Opinion
E067970
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. LYNDA PICHEL, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI018962) OPINION APPEAL from the Superior Court of San Bernardino County. Victor R. Stull, Judge. Affirmed as modified. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In 2005, defendant and appellant Lynda Pichel was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and kidnapping (§ 207, subd. (a)). She was subsequently sentenced to a term of eight years, plus a consecutive term of 25 years to life in state prison. In addition, defendant, along with her codefendants, was ordered to pay restitution of $7,500 to reimburse the Victim Compensation Board for funeral and burial expenses provided to the victim's family pursuant to section 1202.4, subdivision (f).
All future statutory references are to the Penal Code unless otherwise stated.
Defendant committed the murder and kidnapping with her boyfriend Reginald Perkins, and her sister, Katrina Mulholland, who were also sentenced to state prison terms. (See People v. Pichel (Aug. 2, 2006, E037275) [nonpub. opn.].) Defendant's Request for Judicial Notice filed on May 31, 2017, is granted.
In January 2017, defendant requested the trial court to modify her abstract of judgment to clarify the restitution liability imposed was joint and several, so that she would be credited for any payments made by her codefendants toward the total restitution. The trial court summarily denied defendant's request on February 8, 2017. This appeal followed.
On appeal, defendant claims the trial court erred in denying her request to modify the abstract of judgment to reflect the restitution order in the amount of $7,500 was to be paid jointly and severally with her codefendants. In the alternative, defendant requests that this court apportion her restitution liability to one-third the restitution amount ($2,500) or remand the restitution issue to the trial court to determine her proportionate share of the restitution amount. The People concede the abstract of judgment should be modified to indicate the $7,500 restitution order is to be imposed jointly and severally with the codefendants. We agree the abstract should be amended to reflect joint and several liability, and reject defendant's alternative arguments.
II
The details of defendant's criminal conduct are not relevant to the limited issues raised in this appeal, and we will not recount them here. Those details are set out in this court's opinion in People v. Pichel, supra, E037275, at pages 3 through 6.
DISCUSSION
Defendant argues the trial court's summary denial of her request to modify the restitution order was erroneous. She asserts that because she and Perkins and Mulholland were each ordered to pay the $7,500 to the Victim Compensation Board to reimburse for the $7,500 paid to the victim's family for funeral and burial costs, this court should modify the restitution order to show the $7,500 was imposed jointly and severally between the three defendants so that her obligation is reduced by amounts paid by either Perkins or Mulholland. In the alternative, defendant argues the restitution order should be modified to show she is only responsible for one-third of the $7,500 restitution amount ($2,500), or that the case be remanded to the trial court to determine the "proportionate liability" of the $7,500 restitution for each of the defendants.
The People respond there is no legal or factual basis to limit defendant's share of the $7,500 restitution award to one-third of the full amount or to remand the case for a " 'proportionality' " determination in the trial court. The People, however, agree the abstract of judgment should be modified to clarify that the $7,500 restitution award imposed be jointly and severally between the three defendants and that all three defendants are liable until the $7,500 is reimbursed to the Victim Compensation Board.
It is uncontested that the trial court found $7,500 to be the full amount compensable under section 1202.4, subdivision (f), at all three sentencing hearings. It is also uncontested that each of the three defendants was ordered to pay (in separate sentencing hearings) the full amount of $7,500 to the Victim Compensation Board. --------
Victim restitution is mandated by the California Constitution, which provides in part that "[r]estitution 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." (Cal. Const., art. I, § 28, subd. (b)(13)(B).)
Section 1202.4, subdivision (f), implements the constitutional mandate of restitution for crime victims by providing that "in every case in which a victim has suffered economic loss as a result of the defendant's conduct," the trial 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" and must order "full restitution" (ibid.) unless it finds "compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (c).)
Section 1202.4, subdivision (f)(4)(A), provides: "If, as a result of the defendant's conduct, the Restitution Fund has provided assistance to or on behalf of a victim or derivative victim pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code, the amount of assistance provided shall be presumed to be a direct result of the defendant's criminal conduct and shall be included in the amount of the restitution ordered."
California courts have held that section 1202.4, subdivision (f), authorizes a sentencing court to order codefendants convicted of the same offense to pay direct victim restitution fines jointly and severally. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 (Blackburn); People v. Madrana (1997) 55 Cal.App.4th 1044, 1049, 1051-1052 (Madrana).) "A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall." (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172.) To that end, one way for trial courts to hold multiple defendants fully accountable and simultaneously avoid a double recovery by a victim is to impose explicitly a "joint and several" obligation on each defendant convicted of the crime at issue. (See People v. Leon (2004) 124 Cal.App.4th 620, 622 ["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"]; Madrana, at pp. 1049-1052 [explicit order deeming award joint and several]; People v. Zito (1992) 8 Cal.App.4th 736, 744-745 (Zito) [same].)
