THE PEOPLE v. STEVEN MAX FRITZSCHE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant Steven Max Fritzsche entered a plea of nolo contendere to committing an act of animal cruelty upon his cat in violation of Penal Code section 597.¹  Imposition of sentence was suspended, and defendant was placed on three years formal probation under various conditions.   At a subsequent restitution hearing, the trial court ordered that he pay $10,633.20 to the Beverly Oaks Animal Hospital in mandatory direct restitution under section 1202.4, subdivision (k)(2), for the costs of treating the cat's injuries.   In defendant's timely appeal, he contends, and the Attorney General concedes, that imposition of mandatory direct restitution was inappropriate because the hospital was not a direct victim for purposes of that statutory provision.

Our review confirms the parties' position and requires reversal.  (See People v. Anderson (2010) 50 Cal.4th 19, 31 (Anderson );  People v. Slattery (2008)167 Cal.App.4th 1091, 1097 (Slattery ).)   However, a restitution order based on expenses incurred by the animal hospital for treating the victim of defendant's cruelty may be imposed in the discretion of the trial court as a condition of probation under section 1202.1, subdivision (j).  We therefore remand the matter to permit the court to exercise its discretion in determining whether to impose such a probation condition.

PROCEDURAL AND FACTUAL BACKGROUND

The parties do not dispute the underlying facts and procedural history.   In the early morning hours of October 4, 2008, defendant was home with his roommates, Danielle and Julian.   Defendant picked up his cat, Motley, raised it over his head and slammed it against the floor.   Danielle heard a cracking noise.   Motley could not get up.   Although defendant said the animal was fine, Julian insisted the cat get medical attention.   They took Motley to Beverly Oaks Animal Hospital.   Defendant did not explain what he did to his pet.   Dr. Derek Turner examined Motley and determined its left rear leg was broken.   It “felt like a bag of bones.”   X-rays confirmed multiple fractures of the tibia.   Dr. Turner told defendant the only way to repair the injury was through surgery, estimated to cost between $1,200 and $1,600, plus the cost of the X-rays.   As of that time, the hospital had provided medical treatment, including X-rays, in the amount of $845.05.

Defendant said he could not afford the treatment.   Dr. Turner offered defendant the options of either having Motley euthanized or relinquishing all ownership rights to the hospital so that it could determine how to proceed.   Defendant opted for the latter alternative and entered into a written agreement to that effect.   In exchange for giving up his ownership rights, defendant was released from liability for additional medical expenses incurred after relinquishment.   Motley had surgery at the hospital, which included a bone graft from the shoulder and insertion of a rod and metal pins in the femur.   The hospital represented its total expenses for treating Motley as $10,633.20.

At the restitution hearing, the prosecution sought direct victim restitution of $10,633.20 for the animal hospital.   Defendant objected to the imposition of restitution on the ground that the animal hospital did not qualify as a “direct victim” for purposes of section 1202.4.   Defendant also objected to the assessment of restitution for medical expenses the hospital incurred after defendant relinquished his ownership rights in favor of the hospital.   The trial court ruled that direct restitution to the hospital in the amount sought was appropriate under section 1202.4, subdivision (k)(2), which defines a “victim” to include “[a]ny corporation ․ or any other legal or commercial entity when that entity is a direct victim of a crime.”

DISCUSSION

“The standard of review of a restitution order is abuse of discretion, but ‘a restitution order “resting upon a ‘ “demonstrable error of law” ’ constitutes an abuse of the court's discretion.” '  [Citations.]”  (People v. Tuan Quong Duong (2010) 180 Cal.App.4th 1533, 1537 (Duong ).)   Here, the parties agree the restitution order was contrary to established law.  “Only the ‘direct victim’ of a crime is entitled to restitution from the perpetrator of the offense.”  (Ibid.;  People v. Birkett (1999) 21 Cal.4th 226 (Birkett ).)   Commenting on the pertinent legislative history, “the Supreme Court explained, ‘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 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.’ ”  (Duong, supra, 180 Cal.App.4th at p. 1537, quoting Birkett, supra, at p. 246.)

The decision in Slattery, supra, 167 Cal.App.4th 1091 is closely analogous.   There, “the court held that it was error to require a defendant convicted and sentenced to prison for inflicting injury upon an elderly person to pay restitution to a hospital for the cost of medical services it provided to the victim.   Citing Birkett, the court reasoned, ‘Diverting the restitution due [the victim] to a third party, such as Marshall Hospital, violates the statute because it fails to make [the victim] whole.’ ”   (Duong, supra, 180 Cal.App.4th at p. 1537, quoting Slattery, supra, at p. 1097.)   Our Supreme Court recently approved of Slattery 's holding that “section 1202.4's mandatory requirement for restitution to a legal or commercial entity is expressly limited to situations in which that entity was the direct victim of a defendant's criminal conduct.”  (Anderson, supra, 50 Cal.4th at p. 31.)   Therefore, because the animal hospital was not the direct victim of defendant's criminal conduct, restitution in its favor was not permitted under section 1202.4, subdivision (k)(2).

