Filed 4/10/13 P. v. Solari 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E055426

v.                                                                       (Super.Ct.No. FSB1102808)

GEORGE JOSEPH SOLARI,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,

Jr., Judge. Affirmed as modified.

         Raymond M. DiGuiseppe, 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, Barry J. T. Carlton and Heather

M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.




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         A jury convicted defendant and appellant George Joseph Solari of one count of

arson of property (Pen. Code, § 451, subd. (d), count 1)1 and two counts of arson of forest

land (§ 451, subd. (c), counts 3 & 4). The jury also found true the allegations that

defendant had suffered two prior prison terms. (§ 667.5, subd. (b).) A trial court

sentenced defendant to a total term of eight years in state prison. The court also ordered

defendant to pay various fines, including $386.82 in victim restitution to the San

Bernardino City Fire Department, pursuant to section 1202.4.

         On appeal, defendant argues that the court erred in awarding victim restitution to

the San Bernardino City Fire Department. The People correctly concede.

                                  FACTUAL BACKGROUND

         At approximately 8:00 p.m. on June 21, 2011, Glenn Willwerth was at his office

when the motion sensor of his building was activated. He looked out his office window

and saw a large fire across the field. While he called the fire department, he noticed an

individual standing near the fire. He saw the individual’s head “pop up” near some

hedges and then “go back down below.” All together, he observed three separate fires

shoot up in the area.

         The San Bernardino City Fire Department responded to the scene. A firefighter

observed an individual standing near the fires and approached him. The individual, later

identified as defendant, started walking away. When the firefighter commanded him to

stop, he began to run. The firefighter eventually caught up to him. Defendant was

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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arrested by the police. A fire investigator later determined that there were three separate

fires that had been intentionally ignited.

       At trial, the Director of Transit and Rail Programs for the San Bernardino

Associated Governments (SANBAG), the county transportation commission, testified

that SANBAG owned the property that was burned.

                                        ANALYSIS

 The Trial Court Erred in Awarding Victim Restitution to the San Bernardino City Fire

                                         Department

       At the sentencing hearing, the court ordered defendant to pay $386.82 in

restitution under section 1202.4 to the victim, which the prosecutor identified as the San

Bernardino City Fire Department. Defendant now argues that the victim restitution

award was improper and should be stricken, since the San Bernardino City Fire

Department was not a direct victim under section 1202.4. The People concede that the

restitution order was improper.

       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.” For purposes of this section, the term “victim” includes a “government,

governmental subdivision, agency, or instrumentality, or any other legal or commercial

entity when that entity is a direct victim of a crime.” (§ 1202.4, subd. (k)(2).)




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       Here, the San Bernardino City Fire Department cannot be considered a “direct

victim.” In In re Brian N. (2004) 120 Cal.App.4th 591 (Brian N.), a minor admitted to

starting a grass fire on a vacant field. The court affirmed a restitution order to a local fire

department, finding that the fire department was a direct victim of the crime under

section 1202.4, given its duty and responsibility “to fight fires and minimize the danger

of fire.” (Id. at pp. 593-594.)

       However, about one year later, in People v. Martinez (2005) 36 Cal.4th 384

(Martinez), the Supreme Court held that the Department of Toxic Substance Control, the

state agency that disposed of the toxic substances found at an illegal drug laboratory, was

not a direct victim for restitution purposes. (Id. at pp. 393-394.) The Court found that

the defendant’s attempt to manufacture methamphetamine “was not an offense committed

against the Department, nor was the Department the immediate object of his crime.” (Id.

at p. 393.) The Court expressly stated that it disapproved of Brian N., supra, 120

Cal.App.4th 591, “to the extent it holds that a fire department that has incurred labor

costs in fighting a fire on a vacant lot not owned by the department is a direct victim of

the crime of unlawfully causing a fire [Citation] . . . .” (Martinez, supra, 36 Cal.4th at

p. 394, fn 2.)

       Here, the San Bernardino City Fire Department cannot be considered a direct

victim since defendant’s crime was not committed against the fire department. Thus, the




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trial court erred in ordering victim restitution under section 1202.4.2 Accordingly, the

judgment should be modified to strike the $386.82 in victim restitution the court awarded

to the San Bernardino City Fire Department.

                                      DISPOSITION

       The judgment is modified to strike the order that defendant pay $386.82 in victim

restitution to the San Bernardino City Fire Department. The superior court clerk is

directed to amend the sentencing minute order and abstract of judgment to reflect this

modification and to forward a copy of the amended minute order and abstract of

judgment to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                                           J.
We concur:


RAMIREZ
                        P. J.


RICHLI
                           J.


       2  We note that defendant’s failure to object to the restitution award below did not
forfeit the issue on appeal. Since a restitution order to a governmental agency that was
not a direct victim is an “unauthorized sentence,” the forfeiture rule does not apply. (See
People v. Slattery (2008) 167 Cal.App.4th 1091, 1094-1095.)



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