PEOPLE v. BROUSSARD (1991)

We hold here that direct restitution orders under Government Code section 13967, subdivision (c) are not limited to offenses in which the victim has suffered personal injury, but rather include all economic losses whether resulting from personal injury, property damage, or loss of property.

Marc Edward Broussard pleaded guilty to two charges of receiving stolen property (Pen.Code, § 496;  Nos. 10701 & 10702) and pleaded no contest to an additional charge of grand theft (Pen.Code, § 487;  No. 10158).   He was sentenced to state prison and ordered to make direct restitution to the victims for damaged or unreturned property.   We affirm.

I **

II

 The court ordered defendant to pay restitution of $4,795 in No. 10702 (A053173), $500 in No. 10701 (A053353), and $250 in No. 10158 (A053856).   The court initially ordered these sums paid to the restitution fund, but after being informed that victims who had not suffered personal injury could not make claims on that fund the court ordered defendant to pay restitution directly to the victims.   The question presented is whether the court was statutorily authorized to order direct restitution under Government Code section 13967,¹ subdivision (c) (hereafter section 13967(c)).

Subdivision (a) of section 13967 (hereafter section 13967(a)) requires, inter alia, that all convicted felons be required to pay a “restitution fine” of $100 to $10,000 into the state restitution fund.  Section 13967(c) provides in 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.”

On its face section 13967(c) appears to mandate orders of direct restitution in all crimes, whether involving personal injury or property loss.   Defendant argues, however, that “victim” is restricted to those suffering personal injury by the definition in section 13960.   Subdivision (a)(1) of that section defines “victim” as “[a] person who sustains injury or death as a direct result of a crime.”   Subdivision (b) of section 13960 defines “injury” as “physical or emotional injury, or both.”   For several reasons we conclude that the definition in section 13960 does not restrict the scope of section 13967(c).

First, although both provisions are within the portion of the Government Code dealing with financial assistance to victims of crime (tit. 2, div. 3, part 4, ch. 5, art. 1), they were not part of the same enactment.   Section 13960 was added in 1973 and included a definition of “victim” similar to the present one.   Added by the same statute were provisions for a victim to apply to the state for assistance (§ 13961), for review, hearing, approval and payment on applications (§§ 13962–13965) and for assessment of fines against convicted criminals to provide funds for assistance (§ 13967).   As originally enacted, however, section 13967 was restricted to those convicted of “a crime of violence.”  (Stats.1973, ch. 1144, § 2, p. 2351.)   In 1983 that limitation was removed;  the new version of section 13967(a) required a person convicted of “any crime” to pay a penalty assessment and required all felons to pay a restitution fine of up to $10,000.  (Stats.1983, ch. 1092, § 135.2, p. 3998.)  Section 13967(c), providing for a part or all of the restitution fine to be paid as direct restitution to a victim, was not added until 1986.  (Stats.1986, ch. 1438, § 1, pp. 5140–5141.)   Because sections 13960 and 13967(c) cover different, if related, topics and were not enacted as a single measure, we should not assume they were intended to use the common term “victim” in precisely the same way.

Second, the language of section 13967 itself suggests it was intended to cover a broader category of crimes and victims than section 13960.   Section 13967(a) provides that “[u]pon a person being convicted of any crime in the State of California, the court shall ․ order the defendant ․ to pay restitution to the victim in accordance with subdivision (c).” ²  Section 13967(c) refers to a victim's “economic loss” rather than employing the term “pecuniary loss” which is defined in section 13960, subdivision (d), and which is used in section 13965 to delimit the scope of state assistance to victims.  Section 13967(c) also refers to the losses incurred as a result of the defendant's “criminal conduct,” rather than using the defined term “crime” from section 13960.

Third, in light of parallel and related provisions the interpretation of section 13967(c) proposed by defendant would be anomalous.   Article I, section 28, subdivision (b) of the California Constitution, adopted by initiative in 1982, proclaims 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.”

Penal Code section 1203.04 implements that constitutional mandate in cases where probation is granted:  in every such case, restitution must be made a condition of probation.   Restitution is to be to the victim, where there is one, or to the state restitution fund, where there is no victim.   This section does not restrict “victim” to one suffering personal injury.

Restitution in juvenile delinquency cases is covered by Welfare and Institutions Code sections 729.6, 730.6 and 731.1.  Welfare and Institutions Code section 729.6, covering cases in which probation is granted, largely restates Penal Code section 1203.04.  Welfare and Institutions Code section 730.6, the juvenile court law parallel to section 13967(a), requires an additional restitution penalty assessment in all cases and a separate restitution fine in cases which involve felony offenses.  Welfare and Institutions Code section 731.1 is a juvenile court law parallel to section 13967(c);  when a minor is committed to the Youth Authority it requires that restitution be paid directly to the victim, “in cases in which the victim has suffered economic loss as a result of the minor's criminal conduct.”   There is nothing in this section to suggest that “victim” is restricted to those suffering personal injury.   Indeed, the section defines “restitution,” by cross-reference to Welfare and Institutions Code section 729.6, to include “full or partial payment for the value of stolen or damaged property.”  (Welf. & Inst.Code, § 729.6, subd. (d).)

Thus the Legislature has provided for victims of property crimes, as well as those suffering personal injury, to recover restitution from the offender when an adult offender is granted probation, when a minor is granted probation, and when a minor is committed to the Youth Authority.   Under defendant's interpretation of section 13967(c), however, victims of property crimes would not be able to recover from an adult defendant who is not granted probation.   He does not suggest why the Legislature would create this anomalous arrangement.   Moreover, his construction would require that the language of section 13967(c) be interpreted differently than the closely parallel language of Welfare and Institutions Code section 731.1.

