Opinion
D040969.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID LATHAM, Defendant and Appellant.
David Latham pled guilty to stealing computer equipment from Gateway Computers (Gateway). The court imposed a 16-month prison term, and ordered Latham to pay Gateway restitution of $ 2,492.17, reflecting the value of the stolen equipment. (Pen. Code, § 1202.4, subd. (f).) On appeal, Latham contends the court erred by: (1) requiring him to pay as restitution the value of the stolen equipment without subtracting the value of the recovered equipment; and (2) holding Latham jointly and severally liable for this restitution amount. We reject these contentions and affirm.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
We have granted Lathams unopposed request that we take judicial notice of the records filed in a related appeal challenging the courts denial of probation in this case. Our factual summary thus includes facts taken from those records.
Latham and his codefendant, Terrance Oliver, used another persons identification to open a credit account at Gateway. Latham and/or Oliver then fraudulently charged several items of computer equipment to this account, including a laptop, scanner, and printer. Gateway sent the computer equipment to Lathams home. Police officers later found the scanner at Lathams home, and the laptop and printer at Olivers home. The equipment had been taken out of the packing boxes. Latham was cooperative with the police.
Latham was charged with grand theft, illegally obtaining property by using another persons identification, and receiving stolen property. In pleading guilty to these offenses, Latham stipulated that the factual basis for the plea was the evidence presented at the preliminary hearing, which showed Oliver and Latham were jointly involved in the crimes. The probation report recommended that Latham pay $ 2,492.17 to Gateway, the amount of its claimed loss. ( § 1202.4, subd. (f).)
At the ensuing restitution hearing, Lathams counsel did not dispute that $ 2,492.17 was the value of the stolen Gateway computer equipment. But counsel urged the court to impose the restitution order solely on codefendant Oliver because Lathams role was "minimal" and Oliver was the person primarily responsible for the theft. The court rejected this argument, after clarifying that Latham pled guilty to theft as well as receiving stolen property. The court agreed with the prosecutor that it should impose joint and several liability because both defendants were involved in the crime.
Lathams counsel also challenged the proposed restitution amount on the basis that it did not accurately reflect Gateways economic loss. Defense counsel essentially argued the value of the recovered computer items should be subtracted from the claimed $ 2,492.17 loss. The prosecutor countered that Gateway did not seek return of the used equipment because it no longer had any value to the company. In support, the prosecutor asserted that Gateway had a company policy of selling only new computer equipment, Gateway no longer sold the particular laptop computer model that had been stolen by the defendants, and Gateway would be unable to return the used merchandise to the manufacturer. The prosecutor also noted that there was no evidence at the hearing regarding the value of the used computer equipment, stating that although he had subpoenaed a representative from Gateway, a Gateway witness had not appeared at the hearing. Defense counsel countered that a Gateway representative should have appeared in response to the subpoena, but when defense counsel was provided the opportunity to ask for a continuance to obtain this appearance, he did not seek a continuance.
After considering these arguments, the court found the stolen computer equipment was a "complete loss," and Gateway would not be made whole unless the full value of the new computer equipment was awarded as restitution. The court stated, however, that if "the defense comes forward with any evidence" that Gateway obtains possession of the equipment and sells the equipment, or in any other way obtains value from it, the court would subtract this amount from the restitution order.
DISCUSSION
I. The Amount of the Restitution Award
Latham first contends the amount awarded for victim restitution does not accurately reflect Gateways economic loss because the court failed to subtract the value of the equipment in its present state.
We reject the Attorney Generals argument that Latham waived this point by not raising it below. The record shows that Lathams counsel did at least implicitly raise this issue at the restitution hearing. Further, there is no support for the Attorney Generals contention that the order is not appealable because it was not final.
Section 1202.4 provides that "in every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court." ( § 1202.4, subd. (f).) This statute further states that the "the value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." ( § 1202.4, subd. (f)(3)(A).) In determining the proper amount of restitution under these provisions, a trial court is vested with broad discretion and may use any rational method for determining the restitution amount that is reasonably calculated to make the victim whole. (People v. Ortiz (1997) 53 Cal.App.4th 791, 800.)
Latham pled guilty to illegally obtaining computer equipment from Gateway for which he never paid. Latham does not dispute that the value of this stolen equipment was $ 2,492.17, but argues that Gateway was not entitled to restitution in the full amount because the court was required to reduce the restitution order by the amount that the computer equipment was worth in its current condition. The trial court rejected this argument based on evidence showing that Gateway did not sell used computer equipment, had no ability to return the used merchandise to the manufacturer, and did not seek return of the used equipment. Based on this evidence, the court concluded the computer equipment no longer had any value to Gateway, and therefore there was no justification for reducing the restitution amount by the value of this used equipment. This was a proper exercise of discretion. The court could reasonably conclude that Gateway would not be made whole unless it recovered the value of the new computer equipment that was unlawfully taken from the business. Further, the restitution amount ordered was proper because it was equal to the true cost of replacing the stolen equipment, which is the amount that the statute expressly provides shall be awarded to the victim. (§ 1202.4, subd. (f)(3)(A).)
