Opinion

This case is before us on certification from the Yolo County Superior Court after a decision by its appellate department. We granted the transfer to this court for the purpose of determining whether an order of restitution of money imposed by a municipal court upon a convicted criminal defendant as a condition of probation is a “debt” dischargeable in bankruptcy. This is a question of law which to our knowledge has not heretofore been directly decided in this state.

The Appellate Department of the Superior Court of Yolo County rendered its opinion that there can be no discharge. The case was appealed to the appellate department of the superior court on a settled statement of fact, and is certified here on such facts, as follows:

Defendant principally contended before the appellate department of the superior court, and here, that the law of the United States on bankruptcy is the supreme law of the land on that subject and it would therefore be contrary to the United States Constitution to impose upon him a condition of probation requiring restitution of a “debt” which had been lawfully discharged in bankruptcy.

The rationale of the appellate department was that bankruptcy obviously relates to “provable debts” (see, e.g., 11 U.S.C. § 1 (14)) but that amount ordered to be paid by the municipal court as restitution is not a “debt” within the meaning of the bankruptcy law. The appellate department concluded that a condition of probation which consisted of restitution to a victim of a criminal act could have no relationship to a “debt” to the victim, since it is part of a judgment of conviction and is for the purpose óf punishment, rehabilitation and helping to insure defendant will lead a law-abiding life.

Defendant contends that the appellate department “failed to recognize the very fundamental difference between willful and intentional acts which are non-dischargeable under the Bankruptcy Law and the type of act [negligence] which resulted in the damages suffered by the State of California.”

It appears to us that quite the contrary is true. That court plainly recognized the difference to which defendant adverts, insofar as it is pertinent to a normal bankruptcy situation. That court stated in its opinion that “if the liability proceeds through the bankruptcy hearings based on simple negligence and otherwise properly provable, it might well be discharged so far as the [State] is concerned. But, that refers only to the actual or potential civil suit of the injured party.” (Italics added.) We believe this point of distinction to be well taken.

The case of People v. Richards (1976) 17 Cal.3d 614 [ 131 Cal.Rptr. 537 , 552 P.2d 97 ], contains a recent and appropriate discussion of the nature of probation and the relationship of restitution or reparation as a natural part of the concept of probation in criminal law. The Supreme Court pointed out in Reharás that Penal Code section 1203.1 expressly allows courts to impose reparation conditions to probation. (Id., at p. 621.) The court made a significant distinction between reparations which are strictly for criminal purposes (as here) and those which may go beyond this point. (Id., at pp. 621-622.) In Reharás, the trial court had imposed probation on defendant for a crime (grand theft in sale of a mining claim) for which he was convicted but had required restitution to a “victim” of another sale, as to which a jury had acquitted defendant. The Supreme Court held this invalid, saying the courts could not be “collection agencies” simply on grounds a defendant owed money and to allow him to avoid the debt would be unjust. (Id., at p. 620.) Thus, our Supreme Court has expressly recognized (a) the major goal of section 1203.1 is to rehabilitate the criminal; (b) that restitution may serve the salutary purpose of making a criminal understand that he had harmed not only society in the abstract but also individual human beings, and that he has a responsibility to make them whole; and (c) restitution as a criminal probation condition is not part of the civil debtor-creditor relationship or syndrome. (Id, at pp. 619-620.) In this connection, the court expressly stated, “Disposing of civil liability cannot be a function of restitution in a criminal case.” (Id, at p. 620.)

The rationale of the Supreme Court in Richards lends significant support to the decision of the Appellate Department of the Yolo County Superior Court. Moreover, and more directly in point, is a decision of a New York court in People v. Mosesson (1974) 78 Misc.2d 217 [ 356 N.Y.S.2d 483 ]. In that case defendant had pleaded guilty to grand larceny in dealing with the City of New York. Among conditions of probation was restitution of moneys to the city. Two months prior to the probation order defendant had filed a petition in bankruptcy listing the city as a creditor. About three weeks after the probation order, an order of discharge in bankruptcy was entered. Defendant then moved the New York court for an order removing the restitution condition to his probation. The New York court held in pertinent part, as follows:

“A discharge in bankruptcy has no effect whatsoever upon a condition of restitution of a criminal sentence. A bankruptcy proceeding is civil in nature and is intended to relieve an honest and unfortunate debtor of his debts and to permit him to begin his financial life anew (In re Munford, D.C., 255 F. 108 ). A condition of restitution in a sentence of probation is a part of the judgment of conviction. It does not create a debt nor a debtor/creditor relationship between the persons making and receiving restitution. As with any other condition of a probationary sentence it is intended as a means to insure the defendant will lead a law-abiding life thereafter (Penal Law, § 65.10).” (Id., at p. 484; see also People on Inf. of Auerbach v. Topping Bros. (1974) 79 Misc.2d 260 [ 359 N.Y.S.2d 985, 987-988 ].)

In summary, we agree with the conclusion of the Appellate Department of the Yolo Superior Court that the Bankruptcy Act does not “contemplate nor perceive” that its provisions would apply to orders for restitution as conditions of probation.

The judgment (order reinstating restitution as a condition of probation) is affirmed.

Janes, J., and Warren, J., concurred.

Assigned by the Chairperson of the Judicial Council.