Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. VCF194492, Joseph A. Kalashian, Judge.
Julian G. Macias, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Catherine Chatman and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, A.P.J., Wiseman, J., and Kane, J.
A jury convicted appellant, Jerome Isaac Gutierrez, of two counts of second degree robbery (Pen. Code, § 211) and found true allegations in each count that he personally used a firearm in committing each offense. (Pen. Code, § 12022.53, subd, (b)).
All further statutory references are to the Penal Code.
On appeal, Gutierrez contends the court erred by its failure to order that liability for restitution be joint and several as to all participants in the robberies. We will affirm.
FACTS
On the evening of November 23, 2007, M.M., E.M., and J.M. were walking in a Denny’s parking lot in Visalia when Gutierrez and two juveniles approached them. Gutierrez pointed a gun at E.M. and ordered him to empty his pockets. E.M. complied and placed his gold ring, necklace, cell phone and wallet on the ground. M.M. hid behind a car and dialed 911 on her cell phone. A second juvenile located her, simulated a gun under his shirt, and demanded her property. M.M. gave him her purse. Gutierrez and his accomplices then ran off. Gutierrez and one of the juveniles were arrested a short time later.
On May 14, 2008, the court sentenced Gutierrez to an aggregate 13-year prison term, the 3-year middle term on count 1, a consecutive 10-year arming enhancement in that count, and concurrent terms on the remaining count and enhancement. The court also ordered Gutierrez to pay E.M. $1,800 restitution and that restitution to M.M. remain open.
Gutierrez’s probation report indicates that the probation department was unable to determine the restitution owed to M.M. because it was unable to contact her.
On November 20, 2008, the probation department filed a document stating that Gutierrez’s two juvenile accomplices had been ordered by the juvenile court to pay restitution of $2,639.95 jointly and severally with Gutierrez.
This amount actually appears to be restitution to victims M.M. and E.M. because the record does not disclose that anything was taken from victim J.M. or that he suffered any economic damages.
DISCUSSION
“Article I, section 28 of the California Constitution provides, in relevant part: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” [Citations.]
“The constitutional mandate for restitution is implemented through section 1202.4. Subdivision (a)(1) of section 1202.4 provides: ‘It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.’... Subdivision (f) of section 1202.4 provides, in relevant part: ‘[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record…. [¶]... [¶] (3) To the extent possible, the restitution order... shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to’ 11 enumerated categories of expenses.
“We review the trial court’s restitution order for abuse of discretion. [Citations.] [‘We review a restitution order for an abuse of discretion and will not disturb the trial court’s determination unless it is arbitrary, capricious and exceeds the bounds of reason.’].)” (People v. Crisler (2008) 165 Cal.App.4th 1503, 1507, italics removed.)
The court complied with section 1204.4’s mandate when it ordered Gutierrez to pay restitution of $1,800 to E.M. and left the issue of restitution to M.M. open because of lack of information. Further, a court has the authority pursuant to section 1202.4 to impose restitution jointly and severally among various defendants. (People v. Madrana (1997) 55 Cal.App.4th 1044, 1052.)! However, Gutierrez has not cited, nor are we aware of, any authority that mandates the court to impose restitution jointly and severally. Accordingly, we reject Gutierrez’s claim of error.
However, the court left the issue of restitution for M.M. open. Thus, if a hearing to determine this amount has not occurred, Gutierrez will have the opportunity at this hearing to ask the court to make his juvenile accomplices jointly and severally liable with him for all its restitution orders. Additionally, we note that the failure to order joint and several liability in Gutierrez’s case does not appear to have prejudiced Gutierrez because his juvenile accomplices were each ordered by the juvenile court to pay the victims restitution of $2,639.95 jointly and severally with Gutierrez.
DISPOSITION
The judgment is affirmed.