People v. Sexton

• Decision Date: 15 March 1995
• Docket Number: No. A064123,A064123
• Citation: People v. Sexton, 39 Cal.Rptr.2d 242, 33 Cal.App.4th 64 (Cal. App. 1995)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Hank Scott SEXTON, Defendant and Appellant.

Page 242

39 Cal.Rptr.2d 242

33 Cal.App.4th 64

The PEOPLE, Plaintiff and Respondent, v.Hank Scott SEXTON, Defendant and Appellant.

No. A064123.

Court of Appeal, First District, Division 2, California.

March 15, 1995.

Certified for Partial Publication. ^*

[33 Cal.App.4th 66] James D. Rodseth, Mendocino, by Appointment of the Court under the First District Appellate Project's Assisted Case System, for plaintiff and respondent.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman, Mark S. Howell, Supervising Deputy Attys.Gen., for defendant and appellant.

PHELAN, Associate Justice.

DefendantHank Sexton appeals from a judgment of conviction after his guilty plea.He challenges the conditions of his grant of probation requiring restitution.We conclude that the court could properly order a restitution fine equaling the statutory minimum despite its finding that defendant lacked the ability to pay and, in the published portion of the opinion, that the court could not order restitution to a third party insurer whose only "injury" resulted from payments to the victim under a contract of insurance.

BACKGROUND

On July 21, 1993, defendant pleaded guilty to charges of auto theft (Veh.Code, § 10851) and failure to appear (Pen.Code, § 1320, subd. (b)).The court admonished defendant that as a result of the plea he could "be liable for up to a $10,000 fine and restitution if it's appropriate."

The probation officer reported that the charges arose on April 9, 1993, when deputies saw a speeding 1987 Toyota Camry with a burned-out taillight.They stopped the vehicle.Its two occupants attempted to flee.One of them, defendant, was apprehended.He admitted stealing the car in Oregon.He failed to appear for a preliminary hearing on May 27, and a bench warrant issued.He surrendered to authorities on July 7.

The probation report noted the car owner's statement that "there was extensive damage done to the interior of her car, and the car has numerous scratches.Her deductible was $350.00.The remainder was paid by her insurance company."The report indicated that defendant, who was 18 years old, had an eleventh grade education.Under "Employment Record," the officer wrote, "The defendant states he is a boat detailer, has worked at a tire shop, and has cleaned lots and horse stalls."His "current income" was listed as "none."The report stated, "The defendant's parents provide him with room and board.He does own a 1974 Scout, which is non-operable."The report recommended that defendant be placed on probation on the conditions, among others, that he pay $350 restitution to the victim, based on the deductible under her insurance policy, and $200 to the victims' restitution fund.

At the sentencing hearing on August 13, the court suspended imposition of sentence and granted three years' probation on substantially the terms recommended, including orders that defendant pay $200 to the victims' fund, $350 to the victim, a $225 presentence investigation fee, and a monthly $25 supervision fee.Defense counsel stated, however, that defendant"dispute[d] any damage to the vehicle," and requested a "restitution hearing."The court scheduled a restitution hearing.

At the September 10 restitution hearing the prosecution relied upon the owner's responses to a form questionnaire prepared by the deputy probation officer.The owner stated $3,317.95 as her "[d]ollar amount of loss and/or medical expenses."She indicated that she had been insured by Allstate Insurance Company, that the amount of her deductible was $350, and that she had incurred an estimated $25 in other unreimbursed expenses.Attached to the report was a handwritten tabulation of the damages suffered and the amount paid by Allstate.The largest items were $1,714.32 for "[c]ost to repair damage done to car," $704.85 for "[r]eplacement cost for car content," and $393.50 for "[c]ost to transport car back to West Linn & buy new license plates & register car."The owner noted that she had prepared her response while away from home and without access to all of her records.She advised the probation department that they could contact Allstate directly to obtain the insurance records of the damages paid.The only independent documentation included was an invoice from a car dealership indicating a charge of $76.70 to "chk out vehicle and make estimate" and "replace nec fuses."(Sic.)The invoice reflected a "preliminary estimate" of $500.

