People v. Blankenship

• Decision Date: 31 August 1989
• Docket Number: No. D007947,D007947
• Citation: 213 Cal.App.3d 992,262 Cal.Rptr. 141
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Artemus BLANKENSHIP, et al., Defendants and Appellants.

Page 141

262 Cal.Rptr. 141

213 Cal.App.3d 992

The PEOPLE, Plaintiff and Respondent, v. Artemus BLANKENSHIP, et al., Defendants and Appellants.

No. D007947.

Court of Appeal, Fourth District, Division 1, California.

Aug. 31, 1989.

Certified for Partial Publication ¹

Review Denied Nov. 30, 1989.

[213 Cal.App.3d 994] Gregory Marshall, San Diego, under appointment by the Court of Appeal, for defendant and appellant Artemus Blankenship.

Joel M. Kriger, La Mesa, under appointment by the Court of Appeal, for defendant and appellant Michael D. Watson.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael D. Wellington and Roy W. Hewitt, Deputies Atty. Gen., for plaintiff and respondent.

WORK, Associate Justice.

Artemus Blankenship and Michael Watson appeal judgments following convictions for respectively, robbery (PEN.CODE, § 211)² and receiving stolen property (§ 496., subd. 1), and other crimes. Blankenship asserts the court erred in giving the instruction on flight (CALJIC No. 2.52), in failing to sua sponte give the unanimity instruction (CALJIC No. 17.01), in inadequately stating reasons for imposing aggravated and consecutive prison terms, and in not staying a sentence. Watson faults an instruction on a lesser related offense. We find these attacks to be without merit. However, we hold that under Government Code section 13967, an insurance company cannot be awarded restitution, and the total award cannot exceed $10,000. Accordingly, we strike a portion of the restitution order, modify the abstract of judgment to reflect the proper sentence, and affirm the judgments as modified.

I-III ^*

IV

RESTITUTION ORDER

A

Blankenship's sentencing was postponed one week to permit time to respond to the probation report. That report itemized the victims' economic losses. One victim (Wroe) estimated her losses at $7,000, of which Farmers Insurance reimbursed her $3,792.87. She claimed a noncompensated loss of $3,207.13 and Farmers Insurance claimed reimbursement of its $3,792.87. A second victim (Hallett) estimated her losses at $4,000. The total amount of restitution claimed was $11,000. The probation report recommended the statutory maximum of $10,000 restitution to the victims and a $100 fine.

At Blankenship's sentencing hearing on April 17, 1988, the court stated it believed restitution was limited to $10,000 pursuant to Government Code section 13967 and ordered that amount--Hallett to receive $4,000, Wroe her unreimbursed $3,207.13, and Farmers Insurance Company was to be indemnified for its insurance payment of $3,792.87. In addition, a $100 restitution fine was ordered paid under section 2085.5. Blankenship's liability was made joint and several with Watson's.

B

Blankenship argues (1) imposition of a $10,000 fine on an indigent person violates the constitutional protection against excessive fines in article I, section 17 of the California Constitution; (2) making the fine payable to the victims created an enforceable judgment for money damages without notice or hearing or proof of damage, thereby violating due process; (3) the court erred in failing to receive evidence to prove the economic losses and to identify the losses in its order; and (4) the restitution order exceeded the statutory authorization.

Preliminarily, we decline to address Blankenship's assertion that it is excessive under article I, section 17 of the California Constitution to impose a $10,000 fine on an indigent person. He raises this argument in his opening brief in a single sentence, without discussion or citation to authority, positing that its merit seems "beyond dispute," and then in his reply brief requests an opportunity for supplemental briefing should the court consider the issue on appeal. We deem the issue waived and decline to address it.

Government Code section 13967, subdivision (a) (hereafter referred to as subdivision (a)) provides that if a person is convicted of one or more felony offenses, the court shall impose a restitution fine of no less than $100 and not more than $10,000. In setting the amount of the fine the court shall consider any relevant factor, including the seriousness and gravity and circumstances of the offense, the economic gain derived by the defendant, and the extent to which others suffered losses as a result of the crime, including pecuniary losses and intangible losses such as psychological In 1986, subdivision (c) was added to Government Code section 13967 (hereafter referred to as subdivision (c)), allowing for direct payment of restitution orders to victims, providing:

harm. Subdivision (a) fines are deposited in the state's restitution fund pool to pay claims filed by victims.

