On each of four consecutive days, defendant, using an Airsoft gun, robbed a
victim of the latter’s purse and its contents, except for the third victim, who gave
defendant money instead of her purse and its contents, telling defendant that there was
medication she needed in her purse.
ISSUE AND DISCUSSION
In her report, the probation officer stated that at least one of the victims was
planning to seek counseling, therefore, she would be requesting that the sentencing court
retain jurisdiction over restitution. The report went on to state that the first victim no
longer had receipts for the property defendant took from her, but she itemized her losses,
which totaled $1,110, for which she was seeking restitution. The report stated that the
second victim had not responded to requests for contact. It said that the third victim
reported that her only loss was the $40 she gave defendant and restitution in that amount
was requested for her. The report requested restitution of $100 for the fourth victim,
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
whose purse and its contents, except for $100 cash, was recovered. These amounts were
again listed in the probation report, following the statement, “It is respectfully
recommended that the defendant . . . be ordered, pursuant to P[enal] C[ode section]
1202.4, to pay restitution to the victims . . . .”
At the sentencing hearing, defense counsel argued for the mitigated term,
asserting, inter alia, that the monetary loss to the victims was relatively small, citing the
total of the requests for restitution stated in the probation report. Defense counsel said
that he was submitting on the issue of restitution to the victims. The sentencing court
retained jurisdiction for restitution for any future counseling required by the victims. The
court ordered defendant to pay $1,110 in restitution to the first victim, $40 to the third
and $100 to the fourth. Defendant did not object.
Defendant now claims that she had a right under Apprendi v. New Jersey (2000)
530 U.S. 466 [120 S. Ct. 2348], Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct.
2531] and Southern Union Co. v. United States (2012) ___ U.S. ___ [132 S.Ct. 2344]
(Southern Union) to have a jury determine the value of the items she stole from the
victims. We disagree.
In People v. Pangan (2013) 213 Cal.App.4th 574 (Pangan), Division Three of this
court rejected an identical argument, saying, “Southern Union involved a restitution fine
of $50,000 a day for each day of a putative 762-day-long environmental law violation.
The United States Supreme Court struck the fine down because the very fact which
determined the ‘maximum fine’ the corporate defendant faced-the number of days the
3
violation continued-was not determined by the jury. [Citation.] [¶] Apprendi held that
any fact which increases a defendant’s sentence beyond the ‘statutory maximum’ must go
to the jury. [Citation] And Blakely was a gloss on Apprendi, holding that the statutory
maximum under Apprendi was the maximum sentence a judge could impose based on
facts reflected in the jury verdict or admitted by the defendant. [Citation.] [¶] But
neither Southern Union, Apprendi nor Blakely have any application to direct victim
restitution, because direct victim restitution is not a criminal penalty. As explained in
U.S. v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054, direct victim restitution is a
substitute for a civil remedy so that victims of crime do not need to file separate civil
suits. It is not increased ‘punishment.’ The [People v.] Millard [(2009) 175 Cal.App.4th
27, 35] decision makes the same point in regard to California law. [Citations.] [People
v.] Chappelone [(2010) 183 Cal.App.4th 1159, 1184] has collected the numerous federal
cases also holding victim restitution does not constitute increased punishment for crime.
[Citation.][2] And we would note the restitution statute itself characterizes victim
restitution awards as civil. [Citation.]” [¶] Federal courts have also rejected Apprendi
challenges to victim restitution statutes becaue those statutes, like the one before us, carry
no prescribed statutory maximum. [Citations.]” (Pangan, pp. 585-586.)
We agree with the reasoning in Pangan and adopt it as our own.
2 Since Chappelone was decided, additional federal cases have held that Apprendi does not apply to restitution orders. (United States v. Day (4th Cir. 2012) 700 F.3d 713, 732; United States v. Wolfe (7th Cir. 2012) 701 F.3d 1206, 1217.)
4
Additionally, the restitution ordered here is direct compensation to the victims, not
a criminal fine like in Southern Union. Direct victim restitution and restitution fines are
distinct. (See People v. Villalobos (2012) 54 Cal. 4th 177, 181.)
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION RAMIREZ P. J.
We concur:
HOLLENHORST J.
McKINSTER J.
5
AI Brief
AI-generated · verify before citing
Holding. The court held that direct victim restitution is not a criminal penalty subject to the jury trial requirements of Apprendi, Blakely, and Southern Union.
Issues
Whether a defendant has a right to have a jury determine the amount of direct victim restitution.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“neither Southern Union, Apprendi nor Blakely have any application to direct victim restitution, because direct victim restitution is not a criminal penalty.”
“direct victim restitution is a substitute for a civil remedy so that victims of crime do not need to file separate civil suits. It is not increased ‘punishment.’”