State v. Iniguez

• Citation: 169 Ariz. 533,821 P.2d 194
• Decision Date: 11 April 1991
• Docket Number: CA-CR,No. 1,1
• Parties: STATE of Arizona, Appellee, v. Edward INIGUEZ, Jr., Appellant. 89-465.
• Court: Court of Appeals of Arizona

Page 194

821 P.2d 194

169 Ariz. 533

STATE of Arizona, Appellee, v. Edward INIGUEZ, Jr., Appellant.

No. 1 CA-CR 89-465.

Court of Appeals of Arizona Division 1, Department A.

April 11, 1991.

Review Denied Jan. 7, 1992. ^*

[169 Ariz. 534] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Mark E. Dwyer, Asst. Atty. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender by Spencer D. Heffel, Deputy Public Defender, Phoenix, for appellant.

OPINION

LANKFORD, Judge.

Edward Iniguez, Jr. timely appeals from a restitution order requiring him to pay $50,000.00 of restitution as a condition of probation. The restitution order followed a settlement of a civil action between defendant and his victims. The defendant's insurer paid a substantial sum and in exchange the victims executed a release of all claims.

This appeal requires us to decide the effect of a settlement payment in a civil damages action upon restitution in a criminal case.

I.

In July of 1987, Iniguez was driving his vehicle while intoxicated and collided with another vehicle, the driver of which suffered severe personal injuries. Iniguez' tested blood-alcohol content after the collision was .17 percent. He was indicted for aggravated assault, a class three felony.

On March 8, 1988, Iniguez pled no contest to that charge. The superior court sentenced him to five years probation with incarceration in the Maricopa County Jail for one year as a condition of probation. In addition to the other terms and conditions of probation, he was ordered to pay restitution in an amount not to exceed $200,000.00, the exact amount to be determined at a later restitution hearing.

The injured driver and his wife then instituted a civil action against Edward Iniguez, Jr., against his mother and father, and against Principal Casualty Insurance Company. The parties eventually settled this action. Iniguez and Principal Casualty paid $150,000.00 to the plaintiffs in exchange for release of all claims.

The release recited that coverage under another insurance policy with a $50,000.00 liability limit would be litigated in a declaratory judgment action involving Principal Casualty and Iniguez. It further stated that if the insurer prevailed, then Iniguez would bear no further liability. If Principal Casualty did not prevail, then the $50,000.00 would be paid to the plaintiffs.

While it is clear that plaintiffs have received $150,000.00, the record does not reveal whether the additional $50,000.00 has been or will be paid. The record does show that the victims' attorney advised the probation officer that they did not wish to pursue criminal restitution from the defendant.

After the settlement agreement was reached, the court conducted a restitution hearing. No evidence was presented of the victims' total losses. The only evidence of damages was contained in a year-old probation report which indicated then-existing medical bills of $120,879.56.

The superior court ordered the defendant to pay restitution of $50,000.00 payable at the rate of $200.00 per month beginning October 1, 1989. ¹

The defendant argues on appeal that the release barred the court from ordering any restitution. The defendant also argues that because the amount of $150,000.00 set forth in the release was the only evidence of the victim's total economic loss, the court had no basis to award another $50,000.00 in restitution.

The state responds that the civil settlement has no effect on the court's power to impose restitution. Accordingly, the court should have ordered payment of the full amount of economic loss without regard to the amount paid in the civil settlement.

In the alternative, the state contends that a civil settlement can be offset against a restitution order only to the extent that the settlement represents damages for "economic loss." It further contends that the entire civil settlement in this case must be treated as noneconomic damages such as pain and suffering. Thus, both of the state's arguments conclude that the settlement has no effect on restitution.

II.

Several statutes govern payment of restitution by a criminal defendant.

A.R.S. § 13-603(C) requires the court to order payment of restitution by the offender to the victim of a crime. State v. Wideman, 165 Ariz. 364, 367-68, 798 P.2d 1373, 1376-77 (App.1990); State v. Dampier, 157 Ariz. 222, 225, 756 P.2d 319, 322 (App.1988). A.R.S. § 13-603(C) provides: ²

If a person is convicted of an offense, the court shall require the convicted person to make restitution to the person who is the victim of the crime or to the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court and in the manner as determined by the court pursuant to chapter 8 of this title....

