PEOPLE v. DIAZ

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Feliciano DIAZ, Defendant and Appellant.

No. D013341.

Decided: December 07, 1993

Colleen Fahey Fearn, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., and Steven H. Zeigen, Supervising Deputy Atty. Gen., for plaintiff and respondent.

OPINION AFTER TRANSFER BY THE CALIFORNIA SUPREME COURT

A jury found Feliciano Diaz guilty of burglarizing the residences of Greg Maizlish and Helene Milman.   At sentencing the court ordered restitution under Government Code 1 section 13967, subdivision (c) 2 requiring Diaz to pay $300 to Maizlish for the loss of his jacket and $952.73 to Milman for the damage to the transmission in her car.   The court also ordered these sums be taken from Diaz's prison wages pursuant to Penal Code former section 2085.5.3

In his appeal from the judgment, Diaz challenges these restitution orders on grounds they are invalid and unconstitutional.   We partially agree.   The Attorney General correctly acknowledges the trial court incorrectly used Penal Code section 2085.5.  Penal Code section 2085.5 pertains only to section 13967, subdivision (a) and not section 13967, subdivision (c).  Accordingly we strike that part of the judgment.   We reject the balance of Diaz's arguments and accordingly affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 11 a.m. on September 15, 1990, Diaz and an accomplice broke into Maizlish's house.   Maizlish heard noise, yelled and saw the intruders flee.   Maizlish found some of his property stacked near his door.

On the same day, about 12:45 p.m., Diaz and his accomplice broke into Milman's house.   Police officers responded to a burglary-in-progress call apprehending the intruders carrying Milman's property.   As Milman was arriving home in her car she saw a police officer on her front lawn holding a gun.   Anxious to get out of the line of fire she immediately made what she described as a “K-turn.”

The victims were present at the sentencing hearing.   The prosecutor told the judge Maizlish's $300 jacket had been taken in the burglary of his house.   Milman claimed she was entitled to the damage to her automotive transmission.   She explained that before the incident she had noticed nothing unusual about the transmission.   Afterwards, however, it made a noise.   Milman testified a mechanic advised her the transmission problem was probably caused by changing gears in her haste to make a K-turn without coming to a complete stop.

The court sentenced Diaz to prison for seven years and four months:  the middle term of four years for one count of burglary with one year and four months consecutive term on the second count (one-third of the middle term) enhanced by two one-year terms for prior felony convictions.   As noted earlier, it also ordered Diaz to pay $300 restitution to Maizlish and $962.73 to Milman from his earnings in prison.

DISCUSSION

 We briefly dismiss Diaz's assertion the $300 restitution order requiring him to pay for Maizlish's jacket denied him due process.   After the court said it intended to impose separate restitution orders for each victim, Diaz complained only about the order requiring him to reimburse Milman for the cost of her damaged transmission.   Diaz's failure to object precludes him from arguing this issue on appeal.   His contention the court could not order restitution to Milman under section 13967, subdivision (c) requires more extensive discussion.

 In general terms Diaz's complaint is that Milman's loss was not caused by his crime.   According to Diaz the restitution order is neither rehabilitative nor directly related to his crime directing us to such cases as People v. Richards (1976) 17 Cal.3d 614, 131 Cal.Rptr. 537, 552 P.2d 97, People v. Scroggins (1987) 191 Cal.App.3d 502, 236 Cal.Rptr. 569 and In re Maxwell C. (1984) 159 Cal.App.3d 263, 205 Cal.Rptr. 310.   Because these cases are distinguishable and the language and purpose of the statute requires a more inclusive definition than Diaz would like, we hold that damage to Milman's car was the result of Diaz's conduct and the restitution order properly imposed.4

 In order to impose restitution under section 13967, subdivision (c) the economic loss suffered by the victim must be the “result of the defendant's criminal conduct.”   To determine the meaning of this phrase requires we ascertain the legislative intent underlying the enactment of the statute.   (Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 985, 9 Cal.Rptr.2d 102, 831 P.2d 327.)   We first apply the “plain meaning” rule.  “It is settled that section 13967, subdivision (c) must be interpreted according to the usual and ordinary import of its language, with significance being given to every word and phrase.  (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658–659 [147 Cal.Rptr. 359, 580 P.2d 1155]․)”  (People v. Frey (1989) 209 Cal.App.3d 139, 141, 256 Cal.Rptr. 810.)

