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The PEOPLE, Plaintiff and Respondent, v. Arian Marcus HART, Defendant and Appellant.
A jury convicted defendant Arian Marcus Hart of selling methamphetamine. (Health & Saf.Code, § 11379.) The sole issue on appeal is whether the court erred in ordering as a condition of probation that defendant repay Lassen County (“County”) the $60 the County paid to defendant's accomplice in the controlled drug buy which resulted in defendant's conviction. Defendant argues the court exceeded its statutory authority because the County was not a “victim” of the crime and therefore not entitled to restitution under Penal Code section 1203.04. We shall affirm the judgment.
Jack Dean was a paid informant for the Lassen County Narcotics Task Force. Dean arranged to buy a sixteenth of an ounce of methamphetamine from Ryan Reed. Narcotics agents searched Dean and his car, gave him $100 in cash, and fitted him with a radio transmitter.
Dean met with Ryan Reed and defendant. Reed told Dean he could get only one gram of methamphetamine. Dean handed Reed $60 and defendant dropped a bindle of methamphetamine in Dean's lap. Dean departed, returned to the narcotics agents and gave them the methamphetamine and $40 in change.
The probation report recommended that as a condition of probation defendant be ordered to pay restitution to the County in the amount of $30, half of the $60 spent in the drug buy. It recommended codefendant Reed pay the other half.
At the sentencing hearing, the court suspended defendant's sentence and imposed three years' probation. Among the conditions of probation was “restitution to the County of Lassen in the amount of $60.” The court explained it did not believe the County was a victim within the meaning of the Government Code, “so that when [he] sentence[d] a person for a felony, [he was] not permitted to require restitution to the County of Lassen for a drug money buy.” The court continued: “However, I am putting you on probation, and as, on conditions of probation I can require just about anything that I want if it's not unconstitutional, and among other things I am going to require you ․ to pay back the $60 that was for the drug buy to the County of Lassen.”
Defendant did not object to the imposition of the restitution condition. However, on appeal, he raises a jurisdictional challenge to the court's power to order payment of money as a condition of probation. The issue is therefore properly before us. (People v. Zito (1992) 8 Cal.App.4th 736, 741–742, 10 Cal.Rptr.2d 491; People v. Williams (1989) 207 Cal.App.3d 1520, 1524, 255 Cal.Rptr. 778.)
When probation is granted, as a condition thereof defendant must make restitution to the victim if the crime involved a victim (Pen.Code, § 1203.04, subd. (a)(1)); if there is no victim, defendant must make restitution to the Restitution Fund (Pen.Code, § 1203.04, subd. (a)(2)).
“Restitution” as used in Penal Code section 1203.04, subdivision (a)(1), dealing with restitution to the victim, “means full or partial payment for the value of stolen or damaged property, medical expenses, and wages or profits lost due to injury or to time spent as a witness or in assisting the police or prosecution, which losses were caused by the defendant as a result of committing the crime for which he or she was convicted․” (Pen.Code, § 1203.04, subd. (d).)
The word “victim” is not defined in Penal Code section 1203.04 or in related statutory provisions. (See Pen.Code, § 1203.1; People v. Narron (1987) 192 Cal.App.3d 724, 732, 237 Cal.Rptr. 693.) However, victim restitution as a condition of probation is not necessarily limited to victims who are persons. (People v. Narron, supra, 192 Cal.App.3d at p. 732, 237 Cal.Rptr. 693.) The policies of Penal Code sections 1203.1 and 1203.04 “favor a definition which includes the government where it suffered loss flowing from a defendant's criminal conduct. Including the government as a potential ‘victim’ accords with the court's discretion to employ probation conditions which ensure ‘that amends ․ be made to society for the breach of the law, ․’ (Pen.Code, § 1203.1.) Moreover, the concept of restitution embodies not only the notion that people who suffer loss as a result of criminal activity should be compensated for those losses (Cal. Const., art. I, § 28, subd. (b)), but also a perception of the value of restitution as a ‘deterrent to future criminality’ (People v. Lent [ (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545] ) and ‘to rehabilitate the criminal.’ (People v. Richards [ (1976) 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 552 P.2d 97].) Both aims are furthered by imposing a restitution condition in appropriate cases whether or not the victim is an individual.” (People v. Narron, supra, 192 Cal.App.3d at p. 732, 237 Cal.Rptr. 693.)
Although “the government may be the beneficiary of [restitution] if it has incurred actual loss due to the crime, as in the instance of tax evasion or theft of government property, ․ [restitution] does not include the general costs of prosecuting and rehabilitating criminals.” (People v. Baker (1974) 39 Cal.App.3d 550, 559, 113 Cal.Rptr. 248.)
The County is a direct victim of, and has incurred actual loss due to, the unlawful acts of defendant and his codefendant. It supplied the $60 which Dean paid to codefendant Reed for methamphetamine and defendant does not dispute that the money was never recovered.
The existence of a civil remedy under Health & Safety Code section 11501 is of no relevance to this appeal. Under that statute, a county “may maintain an action against any person or persons engaged in the unlawful sale of controlled substances for the recovery of any public funds paid over to such person or persons in the course of any investigation of violations of [the California Uniform Controlled Substances Act, Health and Safety Code section 11000 et seq.].” Nothing in the language of Health & Safety Code section 11501 suggests the Legislature intended it to provide an exclusive remedy. (Compare People v. Narron, supra, 192 Cal.App.3d at pp. 737–740, 237 Cal.Rptr. 693 [Health and Safety Code sections 11470.1 and 11470.2 provide the exclusive civil and criminal remedies for government recovery of the cost of disposing of dangerous chemicals and the probation condition was invalid].) Indeed, restitution of such costs through a probation condition is a prudent alternative to a separate civil action where, as here, the amount to be recovered is relatively small.
The trial court's view that the County was not a victim was apparently based on its reading of Government Code section 13960 which applies in cases where probation is denied. (People v. Foster (1993) 14 Cal.App.4th 939, 949, 18 Cal.Rptr.2d 1.) That section is inapplicable here.1
The judgment is affirmed.
FOOTNOTES
1. We do not deal here with the question whether a government agency which is an indirect victim of a crime may receive victim restitution as a condition of probation, an issue currently before the California Supreme Court. (See People v. Severns (1994) 24 Cal.App.4th 1140, 30 Cal.Rptr.2d 297, rev. granted 31 Cal.Rptr.2d 631, 875 P.2d 736 (1994) (S040423).)
PUGLIA, Presiding Justice.
DAVIS and SCOTLAND, JJ., concur.
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Docket No: No. C017875.
Decided: September 23, 1994
Court: Court of Appeal, Third District, California.
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