Nevertheless, as the parties recognize, restitution may generally be ordered as a condition of probation “under the broader, discretionary authority of section 1203.1.”  (Anderson, supra, 50 Cal.4th at p. 31.)   Specifically, “section 1203.1, subdivision (j) authorizes the imposition of reasonable conditions of probation:  ‘The court may impose and require ․ [such] reasonable conditions ․ as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer ․‘ (§ 1203.1, subd. (j).)”  (Anderson, supra, at p. 33.)   While the standards and purposes for ordering restitution under the two provisions are similar, they are not the same.  “In both sections 1203.1 and 1202.4, restitution serves the purposes of both criminal rehabilitation and victim compensation.   But the statutory schemes treat those goals differently.   When section 1202.4 imposes its mandatory requirements in favor of a victim's right to restitution, the statute is explicit and narrow.   When section 1203.1 provides the court with discretion to achieve a defendant's reformation, its ambit is necessarily broader, allowing a sentencing court the flexibility to assist a defendant as the circumstances of his or her case require.”  (Id. at p. 29.)

For example, in People v. Carbajal (1995) 10 Cal.4th 1114, 1124 (Carbajal ), a hit and run case, the high court recognized that in addition to rehabilitation and victim compensation, “restitution is also related to the goal of deterring future criminality.   By seeking to force the defendant to accept the responsibility he attempted to evade by leaving the scene of the accident without identifying himself, the restitution condition acts both as a deterrent to future attempts to evade his legal and financial duties as a motorist and as a rehabilitative measure tailored to correct the behavior leading to his conviction.”   Similarly, the Anderson court held the trial court acted within its discretion when it ordered restitution to the hospital that treated the victim as a probationary condition arising out of the defendant's conviction for leaving the scene of an accident resulting in death.   As the high court explained, the restitution order furthered the purposes of section 1203.1, subdivision (j), not only by “assur[ing] that amends be made to society for the criminal violation because the hospital would be paid for the care it was required by law to provide,” but also by “render [ing] defendant accountable for the financial harm he caused and contribut[ing] to his reformation and rehabilitation.”  (Anderson, supra, 50 Cal.4th at p. 33.)

Here, the Attorney General argues the matter should be remanded for the trial court for it to exercise its discretion to impose the identical restitution award under section 1203.1, while defendant contends we should direct the lower court that its restitution order to the hospital cannot exceed its actual cost of necessary treatment.   In our view, however, both approaches unduly restrict the lower court's discretionary determination.   As we have explained, the lower court's approach on remand will be different.  (See Carbajal, supra, 10 Cal.4th at p. 1121 [“There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action”].)   At the prior hearing in which direct victim restitution was ordered, the court concerned itself solely with making the perceived victim whole.   In contrast, upon remand, the court will be faced with the broader question of how to rehabilitate defendant.   In that capacity, “trial courts have wide discretion to decide, based on the facts of a particular ․ case, whether or not to impose such a condition and, based on the individual defendant, how to fashion the amount and manner in which restitution is to be made to achieve the statutory aims.”  (Id. at p. 1125, fn. 11.)   At that hearing, “defendant is entitled to notice that restitution ․ may be considered as a condition of probation and must be given a meaningful opportunity to controvert the information to be considered and relied on by the court in sentencing.  [Citation.]  Restitution orders may not be based merely upon the trial court's subjective belief regarding the appropriate compensation;  there must be a factual and rational basis for the amount ordered and the defendant must be permitted to dispute the amount or manner in which restitution is to be made.”  (Id. at p. 1125.)

Defendant has advanced various reasons why the prior award might well be considered excessive for rehabilitation purposes, including the fact that he did not authorize or accept liability for such treatment, but could have avoided them by euthanizing Motley.²  On the other hand, as trial counsel acknowledged below, defendant “as a matter of good faith and conscience could and should pay for the services that were rendered by the vet[erinarian] prior to the transfer of ownership.”   And, of course, “defendant is entitled to a judicial determination of his ability to pay restitution.”  (People v. Campbell (1994) 21 Cal.App.4th 825, 831.)   We therefore remand the matter to provide the trial court with the opportunity to make its discretionary restitution determination under section 1203.1.

DISPOSITION

The restitution order is reversed and the matter is remanded for a hearing concerning imposition of a restitution award as a condition of probation under section 1203.1.

KRIEGLER, J.

We concur:

MOSK, Acting P. J.

KUMAR, J.^*

FOOTNOTES

FN1. All further statutory citations are to the Penal Code unless stated otherwise..  FN1. All further statutory citations are to the Penal Code unless stated otherwise.

FN2. As defendant points out, the Supreme Court offered at least some colorable support for this argument in Anderson, supra, 50 Cal.4th at page 33, where the court justified the restitution award in part because the treating hospital “would be paid for the care it was required by law to provide.”.  FN2. As defendant points out, the Supreme Court offered at least some colorable support for this argument in Anderson, supra, 50 Cal.4th at page 33, where the court justified the restitution award in part because the treating hospital “would be paid for the care it was required by law to provide.”

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.