Does a joint and several liability order under section 1203.2 of the California Penal Code, requiring a defendant to pay restitution to the victim, apply?

"[P]robation may not be revoked for failure to make restitution 'unless the court determines that the defendant has willfully failed to pay and has the ability to pay.' (Pen.Code, 1203.2, subd. (a).) This provision of Penal Code section 1203.2, subdivision (a), not only protects someone whose ability to pay was not considered at the time restitution was made a condition of probation, but a person who had the ability to pay at the time the condition was imposed but due to factors beyond his or her control is at some later time unable to comply with the condition of probation that he make restitution. Thus, although a condition of probation may be imposed that the defendant make restitution without an express finding of ability to pay, probation may not be revoked without such a finding. The period of probation may not be extended for failure to make full restitution to the victim unless said failure is willful and the defendant has the ability to pay." (People v. Ryan (1988) 203 Cal.App.3d 189, 199, 249 Cal.Rptr. 750.)

"The major goal of section 1203.1 is to rehabilitate the criminal. Restitution imposed in a proper case and in an appropriate manner may [226 Cal.App.3d 1379] 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.)

While making both defendant and Catalfino subject to a probation requirement to pay the full amount ordered, regardless of whether the other party pays anything, improves the prospect of the victim being made "whole," the validity of the condition depends on a further analysis. We know of no published case which has determined the validity of joint and several liability conditions. In People v. Blankenship (1989) 213 Cal.App.3d 992, 262 Cal.Rptr. 141, the defendants were ordered to pay restitution to the victim and were made jointly and severally liable. (Id. at p. 994, 262 Cal.Rptr. 141.) The defendants on appeal did not challenge this aspect of the restitution order. The only other mention of the joint and several liability aspect was in a footnote which stated that, although only one defendant challenged the restitution order, "the joint and several order should be corrected for both appellants." (Id. at p. 1000, fn. 14, 262 Cal.Rptr. 141.) Because the appellate court was not called upon to determine the validity of the joint and several liability condition, the case has no bearing on the issue here. Faced with this issue of first impression, we determine that joint and several liability has two fatal flaws.

First, requiring joint and several performance attempts to address civil liability,

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"Disposing of civil liability cannot be a function of restitution in a criminal case. To begin with, the criminal justice system is essentially incapable of determining that a defendant is in fact civilly liable, and if so, to what extent. A judge may infer from a jury verdict of guilt in a theft case that a defendant is liable to the crime victim. But 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." (People v. Richards, supra, 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 552 P.2d 97; see also People v. Goulart (1990) 224 Cal.App.3d 71, 273 Cal.Rptr. 477.)

The imposition of restitution must serve a valid rehabilitative purpose and not merely address civil liability. The 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 [226 Cal.App.3d 1380] liability. (See People v. Lafantasie (1986) 178 Cal.App.3d 758, 762, 224 Cal.Rptr. 13.)

The rehabilitative purpose of restitution, argued with some validity by the People, is clouded when the fulfillment of the condition depends on the actions of another who is completely independent from the defendant. Also, we see some merit to the argument that if the codefendant pays part of the total sum, defendant will benefit. This of course assumes the court could justifiably have ordered the entire sum to be paid by defendant. However, the fact that fulfillment of the probationary condition here depends in part on the actions of another leads to the second flaw in the imposition of joint and several liability. "[T]he void for vagueness doctrine applies to conditions of probation. [Citations.] An order must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325, 223 Cal.Rptr. 670.)