NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

FRANSON, J.

Appellant Edwin Vincent Munis was convicted in 1997 of the murder of his wife, Wilma Munis. The California Victim Compensation & Government Claims Board (Board) paid $2,289.63 in burial expenses to Wilma's brother, Alexander Spahn, for Wilma's funeral, and paid $5,830 to Wilma and appellant's son, Vincent Munis, for mental health counseling. The district attorney moved in 2009 for an order directing appellant to reimburse the Board's Victim Compensation Program Restitution Fund for the total of $8,119.63 paid to these two victims. The court granted the motion.

Appellant contends that the court erred in ordering him to pay the $8,119.63 in restitution. He argues that his payment of $250,000 to his son Vincent in partial satisfaction of a $1,000,000 wrongful death judgment obtained against him by Vincent, and a lapse of approximately nine years between the $250,000 payment by appellant and the filing of the motion for restitution, bar the People from obtaining restitution. As we shall explain, we find appellant's contentions without merit and affirm the restitution order.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent chronology of events is as follows. Appellant was convicted of the murder in 1997 and was sentenced on July 18, 1997, to a prison term of 25 years to life. At the time of sentencing, restitution was ordered, but no amount was determined. His son Vincent filed a wrongful death action against appellant in August 1997. Vincent obtained a $1,000,000 default judgment against him in July 1999, and a writ of execution later issued. In May 2000, a parcel of real property owned by appellant in Tuolumne County was sold at auction to Vincent for $250,000 in a "credit purchase" in partial satisfaction of Vincent's judgment against appellant.

On March 12, 2009, the People filed the motion requesting an order directing appellant to pay $8,119.63 in restitution to the Board. The motion contains Board records which appear to show that the claim for $2,289.63 in burial expenses was paid by the Board in October of 1997. The records do not appear to mention the precise date or dates on which Vincent's claim or claims for reimbursement for mental health services totaling $5,830 were paid by the Board, but those records do show that those services were incurred between July 8, 1997, and October 23, 2002, and that Vincent's claims for reimbursement for those services were submitted to the Board periodically between May of 1998 and March of 2003. The hearing on the motion was continued several times, and the motion was ultimately heard and granted on March 19, 2010.

DISCUSSION

There is no issue in this case regarding whether the court abused its discretion in calculating the restitution amount. (See, e.g., People v. Chappelone (2010) 183 Cal.App.4th 1159; and People v. Millard (2009) 175 Cal.App.4th 7.) Rather, appellant contends that on the undisputed facts of this case, the Board is not entitled to restitution. We therefore review de novo the ruling ordering appellant to pay $8,119.63 in restitution to the Board. (See People v. Runyan (2010) 188 Cal.App.4th 1010, 1012-1013.)

In 1982 the voters of California passed Proposition 8, also known as the Victims' Bill of Rights. This initiative measure added article I, section 28, to the California Constitution. This section stated in its subdivision (b):

The Legislature enacted various statutes in response to this constitutional mandate (see People v. Giordano (2007) 42 Cal.4th 644, 652-653), and "[i]n the mid-1990's, the Legislature consolidated much of the state's victim restitution scheme into Penal Code section 1202.4." (Id. at p. 653.)1 The case before us involves subdivision (f) of Penal Code section 1202.4,2 which states in part:

Subpart "(2)" of section 1202.4, subdivision (f) further states in pertinent part:

