People v. Warnes

Opinion

MURPHY, J.— I. Facts

Appellant was convicted of violating six counts of Business and Professions Code section 17500 and nine counts of Vehicle Code section 11700 arising out of his conduct as an unlicensed auto dealer making fraudulent or misleading statements to induce sales. There were six victims. After appellant’s conviction was affirmed by the superior court appellate panel, he was remanded to custody for one year. A restitution hearing was held and the *Supp. 38court at the hearing imposed as a condition of probation restitution in the amount of $16,636. The docket was amended by stipulation of the parties to reflect a corrected total of $17,336.94. In addition, the trial court added additional conditions of probation: (1) that appellant not attempt to discharge his restitution obligation through bankruptcy proceedings, (2) that appellant seek and maintain full-time employment upon release from custody, and (3) that appellant not leave San Diego County without the court’s permission.

Appellant challenges on appeal the conditions of probation concerning restitution, particularly that he not seek to discharge his restitution obligation through bankruptcy. For the reasons set forth below, we affirm the order and hold that a trial court imposes restitution as a condition of probation on a defendant in a criminal case may further impose as a condition of probation that the defendant not attempt to discharge the restitution obligation in bankruptcy.

II. Discussion

A.

Appellant first challenges the condition of probation that he not attempt to discharge the restitution order by any bankruptcy proceedings on the grounds that (1) he has a fundamental right to file for bankruptcy and (2) the dischargeability of debts is governed and preempted by federal law. Appellant is mistaken.

In Kelly v. Robinson (1986) 479 U.S. 36 [93 L.Ed.2d 216, 107 S.Ct. 353], the United States Supreme Court held that restitution obligations imposed as conditions of probation in state criminal proceedings are not dischargeable in proceedings under chapter 7 of the Bankruptcy Code (11 U.S.C. § 701 et seq.). The Supreme Court, in Pennsylvania Public Welfare Dept. v. Davenport (1990) 495 U.S. 522 [109 L.Ed.2d 588, 110 S.Ct. 2126], held that restitution obligations are dischargeable under chapter 13 of the Bankruptcy Code (11 U.S.C. § 1301 et seq.). In response to this decision, Congress amended title 11 of United States Code, section 1328(a) to specifically exclude from discharge under chapter 13 a debt “for restitution included in a sentence on the debtor’s conviction of a crime.”