Filed 7/9/15 P. v. Obregon CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142769
v.
MARIA OBREGON,                                                       (San Francisco County
                                                                     Super. Ct. No. SCN221252)
         Defendant and Appellant.


                                                INTRODUCTION
         In this case, defendant Maria Obregon was ordered to pay restitution in the amount
of $3,926.22 after entering a guilty plea to a violation of Vehicle Code section 2800.2,
subdivision (a). She appeals the court’s order that she pay full restitution to the victims
for their economic losses, including those which were reimbursed by the victims’
insurance company. We will affirm the court’s order.
                                       STATEMENT OF THE CASE
         On September 19, 2013, the San Francisco District Attorney filed a complaint
alleging three counts: one violation of Vehicle Code section 10851, subdivision (a)
(count 1); one violation of Penal Code section 496d, subdivision (a) (count 2); and one
violation of Vehicle Code section 2800.2, subdivision (a) (count 3). On November 15,
2013, defendant pleaded guilty to count 3, a felony violation of section 2800.2,
subdivision (a), evading the police. On December 6, 2013, defendant was placed on
probation for three years. She was ordered to serve a county jail term of 10 months as a
condition of probation, with half-time credits. Defendant was ordered to pay restitution
to the victims in the amount of $1,000 to cover the deductible on the victims’ insurance
policy for undisputed loses.
       On April 2, 2014, the probation department filed a motion to modify defendant’s
probation to increase the amount of restitution to a total of $3,926.22 to fully compensate
the victims for the entire amount of the loss. This sum reflected the original $1,000
order, along with the total compensation the victims received from their insurance
company based on the victims’ existing policy.
       The issue of increased restitution was heard by the trial court on August 1, 2014.
At the conclusion of the hearing, the court ordered the restitution obligation of defendant
increased to the sum suggested by probation: $3,926.22. The court directed the victims
to report to the insurer any payment they received from the defendant in excess of
$1,000.
       Defendant filed a timely notice of appeal on August 4, 2014, contesting the
increased restitution order to include losses not actually incurred by the victims.
                               STATEMENT OF FACTS
       The probation report indicates the defendant fled from police in a stolen
automobile on September 16, 2013, and the car was later found by police parked and
abandoned in front of a home in San Francisco. Victims of the incident, Chad and
Kathryn Hetherington of St. Louis Park, Minnesota, submitted paperwork to the
probation department indicating their insurance paid them $2,306.47 under the policy
based on receipts the victims submitted. The insureds had a deductible of $1,000 not
paid by the insurance company. The out-of-pocket loss was the original basis for the
restitution amount.
                                        ANALYSIS
       Defendant argues a restitution award for an amount the victim has already been
reimbursed by an insurance company is “not only disingenuous and inconsistent with the
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purpose of restitution, but it is also a denial of a [defendant’s] Federal and State
constitutional right to substantive due process” because it transforms a windfall for the
crime victim, under the guise of restitution, into civil judgment that “extends beyond the
compensation necessary to reimburse the crime victim for her losses.”
       Defendant does not argue the trial court abused its discretion in ordering the
additional restitution, because she recognizes such an award is specifically authorized by
statute and consistent with existing law. Rather, she has filed this appeal to preserve the
issue for Supreme Court review.
       The trial court decision to obligate defendant to pay the full loss sustained by the
victim as result of her criminal conduct was proper in this case. Penal Code section
1202.4 provides: “It is the intent of the Legislature that a victim of crime who incurs an
economic loss as a result of the commission of a crime shall receive restitution directly
from a defendant convicted of that crime.” (Pen. Code, § 1202.4, subd. (a)(1).) In this
case, the economic loss sustained by the victims for the theft of their automobile totaled
$3,962.22. The issue here is whether the funds our victims received from their insurer
can be included in the restitution award made by the trial court. Defendant concedes the
deductible is a proper component of the restitution award.
       Under the California Constitution, any person who suffers economic loss as a
result of criminal activity is entitled to restitution from the person convicted of the crimes
that resulted in their loss. (Cal. Const., art. I, § 28(b)(13).) The restitution order covers
“[f]ull or partial payment for the value of stolen or damaged property. The value of
stolen or damaged property shall be the replacement cost of like property or the actual
cost of repairing the property when repair is possible.” (Pen. Code, § 1202.4,
subd. (f)(3)(A).)
       In People v. Birkett (1999) 21 Cal.4th 226 (Birkett), our Supreme Court
unanimously held restitution shall be ordered that in fact provides “full restitution” to the
victim of the crime, and “ ‘[r]estitution shall, to the extent possible, be of a dollar amount
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that is sufficient to fully reimburse all persons, for all determined economic losses
incurred as the result of the defendant’s criminal conduct . . . .’ ” (Id. at p. 246, italics in
original.) Therefore, in a case like ours that involved auto theft, the court determined
“the immediate victim was entitled to receive from the probationer the full amount of the
loss caused by the crime, regardless of whether, in the exercise of prudence, the victim
had purchased private insurance that covered some or all of the same losses. Third
parties other than the [state restitution] Fund, such as private insurers, who have already
reimbursed the victim[,] were thus left to their separate civil remedies, if any, to recover
any such prior indemnification either from the victim or from the probationer.” (Ibid.,
italics added; citing former Pen. Code §1203.04, subds. (a)(2)(A), (e).)
       When the victim of a criminal act attributed to a defendant obtains insurance from
his or her insurer, that sum is properly included within the restitution obligation as part of
the “full reimbursement” to the victim for the “full amount of the loss caused by the
crime.” (Birkett, supra, 21 Cal.4th at pp. 246–247 & fn. 19.) This principle has been
followed in subsequent cases like ours where the victim’s third party insurer compensated
its insured for damage or injury to person or property attributed to criminal conduct. (See
In re Tommy A. (2005) 131 Cal.App.4th 1580, 1589–1590; People v. Hamilton (2003)
114 Cal.App.4th 932, 939–940 (Hamilton); People v. Hove (2000) 76 Cal.App.4th 1266,
1272–1273.)
       Defendant makes passing reference to a case precluding a restitution award where
the defendant’s insurer compensated the victim for the wrongdoing of its insured.
(People v. Bernal (2002) 101 Cal.App.4th 155.) However, that scenario is not one
providing our defendant relief for the benefit of the victims’ foresight. Offset is legally
appropriate because the wrongdoer’s insurer is stepping up to fulfill its contractual
obligations with the accused insured. The pivotal legal distinction between Bernal and
cases like Hamilton, cited above, was recognized in People v. Jennings (2005)
128 Cal.App.4th 42, where the panel observed: “Thus, after Bernal and Hamilton, the
                                               4
question a court must answer when faced with a request to offset a criminal restitution
obligation is whether the defendant seeking the offset for an insurance settlement
payment is an insured on whose behalf the settlement payments were made.” (Id. at
p. 53.) This distinction recognizes the “exercise of prudence” by the appropriate party in
the offset process. (Id. at pp. 52–53; Hamilton, supra, 114 Cal.App.4th at p. 941.)
          In this case, the trial court properly did not reduce the amount of restitution
defendant was obligated to pay the victims due to their insurer’s payoffs. Any
obligations the victims may have toward their insurer, and any rights the insurer may
have to recoup payments for amounts it paid to the victims that duplicate amounts paid
by defendant’s restitution, are matters governed by civil law and the applicable insurance
policy.
                                         DISPOSITION
          We affirm the judgment.




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                                _________________________
                                Dondero, J.


We concur:


_________________________
Humes, P. J.


_________________________
Banke, J.




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