, 568 P.2d 382.)   However, “Section 11483 was amended in 1979 so that now an attempt to secure restitution prior to bringing a criminal action is only required where a person is charged with failing to report not more than $2,000 of income or resources or failing to report the presence of one additional person or persons in the household.  [Citations.]”  (People v. Sims (1982) 32 Cal.3d 468, 475, fn. 4, 186 Cal.Rptr. 77, 651 P.2d 321;  see People v. Camillo (1988) 198 Cal.App.3d 981, 994, 244 Cal.Rptr. 286;  People v. Woods (1986) 177 Cal.App.3d 327, 331, 222 Cal.Rptr. 868.)   Even assuming defendant has not waived this argument by his guilty plea, the argument fails because nothing in the record suggests he met the criteria espoused in the amended statute and in Sims.

Since defendant's arguments are not meritorious, we conclude the trial court did not err in ordering him to pay restitution to the Placer County Welfare Department.

II **


The judgment and order of restitution are affirmed.


FOOTNOTE.   See footnote *, ante.

SIMS, Acting Presiding Justice.

MARLER and NICHOLSON, JJ., concur.

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