People v. Ortiz

• Decision Date: 20 March 1997
• Docket Number: No. B098805,B098805
• Citation: 62 Cal.Rptr.2d 66,53 Cal.App.4th 791
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 2064, 97 Daily Journal D.A.R. 3787 The PEOPLE, Plaintiff and Respondent, v. Vicenta R. ORTIZ, Defendant and Appellant.

Page 66

62 Cal.Rptr.2d 66

53 Cal.App.4th 791, 97 Cal. Daily Op. Serv. 2064,

97 Daily Journal D.A.R. 3787

The PEOPLE, Plaintiff and Respondent, v. Vicenta R. ORTIZ, Defendant and Appellant.

No. B098805.

Court of Appeal, Second District, Division 7, California.

March 20, 1997.

Rehearing Denied April 10, 1997.

Review Denied June 11, 1997.

Jonathan B. Steiner, Los Angeles and Elizabeth A. Courtenay, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, and Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, Associate Justice.

Defendant challenges the condition of her probation requiring restitution under Penal Code section 1202.4. ¹ We conclude the trial court properly found a non-profit trade association stood in the shoes of the direct victims of defendant's crime and was entitled to restitution for economic loss incurred as the result of the defendant's criminal conduct. We also conclude the amount of restitution ordered was rationally calculated and based on substantial evidence. Therefore, we affirm the judgment.

FACTS AND PROCEEDINGS BELOW

Defendant Vicenta Ortiz was found to have possessed for sale approximately 53,000 counterfeit cassette tapes. She was convicted on one count of violating section 653w, subdivision (a) ² and placed on five years probation. As a condition of probation, the trial court ordered Ortiz to pay restitution to the Association of Latin American Record Manufacturers (ALARM).

The evidence at trial and at Ortiz's restitution hearing showed ALARM is a non-profit trade association representing various Latin American music labels in an effort to find and destroy counterfeit versions of their recordings and assist in the prosecution of persons involved in the counterfeiting. Following up on a tip, ALARM sent undercover investigators to Ortiz's home where they purchased 500 counterfeit tapes for 75 to 80 cents per tape. Based on the information from ALARM's investigators, Los Angeles police officers obtained a search warrant which led to the seizure of approximately 53,000 counterfeit tapes from Ortiz's home along with price lists, material used in packaging cassettes and $1,150 hidden in her dresser drawer. ALARM paid the costs of transporting and storing the counterfeit tapes and destroying all except a few used in evidence at trial. ALARM sought restitution of these investigatory expenses plus $10 per tape ($530,000) representing the "potential loss" to its members from the sale of the counterfeit tapes.

After considering this evidence, the trial court ordered Ortiz, as a condition of her probation, to pay restitution to ALARM in the sum of $7,639.65 representing $5,639.65 for investigatory costs and $2,000 for estimated economic loss.

On appeal, Ortiz contends ALARM was not entitled to any restitution because it was not a "direct victim" as required by section 1202.4 subdivision (p). ³ She further contends even if ALARM was a direct victim of her crime it is not entitled to recover investigatory costs and there was no evidence to support the award for economic loss. For the reasons explained below, we disagree.

DISCUSSION

I. RESTITUTION WAS PROPERLY AWARDED TO A TRADE ASSOCIATION REPRESENTING THE DIRECT VICTIMS OF THE DEFENDANT'S CRIME.

In enacting section 1202.4, the Legislature declared its intent "that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." (§ 1202.4, subd. (a)(1).) Victims entitled to restitution include "any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime .... " (§ 1202.4, subd. (p) (now subd. (k)).) (Italics added.)

In People v. Crow (1993) 6 Cal.4th 952, 957, 26 Cal.Rptr.2d 1, 864 P.2d 80, the court held a "victim," for purposes of the restitution statutes, is a " 'person who is the object of a crime.' " (Citation omitted.) Ortiz argues the record companies which formed ALARM were the objects or, in the words of the statute, the "direct victims," of the crime because it was their tapes which were counterfeited. ALARM was not a victim at all because it had nothing to do with the production or sale of the genuine tapes. ALARM was formed for the purpose of combating crime against its members. Thus, investigating the sale of counterfeit tapes was ALARM's job. ALARM is not the "victim" of a crime merely because it expended funds investigating it. The police also expend funds investigating crime but this does not make them crime "victims" entitled to restitution under section 1202.4. If anything, ALARM is but an indirect victim of the crime to the extent it expended money for investigative services. Indirect victims, however, are not entitled to restitution. (§ 1202.4, subd. (p); People v. Sexton (1995) 33 Cal.App.4th 64, 71, 39 Cal.Rptr.2d 242.)

