Filed 1/16/14 P. v. Valdes CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057407

v.                                                                       (Super.Ct.No. FVI900542)

JULIO LAZARD VALDES,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret,

Judge. Reversed.

         Rex Williams, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Scott C.

Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Julio Lazard Valdes was sentenced to two years and four months in

prison after he pled no contest to owning and operating a chop shop (Veh. Code, §

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10801) and attempting to take a vehicle without the owner’s consent (Pen. Code, § 664;

Veh. Code, § 10851, subd. (a)). In this appeal, defendant challenges the victim restitution

order in favor of an entity representing an auto insurance company. As discussed below,

the law is quite clear that a victim restitution award cannot be made to an insurance

company that merely indemnifies its insured for the insured’s loss as a direct victim of

the defendant. For this reason, we reverse the award and remand for a further restitution

hearing to benefit any identifiable direct victims of defendant’s crimes.

                         STATEMENT OF FACTS AND PROCEDURE

       On March 12, 2009, police investigators entered defendant’s residential property

and located several stolen vehicles, several of which were being dismantled. After

defendant pled guilty, was sentenced and his conviction was upheld on appeal, the trial

court set a victim restitution hearing. The hearing was continued a number of times.

       At a hearing held on July 20, 2012, defense counsel1 stated “I believe we’re

willing to stipulate to the amount that was requested by the People.” However, counsel

questioned whether the court still had jurisdiction to order restitution because defendant

had served his sentence and been released from parole. Before continuing the hearing,

the trial court clarified that “the amount is not being contested, it’s the lawfulness of the

order.” Defense counsel concurred.

       The People filed its restitution brief on July 27, 2012, asking the court to order

restitution in the amount of $14,441.01, payable to Stuart Allan & Associates, Inc.,


       1   Deputy Public Defender Richard LaFianza appeared for defendant.


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representative of Farmers Insurance. The total subrogated amount was based on a claim

of $12,307.26, plus a deductible of $500, plus the net salvage value of $1,633.75.

Curiously, the brief correctly cited to a California Supreme Court case, People v. Birkett

(1999) 21 Cal.4th 226, for the proposition, presented partly in underlined, bold font, that

“insurance companies are not direct victims entitled to criminal restitution simply by

virtue of the fact that they have reimbursed a criminal victim for losses for which they

have a contractual responsibility to do so.” Despite this emphasized, correct statement of

the law, the People concluded its brief by asking the court to order restitution to the

insurance company’s representative rather than to any direct victim of defendant’s

crimes.

       At the hearing finally held on October 25, 2012, defense counsel2 objected to how

the amount was calculated. Specifically, counsel questioned whether the amounts for

deductible and salvage value should be added to the claim amount. Rather, counsel

argued those amounts should be, if anything, subtracted from the claim amount of

$12,307.26 because they were amounts not paid by the insurance company. In particular,

defense counsel reasoned that the salvage value is an amount paid to the insurance

company for selling the vehicle. The court awarded the full amount of victim restitution,

including deductible and salvage value, to the claimant. This appeal followed.




       2   Deputy Public Defender Philip Zywiciel appeared for defendant.


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                                              DISCUSSION

       Defendant argues the order must be reversed because no evidence was submitted

that the recipient of the ordered restitution was a direct victim of defendant’s crimes. The

People counter that defendant forfeited any challenge to the restitution order because he

stipulated to the award in the trial court.

       Penal Code, section 1202.4 requires the trial court [‘the court shall . . . ”] to order

the defendant to pay restitution to any victims. (Pen. Code, § 1202.4, subd. (a)(3)(B).)

“ . . . [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.” (Pen. Code, §

1202.4, subd. (f).)

       In People v. Birkett, the defendant, like defendant here, stole cars and ran a “chop

shop.” The defendant’s objective was to profit from the theft of the cars and the

subsequent sale of their parts. The owners of the cars were the direct victims of the

crime, and their property losses were reimbursed by their insurance companies. The

Supreme Court held that “entitlement to restitution arises only in favor of ‘“direct”

[crime] victim[s]” . . . and insurers [do] not become such “direct victim[s]” by

reimbursing crime losses under the terms of their policies.’ [Citation.]” (People v.

Moloy (2000) 84 Cal.App.4th 257, 260 (Moloy).) In other words, “‘[A]n insurer who has

incurred expenses solely by virtue of a contractual duty to indemnify the direct victim is

not itself an “object” of the crime and hence not a direct victim. [The insurer] cannot,


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therefore, be the recipient of a . . . restitution order unless it is itself a direct victim of

criminal conduct.’ [Citations.]” (Id. at p. 260.) See also People v. Saint-Amans (2005)

131 Cal.App.4th 1076, 1085 [insurers that merely indemnify a direct victim of a crime

“are not direct victims because they have a contractual obligation to assume such risks in

exchange for premiums”].

       People v. Birkett directly applies here, and so the trial court improperly acquiesced

to the People’s request and awarded victim restitution to the representative of the

insurance company. The owners of the vehicles found on defendant’s property are the

direct victims of defendant’s crimes. Although it appears that the insurance company

here reimbursed one of the victims for their property loss, insurance companies do not

become a direct victim “‘by reimbursing crime losses under the terms of their policies.’

[Citation.]” (Moloy, supra, 84 Cal.App.4th at p. 260.)

       Further, defendant did not forfeit this claim in the trial court, both because the

award constitutes an unauthorized sentence (People v. Bartell (2009) 170 Cal.App.4th

1258, 1261) and because it was an order in excess of the trial court’s jurisdiction (People

v. Kelly (2010) 189 Cal.App.4th 73, 80). As stated above, the trial court was expressly

not permitted to award the representative of the insurance company victim restitution

because neither the representative nor the insurance company is a direct victim of

defendant’s crimes.




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                                           DISPOSITION

       The victim restitution award is reversed. The matter is remanded to the trial court

for a further restitution hearing to benefit any identifiable direct victims of defendant’s

crimes.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                        RAMIREZ
                                                                                          P. J.


We concur:

MILLER
                           J.

CODRINGTON
                           J.




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