Dictionaries define “result” broadly to mean the logical consequence of certain conduct, including anything triggered by the initial act.  (See Webster's Third New International Dict. (1968) p. 1937, defining “result” to mean “to proceed, spring or arise as a consequence, effect or conclusion ․”;  The American Heritage Dict. of the English Language (1981) p. 1109, defining “result” as “[t]he consequence of a particular action, operation, or course;  ․”)   Consistent with these definitions, our Supreme Court has interpreted an analogous statute, Penal Code section 1203.1, which allows a court to impose restitution as a condition of probation “ ‘for any injury done to any person resulting from [a] breach’ ” of the law, to mean that a court may order restitution to a victim for all “damages actually caused by the crime.”   (People v. Richards, supra, 17 Cal.3d at p. 619, 131 Cal.Rptr. 537, 552 P.2d 97;  italics added.)

After Milman told the court she wanted to be reimbursed for the cost of her damaged transmission, the court heard evidence on this issue.   Following a brief hearing the court found the problems with the transmission were triggered by her reaction to Diaz's unlawful presence at her house.   Sufficient evidence supports this finding.

The court's determination was also consistent with our earlier definitions, i.e., the damage to Milman's car was “a result of” Diaz's criminal conduct since the damage was actually caused by and a logical consequence of such conduct.   The statutory language did not prevent the court from ordering restitution because the damage occurred after Diaz was apprehended or that Diaz did not reasonably anticipate that such an event was likely to occur.   The statute requires a simple cause and effect analysis.   Milman was a victim of Diaz's criminal conduct;  the damage to her car arose from such conduct;  therefore the economic loss arising out of such damage falls within section 13967, subdivision (c).

 The statutory framework into which section 13967 falls supports our broad construction of the term “result.”   Section 13960, located within the same portion of the Government Code dealing with financial assistance to victims of crime as is section 13967 (tit. 2, div. 3, part 4, ch. 5, art. 1), provides certain definitions of terms used in the chapter.   As noted in People v. Broussard, supra, 5 Cal.4th at p. 1076, 22 Cal.Rptr.2d 278, 856 P.2d 1134, these definitions do not necessarily apply to the terms used in section 13967.   Nonetheless, it is instructive to compare the wording of the two provisions.   Significantly, section 13960 repeatedly uses the phase “direct result of the crimes.”   For example, the code section defines a “victim” to include “[a] person who sustains injury or death as a direct result of a crime” or “[a]nyone legally dependent ․ upon a person who sustains injury or death as a direct result of a crime.”  (§ 13960, subds. (a)(1), (a)(2);  italics added.)   Likewise it defines “pecuniary loss” as “(1) [t]he amount of medical or medical-related expense, ․ which became necessary as a direct result of the crime.  [¶] (2) The amount of mental health counseling related expenses which became necessary as a direct result of the crime․  [¶] (3) The loss of income or support that the victim has incurred or will incur as a direct result of an injury or death․”  (§ 13960, subd. (d).)  When the Legislature added section 13967, however, it omitted the term “direct” and instead stated, for example, restitution shall be ordered where “a victim has suffered economic loss as a result of the defendant's criminal conduct․”  (§ 13967, subd. (c).)  It is a well established rule of statutory construction that where a statute contains certain language, the omission of such language from a similar statute concerning a related subject is significant to show that a different legislative intention existed.   (People v. Drake (1977) 19 Cal.3d 749, 755, 139 Cal.Rptr. 720, 566 P.2d 622;  In re Connie M. (1986) 176 Cal.App.3d 1225, 1240, 222 Cal.Rptr. 673.)   Examining the difference in wording between sections 13960 and 13967, we conclude the Legislature intended the courts to liberally interpret the degree of causation between the victim's injuries and the convicted person's conduct necessary to support a restitution award in favor of the victim, pursuant to section 13967, subdivision (c).5

Our conclusion is supported by section 13967, subdivision (c)'s legislative history.   The Legislature adopted section 13967, subdivision (c) to implement article I, section 28, subdivision (b) of the California Constitution, adopted by initiative in 1982, proclaim[ing] the People's intent 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, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.”  (Cal. Const. art. I, § 28, subd. (b).) 6  As stated in Broussard, supra, the constitutional amendment directed the Legislature to adopt implementing legislature and it did so.  (Id., 5 Cal.4th at p. 1073, 22 Cal.Rptr.2d 278, 856 P.2d 1134).   The voters' expressed intent underlying the Legislature's enactment of section 13967, subdivision (c) that a victim is to recover any time he or she “suffers a loss” requires us to construe the words “as a result of” broadly in favor of the victim.   It would be contrary to such purpose to impose a “direct” causation requirement before a court could order restitution to be so paid.  (See Broussard at p. 1077, 22 Cal.Rptr.2d 278, 856 P.2d 1134.)