Finally, the historical background and legislative history of section 13967 support our interpretation.   In People v. Downing (1985) 174 Cal.App.3d 667, 220 Cal.Rptr. 225, a grand theft case, the court reviewed legislative implementation of the constitutional mandate for restitution in all cases, and noted that the statutory scheme left a gap in the area of property crimes:  “[W]here, as here, a defendant is imprisoned and the statutory schemes do not provide for direct restitution, the restitution fund is of no help to the victims because property losses are excluded from its coverage.  (§ 13960.)  [Fn. omitted.]   Consequently, we question whether the Legislature fully implemented the constitutional mandate where the defendant is imprisoned, there are substantial property losses suffered by victims of crimes for which the defendant is convicted, and the victims' only avenue of relief for restitution is by civil remedy.”  (Id., at p. 672, 220 Cal.Rptr. 225.)   The next year, in 1986, subdivision (c) to section 13967 was added.   The Legislative Counsel's Digest of the bill explained that existing law required orders for direct restitution to a victim when the defendant is granted probation, and payment of a restitution fine to the restitution fund if no victim was involved or if the defendant is sentenced to state prison for a felony.  “This bill would provide that 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 is required to order restitution to be paid to the victim, as specified.”  (See Legis. Counsel's Dig., Sen. Bill No. 2404, 4 Stats.1986 (Reg.Sess.) Summary Dig., p. 557.)   It appears from this history that section 13967(c) was intended to fill the gap noted in Downing by completing the parallel between cases in which probation is granted and those in which it is denied:  in both situations restitution is to be made directly to the victim if there is one, whether the losses were from personal injury or property offenses.

Defendant relies on People v. Miller (1989) 216 Cal.App.3d 758, 762–763, 265 Cal.Rptr. 77, in which it was held the sentencing court could not order restitution under section 13967(c) to a county investigatory bureau because the agency was not a “victim” as defined in section 13960.   To much the same effect are People v. Williams (1989) 207 Cal.App.3d 1520, 1523–1524, 255 Cal.Rptr. 778, and People v. Blankenship (1989) 213 Cal.App.3d 992, 999–1000, 262 Cal.Rptr. 141, both overturning orders of restitution made under section 13967(c) to insurance companies which had reimbursed the victims for their losses, again because the insurers were not “victims” under section 13960.   We do not disagree with the results reached in those cases—it is unlikely that “victim” as used in section 13967(c) was intended to include insurers and other institutions incurring expenses as the indirect result of criminal activity—but we note that those courts did not decide or discuss the question presented here, that is, whether section 13967(c) is limited to personal injury crimes or includes all economic losses to victims including property loss.

We conclude that section 13967(c) authorizes sentencing courts to order restitution to the victim, where probation is not granted, in all cases in which the victim has sustained economic losses, whether the losses stemmed from personal injury, theft, or property damage.

III

 Defendant also complains of the specific amounts awarded in Nos. 10701 ($500) and 10702 ($4,795).   He contends the amount in No. 10701 should have been only $450 and that the amount in No. 10702 was excessive because the victim recovered some of his property.   Defendant did not object to either of the amounts at sentencing.

In No. 10701 the victim told the probation officer the stolen drill press was worth “approximately $500.”   On the same day the victim stated in a letter to the probation officer that the replacement value of the press was “± $450.”   The court did not err in using the $500 figure.

In No. 10702 the victim told the probation officer he had submitted an insurance claim for $5,795, but was unsure how much he would actually receive from the insurer.   The court reduced that amount by $1,000, without stating a reason for the reduction.   In the absence of an objection from defendant or an offer of additional proof, the court did not err.

 Section 13967(c) provides:  “For any order of restitution made pursuant to this subdivision, the defendant shall have the right to a hearing before the judge to dispute the determination made regarding the amount of restitution.”   Defendant was entitled to dispute the amounts in these cases, and to demand an evidentiary hearing on the matter.   Having declined to do so, however, he cannot complain, for the first time on appeal, of the amounts determined.  (See People v. Goulart (1990) 224 Cal.App.3d 71, 83–84, 273 Cal.Rptr. 477.)   Although a legally unauthorized sentence, including an unauthorized restitution order, may be challenged for the first time on appeal (People v. Rivera (1989) 212 Cal.App.3d 1153, 1163–1164, 261 Cal.Rptr. 93), the waiver doctrine is properly applied where, as here, the defendant has declined to avail himself in the trial court of the opportunity to dispute and resolve purely factual questions.

The judgments are affirmed.   The Attorney General concedes that the abstract of judgment is inaccurate in that it records a restitution award of $5,795 rather than $4,795 in No. 10702.   The Clerk of the Superior Court is ordered to amend the abstract of judgment to show restitution in No. 10702 in the amount of $4,795.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

1.   All further statutory references are to the Government Code unless otherwise indicated.

2.   “Crime” is defined in section 13960, subdivision (c), as a crime which causes injury.   It appears unlikely, however, that the drafters of section 13967(a) intended to incorporate that limitation, since they also provided that a person convicted of “any crime” be required to pay a penalty assessment in accordance with Penal Code section 1464, a section which provides for state penalty assessments to be added to fines without any restriction to personal injury offenses.

LOW, Presiding Justice.

KING and HANING, JJ., concur.