People v. Vasquez

• Citation: 10 Cal. Daily Op. Serv. 16,10 Cal. Daily Op. Serv. 15,190 Cal.App.4th 1126,119 Cal.Rptr.3d 29
• Decision Date: 28 December 2010
• Docket Number: No. B218802.,B218802.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Orlando VASQUEZ, Defendant and Appellant.

190 Cal.App.4th 1126

119 Cal.Rptr.3d 29

10 Cal. Daily Op. Serv. 15

10 Cal. Daily Op. Serv. 16

2010 Daily Journal D.A.R. 18

2010 Daily Journal D.A.R. 19

The PEOPLE, Plaintiff and Respondent,

v.Orlando VASQUEZ, Defendant and Appellant.

No. B218802.

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

Dec. 13, 2010.

As Modified on Denial of Rehearing Dec. 28, 2010.

Christopher Blake, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P.J.

As part of the resolution of a criminal case charging him with two felony counts of failure to control a mischievous animal that caused serious bodily injury (Pen.Code, § 399, subd. (b)),¹ Orlando Vasquez agreed to pay $168,633.20 in restitution to Heiddy G., a young girl who had been severely mauled by his pit bull. Vasquez subsequently moved to have the court declare his restitution obligation satisfied, contending a $300,000 payment to settle a civil suit against Vasquez and his landlord, funded by the landlord's insurer through a homeowners policy that also insured Vasquez, is properly deemed restitution made directly from Vasquez within the meaning of section 1202.4 and constituted a full offset to the restitution award. The trial court denied the motion, observing its restitution order had expressly stated Heiddy was still receiving medical treatment and provided any additional losses she sustained could be recovered in a civil action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Pit Bull Attack and Vasquez's Plea Agreement

On June 9, 2006 Vasquez's pit bull escaped from his residence on North Hagar Street in the City of San Fernando. (The property was apparently owned by Antonio Mora.) The animal entered the San Fernando Middle School grounds where it cornered and savagely attacked Heiddy, a student in the seventh grade, while she was in one of the school's bathrooms. Heiddy suffered extensive injuries, which required multiple surgeries.

On June 12, 2006 Vasquez was charged in a felony complaint with two counts of violating section 399, subdivision (b), failing to control a mischievous animal that causes serious bodily injury: ² Count 1 of the complaint was based on the attack on Heiddy; count 2 alleged Vasquez had allowed the pit bull to cause serious injury to another victim (Michael Mirmelli) between December 1, 2005 and January 31, 2006.

On August 24, 2006 Vasquez entered into a negotiated plea agreement: Vasquez pleaded no contest to count 1 of the complaint, the People's motion to dismiss count 2 was continued to the date of sentencing.³ On September 7, 2006, before the Hon. Harvey Giss, Vasquez was sentenced to three years of formal probation on condition he serve 180 days in the Los Angeles county jail and not own any dogs during the period of probation. A victim restitution hearing was set for December 4, 2006. Count 2 was dismissed by the court pursuant to the terms of the negotiated agreement.

2. The Restitution Hearing

At the restitution hearing on December 4, 2006, also before Judge Giss, Vasquez stipulated to a restitution amount of $168,633.20, the damages suffered by Heiddy "so far." The court explained at the hearing, "The court has discussed this matter with counsel. The court is prepared to make an order for that amount, with the understanding that that's not—in all likelihood that will not be the final amount, but the district attorney has no objection to the court making that because—is there some kind of policy, a homeowners policy that might be involved in this?" The deputy district attorney responded, "There may be. I don't know anything about their civil remedies. What I'd like to do is just have this amount ordered, and then whatever else is outstanding be ordered pursuant to a civil judgment." The court agreed with the prosecutor's position, noting, "The victim has a civil lawyer.... [T]hey're going to pursue this.... This in no way impedes their right to prove the case for the amount that's owing." The court then stated, "Defendant is ordered to pay a civil judgment if one results in this case for the amount of that, and this does not supersede that. That supersedes this."

The order for restitution and abstract of judgment signed by Judge Giss following the restitution hearing specifies the restitution awarded is for the victim's "medical expenses." The minute order from the hearing directing payment of restitution provides, "Counsel and defendant stipulate to a restitution amount of $168,633.20 to date. The victim is still receiving medical treatment and any amount over the $168,633.20 will be pursuant to civil judgment."