"Joint and several liability . . . increases the likelihood that the victim will be fully compensated," which "is an important component of the restitution scheme." (Zito, supra, 8 Cal.App.4th at p. 744.) Properly imposed restitution serves the "salutary purpose" of making the criminal understand that he or she has a responsibility to make the victim whole. (Ibid.) " ' "Where two or more persons act in concert, it is well settled both in criminal and in civil cases that each will be liable for the entire result." ' " (People v. Campbell (1994) 21 Cal.App.4th 825, 834, quoting People v. Flores (1961) 197 Cal.App.2d 611, 616.)
As pointed out by the People, in Blackburn, supra, 72 Cal.App.4th 1520, this court dealt with a similar issue. The codefendants were each ordered to pay victim restitution in the full amount of the loss to the victim. The defendants claimed this would provide unjust enrichment for the victim and one of the defendants requested that his restitution order be stayed pending the payment of restitution by the other defendant. (Id. at p. 1535.) This court held: "The trial court had the authority to order direct victim restitution paid by both defendants jointly and severally. [Citations.] It seems glaringly obvious that is what it did here. In this light, there is no double recovery . . . . Of course, each defendant is entitled to a credit for any actual payments by the other. To make sure this is clear (though out of an excess of caution), we will modify the judgment so as to provide expressly that the direct victim restitution ordered is joint and several. (Blackburn, at p. 1535; see People v. Neely (2009) 176 Cal.App.4th 787, 800 [the defendants' abstracts of judgment corrected to reflect victim restitution joint and several]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1183 [same]; People v. Cornejo (2016) 3 Cal.App.5th 36, 63 [same].)
As in Blackburn, supra, 72 Cal.App.4th 1520, it seems "glaringly obvious" the trial court intended to impose $7,500 in restitution on defendant jointly and severally with her codefendants. (Id. at p. 1535.) However, as in Blackburn, the prudent course is to modify the judgment to make clear defendant's obligation to pay victim restitution is joint and several with Perkins and Mulholland.
Defendant's suggestion that her restitution order be reduced to one-third the restitution amount or to $2,500, or that the case be remanded for a proportionality review to determine whether her culpability is sufficient to support joint and several liability for the entire restitution amount is unwarranted. "A defendant may be held jointly and severally liable for losses for which a codefendant bears more culpability [citation], but the criminal conduct of which the defendant was convicted must be at least a substantial factor in causing the victim's loss. [Citation.]" (People v. Selivanov (2016) 5 Cal.App.5th 726, 786, citing Madrana, supra, 55 Cal.App.4th at p. 1051, and People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321-1322 (Holmberg).)
Defendant argues that it was Perkins, and not her, who was charged with the personal discharge of a firearm and that there was no evidence defendant participated in the actual killing of the victim. Defendant believes it would be unfair for defendant and her sister Mulholland "to pay the entire amount of the claim, while the actual killer pays less than his share." Defendant therefore argues the abstract of judgment should be modified to show "proportionate liability to ensure Perkins pays at least his one-third share."
" ' "The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical." [Citation.] Thus, "a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor" [citation], but a very minor force that does cause harm is a substantial factor' [citation]." (Holmberg, supra, 195 Cal.App.4th at pp. 1321-1322.) To argue, as defendant does, that she did not participate in the actual killing of the victim or that she was less culpable than Perkins in killing the victim, "ignores the fact that there can be more than one cause of injury and that multiple causes can combine to cause harm." (Id. at p. 1322.) Defendant's conduct "was a concurrent cause" of the victim's death. (Ibid.) Defendant's arguments also belie the jury's findings in this case. Defendant was found guilty of first degree murder and kidnapping. Her criminal conduct was a substantial factor in the victim's death, even if she did not pull the trigger. Moreover, any reduction in defendant's restitution liability would jeopardize the potential for the Victim Compensation Board obtaining full recovery of the amount it paid to the victim's family for burial expenses, the paramount factor in awarding restitution. Joint and several liability provides the victim the best chance for full recovery without potential for unjust enrichment.
III
DISPOSITION
The judgment is modified so as to provide expressly that defendant Lynda Pichel is jointly and severally liable with Reginald Perkins and Katrina Mulholland for the $7,500 in restitution to be paid to the Victim Compensation Board. The trial court is directed to amend defendant Lynda Pichel's abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.