People v. Saint-AmansPeople v. Saint-Amans
Introduction
After Daniel John Saint-Amans (appellant) pleaded guilty to one count of commercial burglary (
Facts and Procedural Background2
Appellant opened a bank account at the bank‘s Terra Linda branch on October 25, 2001. The same day, a joint account was opened by phone banking under the names of William Dillon and appellant. Through a series of transactions, $35,000 was transferred from Dillon‘s account to the joint account, and then from the joint account to appellant‘s individual account. Appellant successfully withdrew $15,000 of this money. Bank employees became suspicious on May 30, 2001, when appellant requested to withdraw $20,000 cash at the bank‘s Corte Madera branch. On May 31, 2001, the bank called the Twin Cities police, leading to appellant‘s arrest.
On January 24, 2002, appellant pleaded guilty to one count of commercial burglary in violation of
Appellant‘s probation officer submitted a presentence report dated April 23, 2002, which the court read and considered. In the report, Dillon stated that he did not suffer any loss because the Federal Deposit Insurance Corporation (FDIC) covered his losses. The report also stated that the bank had submitted a restitution claim seeking $15,000, the full amount taken by appellant. The probation officer recommended that appellant be required to pay restitution to the bank as a condition of probation.
On May 17, 2002, the trial court held a sentencing hearing. During the proceedings, neither party objected to the factual accuracy of the probation report. Appellant objected to the restitution order, arguing that the bank was not the victim of the burglary because it did not suffer a financial loss. The probation officer stated that
Supplemental documents were added to the probation report prior to the restitution hearing. Included was the bank‘s April 12, 2002 restitution claim form for $15,000 for losses due to forgery and customer impersonation. That form also contained a statement that “[a]fter recovery from all sources, [the bank‘s] `out-of-pocket’ expenses are: $0.” The probation report also contained a letter from Danielle Dixon of the bank‘s loss processing department dated January 23, 2003. The letter states that the original paperwork documenting the bank‘s loss at $15,000 was recorded incorrectly, and the remaining amount owed on the account was $10,000.
At the restitution hearing on January 13, 2004, appellant argued that Dillon, not the bank, was the direct victim of appellant‘s crime and was the only one entitled to restitution. At the outset, defense counsel stated, “... I told [the prosecutor] that I don‘t think we, after speaking with my client today, we need to take testimony on the amount of restitution. I would like to raise a legal issue about the restitution and just make it that brief, Your Honor, and then as to the amount we can stipulate.” The People noted the presence at the hearing of a fraud investigator for the bank who could explain why the amount owed was $10,000. The court declined to hear from the investigator, stating that the amount was not at issue, but rather who was entitled to that amount. The People asserted, “I‘m informed and believe from the investigator that Washington Mutual has since paid Mr. Dillon back because he had completed an application of forgery, and now the Washington Mutual Bank stands as a victim of a direct loss.” Appellant did not offer any contrary evidence when prompted by the court. The court determined that the bank was the victim because appellant had pleaded guilty to burglarizing the bank and the probation report indicated that the bank lost the money it gave to appellant. The court ordered appellant to pay $10,000 restitution to the bank.
Appellant filed a timely appeal challenging the restitution order on January 23, 2004.
Discussion
In 1982, California voters amended the state Constitution by initiative to provide restitution to crime victims.
“It is the unequivocal intention of the People of the State of California that all
persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. “Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” (
Cal. Const., art. I, § 28, subd. (b) .)
The Legislature subsequently passed implementing legislation, which has been amended several times. (See Historical and Statutory Notes, Deering‘s Ann. Pen. Code (1993 ed. & 2005 supp.) foll.
To be entitled to restitution, the bank must have (1) suffered an economic loss, and (2) be considered a “direct victim” under the statute. Appellant contends that the bank meets neither of these conditions.
I. Substantial Evidence Supports the Trial Court‘s Conclusion That the Bank Suffered an Economic Loss
“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to
“Restitution has long been considered a valid condition of probation. [Citation.]
“Restitution orders may not be based merely upon the trial court‘s subjective belief regarding the appropriate compensation; there must be a factual and rational basis for the amount ordered and the defendant must be permitted to dispute the amount or manner in which restitution is to be made. (
Furthermore, at the restitution hearing, the prosecutor stated that a fraud investigator was present to explain why the bank‘s loss was $10,000. The People stated that they were “informed and believe from the investigator that Washington Mutual has since paid Mr. Dillon back because he had completed an application of forgery . . . .”
Appellant did not contest the factual accuracy of the probation officer‘s report or present any evidence to the contrary below. Rather, appellant argues on appeal that the bank suffered no loss because the FDIC reimbursed Dillon‘s account. However, the record contains substantial evidence showing that the bank suffered a loss. The bank‘s restitution claim form and letter provide an adequate factual basis. Moreover, defense counsel‘s statement that “I don‘t think we . . . need to take testimony on the amount of restitution,” effectively conceded the issue below.
Appellant‘s argument is also inconsistent with the restitution statute and California case law.
Appellant effectively conceded the issue below. In any event, viewed in the light most favorable to the judgment, the record contains substantial evidence that the bank sustained a loss.
II. The Bank is a Direct Victim Under Section 1202.4
Whether the bank can be a “direct victim” under
In undertaking this analysis, we are mindful that the California Constitution gives trial courts broad power to impose restitution on offenders. (
The bank is a direct victim under
A. The bank did not act as an indemnitor
Appellant argues that the bank acted “in the guise of an indemnitor” when it reimbursed Dillon‘s account. He argues that Birkett, supra, 21 Cal.4th 226, 233, 87 Cal.Rptr.2d 205, 980 P.2d 912, which holds that an insurer who indemnifies a loss is not a direct victim, bars the bank‘s right to restitution. We disagree.
