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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Terry Donevan RHODES, Defendant and Appellant.

No. H007486.

Decided: July 19, 1991

Ann Hopkins, Oakland (under appointment by the Court of Appeal), for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., and Laurence K. Sullivan and Stan M. Helfman, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Terry Donevan Rhodes appeals from conviction at a court trial of assault with a deadly weapon with the personal use of a knife, for which a prison term was imposed but suspended.   Five years' probation was granted, and appellant was ordered to pay restitution.   He claims that the court erred in adding the one-year personal use enhancement to his suspended prison sentence, that two probation conditions were overbroad, that the restitution order was improper, and that the court prematurely characterized his crime as a serious felony for future sentencing purposes.   We strike the enhancement and the serious felony finding and otherwise affirm the judgment.


At about 4 p.m. on February 20, 1990, Terry Jackson was driving south on Highway 101 with his friend Lavelle Smith heading home to Los Angeles after a visit in Seaside.   Near King City, Jackson saw a gray Tempo pull alongside his car.   Appellant was in the front passenger seat, his brother and codefendant Alton Williams was driving.   Smith told Jackson to “look,” and when Jackson did, the Tempo “ran [him] off the road.”

Jackson's car flipped over about three times.   Jackson and Smith were able to get out through the passenger door, and were chased by appellant and Williams.   Catching Jackson, Williams kicked and beat him.   Jackson did not fight back.   Williams used a bottle to hit Jackson, then took Jackson's gold neck chain and earring.   When appellant arrived, he stabbed Jackson five times with a knife.   Appellant and Williams fled when a woman who stopped to help yelled that the police were coming.

Jackson is a convicted felon and was incarcerated in the county jail when he testified.   He stated that he did not know appellant or Williams, but that he had seen Williams in the Seaside and Salinas areas.   He claimed not to know why appellant and Williams assaulted him.   However, the defense asserted that Jackson and Smith had visited Williams earlier that afternoon, and that Williams left them alone in the apartment while he went to buy cigarettes.   When he returned, he saw them driving off.   Inside his apartment, he found a jewelry box lying on the floor.   Missing were $400, a gold chain, and a blue jacket.

At the scene, one witness saw an assailant take a jacket from Jackson's car;  another saw the two assailants return to the gray Tempo.   One was appellant, who was wearing a black power T-shirt.

Officer Fred Garcia received a call to be on the lookout for the Tempo.   He saw it near Salinas about 5:25 p.m.   Williams was driving and appellant was with him.   Williams said he owned the car.   The blue jacket was on the car's rear seat on top of a black power T-shirt.   A gold chain was in appellant's left front pants pocket.

Appellant and Williams were each charged with one count of attempted murder (Pen.Code, §§ 664, 187, count one) 1 , two counts of assault with a deadly weapon, viz., an automobile, (§ 245, counts two and three), and one count of assault by means of force likely to produce great bodily injury (§ 245, count four).   In addition, the district attorney alleged that each defendant personally used a deadly weapon in counts one and four (§§ 12022, subd. (b), 1192.7, subd. (c)(23)), and personally inflicted great bodily injury in count one (§§ 12022.7, 1192.7, subd. (c)(8)).

Appellant and Williams both waived a jury trial in return for dismissal of count one, a sentence of not greater than four years in state prison, and, as to appellant, the possibility of probation.

The court trial began on June 19, 1990, before Superior Court Judge Robert M. Hinrichs.   The court granted appellant's motion for acquittal (§ 1118) on counts two and three, found him guilty of the remaining charge, assault, and found that he personally used a knife.   The court imposed the midterm of three years for the assault and added the one-year enhancement for the personal use of the knife.   However, finding that unusual circumstances justified a grant of probation, the court suspended sentence and placed appellant on probation for five years.

As conditions of probation, the court ordered appellant to serve one year in the county jail, pay restitution of $10,208.04 at the rate of $250 a month, not to possess any deadly or dangerous weapons, and to permit the search of his person, car, personal effects, and place of residence, night or day, and without the necessity of a search warrant, at the direction of the probation officer or any peace officer.   This appeal ensued.


