P. v. Nunez
Filed 2/27/13 P. v. Nunez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTHONY NUNEZ,
Defendant and
Appellant.
G046486
(Super. Ct.
No. 09NF2905)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, William L. Evans, Judge. Affirmed.
Jeanine G. Strong, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, James D. Dutton and Donald W. Ostertag,
Deputy Attorneys General, for Plaintiff and Respondent.
Following his conviction
for grand theft, appellant Anthony Nunez was ordered to pay restitution to the
victim jointly and severally with his brother and codefendant Phillip Nunez.
his brother, and therefore he should only have to pay restitution in proportion
to his culpability. We disagree and affirm
the judgment.
FACTS
Anthony was charged with
committing grand theft against Joseph
Lopez. After pleading guilty to the
charge, he was placed on probation and ordered to serve 120 days in jail. The court then held a hearing on the issue of
restitution.
At
the hearing, Lopez testified he lived with the Nunez brothers from about
December 2008 to March 2009. During that
time, he not only paid the Nunez brothers rent, he also loaned them an extra
$10 or $20 from time to time because they threatened to “kick [his] ass.†Lopez asked them to repay the money, but they
refused.
After Lopez moved out,
the Nunez brothers came to his residence four or five different times and asked
him for money. On each occasion, they
accompanied him to the post office to pick up his monthly pension check of
$985. Then they made him cash the check
and give them all the money. Lopez
testified that he felt threatened by the Nunez brothers and that “they†forced
him to give them the cash. In fact, one
time in August or September 2009, he and Phillip had a brief physical
confrontation over one of his pension checks.
Following that incident, Lopez called the police and reported the
thefts.
Based on this evidence,
the trial court ordered restitution in the amount of $3,940 (four pension
checks worth), plus interest. Because
the Nunez brothers were both involved in the thefts, the court ordered them
jointly and severally liable for the full amount of Lopez’s losses.
DISCUSSION
Anthony argues the trial
court erred in imposing the restitution award jointly and severally because he
was less culpable than his brother. The
argument fails on both factual and legal grounds.
Penal Code section
1202.4 provides, “[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.†(Pen. Code, § 1202.4, subd.
(f).)
“‘“[T]he standard of proof at a restitution hearing is by a
preponderance of the evidence, not
proof beyond a reasonable doubt.â€â€™
[Citation.]†(
1539, 1542.) On appeal, we review the trial court’s
restitution order under the deferential
abuse-of-discretion standard. (
If there is a rational and factual basis for the order, no abuse of
discretion will be found. (
However, a restitution order premised upon a demonstrable legal error
cannot stand. (People v. Millard (2009) 175
Cal.App.4th 7, 26.)
The factual premise of
Anthony’s argument is that he was far less culpable than his brother for the
thefts. However, Lopez testified that
both Anthony and Phillip threatened him, came to his house and forced him to
give them his pension money. Although
Lopez did not say whether Anthony was involved in the September 2009 incident,
the evidence shows the Nunez brothers worked in concert to intimidate Lopez and
shared their ill-gotten gains. The
record simply does not support Anthony’s claim he was substantially less
blameworthy than his brother.
Even if Anthony were less
culpable, he would still be on the hook for the full amount of the restitution
award. Relying on People v. Millard, supra, 175 Cal.App.4th 7, Anthony contends the
tort principle of comparative fault applies to criminal restitution
orders. However, Millard is inapt here. The
defendant there was convicted of criminal negligence, not intentionally harming
the victim. (Id. at p. 39.) The amount of
restitution was reduced because the victim’s own negligence contributed to the
harm he suffered. (Ibid.) Here, Anthony was not
merely criminally negligent; he engaged in intentional conduct in stealing
Lopez’s money. The principle of
comparative fault generally does not apply in situations where the defendant
intentionally harms the victim. (
Cal.App.4th 335, 350; Rest.3d Torts, Apportionment of Liability, § 12
[“Each person who commits a tort that requires intent is jointly and severally
liable for any indivisible injury legally caused by the tortious conduct.â€].)
Moreover, Anthony does
not allege Lopez contributed to his own injury; rather, he claims the
restitution order should be modified because his brother was primarily
responsible for the thefts. However, restitution orders may lawfully be imposed
jointly and severally regardless of the codefendants’ proportionate level of
culpability. (
1044, 1051 [restitution order under Pen. Code, § 1202.4];
825, 834 [restitution ordered as condition of probation]; People v. Zito (1992) 8 Cal.App.4th 736, 745 [restitution
order under former Gov. Code, § 13967].)
In
arguing otherwise, Anthony relies on People
v. Leon (2004) 124 Cal.App.4th 620.
In that case, Leon
was convicted of passing one forged check, while his codefendant Garza was
convicted of passing three other checks from the same victim. (Id.
at p. 622.) Even though Leon
was not involved with Garza’s thefts, the trial court ordered him jointly and
severally liable for the full amount of the victim’s losses, $13,450. (Id.
at p. 620.) On appeal, the court
determined Leon
should only have to pay restitution for the single check he passed. The court reasoned that “because $11,000 of
[the victim’s] loss resulted from the crimes of Garza, not Leon,
and nothing in the record suggests that Leon
aided and abetted commission of Garza’s crimes, the trial court was not
authorized by [Penal Code] section 1202.4 to order Leon
to pay restitution for a crime he did not commit.†(Id.
at p. 622.)
is distinguishable because Anthony has not been ordered to pay restitution for
a crime he did not commit. Unlike the
defendants in Leon, he and his brother did not
commit separate crimes but instead worked together in a scheme to coerce Lopez
into giving them his money. Under these
circumstances, the trial court properly adjudged Anthony jointly and severally
liable for the entire restitution award.
There is no basis for disturbing the court’s ruling in that regard.
DISPOSITION
The judgment is affirmed.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
FYBEL, J.
name="_ftn1" title=""> [1] To avoid confusion we will refer to the Nunez brothers
by their first names; no disrespect is intended.