Entities other than individuals are entitled to restitution under
Insurance companies that are victims of insurance fraud are also entitled to restitution. (See, e.g., People v. O‘Casey (2001) 88 Cal.App.4th 967, 106 Cal.Rptr.2d 263 (O‘Casey); People v. Moloy (2000) 84 Cal.App.4th 257, 100 Cal.Rptr.2d 676 (Moloy).) In O‘Casey, an insurance company honored an employee‘s false workers’ compensation claim. (O‘Casey, at p. 969, 106 Cal.Rptr.2d 263.) The appellate court held that the insurer was a direct victim of the crime because the defendant‘s fraud induced the company to make payments directly to the defendant. (Id. at p. 971, 106 Cal.Rptr.2d 263.) In Moloy, supra, 84 Cal.App.4th 257, 100 Cal.Rptr.2d 676, the defendant fraudulently caused car accidents and submitted false claims to the victimized motorists’ insurance companies. (Id. at pp. 258-259, 100 Cal.Rptr.2d 676.) Since Moloy‘s objective was to deceive insurance companies into settling false claims, the court permitted the companies restitution as direct victims. (Id. at pp. 260-261, 100 Cal.Rptr.2d 676).
Insurance companies that merely indemnify a direct victim of a crime, on the other hand, are not entitled to restitution. (See, e.g., Birkett, supra, 21 Cal.4th 226, 87 Cal.Rptr.2d 205, 980 P.2d 912; People v. Wardlow (1991) 227 Cal.App.3d 360, 278 Cal.Rptr. 1; People v. Blankenship (1989) 213 Cal.App.3d 992, 262 Cal.Rptr. 141; People v. Williams (1989) 207 Cal.App.3d 1520, 255 Cal.Rptr. 778.) In Birkett, the California Supreme Court considered the restitution claims of insurance carriers that had reimbursed victims of car theft. The court reasoned that the plain language and legislative history of
We are unaware of any California cases addressing the right to restitution of a bank under the circumstances before us. However, the reasoning of the Iowa Supreme Court in State v. Hennenfent (1992) 490 N.W.2d 299 (Hennenfent), is persuasive. After the defendant in Hennenfent pleaded guilty to forging her employer‘s and his wife‘s signatures on numerous checks, the trial court ordered her to pay restitution to the bank that had cashed the checks. (Ibid.) The Iowa restitution statute, which specifically excluded insurers, defined “victim” as one “who has suffered pecuniary damages as a result of the offender‘s criminal activities.” (Ibid.) Hennenfent argued that the bank was an insurer and not entitled to restitution. (Ibid.) The Iowa Supreme Court disagreed, relying on definitions of “insurer” and “insurance” in Black‘s Law Dictionary.4 (Hennenfent, at p. 300.) The court held that banks were not insurers because they did not insure against anticipated risks, receive compensation for assuming such risks, or contract to assume liability for damages arising out of criminal misconduct. (Ibid.)
Though we are not bound by an Iowa state court decision, Hennenfent is persuasive because both Iowa and California provide restitution to a victim who suffers economic loss as a result of an offender‘s crime. (See
Appellant relies upon the holding of Birkett, supra, 21 Cal.4th 226, 87 Cal.Rptr.2d 205, 980 P.2d 912, refusing to recognize an insurance company that indemnifies a loss as a direct victim entitled to restitution. However, for the reasons stated above, the bank is not an insurer, nor did it act “in the guise of an indemnitor” when it credited Dillon‘s account. Banks “are not in the business of insuring against unanticipated risks.” (Hennenfent, supra, 490 N.W.2d at p. 300.) The FDIC, not the bank, acts as an insurer of bank accounts. Since the bank did not act as an indemnitor of Dillon‘s account, the Birkett rule does not apply.
B. The bank was the object of the crime
A victim is the object of a crime. (Birkett, supra, 21 Cal.4th at p. 232, 87 Cal.
By contrast, the bank‘s involvement in the case at bar included more than simply reimbursing Dillon‘s account. Appellant committed his offense by entering the bank‘s premises at three different branches. Appellant‘s crime also involved deceiving the bank‘s employees and using Washington Mutual‘s bank account system. As in O‘Casey and Moloy, appellant committed his crime against the entity claiming restitution. The object of appellant‘s crime was to enter the bank and make fraudulent withdrawals of funds managed by the bank. Thus, the object of appellant‘s crime was to commit fraud against the bank.
C. Appellant pleaded guilty to commercial burglary
The particular crime of which an offender is convicted also indicates who is the direct victim. (See O‘Casey, supra, 88 Cal.App.4th at p. 972, 106 Cal.Rptr.2d 263). In O‘Casey, the defendant was convicted of workers’ compensation insurance fraud, which involves fraudulently obtaining payment from an insurer. (Ibid.) O‘Casey was not convicted of seeking to fraudulently obtain her employer‘s property, which would have implied that the employer was the direct victim. (Ibid.) She was convicted of a crime against the workers’ compensation insurance company. (Ibid.) Consequently, the insurance company itself was a direct victim entitled to restitution. (Id. at p. 973, 106 Cal.Rptr.2d 263.) Similarly here, appellant pleaded guilty to one count of commercial burglary in violation of
Consequently, appellant‘s conviction of commercial burglary also supports identification of the bank as a “direct victim.”
Since the bank was a direct victim of appellant‘s offense, the court did not abuse its discretion in ordering appellant to pay restitution to the bank.
Disposition
The judgment is affirmed.
We concur: LAMBDEN and RUVOLO, JJ.