"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. Notwithstanding subdivision (a), restitution shall be imposed in the amount of the losses, but not to exceed ten thousand dollars ($10,000). A restitution order imposed pursuant to this subdivision shall identify the losses to which it pertains, and shall be enforceable as a civil judgment...." (Italics added.)

In People v. Sandoval (1989) 206 Cal.App.3d 1544, 1549-1550, 254 Cal.Rptr. 674, the court held that a defendant who is ordered to pay a restitution fine under subdivision (c) need not be given an opportunity to contest his ability to pay the fine. Sandoval distinguishes those cases holding that ability to pay must be considered when restitution is imposed as a condition of probation, since in such a situation if the defendant cannot pay he may be imprisoned. In contrast, under subdivisions (a) and (c), the order is only enforceable as a civil judgment.

Regarding the extent of the defendant's due process rights under subdivision (c), Sandoval states the general proposition that " '[w]hatever the specific procedural safeguards required at a sentencing hearing concerning restitution, fundamental fairness must be assured ... [and the] ... defendant must be afforded a reasonable opportunity to be heard on the issue of restitution.' " (Id. at p. 1550, 254 Cal.Rptr. 674.) In Sandoval, the probation report contained a statement by the victim indicating the damage to property exceeded $4,000, however, the probation report recommended only a $1,000 fineand did not recommend restitution to the victim. The trial court nevertheless unexpectedly ordered $4,000 restitution to the victim. Since the defendant had no reason to contest the amount of restitution which was not recommended in the probation report or to expect such an assessment, on appeal the court found the defendant had been denied the opportunity to contest the validity of the $4,000 figure. Here, however, Blankenship cannot claim surprise, since the probation report recommends the amount awarded.

In People v. Williams (1989) 207 Cal.App.3d 1520, 1522, 255 Cal.Rptr. 778, the trial court ordered the defendant to pay the victim $250 restitution, the deductible amount of her collision insurance, and also to reimburse the insurance company the $1,416 it had paid the victim for her losses. On appeal, the court held the defendant could not be ordered under subdivision (c) to pay either the insurance company or the victim for the losses which were compensated by insurance. However, the court upheld the amount awarded to the victim based on the deductible. The court rejected the defendant's argument that due process was violated since the restitution order was imposed without a trial, since the defendant was advised in the plea agreement that he might be ordered to pay restitution to the victim, and "the court entered its order after considering the probation report and after a probation and sentencing hearing," which "is all the process [the defendant] was due." (Id. at p. 1524, 255 Cal.Rptr. 778.)

A defendant's due process rights are protected when the probation report gives notice of the amount of restitution claimed and expected to be ordered under Government Code section 13967, and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing. ⁴ Blankenship was given In addressing Blankenship's evidentiary attack, we note subdivision (c) requires the restitution order to "identify the losses to which it pertains...." (Italics added.)

the opportunity to challenge the accuracy of the monetary claims at his sentencing hearing, but did not. The court had stated it would set a hearing for any challenge and, in fact, Watson took advantage of that right. Blankenship cannot now complain of any lack of due process.

Here, the probation report and the trial court's order recite only a lump sum total value of undefined losses estimated by each victim. Since subdivision (c) by its terms only relates to economic losses, and since the subdivision nevertheless expressly requires restitution orders to identify those losses, it appears that the subdivision contemplates more than a "bottom line" sum. ⁵ We conclude the Legislature intended restitution orders under subdivision (c) for economic losses to be supported by reference to a factual basis for the claim. This would more adequately apprise defendants of the accuracy of restitution claims, permit the court to better evaluate their merits, and perhaps forestall challenges to those orders. However, because Blankenship chose not to contest the matter at sentencing, we deem he has waived any right to challenge the order for lack of specificity.

C

As recommended in the probation report, the court ordered Blankenship to pay a $100 restitution fine under subdivision (a), pursuant to section 2085.5. ⁶ Further, the court ordered the maximum $10,000 restitution under subdivision (c)--i.e., first paying $4,000 to Hallett and $3,207.13 to Wroe, and the remainder to the insurance company (i.e. $2,792.87)...