People v. Bernal

Citation123 Cal.Rptr.2d 622,101 Cal.App.4th 155
Decision Date13 August 2002
Docket NumberNo. B154169.,B154169.
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Appellant, v. Rogelio Ayala BERNAL, Defendant and Respondent.


This appeal involves restitution for a victim of criminal conduct. In the central holding, we decide that the payment to a victim by a defendant's insurance carrier qualifies as a payment "directly from" that defendant, under Penal Code section 1202.4, subdivisions (a)(1) and (f)(2).

The People appeal from an order determining that respondent Rogelio Ayala Bernal had satisfied his restitution obligation to his victim, Tracy Russell. Appellant contends that (1) a release of liability given by Russell to respondent's insurance company as part of a settlement did not release respondent from his restitution obligation, (2) the trial court erred in offsetting the settlement proceeds against respondent's restitution obligation, and (3) the trial court abdicated its judicial function by deferring to the conclusion of the probation department that respondent's restitution obligation had been satisfied.

We reverse and remand.


Pursuant to a plea agreement, respondent was convicted of driving under the influence of alcohol (Veh.Code § 23153, subd. (a)) and causing great bodily injury (Pen.Code § 12022.7, subd. (a)).1 In March the trial court sentenced him to the high term of three years, plus three years for causing great bodily injury, suspended execution of sentence, and placed him on formal probation.

As conditions of probation, among others, respondent was required to spend 365 days in county jail while participating in a work furlough program and to "[m]ake restitution to victim pursuant to 1202.4(f) Penal Code, for current and future medicals in such manner as the probation officer shall prescribe."

In July 2001, respondent made a motion for an order determining that his restitution obligation had been satisfied because his insurance company "completed payment in full ... to Tracy Russell $15,000...." The trial court continued the hearing for the "Probation Department to determine if full restitution has been made."

In August 2001, Michael Zazueta, respondent's probation officer, prepared a supplemental probation report in anticipation of the continued hearing. He noted that respondent had provided him with a letter from his insurance company stating that Russell had been paid $15,000. Zazueta confirmed the payment. Attached to the report was a printed "Statement of Loss" form, dated January 31, 2001, with supporting documentation in which Russell sought reimbursement for losses in the amount of $5,917.25, including $150.80 for a damaged shirt and shoes, $1,224.00 for X-rays and diagnosis at Tower Imaging Medical, $343.24 for the Los Angeles City Fire Department, and $4,200.00 for lost earnings. The loss form stated: "Please complete both sides of this sheet," but the reverse side was not included with the report. The report concluded: "It is probation's position that the victim is still entitled to the restitution requested. Thus, the probation officer would agree with defendant owing restitution in the amount of $5,970.25 above what his insurance has paid to this victim."

At the August 30, 2001 continued hearing, respondent challenged the supplemental probation report, arguing that the restitution order only required payment of future and existing medical bills, which the report reflected had been paid. The trial court indicated that it ordinarily ordered full restitution and that it believed, pursuant to the sentencing sheet, its order was to "make restitution to the victim pursuant to section 1202.4(b)/(f) of the Penal Code in such manner that the probation officer shall prescribe [as] there was no specific amount at the time of the sentencing." It nonetheless indicated that it would "be held to whatever is in the transcript." The district attorney requested a continuance of the hearing to determine if Russell had been paid in full and to permit the probation officer to attend and explain his report. The court continued the hearing until September 25, 2001, warning: "[I]f your probation officer doesn't show up next time and your witness doesn't show up, then I will at that time make restitution per civil for any balance."

Zazueta filed another report for the September hearing in which he stated: "In discussing [this] matter with supervisors in the adult centralized restitution unit, it appears that the defendant may be relieved of any restitution owed through probation if the victim signed any waiver forms from defendant's insurance.... If the defendant can provide the court with the signed financial responsibility form, probation can take off the restitution amount owed by defendant. Without such paperwork, the amount will stand."2 Attached to Zazueta's September report was a memorandum from county counsel, citing People v. Clifton (1985) 172 Cal.App.3d 1165, 219 Cal.Rptr. 904 (Clifton), and concluding: "[I]n setting the amount of the restitution, the court should not consider the recovery rights of a third party (i.e.: an insurance company). It follows that the court cannot reduce the amount of the restitution for insurance paid or payable to a victim."

At the September 25, 2002 hearing, the prosecutor claimed restitution had not been fully paid. He reported that Russell had told him that a large portion of the insurance settlement was paid to her attorney, she had over $6,000 of emergency room medical bills outstanding, she had bills for back therapy, and she had not been paid for lost wages. The trial court stated: "[I]f we need a full hearing, we will have witnesses come in [to court]...." The court concluded, however, that a full hearing was unnecessary because "we do have a release signed by her and it does have the defendant's name on it. [¶] ... [¶] ... I'm going to follow the probation's recommendation. If there is still outstanding restitution, she does have an attorney and it will become restitution per civil judgment. As far as probation, I'm going to make it informal probation and the defendant can come back here to show proof of completion of the SB38 program. So number one, probation is reduced to summary probation."

The district attorney then requested a hearing to determine the amount of attorney expenses incurred by Russell in obtaining the settlement with respondent's insurance carrier. The court declined to set a hearing because "this court is just not in a position to handle this as a civil case," adding that, "We did order restitution through probation."


1. The written release Russell gave respondent's insurance carrier does not bar restitution.

Although the record is ambiguous, it appears that the trial court based its ruling that respondent had satisfied his restitution obligation on the probation report, which stated: "[T]he defendant may be relieved of any restitution owed through probation if the victim signed any waiver forms from defendant's insurance." The trial court received a release signed by Russell "with respondent's name on it."3

We agree with appellant's contention that the written release did not abrogate respondent's restitution obligation because (1) a release by a victim cannot waive the People's right to have a defendant pay restitution ordered as part of his sentence, (2) the victim would be in an untenable position if he or she had to reject a settlement offer from a defendant's insurance company that covers only a portion of the victim's losses in order to preserve the uncertain possibility that the full amount might be recovered from the defendant, and (3) Clifton, supra, 172 Cal. App.3d 1165, 219 Cal.Rptr. 904 and People v. Hove (1999) 76 Cal.App.4th 1266, 91 Cal.Rptr.2d 128 (Hove) so indicate.

Article I, section 28, subdivision (b) of the California Constitution, states in part: "It is the unequivocal intention of the People of the State of California 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."

Implementing legislation was passed and, at the time of respondent's crime, former section 1202.4 was effective.4 That section mandated that a crime victim receive "full restitution" (§ 1202.4, subd. (f)) "directly from" the defendant (§ 1202.4, subd. (a)(1)) without regard to "the indemnification or subrogation rights of any third party" (§ 1202.4, subd. (f)(2)).

A restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter defendant and others. (People v. Crow (1993) 6 Cal.4th 952, 957, 26 Cal.Rptr.2d 1, 864 P.2d 80.) "Among other things, California's restitution law 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. [Citations.] Restitution `is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.' [Citations.]" (People v. Moser (1996) 50 Cal.App.4th 130, 135-136, 57 Cal.Rptr.2d...

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