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The People v. Michael Joseph Huth

March 30, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL JOSEPH HUTH, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. CM028912 & CM030955)

The opinion of the court was delivered by: Mauro, J.

P. v. Huth

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Michael Joseph Huth pleaded no contest to second degree burglary (Pen. Code, § 459)*fn1 and was placed on probation with terms and conditions, including a requirement that he pay restitution to the victim jointly and severally with the co-defendant in the matter. The following year, defendant pleaded no contest to rape of an unconscious or sleeping person (§ 261, subd. (a)(4)(A)) and, again, received probation. Several months later, defendant admitted he had violated his probation in each case by leaving a residential treatment program without permission. The trial court terminated probation in both cases and imposed a term in state prison of six years eight months.

Defendant appeals, claiming the trial court erred at the time it revoked defendant's probation by not reducing the victim restitution order in the burglary case by the amount already paid toward restitution by the co-defendant. We are not persuaded by any of the authorities cited by defendant that a trial court is required to modify such restitution orders when payments from a co-defendant are received.

PROCEDURAL BACKGROUND*fn2

Defendant initially was placed on probation for burglary in 2008, at which time the trial court ordered him to pay $2,511.28 in restitution to the victim jointly and severally with the co-defendant in the matter. According to a probation report prepared at the time of defendant's subsequent rape conviction, the co-defendant had paid $640 toward victim restitution in the burglary matter and defendant had paid nothing. The record does not reflect any further payments by defendant or the co-defendant toward restitution.

At sentencing on the most recent probation violation, defendant again was ordered to pay $2,511.28 in victim restitution in the burglary matter jointly and severally with the co-defendant, with the trial court reserving jurisdiction on the issue.

DISCUSSION

Defendant asserts that, when the trial court terminated his probation in the burglary case, it erred by ordering the full amount of victim restitution without deducting the amount already paid by the co-defendant.*fn3 We disagree.

A trial court is required to order restitution to the victim for the amount of economic loss suffered as a result of a defendant's conduct. (§ 1202.4, subd. (f).) "[I]f two defendants convicted of the same crime caused a victim to suffer economic loss, a court may impose liability on each defendant to pay the full amount of the economic loss, as long as the victim does not obtain a double recovery." (People v. Leon (2004) 124 Cal.App.4th 620, 622.)

Defendant does not claim that the original restitution order was improper in the present matter. Rather, he maintains the trial court was required to reduce his restitution order by the amount already paid by the co-defendant. He cites People v. Blackburn (1999) 72 Cal.App.4th 1520 for the proposition that "[r]estitution orders that do not reflect previous payments are subject to modification." No such statement appears in that case. Although People v. Blackburn notes that a defendant is entitled to credit for payments made by another defendant on a joint and several ...


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