Filed 2/11/14 P. v. Erbe CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
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THE PEOPLE, C073887
Plaintiff and Respondent, (Super. Ct. No. CRF123981)
v.
SARA LEE ERBE,
Defendant and Appellant.
Defendant Sara Lee Erbe pled no contest to theft or unauthorized use of a vehicle,
possessing marijuana for sale, and identity theft. After sentencing defendant to two years
eight months’ local prison time, the trial court ordered her to pay restitution to two
victims: (1) the owner of the stolen car, to the extent his loss was not reimbursed by his
auto insurance carrier, Allstate Insurance (Allstate); and (2) Allstate, for the amount paid
to the car’s owner and not otherwise recovered in salvage value.
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Defendant contends, and the People concede, that Allstate is not eligible for victim
restitution because it is not a direct victim of the theft offense, as required by Penal Code1
section 1202.4, subdivision (k)(2). Because we agree, we shall strike the restitution
award to Allstate and affirm the judgment as modified.
BACKGROUND
Pursuant to a negotiated disposition, defendant pled guilty to the theft or
unauthorized use of Balbir Mangar’s vehicle.
Allstate paid Mangar $18,083, the value of the vehicle. After Allstate became the
registered owner, it sold the stolen vehicle for the salvage value of $5,810, and sought
restitution from the defendant for the difference, $12,273.
For his part, Mangar sought restitution from defendant as follows: $6,000 for the
difference between what he paid for the vehicle and what Allstate paid him for the loss;
$2,000 for the custom navigation and sound system he had installed into the vehicle; and
$500 for his unrecovered policy deductable.
Over the objection of defense counsel, the trial court ordered defendant, at
sentencing,to pay restitution to Allstate and Mangar in the amounts sought.2
DISCUSSION
Section 1202.4, subdivision (f) provides that, “in 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 victims in an amount established by court
order, based on the amount of loss claimed by the victim or victims or any other showing
to the court.” Section 1202.4, subdivision (a)(1) states that the victim of a crime who
1 Undesignated statutory references are to the Penal Code.
2 Defendant was held jointly and severally liable for the victim restitution with her
codefendant.
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incurs any economic loss as a result of the crime “shall receive restitution directly from a
defendant convicted of that crime.” (Italics added.)
The standard of review of a restitution order is abuse of discretion, but “a
restitution order ‘resting upon a “ ‘demonstrable error of law’ ” constitutes an abuse of
the court’s discretion.’ ” (People v. Millard (2009) 175 Cal.App.4th 7, 26; see also In re
K.F. (2009) 173 Cal.App.4th 655, 661.)
Defendant argues that Allstate was not entitled to restitution because it was not a
direct victim of crime. The People concede the point and we accept the concession as
properly made. Section 1202.4, subdivision (k) defines the term “victim” for purposes of
restitution. A corporation “or any other legal or commercial entity” is a victim “when
that entity is a direct victim of a crime.” (§ 1202.4, subd. (k)(2).) “Insurance companies
that suffered the consequences of crime only by reimbursing the crime-related losses of
their policyholders d[o] not reasonably fit within this definition.” (People v. Birkett
(1999) 21 Cal.4th 226, 233.) Since Allstate was not directly involved in the theft of
Mangar’s vehicle, and suffered loss due only to payment of a claim, we agree with the
parties that Allstate was not a direct victim; therefore, it was not legally entitled to direct
victim restitution pursuant to section 1202.4. Allstate must recoup its losses through
other means, such as pursuit of a civil lawsuit against the defendants. (See People
v. Slattery (2008) 167 Cal.App.4th 1091, 1097.)
DISPOSITION
The judgment is modified by striking the $12,273 in restitution awarded to
Allstate Insurance pursuant to section 1202.4, subdivision (f). As modified, the judgment
is affirmed. The trial court is directed to prepare an amended abstract of judgment
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reflecting this modification and to forward a certified copy of the abstract to the
Department of Corrections and Rehabilitation.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
MAURO , J.
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