PEOPLE v. MENDOZA (1994)

OPINION

Is a county drug task force which expended public funds of $70 as part of a controlled drug purchase made by its confidential informant from defendant a “victim” within the meaning of Government Code section 13967, subdivision (c)? ¹  We answer this narrow question in the negative.   However, while we find a sentencing order directing payment of “restitution” to be inappropriate under the present scenario, the county is not left without a remedy;  it may recover funds paid in the course of drug investigation by utilizing the procedures described in Health and Safety Code section 11501.

FACTS AND PROCEEDINGS

On the dates of August 28, 1992, and October 23, 1992, defendant George Mendoza sold methamphetamine to a confidential reliable informant working for the Kings County Narcotics Task Force.   The county agency had given its informant $70 in recorded funds to use for the purchases.

Defendant pleaded guilty to two counts of methamphetamine sales and admitted he had served a prior prison term.   On June 14, 1993, the superior court sentenced him to a term of four years in prison and ordered him to pay the following:  (1) restitution to the Kings County Narcotics Task Force in the amount of $70, (2) a restitution fine of $2,000, and (3) a laboratory analysis fee in the sum of $50.

A timely appeal was filed by defendant on July 29, 1993.

DISCUSSION

I.**

II.

A.

By letter, we directed the parties to file supplemental briefs concerning whether the trial court erred in ordering defendant to reimburse the narcotics task force for money spent in the two controlled drug buys.   After reviewing the briefs filed in response to our initial letter, we requested letter briefs discussing the significance of Health and Safety Code section 11501 and People v. Narron (1987) 192 Cal.App.3d 724, 237 Cal.Rptr. 693.

 As a preface to our full discussion of the direct restitution issue, we respond to the People's contention that the issue should be deemed waived on appeal.   We view the issue as a question of whether the sentencing court exceeded its statutory authority;  waiver is not applicable to errors going to the jurisdiction of the court to impose sentence.  (See In re Ricky H. (1981) 30 Cal.3d 176, 191, 178 Cal.Rptr. 324, 636 P.2d 13.)

B.

 Section 13967(c) in relevant part 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.”

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 governmental agency can be a victim for purposes of direct restitution.   In the present case, however, the issue is whether the particular activity for which the county claims restitution—participating in controlled drug buys by means of public funds—places the county in the “victim” category.

People v. Miller (1989) 216 Cal.App.3d 758, 265 Cal.Rptr. 77 was a narcotics case wherein the trial court ordered $540 in direct restitution be paid by the defendant to the law enforcement agency that had investigated and arrested him.   Payment of this $540 was to be credited against the restitution fine of $1,000 contemporaneously ordered by the court.   The appellate court determined that the restitution fine was proper;  however, because the agency was not a “victim,” section 13967(c) was inapplicable, requiring the striking of the order of direct restitution.  (216 Cal.App.3d at pp. 762–763, 265 Cal.Rptr. 77.)   The Miller opinion does not indicate the specific nature of the agency's $540 expenditure, i.e., whether some portion of it was used to purchase drugs from the defendant.

The People argue that People v. Miller, supra, should be deemed overruled by People v. Crow, supra, because the Miller opinion fails to identify the nature of the loss, meaning the Miller decision “rests solely” on its determination that a governmental agency “cannot qualify as a ‘victim.’ ”   We disagree.

While the specific nature of the agency's monetary expenditure is not spelled out in the opinion, the facts of the Miller case leave little doubt about the role played by the agency.   Its very name is Napa Special Investigation Bureau;  this agency utilized an informant to purchase heroin from the defendant on six occasions, and it obtained a search warrant which led to its searching his residence and the defendant's ultimate arrest.  (People v. Miller, supra, 216 Cal.App.3d at p. 760, 265 Cal.Rptr. 77.)   Since, Crow does not even mention Miller, let alone overrule or disapprove it, we find it appropriate to harmonize the opinions.   The very thrust of Crow is that a government agency is a “person” that can qualify as a victim under the appropriate circumstances—the circumstance there was a defrauded government agency.  (People v. Crow, supra, 6 Cal.4th at pp. 958–959, 26 Cal.Rptr.2d 1, 864 P.2d 80.)   The Miller court does not say a governmental agency cannot ever be a victim;  rather it concludes the specific investigating agency seeking restitution, presumably for the costs of its investigation, was not a victim within section 13967(c).