First, appellant contends that the sentence enhancement for personal use of a weapon must be stricken because use of a deadly or dangerous weapon is an element of the offense of which he was convicted, and he cannot be punished twice for the single act of using the weapon.  (§ 654.)   Second, he asserts that the court erred in finding that the personal use of the weapon caused his offense to be a serious felony under section 1192.7, subdivision (c)(23), because the finding was premature and had no legal effect in the instant case.

Next, he claims that the restitution order should be stricken because the court had insufficient information to conclude that he would have the ability to pay, because the order is vague and the factual basis for the amount ordered is insufficient, and because the fact that the court ordered him to pay jointly and severally with his codefendant renders the condition uncertain and shows that the condition is unrelated to his individual culpability.

Finally, he maintains that the probation conditions forbidding him from possessing deadly and dangerous weapons and requiring him to submit to searches are invalid because they are not reasonably related to any probationary purpose.


3A–3C(2) **

(3) Joint and Several Liability

 Next, appellant complains because the trial court made him jointly and severally liable for restitution with his codefendant, Williams, who was sentenced to four years in state prison.   He contends that the court erred for three reasons:  (1) the order is unfair because, due to his codefendant's prison sentence, appellant will end up paying a “disproportionate share” of the restitution;  (2) the order is vague and uncertain because he has no way of monitoring his codefendant's payments and will end up “guessing how much he will have to pay ․”;  and (3) by imposing joint and several liability, the trial court failed to sentence him based on his individual culpability.4

We disagree.  “Restitution imposed in a proper case and in an appropriate manner may serve the salutary purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole.”  (People v. Richards (1976) 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 552 P.2d 97.)

First, while a court “should take into account other culpable parties in imposing a restitution order, there are no rigid guidelines for apportionment.   Responsibility of criminal confederates is merely one factor to be considered by the court in exercising its discretion.”  (In re Brian S. (1982) 130 Cal.App.3d 523, 533, 181 Cal.Rptr. 778.)  “[T]hat another party was involved in a crime does not preclude the court from requiring full restitution [by the defendant] [citation].”  (People v. Baumgart (1990) 218 Cal.App.3d 1207, 1224, 267 Cal.Rptr. 534.)

In the instant case, although appellant asserts that he was less culpable than his codefendant, the evidence adduced at trial does not support this claim.   The trial testimony made it clear that in inflicting the physical injuries on Jackson after the collision, appellant wielded the deadly and dangerous weapon.   He was a full and aggressive coparticipant.

 Next, appellant complains that the restitution order is vague.   In the recent case of People v. Hernandez (1991) 226 Cal.App.3d 1374, 1379, 1380, 277 Cal.Rptr. 444, the Fifth District Court of Appeal agreed with a similar contention, finding a “fatal flaw” in the imposition of joint and several liability for restitution because “the fact that fulfillment of the probation condition here depends in part on the actions of another” violates the void for vagueness doctrine.

The Fifth District states that “because of the joint and several aspect of the probationary condition, defendant must wait, perhaps up to the very end of his probation term, to determine what is required of him.   His codefendant might timely pay his half of the $4,000 order or at any time may cease making payments.   Aside from problems associated with giving defendant notice of when his codefendant has failed to make restitution, defendant enters probation not knowing the parameters of his probationary conditions.”  (226 Cal.App.3d at p. 1380, 277 Cal.Rptr. 444.)

We disagree.   At the time the court imposes the order, the defendant knows exactly what is required of him, namely, to make restitution up to the stated total.   The order of joint and several liability means that appellant is liable for the whole amount of restitution, but the probation officer cannot collect from him any portion paid by his codefendant.  (See McKinnon v. City of Berwyn (7th Cir.1985) 750 F.2d 1383, 1387;  Code Civ.Proc., § 877, et seq.)   A codefendant's performance is of no consequence to a defendant, except insofar as it reduces the amount of restitution still outstanding.