Latham argues the amount awarded was improper because it "resulted in a windfall to the victim." However, it is not a windfall if the computer equipment is never returned to Gateway, or if Gateway does not sell it or obtain value for it. If Latham acquired facts showing the computer equipment was returned to Gateway and/or Gateway sold or otherwise obtained value from it, he was permitted to bring this fact to the courts attention to seek reduction of the restitution amount.
Lathams hypothetical regarding a car that is stolen from a dealers lot is not analogous to the situation before us. In his hypothetical situation, Latham has assumed the dealer was in the business, or otherwise had the ability, to sell a used vehicle. This is a critical factual predicate missing in this case. The court was not required to force Gateway to accept used property that had no value to the company.
Lathams reliance on People v. Thygesen (1999) 69 Cal.App.4th 988 and People v. Yanez (1995) 38 Cal.App.4th 1622 is misplaced. In Thygesen, the defendant illegally took a used cement mixer from an equipment rental business, but the court awarded the victim the value of a new cement mixer. (Thygesen, supra, at p. 995.) The court held this was error, stating "the purpose of the restitution statute is to make that victim whole, not to give a windfall. [The victim] was not entitled to replace a used mixer with a brand new one at appellants expense . . . ." (Ibid.) Similarly, in Yanez, the reviewing court found the trial court erred in awarding $ 7,300 in restitution despite the "undisputed evidence that the maximum value of the vehicle prior to being stolen was no more than $ 4,100." (Yanez , supra, at p. 1625, italics added.) The reasoning of these cases is inapplicable here. Latham committed a theft of brand new computer equipment, and therefore there is no basis for finding that Gateway was entitled to compensation only for used equipment.
II. Joint and Several Liability
Latham additionally contends the trial court erred because it imposed joint and several liability for the full amount of Gateways loss.
Section 1202.4, subdivision (f) requires restitution "in every case in which a victim has suffered economic loss as a result of the defendants conduct." (Italics added.) Under this statutory language, the courts have found that if two defendants both caused a victim to suffer economic loss, there is no reason that a court could not exercise its discretion to impose liability on each defendant to pay the amount, as long as the victim does not obtain a double recovery. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535; People v. Madrana (1997) 55 Cal.App.4th 1044, 1049-1052.) Fully compensating a victim and preventing a double recovery is precisely the function of the joint and several liability concept.
Latham suggests the trial court should have assessed his individual culpability for the crimes before imposing the joint and several liability. However, even assuming a co-defendant should be required to pay only for the portion of the economic loss in fact caused by his or her conduct, the evidence in this case showed that Latham was an actual cause of the loss of the computer equipment. The evidence at the preliminary hearing, which served as the factual predicate for Lathams guilty plea, showed that Latham was an active participant in the scheme. As the trial court noted at the conclusion of the preliminary hearing, "both [Latham and Oliver] engaged in a course of conduct where they aided and abetted each other, and . . . the evidence [shows] they in fact were the recipients [of the equipment]. I dont know what other reasonable inference to draw from the evidence other than they both knew [they were fraudulently using another persons identity] and they both knew that they werent paying $ 2,477 for laptops or scanners or printers, and they both received the property under those circumstances." Based on these facts and Lathams guilty plea to the theft offenses, the trial court had a reasonable basis to find that Gateways economic loss was a direct result of Lathams conduct.
Lathams reliance on People v. Hernandez (1991) 226 Cal. App. 3d 1374, 277 Cal. Rptr. 444 is misplaced. In Hernandez, the joint and several restitution order was imposed as a probation condition, rather than based on a mandatory victim restitution statutory provision. Moreover, as several courts have found, Hernandezs reasoning is unpersuasive. (See People v. Madrana, supra, 55 Cal.App.4th at p. 1050, fn. 6.) In declining to permit joint and several liability, the Hernandez court expressed concern that imposing this form of liability would deprive the defendant of "civil litigation due process." (Hernandez, supra, at p. 1379.) However, a criminal defendant has adequate due process protections, including notice of the proposed restitution order and the right to a court hearing to contest the restitution amount and the imposition of joint and several liability. These protections ensure that the joint and several form of liability will be applied only where it is a fair method for imposing financial responsibility on a criminal defendant. (People v. Madrana , supra, 55 Cal.App.4th at p. 1050; see People v. Arnold (1994) 27 Cal.App.4th 1096, 1100; People v. Zito (1992) 8 Cal.App.4th 736, 744-745.)
We also find unavailing the Hernandez courts concern that imposing joint and several liability would render the restitution order administratively impractical and vague because the restitution amount would be potentially dependent on the actions of a codefendant. Any problems in this regard could be resolved by requiring that the defendant receive notice of any payments made by a codefendant, and providing a defendant with rights to contribution against a recalcitrant codefendant. (See People v. Madrana, supra, 55 Cal.App.4th at p. 1050.) A trial courts broad discretion to impose victim restitution includes the authority to impose joint and several liability for a restitution amount.
DISPOSITION
Judgment affirmed.
WE CONCUR: HUFFMAN, Acting P. J., and McDONALD, J.