Filed 1/11/99

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

Ward Stafford Clay, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Michelle Linley, Deputy Attorneys General for Plaintiff and Respondent.

Jack R. Turner appeals a judgment convicting him of seven counts of embezzlement (Pen. Code, § 506). He admitted the loss to victims exceeded $50,000 (§ 12022.6, subd. (a)). In exchange, the court dismissed all remaining charges with a Harvey Waiver. Turner contends the trial court was not authorized to order restitution be paid to the California State Bar Association (State Bar) for amounts it had compensated his victims. He also contends that taking advantage of a position of trust is an element of embezzlement which cannot be used to support imposing an upper term. We conclude his contentions are without merit and affirm the judgment.

Turner was an attorney licensed by the State Bar. Between 1989 and 1994, he defrauded a number of his clients by obtaining settlements on their behalf and not notifying them. These and other funds were diverted to Turner's own personal use.

On August 9, 1996, an information charged Turner with eight counts of embezzlement (§ 506), five counts of forgery (§ 470, subd. (a)), five counts of possessing a completed check with the intent to defraud (§ 475a), and one count of unauthorized practice of law (Bus. & Prof. Code, § 6126, subd. (b)) with an allegation of loss in excess of $50,000 (§ 12022.6). As part of a plea bargain, Turner pleaded guilty to seven counts of embezzlement, admitted the victims' loss was in excess of $50,000, and had the remaining charges dismissed with a Harvey Waiver.

The court sentenced Turner to the upper term of three years on one count of embezzlement with a consecutive one-year term for the enhancement. All remaining counts were set at the upper term of three years and ordered to run concurrently. The court further ordered Turner to pay $200 in a restitution fine; $868.70 in restitution to victim John Caucis, $8,000 to Marilyn Short, $5,000 to Leslie Griffith, $600 to Rome Sims, $4,875 to Jaime Workman; and $42,033.30 to the State Bar representing the amount it expended in compensating the victims.

Turner argues the State Bar is not a "direct victim" as required by section 1202.4, subdivision (k), governing victim restitution. He argues the State Bar is not entitled to restitution any more than an insurer which has contractually indemnified its insureds for losses caused by criminal acts. Insurers have been denied restitution on the theory they are not direct crime victims. (People v. Sexton (1995) 33 Cal.App.4th 64.) The issue of whether insurers, whose subrogation rights to payments received by their policyholders from third parties arises from contract, are entitled to restitution directly from criminals is currently being reviewed by the Supreme Court. In any event, the State Bar does not operate like a contractual indemnitor.

Like the Restitution Fund (Gov. Code, § 13959 et seq.), the State Bar Client Security Fund (Bus. & Prof. Code, § 6140.5) is created by statute. The California Constitution mandates restitution for all persons incurring losses as a result of crime. The Legislature established the Restitution Fund to provide financial assistance to crime victims who suffer physical or emotional injury, or death. Printed application forms are provided to victims affording them the opportunity to request relief within a given date of the injury and requiring them to describe the circumstances of the crime under penalty of perjury. Within 90 days of application, a review board determines whether a preponderance of the evidence suggests a compensable injury exists and approves or denies applications accordingly. Once payment is made, the State of California is subrogated, by statute, to the rights of the victim to the extent of that payment.

The State Bar Client Security Fund is managed by the State Bar and services that subset of victims incurring monetary or property loss as the result of attorney misconduct. Preprinted forms are available for applicants to describe the circumstances surrounding the loss, executed under penalty of perjury, and contain a subrogation and assignment clause in the name of the State Bar should any payment be made. If a reimbursable loss is found by a preponderance of the evidence, the victim is awarded payment from the Client Security Fund. Significantly, the State Bar is statutorily subrogated to the extent of payment to the rights of a victim against the person or persons who caused the pecuniary loss. (Bus. & Prof. Code, § 6140.5, subd. (b).) Thus, both the Restitution Fund and the State Bar Security Fund serve the same function and each is statutorily subrogated to the rights of the victims who receive its financial assistance.

Given the broad constitutional mandate to award restitution to "all persons who suffer losses," there is no rational basis for distinguishing between two parallel mechanisms that serve that end regarding statutory subrogation. A careful reading of section 1202.4 supports this view. The Legislature has determined that defendants are not to receive a windfall, in the form of lower restitution, simply because their victims had the foresight to insure against the loss or otherwise receive compensation. At the same time, it was not intended that victims obtain double recovery. This eventuality was provided for in the statute since restitution awarded directly to the victim is diverted to the Restitution Fund to the extent of their prior payment. There is no reason why payments from the State Bar, a public corporation serving the same policy function, should not be treated in the same manner, given the Legislature has provided the State Bar statutory subrogation under Business and Professions Code section 6140.5, subdivision (b). Although payments from the State Bar are discretionary, once payment has been made this distinction is of no consequence.

Consequently, the trial court properly awarded the State Bar restitution. A reasonable reading and application of section 1202.4, so as to avoid an absurd and inconsistent result here, requires the State Bar be reimbursed to the extent victims of Turner's criminal activity received assistance from the Client Security Fund. Additionally, as a quasi-substitute for the Restitution Fund, awarding the State Bar restitution has the salutary effect of eliminating a further round of litigation with the victim for any double recovery.

Turner next contends the court erred in relying on California Rules of Court, rule 421(a)(11), to aggravate the presumptive middle term because abuse of trust is an element of embezzlement and therefore an impermissible factor under rule 420(d). Even were we to agree that reliance on rule 421(a)(11) was improper, there would be no requirement to remand the case for resentencing. A single valid circumstance in aggravation will support imposing the upper term. (People v. Covino (1980) 100 Cal.App.3d 660, 670.) If the court relies on an improper factor, remand for resentencing is required only if "'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.]" (People v. Avalos (1984) 37 Cal.3d 216, 233, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) The sentencing court here relied on alternative factors in imposing the upper term, including (1) Turner took advantage of a position of trust or confidence to commit the offense and (2) he was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences were imposed. The court specifically stated "either one in my opinion would be enough." The sentencing court's determination that both factors independently outweigh any mitigating factor is not shown to be an abuse of discretion on this record.

The judgment is affirmed.

CERTIFIED FOR PUBLICATION

______________________________

WORK, Acting P.J.

WE CONCUR:

_______________________________

BENKE, J.

_______________________________

MAY, J.*

*Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.