3. Heiddy's Civil Suit and Settlement

In December 2006 Heiddy, through her parent and guardian ad litem, filed a civil action against Vasquez, Mora and Maria Ruiz, who apparently also lived at the North Hagar Street residence where Vasquez kept the pit bull, as well as the Los Angeles Unified School District, the Los Angeles County Department of Animal Control and the City of San Fernando. Heiddy alleged causes of action for strict liability and negligence against Vasquez, Mora and Ruiz and for negligence against the school district, the county and the city.

On October 1, 2007 the superior court (Hon. Melvin D. Sandvig) approved a compromise of minor's disputed claim on behalf Heiddy against Vasquez, Mora and Ruiz. The settlement provided for a total payment in favor of Heiddy of $300,000 from Mora's homeowners insurance, which also covered Vasquez as an insured. Of the total settlement, $75,000 was payable to Heiddy's attorney for legal fees, and $22,335 was identified as reimbursement for medical and other expenses paid by Heiddy or her attorney. The balance of $202,665 was used to fund a structured settlement annuity from Allstate Assignment Company. On November 29, 2007 Heiddy's counsel filed a request for dismissal with prejudice of her action as to Vasquez, Mora, Ruiz and the Los Angeles Unified School District only. The clerk entered the dismissal the same day.⁴

[190 Cal.App.4th 1131, 119 Cal.Rptr.3d 34]

4. Vasquez's Motion To Order Satisfaction of Judgment

On August 24, 2009 Vasquez filed a motion "to order satisfaction of restitution," contending under People v. Short (2008) 160 Cal.App.4th 899, 73 Cal.Rptr.3d 154 ( Short ), although the $300,000 civil settlement payment had been made by Mora's homeowners insurance, that payment must be deemed to be restitution to the victim directly from Vasquez within the meaning of section 1202.4, subdivision (a)(1), and constituted a full offset to the $166,633.20 restitution award. In support of the motion Vasquez submitted the declaration of the Allstate Insurance Company claim representative who had handled Heiddy's claim. The representative stated Allstate Insurance had paid Heiddy its entire $300,000 policy limit for bodily injury in exchange for a release, through Heiddy's guardian ad litem and her legal counsel, of "any further claims against Mr. Vasquez for injuries [Heiddy] sustained as a result of the alleged dog bite." According to the representative, "Allstate would not have paid [Heiddy] its $300,000 policy limit if she did not give up her right to seek any further payment from Mr. Vasquez." No copy of any settlement documents or the release itself was submitted with Vasquez's motion.

The People filed a response, arguing the settlement payment by Allstate Insurance on behalf of Vasquez did not satisfy his court-ordered restitution in the criminal action. The People explained Heiddy's actual and future projected medical costs at the time of the restitution hearing far exceed the $168,633.20 ordered and contended the sum paid in the civil settlement for additional medical expenses (at most, $22,335) was anticipated by the restitution order, which expressly authorized Heiddy to recover any such additional costs through a civil action. The response included a copy of a March 2007 expert medical report prepared for Heiddy's attorney in connection with her civil action, which detailed her extensive injuries, multiple surgeries and other medical procedures and projected costs of future treatment.

The court denied Vasquez's motion following a hearing on September 3, 2009. The court explained, in its view, the issue raised by Vasquez's motion was not only whether a payment by Allstate Insurance on behalf of Vasquez was properly considered restitution directly from him—the legal question addressed in Short, supra, 160 Cal.App.4th 899, 73 Cal.Rptr.3d 154—but also whether the settlement payment was for medical expenses included within the original restitution award, for which a setoff might be appropriate, or for additional, post-restitution-award costs, as well as pain and suffering, resulting from the pit bull attack: "That 168 was up to that point in time for all the expenses incurred by the victim for her serious surgeries.... [I]t was understood that there would be ongoing matters." The court reiterated its restitution order had expressly stated Heiddy was still receiving medical treatment and provided any additional losses she sustained could be recovered in a civil action.

DISCUSSION

1. Governing Law

a. The relationship between restitution orders and civil actions

Section 1202.4, subdivision (a)(1), provides, "It is the intent of the Legislature 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." With several limited exceptions not relevant here, section 1202.4, subdivision (f), in turn, provides, "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or...