Opinion
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.
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 Femando 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 Honorable 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
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 Care and 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 of 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
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 $168,633.20 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—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, postrestitution-award costs, as well as pain and suffering, resulting from the
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 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.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.”5
An order of restitution pursuant to section 1202.4 does not preclude the crime victim from pursing a separate civil action based on the same facts from which the criminal conviction arose. (Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438, 442-443 [96 Cal.Rptr.3d 54]; People v. Clifton (1985) 172 Cal.App.3d 1165, 1168 [219 Cal.Rptr. 904].) “While a restitution order is enforceable ‘as if [it] were a civil judgment’ [citation], it is not a civil judgment. A restitution order does not resolve civil liability.” (Vigilant Ins. Co., at pp. 444-445.) Moreover, a restitution order reimburses the crime victim only for economic losses, not noneconomic losses such as pain and suffering, which are recoverable in a civil action. (See § 1202.4, subd. (f)(3); People v. Fulton (2003) 109 Cal.App.4th 876, 879, 884-885 [135 Cal.Rptr.2d 466]; Vigilant Ins. Co., at p. 445.)
Because of the separate interests at stake and different purposes served by a restitution order and a civil action for damages by the crime victim, as well as the different categories of damages recoverable in the two proceedings,6 the settlement of a civil action and release of the defendant by the crime victim does not discharge the defendant’s responsibility to satisfy the restitution order: “Even when a victim obtains a settlement from a company that insured the defendant for civil liability, the court in a criminal action may order the defendant to pay victim restitution. This is so because the victim ‘might rationally choose to accept an insurance settlement for substantially less than his or her losses rather than risk the uncertain . . . possibility that the defendant will pay the entire restitution amount’ [citation], and the ‘victim’s willingness to accept the [insurance settlement] in full satisfaction for all civil liability, . . . does not reflect the willingness of the People to accept that sum in satisfaction of the defendant’s rehabilitative and deterrent debt to society.’ ” (Short, supra, 160 Cal.App.4th at p. 903.) “A restitution order pursuant to a defendant’s plea is an agreement between the defendant and the state. [Citation.] The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.” (People v. Bernal (2002) 101 Cal.App.4th 155, 162 [123 Cal.Rptr.2d 622].)
b. Setoff rights for insurance payments to the victim
Payments received by a crime victim from his or her insurance company or from an independent third party for economic losses suffered as a
To the extent the defendant has his or her own insurance that has compensated the crime victim for losses included in the restitution order, however, the defendant is entitled to an offset for the sums paid. (People v. Bernal, supra, 101 Cal.App.4th at pp. 165, 168.) “The defendant’s own insurance company is different than other sources of victim reimbursement, in that (1) the defendant procured the insurance, and unlike the other third party sources, its payments to the victim are not fortuitous but precisely what the defendant bargained for; (2) the defendant paid premiums to maintain the policy in force; (3) the defendant has a contractual right to have the payments made by his insurance company to the victim, on his behalf; and (4) the defendant’s insurance company has no right of indemnity or subrogation against the defendant. In sum, the relationship between the defendant and its insurer is that payments by the insurer to the victim are ‘directly from the defendant.’ ” (Id. at p. 168; accord, People v. Jennings (2005) 128 Cal.App.4th 42, 53-54 [26 Cal.Rptr.3d 709]; Short, supra, 160 Cal.App.4th at p. 903; but see People v. Hamilton (2003) 114 Cal.App.4th 932, 942-943 [8 Cal.Rptr.3d 190] [distinguishing Bernal but suggesting it may not have been properly decided; “[w]e need not resolve the question of whether a payment by a
In People v. Jennings, supra, 128 Cal.App.4th 42, following the reasoning of People v. Bernal, supra, 101 Cal.App.4th 155, a divided court held that payments made by an insurance company to a crime victim to settle a civil action against the defendant, who had pleaded guilty to driving under the influence of alcohol with a great bodily injury enhancement, and the defendant’s mother, both of whom were insured drivers and thus covered by the mother’s automobile insurance policy, must be applied to offset the defendant’s restitution obligation to the extent they covered items included in the court’s restitution order.8 The majority explained, “We think the relevant inquiry for purposes of Bernal is whether the defendant has obtained insurance, and is thus an ‘insured’ and not the manner by which the insured procured the insurance coverage or how much he may have paid for it.” “[Rjather than try to determine how the insurance was procured, a court must determine simply whether or not the insurer’s payments to the victim were made on behalf of the defendant as a result of the defendant’s status as an insured.” (Jennings, at pp. 56, 57.)9 Justice Benke dissented, disagreeing with both the basic analysis in Bernal and, accepting for the sake of argument that Bernal was correctly decided, what she termed the majority’s unjustifiable expansion of its holding to include a defendant who had not himself or herself obtained and paid for the liability insurance that funded the settlement. (Jennings, at pp. 59-62 [“allowing a defendant to offset a direct restitution obligation with monies paid by his liability insurer effectively disengages the amount of direct restitution the defendant must pay from the calculation of the harm caused and thus steals from the restitution obligation its intended rehabilitative and deterrent effect”].)
2. Standard of Review
We generally review a trial court’s restitution order for abuse of discretion. (People v. Giordano, supra, 42 Cal.4th at p. 663.) “Although a trial court’s ‘allocation of restitutionary responsibility’ is reviewed for an abuse of discretion, an order resting upon a ‘ “demonstrable error of law” ’ constitutes an abuse of the court’s discretion.” (People v. Jennings, supra, 128 Cal.App.4th at p. 49.)