We reject Ortiz's narrow interpretation of section 1202.4. Under the facts of this case, treating ALARM as a direct victim is consistent with the language of the statute and the clearly expressed public policy of this state.

If the companies which make up ALARM combated piracy of their recordings individually instead of through a trade association, there can be no doubt the companies would be entitled to restitution as "direct victims" of Ortiz's crime. We see no reason why these companies cannot form a non-profit association to combat tape piracy and obtain restitution on their behalf. This not only makes good business sense but, in the case of foreign companies, it may be the only practical solution, as we discuss below. In the present case, ALARM stands in the shoes of the direct victims as their designated representative in the United States to protect their interests with respect to the counterfeiting of their products. Section 1202.4, subdivision (p) explicitly recognizes an association can be a direct victim and we presume the Legislature knows an association is an organization of people or other entities joined for a common purpose. (See West's Legal Thesaurus/Dictionary (1985) p. 68.)

Furthermore, permitting an association such as ALARM to seek restitution is consistent with the will of the People as expressed by them directly and through the Legislature.

Restitution has long been considered a valid condition of probation because of its rehabilitative value. (§ 1203.1, subds. (a)(3), (b); People v. Carbajal (1995) 10 Cal.4th 1114, 1121, 43 Cal.Rptr.2d 681, 899 P.2d 67.) Restitution is seen as a "deterrent to future criminality" and as a tool "to rehabilitate the criminal." (People v. Crow, supra, 6 Cal.4th at p. 957, 26 Cal.Rptr.2d 1, 864 P.2d 80 [internal quotations and citations omitted].) Requiring the defendant to make complete reparation to her victims for the harm done to them is more likely to make an impression on the defendant than simply imposing a statutory fine. (People v. Miller (1967) 256 Cal.App.2d 348, 356, 64 Cal.Rptr. 20.)

Furthermore, in 1982, the voters passed Proposition 8 making entitlement to restitution the constitutional right of every crime victim. (Cal. Const., art. I, § 28, subd. (b).) ⁴ This constitutional provision also directed the Legislature to enact laws empowering trial courts to order restitution when sentencing convicted criminals. (Ibid.) Sections 1202.4 and 1203.04 were enacted to implement this constitutional right. (See fn. 3, supra.) In view of the strongly expressed concern for persons who have suffered loss as the result of criminal conduct, our Supreme Court has given the term "victim" a broad and flexible meaning. (People v. Crow, supra, 6 Cal.4th at pp. 959-960, 26 Cal.Rptr.2d 1, 864 P.2d 80 ("victim" includes government agencies and nonresidents); People v. Broussard (1993) 5 Cal.4th 1067, 1075, 22 Cal.Rptr.2d 278, 856 P.2d 1134 ("victim" includes anyone suffering an economic loss, not merely physical injury).)

Under Proposition 8 and its implementing legislation, as interpreted by our Supreme Court, foreign residents are entitled to restitution for economic loss suffered as the result of criminal activity in this state. (See Crow and Broussard, supra.) Nevertheless, where there are numerous victims of the defendant's criminal activity and those victims are foreign residents, it may be impracticable if not impossible for each of them, individually, to discover and seek restitution for crimes involving their property interests in California. Unless they can bind together to seek restitution under one representative organization, these crime victims effectively could be denied the compensation to which they are entitled and the defendant could escape her responsibility to make restitution for the economic loss she has caused. Such a result would be contrary to the policy behind making restitution a condition of probation as well as the express intent and purposes of Proposition 8 and its implementing legislation.

II. THE RESTITUTION AWARD WAS RATIONALLY CALCULATED AND BASED ON SUBSTANTIAL EVIDENCE.

A. Out-of-Pocket Investigation Expenses.

At the time Ortiz was convicted and sentenced, section 1202.4, subdivision (g) (now subdivision (f)) provided in relevant part: "Restitution shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim or victims, for every determined economic loss incurred as the result of the defendant's criminal conduct, including ... (4) Wages or profits lost by the victim ... due to time spent as a witness or in assisting the police or prosecution."

The evidence showed ALARM incurred $5,639.65 in out-of-pocket expenses assisting the...