Filed 6/28/16 P. v. Arredondo CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041558 & H042003
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1117824)

             v.

DAVID DOMINGO ARREDONDO,

         Defendant and Appellant.



         Defendant David Domingo Arredondo pleaded no contest to driving under the
influence of alcohol (Veh. Code, § 23153, subd. (a)) and being involved in a hit and run
accident (Veh. Code, 20001, subds. (a) & (b)(1)). The trial court ordered defendant to
pay victim restitution for property damages resulting from the accident. On appeal,
defendant challenges the restitution order, arguing that the trial court erred by failing to
offset restitution by the settlement paid by his aunt’s insurance carrier. We conclude that
the trial court did not abuse its discretion in denying the offset, and we affirm the
judgment.
                            I.     FACTUAL AND PROCEDURAL BACKGROUND
         On October 13, 2011, defendant was driving under the influence of alcohol when
he rear-ended the victim’s car. Defendant drove away from the scene of the accident.
The victim sustained injuries and her vehicle was damaged. Later, defendant’s aunt’s
insurance company paid a $15,000 settlement to the victim, releasing defendant and his
aunt from all claims.
       Defendant pleaded no contest to one count of driving under the influence of
alcohol and causing injury (Veh. Code, § 23153, subd. (a)) and to one count of
committing a hit and run that resulted in injury or death (Veh. Code, § 20001, subds. (a)
& (b)(1)). He also admitted an allegation that he proximately caused injury to another
person (Veh. Code, § 23558). The trial court sentenced defendant to three years of
formal probation and ordered him to serve eight months in jail.
       On September 26, 2014, the trial court held a formal restitution hearing. The
prosecution submitted the probation report, which included a recommendation that
restitution be set at $9,108.57. The report also included supporting documentation for
that amount. Defendant submitted a copy of his aunt’s insurance policy and a copy of the
settlement check, which showed that the insurer paid the victim $15,000. The insurance
policy provided that the insurer would pay for damages caused by those specified as
“[p]ersons insured.” The policy defined “[p]ersons insured” to include “any other person
using an owned automobile, provided it is used with the permission of the named insured,
expressed or implied, and within the scope of such permission . . . .” The parties also
stipulated that if called to trial, defendant’s aunt would testify that defendant had
permission to drive her car. Based on the evidence and the stipulation, defendant argued
that he was entitled to an offset because the policy expressly insured permissive drivers.
       After taking the matter under submission, the trial court issued an order denying
the offset. The court found that there was no evidence that (1) defendant procured the
insurance; (2) defendant paid premiums; (3) defendant had a contractual right to have
payments made to the victim on his behalf; and (4) the insurer had no right of indemnity
or subrogation against defendant. At a subsequent hearing in January 2015, the trial court
formally ordered defendant to pay $9,108.57 in victim restitution.


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                                       II.    DISCUSSION
   A. RIGHT TO RESTITUTION
       Victims of crime have a state constitutional right to restitution for losses resulting
from criminal acts against them. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) The
Legislature has implemented this right through Penal Code section 1202.4, which
provides in relevant part: “(a)(1) 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. [¶] . . . [¶] (3) The court,
in addition to any other penalty provided or imposed under the law, shall order the
defendant to pay . . . the following: [¶] . . . [¶] (B) Restitution to the victim or victims, if
any, in accordance with subdivision (f), which shall be enforceable as if the order were a
civil judgment. [¶] . . . [¶] (f) . . . [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. . . . [¶] (1) The
defendant has the right to a hearing before a judge to dispute the determination of the
amount of restitution. . . . [¶] . . . [¶] (3) To the extent possible, the restitution order shall
be prepared by the sentencing court, shall identify each victim and each loss to which it
pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or
victims for every determined economic loss incurred as the result of the defendant’s
criminal conduct, including, but not limited to, all of the following: [¶] (A) Full 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.”