The superior court applied these principles here. There is no dispute that a murder victim's son who has incurred mental health counseling expenses is a "victim" within the meaning of section 1202.4, subdivision (f) (see § 1202.4, subd. (k)(1), (3)(C)) and that the mental health counseling expenses qualify as an economic loss for which the victim is entitled to restitution (see § 1202.4, subd. (f)(3)(C)). Nor is there any dispute that a murder victim's sibling who pays funeral or burial expenses is a victim (§1202.4, subd. (k)(3)(A), (4); Gov. Code, § 13957, subd. (a)(9)) and that those funeral or burial expenses qualify as an economic loss for which the victim is entitled to restitution (see § 1202.4, subd. (f)(3); Gov. Code, § 13957, subd. (a)(9); and People v. Rubics (2006) 136 Cal.App.4th 452, 457). Nor is there any dispute that the Board paid from the "Restitution Fund in the State Treasury" (§ 1202.4, subd. (e)), pursuant to the Victim Compensation Program (see Gov. Code, § 13951, subd. (a)), the $5,830 in mental health counseling expenses and the $2,289.63 in funeral expenses incurred by these two victims. (See Gov. Code, § 13950 et seq.) Thus, under a straightforward application of section 1202.4, subdivision (f)(2), because the Restitution Fund has provided $8,119.63 in assistance to these two victims, "[r]estitution ordered pursuant to this subdivision shall be ordered to be deposited to the Restitution Fund to the extent that the victim ... has received assistance from the Victim Compensation Program ...." (§ 1202.4, subd. (f)(2).) This is precisely what the court ordered. (See also § 1202.4, subd. (f)(4)(A): "the amount of assistance provided shall be presumed to be a direct result of the defendant's criminal conduct and shall be included in the amount of restitution ordered.")

Appellant first argues that the court should not have made the restitution award "because the board's right of subrogation expired with the civil settlement between appellant and victim." This argument fails because application of the principles of subrogation is precisely why the award was proper. "The board shall be subrogated to the rights of the recipient to the extent of any compensation granted by the board." (Gov. Code, § 13963, subd (a).) A subrogee "is put in all respects in the place of the party to whose right he is subrogated." (Brown v. Rouse (1899) 125 Cal. 645, 650.) Thus, if appellant had in fact already paid Vincent's and Mr. Spahn's economic losses, the court could not require appellant to pay those same losses a second time.

Appellant paid nothing at all, however, to Mr. Spahn, the victim's brother. Spahn was not a party to the wrongful death action and recovered nothing from appellant in that action. Until the court ordered appellant to pay the $2,289.63 in funeral expenses to the Board, appellant had neither paid nor been ordered to pay those expenses.

Appellant similarly paid none of Vincent's economic losses. The statement of damages filed in Vincent's wrongful death action shows that Vincent did not, in that action, seek to recover any medical or counseling expenses, either already incurred or yet to be incurred. Nor did Vincent have any need to seek recovery of those expenses in his civil action. They would be the subject of the restitution order that the court was required ultimately to make. (Cal. Const., art. I, § 28, subd. (b).)

Appellant's reliance on Insurance Co. of North America v. T.L.C. Lines, Inc. (1996) 50 Cal.App.4th 90 is unavailing. In that case, an employee, Guidry, of Insurance Company of North America's (INA) insured was injured in an accident involving a tractor-trailer rig operated by Barrows. Barrows was employed by T.L.C. Lines Inc. (TLC). Guidry sued Barrows and TLC. Guidry then settled with Barrows and TLC for $12,000. The settlement agreement included a "`Release agreement ... which released Barrows and T.L.C. and their insurance carrier from all claims arising out of the accident ....'" (Id. at p. 93.) After the settlement, Guidry filed a worker's compensation claim with his own employer (INA's insured). INA paid Guidry an additional $27,730.97 in workers' compensation benefits, and then sued TLC under Labor Code statutes which, INA claimed, allowed it to recover from the alleged tortfeasor (TLC) the amounts INA had paid to the injured employee (Guidry). This court stated: "TLC has in good faith bargained for and obtained a release from all liability for the accident. Since any right INA might have to seek reimbursement from TLC arises from principles of equitable subrogation [citation], we must conclude, as did the trial court, that INA's rights against TLC were extinguished by the settlement and release." (Id. at p. 102.) In other words, since Guidry had released TLC from all claims arising out of the accident, any subrogee of Guidry would have the right to recover whatever Guidry could have recovered if Guidry had filed a second suit against TLC — nothing. Appellant argues that he "settled" with Vincent, and that therefore this "settlement" bars Vincent (or Vincent's subrogee — the Board) from recovering restitution for Vincent's economic losses.