The order in the instant case clearly states that appellant is to pay restitution at the rate of $250 a month through the probation officer.   He knows exactly what to do to comply with the conditions of probation.   The order is not vague.

 Finally, appellant complains that by imposing joint and several liability, the trial court failed to sentence him based on his personal culpability.

We have seen, however, that the court noted “the extreme violence and callousness of the stabbing in this case which was done by Mr. Rhodes.”   Furthermore, the testimony at trial vividly established the multiplicity of Jackson's injuries which were due to appellant's conduct.  “Since it could serve a rehabilitative purpose to require appellant to make the victim whole, ․ we conclude there was no abuse of discretion in the trial court requiring appellant to pay for all the victim's losses.   The fact that another party was involved in the crime does not preclude the court from requiring full restitution by appellant.   This was a valid condition of probation.”  (People v. Goss (1980) 109 Cal.App.3d 443, 460–461, 167 Cal.Rptr. 224.)

We disagree with an additional “fatal flaw” which People v. Hernandez, supra, 226 Cal.App.3d at page 1379, 277 Cal.Rptr. 444, found in joint and several restitution orders.   That court stated:  “requiring joint and several performance attempts to address civil liability, yet deprives a defendant of civil litigation due process.”  (Ibid.)

The court quotes People v. Richards, supra, 17 Cal.3d at page 620, 131 Cal.Rptr. 537, 552 P.2d 97, for the proposition that “[d]isposing of civil liability cannot be a function of restitution in a criminal case․  [A] trial court cannot properly conclude that the defendant owes money to a third party for other unproved or disproved crimes or conduct.   A party sued civilly has important due process rights, including appropriate pleadings, discovery, and a right to a trial by jury on the specific issues of liability and damages.   The judge in the criminal trial should not be permitted to emasculate those rights by simply declaring his belief that the defendant owes a sum of money.”

In Richards, the defendant was convicted of one count of grand theft and acquitted on another.   The court ordered Richards to pay restitution on the acquitted charge, observing that “defendant ‘owed the money’ to Ward, and ‘allowing him to avoid this debt would be unjust.’ ”  (17 Cal.3d at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97.)

Since third party liability is not involved in the restitution orders addressed by either this court or (as far as we can see) by the Hernandez court, we do not agree with the Fifth District's conclusion that “[t]he fact that the court resorted to purely civil language in imposing the restitution condition strongly suggests that the trial court was invading the forbidden area of determining civil liability.  [Citation.]”  (People v. Hernandez, supra, 226 Cal.App.3d at pp. 1379–1380, 277 Cal.Rptr. 444.)

In our view, the order of direct restitution to the victim was limited to a loss authorized by section 1203.4, subdivision (2)(d), which, in defining “restitution,” includes full or partial payment for medical expenses.   There had been a clear showing that appellant and his codefendant were personally responsible for those losses.  (People v. Rivera (1989) 212 Cal.App.3d 1153, 1162, 261 Cal.Rptr. 93.)   There was a valid rehabilitative purpose for the order.   Appellant's due process rights were protected:  he was given notice of the amount sought and an opportunity to be heard.  (Id. at p. 1161, 261 Cal.Rptr. 93.)   The court has wide discretion in fashioning orders of probation.  (§ 1203.1.)   It did not abuse its discretion in making appellant and his codefendant jointly and severally liable for restitution.

D. The Search and Weapons Conditions of Probation ***


The judgment is affirmed.   The finding that the offense is a serious felony under section 1192.7, subdivision (c)(23), is stricken.   The one-year enhancement under section 12022, subdivision (b), is stayed.   The clerk of the court is ordered to correct the abstract of judgment to reflect these orders.


1.   Further statutory references are to the Penal Code unless otherwise stated.

FOOTNOTE.   See footnote *, ante.

4.   We omit appellant's contention that he could be imprisoned for nonpayment of restitution.   It has been dealt with in our discussion, ante.

FOOTNOTE.   See footnote *, ante.

PREMO, Associate Justice.


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