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   B. STANDARD OF REVIEW
       We review a restitution order for abuse of discretion. (People v. Mearns (2002) 97
Cal.App.4th 493, 498.) A court abuses its discretion only if its decision is arbitrary or
capricious or based on a demonstrable error of law. (People v. Akins (2005) 128
Cal.App.4th 1376, 1382.) We affirm the order if there is a factual and rational basis for
the restitution award. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) We do
not reweigh or reinterpret the evidence presented at a restitution hearing; instead, we
determine whether there was sufficient evidence to support the inferences drawn by the
trier of fact. (People v. Baker (2005) 126 Cal.App.4th 463, 469.)
   C. ANALYSIS
       Generally, there is no offset for an amount that a victim receives as compensation
for losses from a collateral source that is independent of the defendant, such as Medicare
or the victim’s own insurance. This is so even if the restitution order results in a double
recovery. (People v. Birkett (1999) 21 Cal.4th 226, 246; People v. Hamilton (2003) 114
Cal.App.4th 932, 940-941 (Hamilton); People v. Hove (1999) 76 Cal.App.4th 1266,
1272.) “[A]lthough a restitution order is not intended to give the victim a windfall
[citation], a third party source which has reimbursed a direct victim for his or her loss
may pursue its civil remedies against the victim or perpetrator. ‘[T]he possibility that the
victim may receive a windfall because the third party fails to exercise its remedies does
not diminish the victim’s right to receive restitution of the full amount of economic loss
caused by the perpetrator’s offense.’ [Citation.]” (People v. Hume (2011) 196
Cal.App.4th 990, 996.)
       On the other hand, a defendant is entitled to an offset for amounts paid to the
victim by the defendant’s own insurer. (People v. Bernal (2002) 101 Cal.App.4th 155,
167-168 (Bernal).) As explained in Bernal, when a defendant’s insurance company
makes payments to a victim pursuant to an insurance contract, it generally has no
recourse against the insured defendant. (Id. at p. 167.) Unlike a payment from an
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unrelated source, a payment to the victim under the defendant’s insurance policy is
deemed a payment “directly from” the defendant within the meaning of Penal Code
section 1202.4, subdivision (a)(1). (Id. at p. 168.) Thus, payments from the defendant’s
own insurer are different from other sources of victim reimbursement because (1) the
defendant procured the insurance, and the payments are not fortuitous but rather are
precisely what he or she has bargained for; (2) the defendant paid premiums to keep the
policy; (3) the defendant has a contractual right to have the insurance company make
payments to the victim on his or her behalf; and (4) the insurance company has no
indemnity or subrogation rights against the defendant. (Ibid.)
       The right to an offset is less clear when the victim receives payment from an
insurer under a policy that the defendant did not personally procure but which was not
completely collateral to and independent of the defendant.
       For example, in People v. Jennings (2005) 128 Cal.App.4th 42 (Jennings), the
defendant was driving under the influence when he got into an accident that injured his
passenger. (Id. at p. 46.) The defendant’s mother’s insurance company paid a settlement
to the passenger, in exchange for a release of both defendant and his mother from all
claims arising from the accident. (Id. at p. 47.) The trial court ordered full restitution and
denied an offset after finding that the defendant’s mother, not the defendant, was the
insured. (Id. at p. 48.) In a motion to modify the restitution order, the defendant
presented evidence that: he was a named insured and a named driver on the policy; his
name was on the declarations page; and he had helped pay the insurance premiums.
Moreover, the insurer indicated that it had no subrogation rights based on the claims it
had paid on the defendant’s behalf. (Ibid.) Nonetheless, the trial court again denied an
offset. (Id. at p. 53.)
       The appellate court reversed the denial of the offset. (Jennings, supra, 128
Cal.App.4th at pp. 53, 56-57.) The court explained that the critical Bernal inquiry is
whether the defendant “is an insured on whose behalf the settlement payments were
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made,” and not the manner in which the insurance was procured. (Id. at p. 53.) The
appellate court noted that the insurance policy expressly named the defendant as an
insured, that no one challenged the authenticity of that document, and that after the
accident, the insurer excluded the defendant from the policy. (Ibid.) The court also noted
that the defendant and his mother had presumably paid a higher premium for the policy to
cover both of them. (Ibid.) Furthermore, the insurer paid the settlement expressly on the
defendant’s behalf, and in return, the injured passenger released her claims against the
defendant. In light of the evidence, the appellate court concluded that defendant was an
insured under his mother’s policy, and was thus entitled to an offset. (Id. at pp. 53-54.)
          The appellate court in People v. Short (2008) 160 Cal.App.4th 899 (Short), also
held that a defendant was entitled to an offset. The defendant in Short was driving his
employer’s vehicle and was in the course of his employment when he got into an accident
with the victim. (Id. at p. 901.) The employer’s insurance company paid the settlement
to the victim on behalf of the employer and the defendant. (Id. at p. 902.) The appellate
court held that the defendant was entitled to an offset, despite the fact that: defendant did
not procure the insurance policy; he did not pay any premiums; and his name was not on
the policy. (Id. at p. 905.) The court reasoned that though the defendant was not a named
insured, he was a member of the “class of insureds” covered by the policy. (Ibid.) The
court explained that this was not a “fortuitous windfall” for the defendant’s benefit.
Rather, employers were statutorily required “to insure or otherwise indemnify an
employee ‘for all . . . losses incurred by the employee in direct consequence of the
discharge of his or her duties [.]’ (Lab. Code, § 2802.) . . . [Citation.] . . . As the
purpose of Labor Code section 2802 is ‘to protect employees from suffering expenses in
direct consequence of doing their jobs’ [citation], procurement of the insurance policy to
cover those losses was a benefit for defendant as much as it was for the employer.”
(Ibid.)


