People v. Calhoun

• Decision Date: 28 July 1983
• Docket Number: Cr. 15073
• Citation: 145 Cal.App.3d 568,193 Cal.Rptr. 394
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sandra Ann CALHOUN, Defendant and Appellant.

Page 394

193 Cal.Rptr. 394

145 Cal.App.3d 568

The PEOPLE, Plaintiff and Respondent, v. Sandra Ann CALHOUN, Defendant and Appellant.

Cr. 15073.

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

July 28, 1983.

Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, and Paul Bell, Deputy State Public Defender, and Patrick Q. Hall, San Diego, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Michael D. Wellington and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

GERALD BROWN, Presiding Justice.

In August 1979 Sandra Calhoun, while driving under the influence of alcohol, ran her car into two parked cars, damaging the cars and injuring the passengers in her car. In January 1980 Calhoun pleaded nolo contendere to drunk driving causing injury to another (former Veh.Code, § 23101(a)). She received probation on several conditions, one of which required her to pay restitution of $1,386.15 to the owners of the two damaged cars. The amount of the restitution order was based on the portion of the repair costs for which the owners of the cars were not compensated by their insurance companies. No restitution was ordered to reimburse the insurance company which paid a claim as a result of the accident. The insurance company sued Calhoun to recover its loss.

After the probation order was entered and the insurance company filed its suit, Calhoun filed for bankruptcy and was granted a discharge of all her debts. Included in her bankruptcy petition's schedule of debts were her restitution obligation to the probation department and the potential judgment in favor of the insurance company. After she was granted the discharge, the probation department requested the restitution order be modified to require Calhoun to reimburse the insurance company as well as the car owners. Calhoun argued the entire restitution order should be rescinded because it had been discharged in bankruptcy, and in the alternative, nothing should be paid to the insurance company because it was not a "victim" of her crime. The superior court found the discharge in bankruptcy has no effect on the restitution order, but due to Calhoun's low income, the court refused the probation department's request to increase the restitution obligation. The court did, however, modify the probation order to require some of the money payable to one of the car owners to be paid to her insurance company instead because the owner had told the court she would receive less money from her insurance company than she actually did. The final restitution order, therefore, provides for the owners of the damaged cars to receive all of their out-of-pocket loss but the insurance company will receive less than one-fourth of the amount it paid out.

Calhoun appeals, contending the superior court erred in finding the restitution order was not discharged in bankruptcy and in awarding some restitution to the insurance company.

Calhoun bases her contention the grant of her bankruptcy petition discharges the restitution probation condition on a claim the supremacy clause of the Federal Constitution prohibits a state court from reinstating a debt discharged in bankruptcy. That argument, as far as it goes, is correct. It is, however, well established a restitution order resulting from a criminal conviction is not a "debt." In People v. Washburn, 97 Cal.App.3d 621, 158 Cal.Rptr. 822, the defendant made the exact same claim Calhoun makes here. The court there held a bankruptcy has no effect on a criminal restitution order because such an order does not create a debtor/creditor relationship as the order's purpose is to facilitate rehabilitation of the defendant, not to compensate the victim (97 Cal.App.3d at pp. 625-626, 158 Cal.Rptr. 822). The Washburn analysis is based on the holding of the California Supreme Court in People v. Richards, 17 Cal.3d 614, 131 Cal.Rptr. 537, 552 P.2d 97. Richards held the criminal courts cannot act as collection agencies through exercise of their authority to require restitution as a condition of probation, but rather, may order restitution only where it will serve the purpose of rehabilitating the defendant (17 Cal.3d at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97). The court went on to imply a bankruptcy petition by the defendant would have no effect on restitution ordered for that proper purpose as it listed the effect of bankruptcy as one of the reasons restitution cannot be based on acts by the defendant which have not been adjudged to be criminal in nature (17 Cal.3d at p. 621, 131 Cal.Rptr. 537, 552 P.2d 97); we may infer the court considered restitution based on acts underlying a conviction is unaffected by a bankruptcy petition by the defendant.

Calhoun argues Washburn should not be followed because it is inconsistent with bankruptcy court cases. That is incorrect. In re Button, 8 B.R. 692 (Bkrtcy.W.D.N.Y. (1981)), agrees with Washburn's holding criminal restitution creates no creditor/debtor relationship and is thus unaffected by a discharge in bankruptcy.

"Under the new Bankruptcy Code, section 101(11) says the term 'debt' means liability on a claim. 'Claim,' pursuant to section 101(4) means right to payment. 'Creditor,' according to section 101(9) generally means an entity that has a claim against the debtor that arose before filing. From these definitions, it does not appear that restitution could be...