3. The Trial Court Properly Denied Vasquez’s Motion to Order Satisfaction of Judgment
Whether we follow the holdings of Short, supra, 160 Cal.App.4th 899, and People v. Jennings, supra, 128 Cal.App.4th 42, as Vasquez urges, or the contrary reasoning of Justice Benke’s dissent in Jennings and the suggestion
Moreover, that the civil settlement here—which resolved the liability of not only Vasquez but also Mora and Ruiz and was intended to compensate Heiddy for all her damages, noneconomic as well as economic—was for a sum greater than the restitution order does not mean, as Vasquez argues, he is entitled to a credit for the full amount paid through Mora’s homeowners policy. (See Short, supra, 160 Cal.App.4th at p. 905 [remanding for trial court to determine what portion of $3 million settlement should be allocated to reduce defendant’s $450,000 restitution obligation].) At most, Vasquez has the right to an offset for the portion of the settlement payment made on behalf of Vasquez and allocable to medical expenses included within the restitution order. (People v. Jennings, supra, 128 Cal.App.4th at p. 59 [restitution offset limited to portion of settlement allocated by the parties to medical expenses less any amount for attorney fees to obtain the settlement]; see People v. Bernal, supra, 101 Cal.App.4th at p. 165 [remanding for trial court to determine restitution obligation after offset for insurance payments for losses subject to the restitution order].)
As the party seeking an offset or credit to, or modification of, the restitution order to which he had previously stipulated, Vasquez had the burden of proof as to “each fact the existence or nonexistence of which is essential to the claim for relief ... he is asserting.” (Evid. Code, § 500; see People v. Millard (2009) 175 Cal.App.4th 7, 33-34 [95 Cal.Rptr.3d 751] [criminal defendant has burden of proving both that attorney fees awarded as victim restitution included fees to recover general or noneconomic damages and the proper apportionment between recoverable and nonrecoverable fees].) He failed to carry that burden.
The evidence presented in connection with Vasquez’s motion established the December 4, 2006 restitution order for $168,633.20 was expressly limited to medical expenses incurred by Heiddy “to date” or “so far.” In
DISPOSITION
The order is affirmed.
Zelon, J., and Jackson, J., concurred.
A petition for a rehearing was denied December 28, 2010, and the opinion was modified to read as printed above.
1.
Statutory references are to the Penal Code unless otherwise indicated.
2.
Section 399, subdivision (b), provides: “If any person owning or having custody or control of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, or while not kept with ordinary care, causes serious bodily injury to any human being who has taken all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, is guilty of a misdemeanor or a felony.”
3.
At the time he entered his plea of no contest to count 1, Vasquez waived his rights under People v. Arbuckle (1978) 22 Cal.3d 749 [150 Cal.Rptr. 778, 587 P.2d 220].
4.
In July 2007, prior to its order approving the compromise of disputed claim as to Vasquez, Mora and Ruiz, the court had sustained the Los Angeles County Department of Animal Control’s demurrer to Heiddy’s complaint without leave to amend and ordered the action
5.
Section 1202.4 reflects the mandate of article I, section 28, former subdivision (b), of the California Constitution, enacted by the voters on June 8, 1982 as part of Proposition 8, the “Victims’ Bill of Rights,” which declared that “all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.” (See People v. Giordano (2007) 42 Cal.4th 644, 652 [68 Cal.Rptr.3d 51, 170 P.3d 623].) This portion of the California Constitution was further amended by initiative (Prop. 9) on November 4, 2008; former subdivision (b) was renumbered subdivision (b)(13), and the text was modified slightly.
6.
As discussed, section 1202.4 does not, in most cases, permit restitution for pain and suffering, damages that are generally recoverable in a civil tort action. Conversely, section 1202.4 permits recovery for certain types of economic loss not usually permitted in civil actions, including wages lost by a minor victim’s parents due to time spent as a witness or in assisting the police or prosecution (§ 1202.4, subd. (f)(3)(E)) and attorney fees and other collection costs (§ 1202.4, subd. (f)(3)(H)).
7.
A crime victim who has been compensated for the same economic losses by both the defendant and his or her own insurance company may be subject to a separate claim for reimbursement by the insurer. (§ 1202.4, subd. (f)(2) [“[d]etermination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of any third party”]; see People v. Birkett, supra, 21 Cal.4th at p. 246; In re Brittany L, supra, 99 Cal.App.4th at p. 1389.)
8.
The settlement agreement allocated 15 percent of the $105,000 settlement payment to the victim’s medical expenses and 85 percent to pain and suffering. (People v. Jennings, supra, 128 Cal.App.4th at p. 47.) The court limited the restitution offset to $15,750—15 percent of $105,000—“less the amount determined to have been used to pay attorney fees” to obtain the settlement. (Id. at p. 59.)
9.
In In re Tommy A. (2005) 131 Cal.App.4th 1580 [33 Cal.Rptr.3d 103] a different panel from the same court, without mentioning People v. Jennings, supra, 128 Cal.App.4th 42, held a settlement payment by an insurance company that covered an innocent car owner’s vehicle that had been unlawfully taken by a minor did not relieve the minor of his restitution obligation to the crime victim who had been injured by his hit-and-run driving, notwithstanding the fact the insurer obtained a release of all liability on behalf of both the owner and the unrelated minor: “[B]ecause the settlement payment by [the owner’s] insurer to the victim is a payment from a source that is completely distinct and independent from [the minor], it does not constitute ‘restitution directly from’ [the minor]” within the meaning of the Welfare and Institutions Code provisions requiring restitution from juveniles in delinquency proceedings in a manner that parallels section 1202.4. (Tommy A., at p. 1583.) The court expressly reserved the question “whether a settlement payment made to a victim by an insurer of a juvenile delinquent’s parent, guardian, or other person legally responsible for the juvenile’s care and support, would qualify as ‘restitution directly from [the] minor.’ ” (Id. at p. 1590, fn. 6.)