(Emphasis added).

Under A.R.S. § 13-105.11, economic loss is defined as:

[A]ny loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses which would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.

(Emphasis added).

These statutes do not instruct the courts as to the effect on restitution of compensation of the victim's losses in whole or in part by insurance payments. However, A.R.S. § 13-807 addresses a related subject. That statute provides that an order of restitution does not preclude the victim from bringing a separate civil action and proving "damages in excess of the amount of the restitution order." A.R.S. § 13-807 provides in pertinent part:

An order of restitution in favor of a person does not preclude that person from bringing a separate civil action and proving in that action damages in excess of the amount of the restitution order.

While § 13-807 credits the restitution amount against any civil damage award, that provision does not address the converse situation: must a civil damage award be credited against the restitution amount?

Because the statutes do not expressly address the problem at hand, we must attempt to determine the result intended by the Legislature. The cardinal rule in statutory interpretation is adherence to legislative intent. Calvert v. Farmers Ins. Co., 144 Ariz. 291, 697 P.2d 684 (1985).

To determine legislative intent, we look first to the statutory language. Kriz v. Buckeye Petroleum Co., Inc., 145 Ariz. 374, 377, 701 P.2d 1182, 1185 (1985). We may also examine the subject matter, effects, consequences, reason and spirit of the statutes. Id.

One of the purposes of mandatory restitution is reparation to the victim. State v. Moore, 156 Ariz. 566, 567, 754 P.2d 293, 294 (1988). The goal is to make the victim whole. State v. Howard, 163 Ariz. 47, 51, 785 P.2d 1235, 1239 (App.1989). Although reparation is one purpose of restitution, the goals and methods of restitution in a criminal case differ from those of damages in a civil action. State v. Pearce, 156 Ariz. 287, 289, 751 P.2d 603, 605 (App.1988); State v. Whitney, 151 Ariz. 113, 114, 726 P.2d 210, 211 (App.1986).

Another goal of restitution is rehabilitation of the convicted person. Rule 27.1, Arizona Rules of Criminal Procedure, 17 A.R.S.; State v. Moore, 156 Ariz. at 567, 754 P.2d at 294; State v. Merrill, 136 Ariz. at 301, 665 P.2d at 1023. Such a requirement forces an offender "to recognize the specific consequences of his criminal activity and accept responsibility for those consequences." Id. at 302, 665 P.2d at 1024; State v. Cummings, 120 Ariz. 69, 583 P.2d 1389 (App.1978).

Restitution and civil damages are independent under Arizona law, and the state's power to order restitution does not bar a victim from seeking damages in a civil action. A.R.S. § 13-807; Pearce, 156 Ariz. at 289, 751 P.2d at 605. We believe the converse is also often true. Because restitution also promotes the rehabilitative purpose of the criminal law, and because civil damage payments may not be fully compensatory, the court is not automatically foreclosed from ordering some restitution simply because the victim has received some compensation as a result of a civil action. See Shenah v. Henderson, 106 Ariz. 399, 476 P.2d 854 (1970) (under prior law restitution was ordered to be paid in addition to insurance payment, apparently by defendant's automobile liability insurer). Accord People v. Clifton, 172 Cal.App.3d 1165, 219 Cal.Rptr. 904 (1985). Moreover, the distinction between civil damages and restitution means that the victim's release of civil liability does not prevent the state from ordering the criminal law remedy of restitution. The victim's release of his or her claims does not encompass restitution: restitution is not a claim which belongs to the victim, but a remedial measure that the court is statutorily obligated to employ. ³

We therefore reject the defendant's contention that the settlement bars any restitution order.

III.

The more difficult question is the amount of restitution that is appropriate when the victim has already received some compensation.

According to the state, the courts need not coordinate restitution with civil settlement. The state rests its position on A.R.S. § 13-603(C), which directs the court to order restitution in the "full amount of the economic loss." The state argues that because the statute does not direct restitution in the full amount of "uncompensated economic loss," the legislature intended to forbid the courts from considering compensation other than restitution payments. The state's theory thus would allow a victim to receive compensation twice for the same loss: once from insurance or some other source, and again from restitution payments.

The defendant alleges that the only evidence of the victim's full economic loss is the settlement agreement which provided payment of $150,000.00. The defendant...