One flaw in appellant's argument is that the record does not include any "settlement" between appellant and Vincent. No releases, waivers or settlement agreements were executed in appellant's favor. The record reflects a $1,000,000 judgment, which has not been fully satisfied, and that judgment was in a civil action that did not seek recovery of the economic losses that are the subject of the restitution order.

A second flaw in this argument is that even if appellant had settled Vincent's civil action against him, any such settlement would not relieve appellant of his obligation to make full restitution to the Board for Vincent's economic losses. (People v. Bernal (2002) 101 Cal.App.4th 155, 160-164; People v. Short (2008) 160 Cal.App.4th 899, 903; People v. Vasquez (2010) 190 Cal.App.4th 1126, 1132-1133.) A crime victim is not a party to a restitution order, 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." (People v. Bernal, supra, 101 Cal.App.4th at p. 162.)

Appellant next argues that any amount paid by a criminal defendant to his victim in settlement of a civil action brought by the victim against the defendant, or any payment made by the defendant on a civil judgment obtained by the victim against the defendant, must be credited against any restitution order made by the court in favor of the victim. The rule, however, is that the defendant receives credit for items of economic loss included in a restitution order only to the extent that the defendant or the defendant's insurer has paid those economic losses in payment of the judgment in, or in settlement of, the civil action. (People v. Bernal, supra, 101 Cal.App.4th 155; People v. Jennings (2005) 128 Cal.App.4th 42; People v. Short, supra, 160 Cal.App.4th at p. 905.) Appellant cites Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438 (Chiu), but nothing in that case holds that all payments made on a civil judgment must be credited against a restitution order even if the recovery in the civil action was for something other than the economic losses that are the subject of the restitution order. Indeed, Chiu expressly cites Short, supra, 160 Cal.App.4th 899 and Jennings, supra, 128 Cal.App.4th 42, for the proposition that "[i]n order to avoid unlawful duplicative recovery, a court can offset payments made on a civil judgment against the restitution order." (Chiu, supra, 175 Cal.App.4th at p. 446.) Footnote 10 of Chiu also explains that certain portions of the civil judgment obtained by the victim in that case "could not have been included in the restitution award, and amounts paid toward those obligations therefore cannot be credited against the restitution order." (Id. at p. 446, fn. 10.) In the case before us, there was no double recovery because, as we have explained, the economic losses covered by the restitution order were not part of any payment made on the civil judgment.

Appellant next contends that the court erred in ordering restitution because the Board's claim for restitution was untimely. He points to no law, however, requiring a claim for restitution to be made within any particular time period. "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the victim make restitution to the victim or victims ...." (§ 1202.4, subd. (f).) All that has happened here is that for almost 13 years following his July 1997 sentencing, appellant avoided the inevitable setting of the amount of the restitution order. That this delay was not caused by him seems inconsequential. He was not harmed by it in any way. He submitted no evidence in opposition to the motion except for some court filings from the civil action. His opposition was an argument that the state should not have waited 13 years to make its claim and an argument that the restitution sought was "two bites of the same apple." He cites Employers Ins. of Wausau v. Granite State Ins. Co. (9th Cir. 2003) 330 F.3d 1214 for the proposition that an action by a subrogee is subject to the same statute of limitations that would have applied to an action brought by the subrogor. This does not help him because the subrogors are two of appellant's victims, Vincent Munis and Alexander Spahn, who were not required to file any action at all against appellant to obtain restitution. The victims were entitled to a restitution order in this case as a result of appellant's conviction for murder. (§ 1202.4, subd. (f).) "There is no express statute of limitation on the matter of victim restitution." (People v. Harvest (2000) 84 Cal.App.4th 641, 652.) Even a defendant who fully serves his or her sentence before a final restitution order is imposed cannot evade "the victim's constitutional `right to restitution.'" (People v. Bufford (2007) 146 Cal.App.4th 966, 971.)

DISPOSITION

The restitution order is affirmed.

WE CONCUR:

Cornell, Acting P.J.

Detjen, J.