PEOPLE v. SARGENT (1994)

OPINION

Appellant Ronald Cody Sargent contends the trial court erred in ordering him to pay direct restitution, under Government Code section 13967, subdivision (c), to the Tulare County Fire Department as part of his sentence for arson.   We agree the order is inappropriate because there was no showing below that the agency suffered direct economic loss as a result of appellant's criminal conduct.

FACTS AND PROCEEDINGS

On May 1, 1992, appellant and three other men set fire to a restaurant in Three Rivers.   The fire did extensive damage to the restaurant.   Much of the damage was covered by insurance.   The insurance policy provided for a $500 deductible.

The fire was extinguished by the Tulare County Fire Department.   As stated in the report of the probation officer, “The Tulare County Fire Department has provided a cost resume for responding and suppressing the fire․  The total cost is $2,565.83 and restitution in that amount [is] requested.”

Appellant was charged with arson of a structure (Pen.Code, § 451, subd. (c));  possession of flammable material (Pen.Code, § 453, subd. (a));  and use of a destructive device (Pen.Code, § 12303.3).   He pleaded no contest to the arson count as part of a plea bargain that provided for a maximum sentence of the middle term, four years in prison.   He was advised his plea subjected him to a restitution fine of up to $10,000.

On June 25, 1992, the court sentenced appellant to four years in prison.   Although the clerk's minute order records that “Defendant shall pay a restitution fine in the sum of $3,065.83 pursuant to Government Code Section 13967,” the court actually ordered direct restitution of $500 to the owner of the burned building and $2,565.83 to the fire department.

Appellant filed a timely notice of appeal.

DISCUSSION

Appellant's sole contention on appeal is that the court was not permitted by Government Code section 13967, subdivision (c) (hereafter section 13967(c)) to order restitution to the fire department.¹  Respondent argues that the fire department was a victim of appellant's crime and suffered economic loss as a result thereof.

In People v. Crow (1993) 6 Cal.4th 952, 958–959, 26 Cal.Rptr.2d 1, 864 P.2d 80, the California Supreme Court held a government agency can be a victim for purposes of direct restitution.   In the present case, however, the issue is whether the agency in fact was such a victim, i.e., whether it suffered economic loss as a result of appellant's crime.²

 Appellate court cases have established that victim restitution may be ordered only in the case of a victim who has suffered economic loss as a direct result of the crime.  (See People v. Franco (1993) 19 Cal.App.4th 175, 181–182, 23 Cal.Rptr.2d 475.)   Indirect loss claims of a public agency are insufficient to support an order that restitution be paid directly to that agency.  (See People v. Miller (1989) 216 Cal.App.3d 758, 265 Cal.Rptr. 77.) ³

 With the Supreme Court's clarification in Crow of who can be considered a victim, a defendant who vandalized a fire truck, for example, could properly be ordered to pay direct restitution to the fire department.   However, no case or statute presently applicable authorizes a sentencing court to order an arsonist to pay the ordinary operational costs of the fire department during the time the fire was being fought.   Those costs are the result of maintaining fire protection for the community;  they are not the direct result of the arsonist's fire.⁴

There is nothing in the present record that suggests the Tulare County Fire Department suffered any particular costs or loss over and above its normal cost of operation.   Thus we cannot say it incurred any loss as a direct result of this fire.   Because no such loss is established here, we stop short of a discussion of the parameters of direct restitution for unreimbursed, special injury to fire departments and similar public agencies.  (Compare People v. Franco, supra, 19 Cal.App.4th at p. 185, 23 Cal.Rptr.2d 475 [direct restitution not permitted as reimbursement of city for worker's compensation benefits paid to police officer intentionally injured by defendant].)   On the present state of the record, we conclude the prosecution did not establish direct injury to the fire department that can be the basis for direct restitution.

The parties disagree whether we should remand for a new restitution hearing if we strike the order for payment to the fire department.   Respondent requests such remand to allow the trial court to exercise its discretion to impose a restitution fine under Government Code section 13967, subdivision (a);  in addition, this would permit the prosecution to establish any special losses incurred as a direct result of the fire.   Appellant argues the judgment should simply be modified to strike restitution to the fire department, and then affirmed.

The touchstone for any resolution of this issue is People v. Walker (1991) 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861.  Walker dealt with the imposition of restitution fines in the context of plea bargains that did not specifically contemplate such fines.   After holding that imposition of such fines was in most circumstances impermissible, the court turned its attention to the appropriate remedy for violation of the plea agreement.  “To avoid the anomaly of restitution fines costing more money than they generate, and causing more harm than benefit to victims, a bright-line rule is desirable․  Accordingly, we hold that if the breach of the plea bargain is first raised after sentencing, the proper remedy generally is to reduce the fine to the statutory minimum, and to leave the plea bargain intact.”  (Id. at p. 1029, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

In the present circumstances, the same practical considerations militate in favor of modification rather than remand.   We balance on the one hand the People's interest in payment to the crime victims' restitution fund (or payment of the fire department's direct losses, if shown) against the cost of conducting a new restitution hearing.   We conclude that in this case the People's interest is tempered by reality:  Even after modification, the judgment will still require appellant to pay $500 actual restitution to the owner of the damaged real property.   Appellant is a 24–year–old alcoholic with no significant work history.⁵  The probation officer reported that appellant had no assets.   The trial court found appellant was unable to make any payment toward attorney's fees.   Thus, it is likely a new restitution hearing would cost more than it will generate in actual payment.

DISPOSITION

The judgment is modified to strike the order for payment of direct restitution to the Tulare County Fire Department;  as modified, the judgment is affirmed.

FOOTNOTES

1.   In relevant part, section 13967(c) provides:  “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.”

2.   The Supreme Court has not addressed the issue.  (People v. Crow, supra, 6 Cal.4th at p. 958, fn. 4, 26 Cal.Rptr.2d 1, 864 P.2d 80 [“We express no view on whether a defendant may be ordered to pay restitution to an indirect victim”].)

3.   In Miller, the trial court ordered defendant to pay a restitution fine of $1,000, $540 of the fine payable directly to the law enforcement agency that had investigated and arrested defendant.  (216 Cal.App.3d at pp. 760–762, 265 Cal.Rptr. 77.)   While the Court of Appeal focused more on the definition of “victim” than on the meaning of direct economic loss, it modified the judgment, striking the order for payment to the agency and directing that the entire fine be paid to the restitution fund in the state treasury.  (Id. at pp. 762–763, 265 Cal.Rptr. 77.)

4.   In People v. Narron (1987) 192 Cal.App.3d 724, 237 Cal.Rptr. 693, the Court of Appeal struck a probation condition that defendant Narron provide restitution to Lake County for its expenses in hiring a professional chemical disposal company to dispose of dangerous items seized from his residence.   The court did indicate that a county may receive restitution even though it is an indirect victim;  it struck the condition because of noncompliance with a specific statute that authorized such restitution.   To the extent Narron authorizes restitution for this type of cost, it is distinguishable because it involved express statutory authorization and because the defendant's illegal drug activity specifically caused an extraordinary expense.

5.   Since age 15, appellant has heavily consumed alcohol.   He typically drinks two bottles of whiskey a day, which usually causes him to pass out.   He was discharged from the Navy due to alcoholism.   Other than his naval employment, his work history consists of minimal stints as a general laborer.

VARTABEDIAN, Acting Presiding Justice.

HARRIS, J., and RANDALL, J., Assigned*, concur.