By a MetNews Staff Writer
A man who embezzled from his employer more than $6.3 million, including interest, and settled a civil case by repaying roughly $450,000, with the proviso that the victim would not seek additional sums by way of restitution in a criminal proceeding, must be ordered by the criminal court to restore an additional $5.8 million-plus, under a decision by Div. Two of the Fourth District Court of Appeal.
The unpublished decision, filed Wednesday, reverses a restitution order by San Bernardino Superior Court Judge Dwight W. Moore who ruled that defendant Ryan C. Potter was solely indebted to his former employer, Squires Lumber Company, in the amount of $450,835.61, the sum he had paid pursuant to the settlement. Moore credited that payment, leaving nothing further owed.
Moore found inapplicable the Aug. 13, 2002 Court of Appeal opinion from this district’s Div. Two in People v. Bernal. In that case, the wrongdoer’s insurance company paid the victim $15,000 and the victim signed a release.
The release did not bar an order for restitution in the criminal proceeding, the appeals court held in an opinion by then-Justice Michael Nott (now deceased).
Moore pointed out that in the case before him, “[w]e have a victim and a defendant who were directly dealing with each other” and “not a settlement with an insurance company.”
Difference Without Distinction
That, Acting Presiding Justice Douglas P. Miller said in Wednesday’s opinion, “is a difference without a legal distinction,” declaring:
“We find Bernal persuasive and applicable and conclude that the settlement here did not bar restitution.”
Miller quoted Nott’s opinion as observing:
“A restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter defendant and others.”
He also quoted this language:
“While a settlement agreement with, and release of, a defendant’s insurance company may reflect a victim’s willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of the People to accept that sum in satisfaction of the defendant’s rehabilitative and deterrent debt to society. A restitution order pursuant to a defendant’s plea is an agreement between the defendant and the state….The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.”
Those considerations apply fully in the context of direct negotiations between the wrongdoer and the victim, the jurist wrote.
Miller noted that the agreement between Squires and Potter only said that Squires would not seek additional compensation by way of restitution, not that it would not accept any additional payment ordered by the court. But “even if Squires had waived any additional restitution, a crime victim is not a party to a restitution order,” the jurist said, rendering any such waiver ineffective.
The opinion directs that Potter be ordered to pay restitution in the amount of $5,849,991.66 ($6,300,827.27—the sum embezzled, plus interest—minus the $450,835.61 paid pursuant to the settlement).
Potter was sentenced, under a plea bargain, to a 10-year term, with six years of incarceration in a county facility and four years of supervised release.
The case is People v. Brown, E076237.
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