The instant case bears no significant difference to Miller.   While the trial court here had the authority to order a restitution fine pursuant to Government Code section 13967, subdivision (a), which it did order, it was not authorized to order direct restitution to the Kings County Narcotics Task Force for funds it had advanced to the informant for controlled purchases of drugs from defendant.

For us to find otherwise would mean that in virtually every case a sentencing court would be required to order restitution to the agency that investigated a defendant's criminal conduct.   We say this because if that agency is a “victim” merely because it has conducted investigation, “the court shall order restitution to be paid to the victim.”  (Section 13967(c).)

Additionally, we do not think the Legislature intended to include narcotics investigative costs recoverable under the general restitution provisions of section 13967(c) because these costs have long been specifically recoverable under Health and Safety Code section 11501 ² which provides:

“The State of California, or any political subdivision thereof, 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 this division.   All proceedings under this section shall be instituted in the superior court of the county where the funds were paid over, where the sale was made, or where the defendant resides.   Notwithstanding Section 483.010 of the Code of Civil Procedure, in any action under this section, a writ of attachment may be issued, without the showing required by Section 485.010 of the Code of Civil Procedure, in the manner provided by Chapter 5 (commencing with Section 485.010) of Title 6.5 of Part 2 of the Code of Civil Procedure to attach any funds paid over or any other funds on the defendant's person at the time of his arrest.”

Somewhat analogous is People v. Narron, supra, 192 Cal.App.3d 724, 237 Cal.Rptr. 693, wherein the appellate court struck a probation condition that the defendant provide restitution to Lake County for its expenses in hiring a professional chemical disposal company to dispose of dangerous items from his residence.   The court reasoned that a specific statute, found at Health and Safety Code sections 11470.1 and 11470.2, authorized the prosecution to bring a petition for recovery of drug seizure and cleanup expenses in the trial court where he was tried for the underlying offense;  the prosecution had not complied with the procedural requirements of that statute.  (192 Cal.App.3d at pp. 733–735, 237 Cal.Rptr. 693.)  “Because of the all-encompassing nature of the remedy provided by the Legislature to law enforcement for the recovery of expenses, we may presume it intended to preclude the imposition of such expenses outside the procedures set forth in sections 11470.1 or 11470.2.”  (Id. at p. 738, 237 Cal.Rptr. 693.)

The People argue in their letter brief, “[T]he factors which permitted the appellate court in Narron to conclude that the Legislature intended a particular statutory scheme to be the exclusive means for recovery are not present in the instant case.”   We tend to agree with the People insofar as the statute discussed in Narron entails detailed procedural requirements not found in section 11501.   The Narron court observed that the narcotics cleanup costs recovery procedures are more stringent than the typical restitution hearing, including the defendant's right to a jury trial and the requirement that liability of an aider and abettor be proven by clear and convincing evidence.  (People v. Narron, supra, 192 Cal.App.3d at p. 737, 237 Cal.Rptr. 693.)

Narron also is dissimilar in that the government agency there was a “victim” eligible for restitution but for the fact that the payment order was made absent compliance with statutory procedural requirements.   The county was victimized by defendant Narron's narcotic crimes to the extent it needed to hire a professional disposal company to remove drugs that were too dangerous to store.  (People v. Narron, supra, 192 Cal.App.3d at p. 729, 237 Cal.Rptr. 693.)   As we have previously discussed the present situation, the county merely expended investigative costs;  this fact did not make it a victim eligible for restitution under section 13697(c) in the first place.

Section 11501 is thus relevant here not because it overrides general restitution hearing procedures but, rather, because it provides an expeditious remedy allowing narcotics investigative agencies to recover their costs in pursuing drug dealers.   It is not necessary as a matter of public policy to construe such an agency acting in this capacity as a victim eligible for restitution under section 13697(c) because a more specific recovery procedure already exists.   In most cases, we see no reason why a section 11501 proceeding cannot be raised early enough during the criminal proceeding to allow the section 11501 hearing to be conducted contemporaneous with sentencing.

In striking the instant direct restitution order of $70, we note defendant still faces fines totaling $2,050.   While we are not remanding the matter for further proceedings, nothing prevents the People or the county from instituting section 11501 proceedings, although that may not be very cost effective here.

DISPOSITION

The order of direct restitution in the sum of $70 payable to the Kings County Narcotics Task Force is hereby stricken.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All references hereafter to this provision will simply state section 13967(c).

FOOTNOTE.   See footnote *, ante.

2.   All references hereafter to this provision will simply state section 11501.

VARTABEDIAN, Associate Justice.

STONE (WM. A.), Acting P.J., and DIBIASO, J., concur.