IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
March 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL JOSEPH HUTH, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. CM028912 & CM030955)
The opinion of the court was delivered by: Mauro, J.
P. v. Huth
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.
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 restitution obligation (id. at p. 1535), the case does not require the trial court to modify the restitution order every time a restitution payment is made.
Nor do the other cases cited by defendant support his position. In People v. Leon, supra, 124 Cal.App.4th at page 622, the appellate court held that a defendant cannot be required to pay restitution caused by a co-defendant's crimes in which the defendant was not involved. The court noted that, when convicted of the same crime, co-defendants can each be required to pay the full amount of a victim's economic loss as long as the victim does not obtain a double recovery. (Ibid.) However, Leon does not impose a requirement that the trial court order a reduction in restitution when a payment is made.
Defendant also relies on People v. Madrana (1997) 55 Cal.App.4th 1044, 1052, another case recognizing that joint and several restitution orders are proper. The court's conclusion in that case was based, in part, on language in People v. Zito (1992) 8 Cal.App.4th 736, regarding available safeguards to address "the practical difficulties of administering" such orders. (People v. Madrana, supra, at p. 1050.) One such safeguard, as noted by defendant, is that a trial court can require notice to a defendant of payments made by a co-defendant. (Ibid.) However, the option of giving notice to a defendant of restitution payments is not the equivalent of requiring the trial court to modify the restitution order when such payments are made.
In sum, while it is beyond dispute that a victim is not entitled to recover twice for a single injury, the details of administrating joint and several restitution orders to avoid this result are not dictated by statute or case law. We note, however, that the method proposed by defendant -- modification of the restitution order when payments are received -- likely would engender confusion for any entity charged with collecting restitution payments as to the total amount of victim
restitution to be collected. In any event, we are unpersuaded that the law requires this of the trial court.
The judgment is affirmed.
We concur: RAYE, P. J. ROBIE, J.