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       In contrast to Jennings and Short, the appellate court in Hamilton, supra, 114
Cal.App.4th 932, held that the defendant was not entitled to an offset. In Hamilton, the
defendant shot the victim, who was working for his mother. The mother’s insurance
company paid a settlement claim on her behalf, obtained a release of all claims against
her, and obtained a dismissal of the civil suit against both the mother and the defendant.
(Id. at p. 935.) The appellate court found that the defendant was not entitled to an offset
because the insurer paid the settlement only on the mother’s behalf, and not on the
defendant’s behalf. (Id. at p. 943.) Distinguishing Bernal, supra, 101 Cal.App.4th 155,
the appellate court found that the defendant “did not procure or maintain the insurance,
had no contractual right to require payments to be made on his behalf, and was
potentially subject to an indemnity claim by the insurer.” (Hamilton, supra, at p.942, fn.
omitted.) The court found that the payments were made by a source “completely distinct
and independent from Hamilton—namely, his mother’s insurer.” (Ibid.) Thus, the
settlement payment benefitting defendant was due to two fortuitous events: the mother
procuring insurance coverage and the policy covering the defendant’s acts. (Ibid.)
       In the instant case, defendant was not the owner of the vehicle involved in the
accident; he did not purchase the insurance that paid the settlement; he did not pay any of
the insurance premiums; and he was not explicitly named as an insured or a driver
anywhere in the policy. Notably, there was also no evidence showing that the insurer
was barred from pursuing an indemnity claim against defendant. Furthermore, although
the aunt’s insurer paid a settlement to the victim for a release of all claims against
defendant and his aunt, this fact alone does not establish that as a matter of law the
settlement was made on his behalf. (See In re Tommy A. (2005) 131 Cal.App.4th 1580,
1590-1591 [finding no restitution offset even though the victim signed an agreement
expressly releasing the minor].)
       Relying on Short, supra, 160 Cal.App.4th at page 905, defendant argues that he
was entitled to an offset because he belonged to a class of permissive users, who were
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insured under his aunt’s policy. Defendant construes Short too broadly. Although the
aunt’s policy states that it covers damages caused by permissive users, this is not a
situation like Short, supra, 160 Cal.App.4th at page 905, where the defendant belonged to
a specifically bargained-for “class of insureds.” Unlike Short, there is no employer-
employee or principal-agent relationship here that would implicate an employer’s
statutory duty to indemnify an employee for losses incurred in the course of his or her
employment. (Lab. Code, § 2802, subd. (a).) Because the principal-agent relationship
does not exist between a named insured and a permissive user, the insurer does not have
the same contractual obligation to a permissive user to settle a claim on his or her behalf.
          On this record, the evidence did not establish a contractual relationship between
defendant and his aunt’s insurer such that any payment from the insurer could be deemed
“directly from” the defendant. (Bernal, supra,101 Cal.App.4th at p. 168.) Rather, this
case is similar to Hamilton because the settlement payment here was a result of fortuitous
circumstances (i.e., the aunt procured insurance that compensated the victim for damages
resulting from defendant’s act). (Hamilton, supra, 114 Cal.App.4th at p. 942.)
Therefore, the settlement payment was from a source that was independent of defendant,
and thus it cannot relieve him from his obligation to pay the full restitution. Accordingly,
we conclude that the trial court did not abuse its discretion in denying defendant the
offset.
                                      III.     DISPOSITION
          The restitution order is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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