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The People v. Orlando Vasquez

December 13, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ORLANDO VASQUEZ, DEFENDANT AND APPELLANT.



(Los Angeles County Super. Ct. No. PA055471 APPEAL from an order of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed.

The opinion of the court was delivered by: Perluss, P. J.

CERTIFIED FOR PUBLICATION

As part of the resolution of a criminal case charging him with two felony counts of failure to control a mischievous animal that caused serious bodily injury (Pen. Code, § 399, subd. (b)),*fn1 Orlando Vasquez agreed to pay $168,633.20 in restitution to Heiddy G., a young girl who had been severely mauled by his pit bull. Vasquez subsequently moved to have the court declare his restitution obligation satisfied, contending a $300,000 payment to settle a civil suit against Vasquez and his landlord, funded by the landlord's insurer through a homeowners policy that also insured Vasquez, is properly deemed restitution made directly from Vasquez within the meaning of section 1202.4 and constituted a full offset to the restitution award. The trial court denied the motion, observing its restitution order had expressly stated Heiddy was still receiving medical treatment and provided any additional losses she sustained could be recovered in a civil action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Pit Bull Attack and Vasquez's Plea Agreement

On June 9, 2006 Vasquez's pit bull escaped from his residence on North Hagar Street in the City of San Fernando. (The property was apparently owned by Antonio Mora.) The animal entered the San Fernando Middle School grounds where it cornered and savagely attacked Heiddy, a student in the seventh grade, while she was in one of the school's bathrooms. Heiddy suffered extensive injuries, which required multiple surgeries.

On June 12, 2006 Vasquez was charged in a felony complaint with two counts of violating section 399, subdivision (b), failing to control a mischievous animal that causes serious bodily injury:*fn2 Count 1 of the complaint was based on the attack on Heiddy; count 2 alleged Vasquez had allowed the pit bull to cause serious injury to another victim (Michael Mirmelli) between December 1, 2005 and January 31, 2006.

On August 24, 2006 Vasquez entered into a negotiated plea agreement: Vasquez pleaded no contest to count 1 of the complaint, the People's motion to dismiss count 2 was continued to the date of sentencing.*fn3 On September 7, 2006, before the Hon. Harvey Giss, Vasquez was sentenced to three years of formal probation on condition he serve 180 days in the Los Angeles county jail and not own any dogs during the period of probation. A victim restitution hearing was set for December 4, 2006. Count 2 was dismissed by the court pursuant to the terms of the negotiated agreement.

2. The Restitution Hearing

At the restitution hearing on December 4, 2006, also before Judge Giss, Vasquez stipulated to a restitution amount of $168,633.20, the damages suffered by Heiddy "so far." The court explained at the hearing, "The court has discussed this matter with counsel. The court is prepared to make an order for that amount, with the understanding that that's not--in all likelihood that will not be the final amount, but the district attorney has no objection to the court making that because--is there some kind of policy, a homeowners policy that might be involved in this?" The deputy district attorney responded, "There may be. I don't know anything about their civil remedies. What I'd like to do is just have this amount ordered, and then whatever else is outstanding be ordered pursuant to a civil judgment." The court agreed with the prosecutor's position, noting, "The victim has a civil lawyer . . . . [T]hey're going to pursue this. . . . This in no way impedes their right to prove the case for the amount that's owing." The court then stated, "Defendant is ordered to pay a civil judgment if one results in this case for the amount of that, and this does not supersede that. That supersedes this."

The order for restitution and abstract of judgment signed by Judge Giss following the restitution hearing specifies the restitution awarded is for the victim's "medical expenses." The minute order from the hearing directing payment of restitution provides, "Counsel and defendant stipulate to a restitution amount of $168,633.20 to date. The victim is still receiving medical treatment and any amount over the $168,633.20 will be pursuant to civil judgment."

3. Heiddy's Civil Suit and Settlement

In December 2006 Heiddy, through her parent and guardian ad litem, filed a civil action against Vasquez, Mora and Maria Ruiz, who apparently also lived at the North Hagar Street residence where Vasquez kept the pit bull, as well as the Los Angeles Unified School District, the Los Angeles County Department of Animal Control and the City of San Fernando. Heiddy alleged causes of action for strict liability and negligence against Vasquez, Mora and Ruiz and for negligence against the school district, the county and the city.

On October 1, 2007 the superior court (Hon. Melvin D. Sandvig) approved a compromise of minor's disputed claim on behalf Heiddy against Vasquez, Mora and Ruiz. The settlement provided for a total payment in favor of Heiddy of $300,000 from Mora's homeowners insurance, which also covered Vasquez as an insured. Of the total settlement, $75,000 was payable to Heiddy's attorney for legal fees, and $22,335 was identified as reimbursement for medical and other expenses paid by Heiddy or her attorney. The balance of $202,665 was used to fund a structured settlement annuity from Allstate Assignment Company. On November 29, 2007 Heiddy's counsel filed a request ...


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