PEOPLE v. JIMENEZ (1994)

Marco Jimenez appeals the judgment on his burglary conviction.   (Pen.Code,1 § 459.)

At approximately 11 p.m. on August 4, 1993, police officers responded to an alarm at Reliable Pipe and Supply Company on National Avenue.   When they arrived, the officers heard property being destroyed inside the building.   They arrested Jimenez.

Jimenez entered a negotiated guilty plea to burglary.   The court suspended imposition of sentence and placed him on three years' probation including a condition he pay $2,593.17 restitution at $25 a month.   Jimenez contends the trial court erred in ordering restitution.

The court conditioned probation on payment of $304.88 to Reliable Pipe and Supply and $2,288.29 to Federated Insurance.   Jimenez argues the trial court erred in ordering him to make restitution to an insurance company which was not the direct victim and in ordering restitution without a hearing on his ability to pay.

 In People v. Foster (1993) 14 Cal.App.4th 939, 18 Cal.Rptr.2d 1, this district faced the question of ordering restitution to an insurance company as a condition of probation.   The court said:

“Section 1203 et seq. grants trial courts ‘broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof.’  (People v. Lent (1975) 15 Cal.3d 481, 486 [124 Cal.Rptr. 905, 541 P.2d 545].)   Under section 1203.1, a trial court may impose ‘any or all [reasonable probation 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 law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer, ․’

“A condition of probation may not be invalidated on appeal unless the condition ‘(1) has no relationship to the crime of which the offender [was] convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality․’  (People v. Dominguez (1967) 256 Cal.App.2d 623, 627 [64 Cal.Rptr. 290].)

“When restitution is imposed as a condition of probation under section 1203 et seq., rehabilitation of the criminal is the primary goal of restitution.   (People v. Richards (1976) 17 Cal.3d 614, 620 [131 Cal.Rptr. 537, 552 P.2d 97].)  ‘Implicit in the concept of rehabilitation is the need to first deter criminal activity.   Courts have generally found an order requiring the defendant to compensate the victim to be a deterrent to future criminal activity.  [Citations.]’  ( [People v.] Goulart, supra, 224 Cal.App.3d [71] at p. 78, fn. 4 [273 Cal.Rptr. 477].)”  (Id. at p. 950, 18 Cal.Rptr.2d 1, italics added.)

In Foster, the reviewing court noted an insurance company is not considered a “victim” when restitution is ordered pursuant to Government Code section 13967 (see People v. Williams (1989) 207 Cal.App.3d 1520, 255 Cal.Rptr. 778), but it may be a “victim” when restitution is ordered as a condition of probation (see People v. Calhoun (1983) 145 Cal.App.3d 568, 193 Cal.Rptr. 394).   The court concluded:

“We have no difficulty harmonizing the statutes.   The different objectives of the probation statutes and the victim reimbursement provisions of the Government Code justify different applications of the term ‘victim.’   The Legislature explicitly recognized this distinction by incorporating a detailed definition of the term ‘victim’ into the Government Code, but not defining the term for purposes of section 1203.   Thus, the Legislature left it open for an insurance company to be treated differently under the two statutory schemes.   Similarly, a nonresident of California would be treated differently under the two statutory schemes.   Like an insurance company, a nonresident is not entitled to payment from the Restitution Fund.   A flexible interpretation of the term ‘victim’ best addresses the purpose of the statute.  ( [People v.] Hernandez, supra, 30 Cal.3d [462] at p. 468[, 179 Cal.Rptr. 239, 637 P.2d 706].)”  (People v. Foster, supra, 14 Cal.App.4th at p. 953[, 18 Cal.Rptr.2d 1].)

We agree.

Relying on People v. Severns (1994) 24 Cal.App.4th 1140, 30 Cal.Rptr.2d 297, Jimenez argues the court in Foster failed to construe the Legislative intent accurately.   In Severns, the reviewing court chose not to follow Foster for two reasons.   Noting the difference between direct victims and indirect victims, it stated when an entity becomes an indirect victim by paying for the loss of a direct victim, the crime in a sense becomes a victimless crime.   It further stated the Legislature recognizes the difference between crimes with victims and victimless crimes, approval of direct restitution to victims (Pen.Code, § 1203.04) and restitution to the restitution fund for victimless crimes (Stats.1983, ch. 568, § 3).   The Severns court also determined the Legislature expressed its intent not to authorize direct restitution to insurance companies when it enacted the current section 1203.04 rather than Senate Bill No. 593 which would have created a single fund for all restitution claims, making direct victims as well as insurance companies and others seek restitution from that fund.

We disagree with both conclusions.   That an insurance company pays a direct victim, and thereby becomes an indirect victim, does not make the crime victimless.   Failure to enact Senate Bill No. 593 shows nothing more than the Legislature's determination not to order direct victims of crime to share with indirect victims.   Neither factor shows an intent to bar a trial court from conditioning probation on payment of restitution to indirect victims when appropriate to foster rehabilitation.   Here, the trial court did not err in conditioning probation on payment of restitution to the insurer.

 Relying primarily on People v. Hartley (1984) 163 Cal.App.3d 126, 209 Cal.Rptr. 131, Jimenez argues the court erred in ordering $25 a month restitution payments without holding a hearing and determining his ability to pay.   We are unpersuaded.   As the trial court noted, $25 a month is a nominal amount and the record does not reflect any physical limitation preventing Jimenez from obtaining employment.   Unlike Hartley, the record here does not reflect “severely limited resources” affecting the ability to make the payments or that the indebtedness appears to be “beyond the defendant's capacity to meet.”  (Id. at p. 130, 209 Cal.Rptr. 131.)

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

FROEHLICH, Associate Justice.

KREMER, P.J., and WORK, J., concur.