Defendant testified that when he first got into the car, "[t]he gear shift looked like it was chewed on, and in the back seat there was a blanket, and it had dog hairs all over it."When he left the car, its condition was unchanged, "[j]ust with a few more miles."He also testified that he was not employed, was not receiving any government assistance, and had been living with his mother.In his last job about four months previously he cleaned horse stalls at a fair earning "about a hundred dollars" in about two weeks.About a year earlier he earned "about $300" by "cleaning lots."Asked if he had any disabilities, he testified that he was "partly blind in one eye," and that he couldn't "think so fast" because, at the age of six, he was hit by a truck "and half my skull got shattered."On cross-examination he admitted that he helped switch the Oregon plates on the car for California plates, and that he smoked.¹

The prosecution cited People v. Foster(1993)14 Cal.App.4th 939, 18 Cal.Rptr.2d 1, reviewed denied, for the proposition that "insurance companies may be considered victims for the purpose of ... restitution."(Id. at pp. 948-954, 18 Cal.Rptr.2d 1.)Defense counsel did not contest this point, but challenged the supporting documentation as unreliable hearsay.He questioned certain specific items and added, "without a breakdown and some kind of accurate assessment, these bills could be for existing damages.It doesn't even say that these were damages which occurred during the offense."Counsel contended that given the participation of the codefendant, defendant should be ordered to pay only half of the total sum.

Defense counsel further asserted that the evidence established that defendant"does not have the ability to pay."The prosecutor replied that "ability to pay is separate and distinct from how much restitution," urging the court to "set the amount of restitution and bring this matter back" for review "approximately two months after his release date."

After taking the matter under submission, the court issued a written order fixing a "restitution sum" of $3,317.95, payable in stated amounts to the victim and her insurance carrier, in installments to be determined by the probation officer.²Defendant's notice of appeal was filed December 10, 1993.³

DISCUSSION

A.Ability to Pay ^**

B.Restitution To Insurer

Appellant contends the trial court could not properly order payment of restitution to the victim's insurer.We first address respondent's claim that any objection of this nature was waived by appellant's failure to raise it in the trial court.In support of this contention respondent cites People v. Zito(1992)8 Cal.App.4th 736, 742-743, 10 Cal.Rptr.2d 491, review denied.The objection there, however, was that the court failed to consider the victim's possible receipt of insurance proceeds in determining restitution due to the victim.In contrast, an objection may be raised for the first time on appeal where it concerns an "unauthorized" sentence, i.e., one which "could not lawfully be imposed under any circumstance in the particular case."(People v. Scott(1994)9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040["claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner"].)Applying this principle in the context presented here, courts have concluded that a defendant may object for the first time on appeal to a restitution order in favor of an insurance carrier.(People v. Williams(1989)207 Cal.App.3d 1520, 255 Cal.Rptr. 778[order was beyond sentencing court's jurisdiction];People v. Foster, supra, 14 Cal.App.4th at p. 949, 18 Cal.Rptr.2d 1[upholding order, but rejecting waiver argument];People v. Franco(1993)19 Cal.App.4th 175, 183, fn. 16, 23 Cal.Rptr.2d 475, review den.[factual issues subject to waiver rule but the power to order restitution is not].)We conclude that the objection was not waived by failure to assert it below.We therefore turn to the merits.

The cases are divided on the question whether a sentencing court can order the defendant to pay restitution to a victim's insurer.(SeePeople v. Foster, supra, 14 Cal.App.4th at pp. 948-954, 18 Cal.Rptr.2d 1[upholding order];People v. Calhoun(1983)145 Cal.App.3d 568, 572-573, 193 Cal.Rptr. 394[same];People v. Alexander(1960)182 Cal.App.2d 281, 292-293, 6 Cal.Rptr. 153[same];but seePeople v. Williams, supra, 207 Cal.App.3d 1520, 255 Cal.Rptr. 778[restitution order under Gov.Code, former § 13697, subd. (c) in favor of victim's insurer was in effect an unauthorized civil judgment for subrogation];People v. Blankenship(1989)213 Cal.App.3d 992, 999, 262 Cal.Rptr. 141[agreeing with Williams; "an insurance company is not a victim" for purposes of restitution under Gov.Code, former § 13967, subd. (c)];People v. Wardlow(1991)227 Cal.App.3d 360, 368-371, 278 Cal.Rptr. 1[following Williams in probation context, refusing to uphold order of restitution in favor of indirect victims];People v. Franco, supra, 19 Cal.App.4th 175, 182-185, 23 Cal.Rptr.2d 475[worker compensation benefits paid to victim police officer not subject to restitution under former § 13967, subd. (c)].)

We need not take sides in this controversy because, during the pendency of this appeal, the Legislature enacted amendments to the relevant statutes which we find to be dispositive.(Stats.1994,...