PEOPLE v. DANCER (1994)

This appeal poses the question whether Penal Code section 1203.04, subdivision (a) requires the trial court to order a probationer to pay restitution to the victim when the victim has not requested compensation for losses resulting from the probationer's crime.   We conclude that a restitution order is mandatory as a matter of public policy adopted by the electorate in article I, section 28, subdivision (b) of the California Constitution, unless there is proof of compelling and extraordinary circumstances which justify the court to forgo restitution.

FACTS

In an effort to catch vehicle burglars, the City of Roseville parked and locked a number of “bait vehicles.”   Each decoy was wired with a silent alarm to alert patrol officers if there was a break-in.   Defendant David Paul Dancer was caught in the web.   Shortly after midnight on June 30, 1992, Officer William Herring responded to an alarm and discovered that someone had smashed the driver's window of one of the decoys.   The “bait property” inside, two stereo speakers, had been stolen from the vehicle.   Herring was able to track an electronic device which had been hidden in the speakers.   The transmitting device led him to a residence occupied by defendant approximately four miles from the break-in.   The stolen speakers were recovered from the residence and, using a special light, Herring detected on defendant's hands the presence of an ultraviolet powder which had been placed on the speakers.   The powder also was discovered on the hands of another person in the residence.

Defendant pled guilty to receiving stolen property (Pen.Code, § 496) and was granted probation.   On the issue of restitution, the probation officer stated:  “The Roseville Police Department reports there is no restitution issue, as the speakers were recovered intact, and damage to the vehicle is paid for by their decoy program.”   Nevertheless, the probation officer recommended, and the trial court ordered, that defendant pay $100 restitution to the state Restitution Fund as a condition of probation.

DISCUSSION

 On appeal, defendant challenges the restitution order made pursuant to Penal Code section 1203.04, subdivision (a).   This section provides:  “In every case where a person is convicted of a crime and is granted probation, the court shall require, as a condition of probation, that the person make restitution as follows:  [¶] (1) To the victim, if the crime involved a victim.   For purposes of this section, ‘victim’ shall include the immediate surviving family of the actual victim in homicide cases.   Payments shall be made to the Restitution Fund to the extent the victim has received assistance [from the Restitution Fund for losses the victim suffered as a direct result of defendant's criminal act].  [¶] (2) To the Restitution Fund, if the crime did not involve a victim.”   A government agency may be a “victim” for the purposes of a restitution order pursuant to Penal Code section 1203.04, subdivision (a).  (People v. Crow (1993) 6 Cal.4th 952, 956–960, 26 Cal.Rptr.2d 1, 864 P.2d 80;  People v. Narron (1987) 192 Cal.App.3d 724, 731–733, 237 Cal.Rptr. 693.)

 Noting that his crime had an identifiable victim—the Roseville Police Department (the Department)—which had used its own funds to pay for the damage associated with his crime, defendant contends the restitution order is improper because Penal Code section 1203.04, subdivision (a) authorizes the trial court to order restitution payable to the Restitution Fund only when the crime did not involve a victim or the victim already received assistance from the Restitution Fund.   We agree with defendant's construction of the statute.   However, this does not mean he has no liability for restitution.

Penal Code section 1203.04, subdivision (a) was enacted by the Legislature to implement article I, section 28, subdivision (b) adopted by the electorate in 1982.  (People v. Broussard (1993) 5 Cal.4th 1067, 1072–1073, 22 Cal.Rptr.2d 278, 856 P.2d 1134.)   This constitutional provision states in pertinent part:  “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.”   Here, there were no extraordinary reasons for the trial court to forgo a restitution order.   Consequently, the court was compelled to require defendant to pay restitution for the monetary loss occasioned by his crime.   The court simply erred in ordering restitution to be paid to the Restitution Fund rather than to the victim.

