People v. Moloy

Opinion

KLEIN, P. J. Defendant and appellant Bennie Lee Moloy appeals the judgment entered after conviction following plea of guilty to conspiracy to knowingly present a false or fraudulent claim and knowing presentation of a false or fraudulent claim. (Pen. Code, §§ 182, subd. (a)(1), 550, subd. (a).)1 The trial court sentenced Moloy to a term of four years in state prison. We affirm.

Factual and Procedural Background

Between 1995 and 1998, Moloy participated in a scheme by which he and others caused unsuspecting motorists to collide with vehicles driven by [259]Moloy or Moloy’s associates.2 As a result of these induced traffic accidents, Moloy submitted false claims under a variety of names to the companies who insured the victimized motorists, in this case State Farm and Safeco Insurance Companies. The false claims were submitted through a sophisticated network of coconspirators including attorneys, medical professionals and Department of Motor Vehicle employees. Moloy’s fraudulent claims resulted in payments to Moloy of at least $38,151. At sentencing, the trial court ordered Moloy to make direct restitution to State Farm and Safeco Insurance Companies in that amount. The trial court noted People v. Birkett (1999) 21 Cal.4th 226, 244 [87 Cal.Rptr.2d 205, 980 P.2d 912], had held that an insurer, other than the Restitution Fund, who pays the crime-related losses of its insured under the terms of an insurance policy is not a direct victim of crime, and thus is not entitled to restitution from the offender. However, the trial court distinguished Birkett because the insurance companies in this case were the direct victims of Moloy’s offenses.

Contention

Moloy’s sole contention on appeal is that the restitution order violated Birkett because the insurance companies made the payments to Moloy on behalf of their insureds and thus were not direct victims of Moloy’s offenses.

Discussion

Moloy contends the insured motorists, not the insurance companies, were the direct victims of his crimes and that the insurance companies merely settled claims involving their insureds as they were required to do by contract. Moloy points out that he could not have sued the insurance companies directly without first obtaining a judgment for damages against the insureds, and thus the insurance companies are indirect victims of his offenses. Moloy concludes the matter must be remanded to correct the restitution order.