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Name: People v. Brunette
Case #: H035370
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/13/2011

Comparative fault analysis is unavailable to reduce a defendant’s restitution where defendant’s acts were close enough to the criminal equivalent of an intentional tort to bar invoking comparative fault principles. A jury convicted appellant of multiple felony and misdemeanor counts of animal cruelty and neglect. The trial court ordered him to pay $127,331.33 to the Animal Services Authority for the costs of rescue and care, under Penal Code section 1202.4. It refused to reduce the award based on appellant’s allegation the Authority knew from an earlier raid at appellant’s property the conditions in which he kept his dogs and could have shut down his operations at that point, thereby mitigating losses. Appellant urged the Court of Appeal to apply comparative fault principles to reduce the restitution award. The Attorney General urged the court to disapprove People v. Millard (2009) 175 Cal.App.4th 7, which allowed application of comparative fault to reduce victim restitution. The Court of Appeal found 1202.4 inapplicable, instead turning to the animal rescue restitution provisions of section 597, subdivision (f)(1). Under this section, which provides for forfeiture of animals and liability for costs to the rescuing agency, it approved the restitution, striking only the order for interest. Even if the court were to apply section 1202.4 to this case, appellant’s depravity and cruelty towards his dogs was in wanton disregard for their lives. This is “close enough to the criminal equivalent of an intentional tort to bar invoking comparative fault principles.” Further, in considering whether to reduce criminal restitution based on comparative fault, the trial court may look beyond the evidence minimally required to support the conviction to assess the quality of a defendant’s actions under all of the circumstances. Such a procedure does not offend constitutional protections, as direct restitution to redress economic losses does not constitute punishment.