 Defendant disagrees, citing People v. Fritchey, (1992) 2 Cal.App.4th 829, 3 Cal.Rptr.2d 585 to support his contention that the trial court had no authority to order restitution because the Department claimed no loss.   In Fritchey, the appellant was apprehended while attempting to steal jet skis from the victim's driveway.   The jet skis never left the victim's property, and the victim acknowledged he suffered no loss.  (Id., at p. 832.)   In directing the trial court to strike the order which compelled the appellant to pay $400 restitution to the Restitution Fund, Fritchey held the language of Section 1203.04 prohibits imposition of a restitution order if the victim “does not suffer or fails to claim any compensable loss․”  (Id., at p. 842.)

We agree that restitution is not appropriate when the victim suffers no loss, as was the case in Fritchey.   However, we cannot subscribe to the Fritchey court's dictum which suggests, without analysis, that a restitution order also is improper where the victim suffers damage but “fails to claim” a compensable loss.  (Ibid.)  This dictum is inconsistent with the public policy expressed in article I, section 28, subdivision (b) of the California Constitution, which explicitly provides that every crime victim has the right to obtain restitution from the person committing the crime for all losses suffered as a result of the criminal act ¹ (People v. Broussard, supra, 5 Cal.4th at p. 1068, 22 Cal.Rptr.2d 278, 856 P.2d 1134) and which specifies that restitution shall be mandatory unless exceptional circumstances are shown.   The California Supreme Court has observed that the restitution requirement serves several public policy objectives.   In addition to compensating the victim, a restitution order ensures that amends are made to society for a breach of the law, serves a rehabilitative purpose, and acts as a deterrent to future criminality.  (People v. Crow, supra, 6 Cal.4th at p. 958, 26 Cal.Rptr.2d 1, 864 P.2d 80;  see People v. Foster (1993) 14 Cal.App.4th 939, 950, 18 Cal.Rptr.2d 1.)

To excuse a probationer from paying restitution simply because the victim does not affirmatively seek restitution would thwart these public policy objectives.   Moreover, the fact that the victim does not request restitution, or may be unaware of the right to compensation for the losses associated with the defendant's crime, does not undermine the victim's constitutional and statutory right to restitution.   Thus, the probation department has a duty to take reasonable steps to ensure that the victim is aware of the right to restitution and to seek information from the victim concerning the amount of the losses suffered due to the defendant's crime, and then to provide the trial court with all available information about that loss.  (See Pen.Code, § 1203, subd. (b);  Cal.Rules of Court, rules 411.5(a)(5), 411.5(a)(11).)

 We can envision a situation where a victim has no interest in obtaining restitution and declines to cooperate with the probation department's effort to secure information concerning the amount of loss the victim has suffered.   In such a case, the probation department need not attempt to force the victim to participate in a valuation of restitution the victim does not want.   A victim's knowing decision to decline restitution may constitute a compelling and extraordinary reason, within the meaning of article I, section 28, subdivision (b) of the California Constitution, for the trial court to forgo a restitution order.

 This, however, is not such a case.   Although the speakers stolen from the decoy vehicle were recovered, the Department suffered an actual, compensable loss because the window of the decoy vehicle was damaged and required repair.   The record suggests the Department did not decline restitution;  rather, it appears the Department believed it was not entitled to recover its loss from defendant.   Even if we were to conclude the Department declined restitution, as a government agency funded by taxpayers it had no legitimate basis to do so.   Consequently, there was no compelling and extraordinary reason for the trial court to forgo a restitution order.

Pursuant to article I, section 28, subdivision (b) and Penal Code section 1203.04, subdivision (a), the trial court was compelled to order defendant to pay restitution to the Department as a condition of probation.

DISPOSITION

The condition of probation requiring defendant to pay restitution of $100 to the Restitution Fund is stricken, and the matter is remanded to the trial court with directions to impose a probation condition compelling defendant to pay restitution to the Roseville Police Department in the amount of the Department's loss.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Restitution “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.   The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.”   (Pen.Code, § 1203.04, subd. (d).)

SCOTLAND, Associate Justice.

BLEASE, Acting P.J., and DAVIS, J., concur.