Diaz nevertheless insists “result” should be narrowly construed, equating the phrase with “proximate” or “direct” cause relying primarily on People v. Scroggins, supra, 191 Cal.App.3d at page 506, 236 Cal.Rptr. 569.

In Scroggins the defendant pled guilty to receiving stolen property.   The trial court ordered the defendant to pay restitution to the various burglary victims as a condition of probation, pursuant to Penal Code section 1203.1.7  Scroggins held the order was improper since there was no showing the defendant's “conduct proximately caused the $2,366 in losses suffered by the burglary victims.”  (People v. Scroggins, supra, 191 Cal.App.3d at p. 506, 236 Cal.Rptr. 569.)   Our opinion, however, emphasized the lack of any causal relationship between the victims' losses and the defendant's conduct since the defendant was never charged with or found to be criminally responsible for the burglaries.   Thus, the victims' losses were not a consequence of defendant's conduct in receiving the stolen property, rather they resulted from the conduct of the individual who committed the burglaries.   There is nothing in Scroggins reflecting we intended the term “proximate cause” to limit the scope of causation with respect to the restitutionary statutes.   Instead we decided only that the restitution must be related to the crime for which the defendant was found guilty.   (Accord People v. Rivera (1989) 212 Cal.App.3d 1153, 261 Cal.Rptr. 93, reaching same result with respect to § 13967, subd. (c).)  Here, unlike Scroggins, the damage to Milman's transmission problems was traced to Diaz's criminal conduct.

 Diaz's reliance on People v. Richards, supra, 17 Cal.3d 614, 131 Cal.Rptr. 537, 552 P.2d 97 is similarly misplaced.   In Richards, the defendant was charged with two counts of grand theft arising out of the sale of property to William Ward and Juanita Garbuio in two separate transactions.   (Id. at p. 617, 131 Cal.Rptr. 537, 552 P.2d 97.)   The jury convicted the defendant with respect to the Garbuio sale, but found him not guilty of the charge arising from the Ward transaction.   The court nonetheless conditioned the defendant's probation on his paying $925 in restitution to Ward.   (Ibid.)  Richards held the trial court erred in requiring the defendant “to pay a third party for losses not actually caused by the defendant's crime․”  (Id., 17 Cal.3d at p. 619, 131 Cal.Rptr. 537, 552 P.2d 97, italics added.)   The court further cautioned that restitution cannot be imposed merely “to resolve the civil liability of the criminal.”  (Id. at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97.)   Rather, the “goal of [Penal Code] section 1203.1 is to rehabilitate the criminal.   Restitution imposed in a proper case and in an appropriate manner may serve the salutary purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole.”  (Ibid.;  accord People v. Frey, supra, 209 Cal.App.3d at p. 143, 256 Cal.Rptr. 810, “the purpose of section 13967 is not to make the victim whole but to serve as an additional means of punishing the defendant.”)

Diaz also errs in relying on Richards for his claim that requiring convicted criminals to pay restitution for indirect as well as direct losses transforms the criminal court into a civil tribunal.   In making this argument Diaz forgets that Richards was decided before the enactment of the present version of section 13967, subdivision (c) and the statute expressly states a restitution order made pursuant to this subdivision “shall be enforceable as a civil judgment.”   Moreover, before an order can be made pursuant to this section “the defendant shall have the right to a hearing before the judge to dispute the determination made regarding the amount of restitution.”  (§ 13967, subd. (c);  ante, fn. 2.)

In addition it is not as though the potential order for restitution is open-ended.   The statutory scheme imposes well defined limitations on the amount of restitution that can be awarded.  Section 13967, subdivision (a) limits the restitutionary amount to $10,000, regardless of the number of victims or counts involved.  (See People v. Frey, supra, 209 Cal.App.3d at p. 143, 256 Cal.Rptr. 810.)   To the extent the rationale of Richards is applicable to this case we are satisfied the imposition of a restitutionary fine for the loss Diaz caused, here the damaged transmission, furthers the “salutary purpose” of requiring a defendant to accept responsibility for the crime committed even where the effect of the crime exceeds what the criminal may have anticipated.

DISPOSITION

Judgment affirmed as modified.

WIENER, Acting Associate Justice.

TODD and FROEHLICH, JJ., concur.