Opinion
C090418
06-09-2020
THE PEOPLE, Plaintiff and Respondent, v. DEQUISE JAMAR WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF191492)
After defendant Dequise Jamar Williams pleaded no contest to infliction of corporal injury on a spouse, the trial court determined it had inadequate information to decide how much victim restitution to order. Despite this determination, the court's minute order and abstract of judgment list a restitution award of $1,575. On appeal, defendant asks us to correct this error. We will correct this error and remand the case for a restitution hearing, if one has not already been held.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pleaded no contest to one count of infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) after he punched and strangled his wife. At the sentencing hearing, the court noted the probation report recommended an award of $1,575 in moving expenses for the victim, in addition to $1,034 in lost wages. Defendant requested a restitution hearing and the court set a hearing for 11 days later. The minute order for the sentencing hearing contains a note that "$1,575 + additional costs" in restitution was requested, while the state prison minute order that was prepared the same day states: "Rest. ordered $1,575 + additional costs to be determined." Four days after the sentencing hearing, the court issued an abstract of judgment imposing $1,575 in restitution under section 1202.4, subdivision (f).
Undesignated statutory references are to the Penal Code. --------
One week later, the court held a restitution hearing. The prosecutor first stated he would request moving expenses in the amount of $1,575, for which an application was pending with the California Victim Compensation Board (the Board), and $1,034.39 for the victim's lost wages that had already been paid by the Board. He acknowledged later in the hearing, however, the moving expenses were premature and he would only be asking for the lost wages at the hearing.
The court heard argument, but stated it could not determine at that point how much to award: "On the one hand, I agree that under Marsy's Law, [the victim] has the right to be in court at different stages of the proceeding as a victim. [¶] Actually, I don't know what the basis is of the claim of $1,034.39, $1,034.39 for lost wages. Is it because she missed work because of something related to the crime? Is it because she was in court during court proceedings? So that needs to be clarified, but I believe she has the right to be here, and can be compensated for lost wages. [¶] . . . I do believe that the compensation is limited to the number of hours that she lost in wages, and that has to be determined. I do not have any more information on that except for the claim that was paid by the [Board] [¶] . . . [¶] . . . I'm unable to provide the number. It's clear to the Court that the victim is entitled for lost wages to the extent she was here in court during the course of the trial, but I don't know that. I don't know how much time she was in court." The prosecutor suggested dropping the matter from calendar, and renoticing the hearing when the parties obtained additional evidence. The court did so without ordering any restitution. The record does not indicate whether any further hearings were ever held.
DISCUSSION
Defendant asks us to strike the victim restitution order because the trial court did not award any restitution. The People concede this error, and ask us to remand the case so that the court may complete its restitution hearing, if it has not done so already. Defendant disagrees, saying remand is unnecessary because it would unduly consume judicial resources.
We conclude a minute order or abstract of judgment cannot create a restitution order that was not part of the trial court's oral pronouncement of judgment and will strike the references to the restitution order in the minute order and abstract. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.)
We also conclude remand is appropriate. Article I, section 28, subdivision (b)(13)(B), of the California Constitution provides: "Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." Victim restitution for economic loss is mandatory (§ 1202.4, subd. (a)(1)) and the court must order full victim restitution "in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court." (§ 1202.4, subd. (f).) A victim's lost wages for attending court proceedings are compensable as restitution. (People v. Moore (2009) 177 Cal.App.4th 1229, 1233.)
Here, the trial court correctly determined the victim was entitled to restitution based on wages lost while she was attending court proceedings, but expressly stated there was inadequate information to determine the precise amount of the restitution required at the restitution hearing. Nothing in the record indicates the trial court has yet fulfilled its obligation to impose victim restitution--or state reasons for declining to do so--and remand will allow it to meet this obligation. Accordingly, we will strike the references to the restitution order in the minute order and abstract and remand the matter for a restitution hearing, if one has not already been held.
DISPOSITION
The trial court is directed to delete the references to the restitution order in the minute order and abstract of judgment. The case is remanded for a hearing on the amount of restitution to be ordered, if one has not already been held. In all other respects, the judgment is affirmed. The clerk is directed to prepare and forward to the Department of Corrections and Rehabilitation a certified copy of the corrected abstract of judgment reflecting the above ordered deletions and any changes in the restitution order.
/s/_________
HOCH, J.
We concur:
/s/_________
BLEASE, Acting P. J.
/s/_________
MURRAY, J.