P. v. Solari
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
GEORGE JOSEPH SOLARI,
Defendant
and Appellant.
E055426
(Super.Ct.No. FSB1102808)
OPINION
APPEAL
from the Superior Court
of
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.
A
jury convicted defendant and appellant George Joseph Solari of one count of
subd. (d), count 1)
title="">[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 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).)
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.â€
(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] . . . .†(
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 trial court erred in ordering
victim restitution under section 1202.4.
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.
name="_ftn1" title=""> [1] All further statutory references will be to
the Penal Code, unless otherwise noted.
name="_ftn2" title=""> [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
