Opinion
G057761
01-24-2020
THE PEOPLE, Plaintiff and Respondent, v. CHARLES SHON DOBBS, Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF2790) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael F. Murray, Judge. Affirmed. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Defendant Charles Shon Dobbs pleaded guilty to one count of domestic battery with corporal injury in violation of Penal Code section 273.5, subdivision (a). The court suspended imposition of sentence and placed defendant on formal probation for five years under various terms and conditions including 270 days in the Orange County jail, and that he pay restitution in an amount as directed by the probation department. Following a contested restitution hearing, the court ordered defendant to pay the victim $2,030.90.
Defendant timely filed a notice of appeal from the victim restitution order and we appointed counsel to represent him. Counsel did not argue against defendant but advised the court he was unable to find an issue to argue on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.
Under these circumstances, we are required to review the entire record to determine whether the record reveals any issue which would, if resolved favorably to the defendant, result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; Anders v. California (1967) 386 U.S. 738, 744.) Accordingly, we have examined the entire record but have not found an arguable issue on appeal. Thus, we affirm the order awarding victim restitution.
FACTS
The incident resulting in defendant's arrest and conviction occurred on November 24, 2016. The other underlying facts that led to defendant's conviction are not relevant to this appeal since the appeal is taken only from the order awarding victim restitution. At the contested restitution hearing, the People submitted three exhibits, all of which were received in evidence without objection. Exhibit 1 was the probation report recommending victim restitution in the amount of $3,870.17 based upon the victim's request for an award of her lost wages and compensation for mileage for driving to the court for hearings. Exhibit 2 was a compilation of records from the victim's employer showing her compensation at $12 per hour, her involuntary termination on April 18, 2017 for "performance not to company expectations," and her timecard records for the period of November 14, 2016 through April 18, 2017. Exhibit 3 was a subsequent probation report prepared when defendant requested the restitution hearing. Probation did not change its original recommendation that restitution be set at $3,870.17. No other evidence was presented.
Following argument, the court took the matter under submission to study the exhibits, and ultimately set victim restitution at $2,030.90. The court explained the calculation of its award as follows: "[Fifteen] days that the victim attended court, five days of missed work in the two weeks following the assault, and then mileage for attendance at court proceedings. A total of 221.8 miles at $0.50 a mile. [¶] The mileage calculation at 221.8 times .50 comes out to $110.90, and the total dollar amount at $12 an hour for a total of 20 days comes out $[1,920], and a combination of those two figures results in $2,030.90."
DISCUSSION
To assist in our independent review of the record, counsel suggests we consider whether the court abused its discretion in determining the amount of restitution to be $2,030.90. (Anders v. California, supra, 386 U.S. at p. 744.) Our independent review has not revealed any abuse of discretion.
"'[T]he trial court is entitled to consider the probation report when determining the amount of restitution.' [Citation.] . . . [Citations.] 'This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.' [Citation.] Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion." (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.)
Here, substantial evidence supports the court's award which was a substantial downward departure from the probation report's recommendation. The probation report included a letter from the victim setting forth her claim for restitution. She stated, "The domestic incident happened November 24, 2016. Since the incident, I was emotionally distressed and I did not even want to go to work although I had to, in order to provide for my son as a single mother. I attended work majority of the time in the past 6 months regardless of how I felt. Although, missing work to attend court dates and taking a few personal days after those court dates to 'mentally' get [myself] together due to the uncontrollable emotions I had after attending. I suffered a great significant loss in financial wages as well as my 'reputation' with my employer."
After relating that her employment was terminated on April 18, 2017 "due to excess amount of work missed," she added: "I am requesting and hoping that due to the fact I only truly missed work was to attend court, and take personal days since I was ' emotionally in distress' due to the domestic incident, I ask you guys at the probation department to include at least 2 months (320 hours) at the rate of $12 an hour I was getting paid at my full-time job that I [lost] due to this domestic incident. So a total of $3,840 in restitution to be included . . . ." The victim also requested compensation for the miles travelled to court appearances and provided evidence of the distance from her home to both the Orange County Superior Court West Justice Center, where the case was originally filed, and to the Orange County Superior Court Central Justice Center, where proceedings were held after defendant was bound over for trial after the preliminary hearing.
At the hearing, defense counsel argued there were only 18 days on which a hearing of some sort was held in court and the victim's employment records showed she worked a full day on three of those days, meaning that the maximum time she could have missed work because of court appearances was only 15 days. At eight hours per day for 15 days at a rate of $12 per hour amounts to $1,440. Our review of the record confirms this calculation. Defendant had no other contrary information to present, so the court appropriately included 15 days of missed work because of court appearances. To that amount the court added five additional days of missed work during the two weeks following the assault. Based upon the victim's recitation of her mental state following the assault, we perceive no abuse of the court's broad discretion in including the five additional days of missed work. The total award for missed work was thus calculated to be $1,920 (20 days multiplied by eight [hours worked per day], multiplied by 12 [hourly rate]).
Substantial evidence also supports the award of compensation for the victim's travel to and from court in the amount of $110.90. The court calculated that the victim would have traveled 221.8 miles to attend court sessions at the West Justice Center and the Central Justice Center. Although the record does not disclose the precise methodology employed by the court in calculating the 221.8 miles, it is well established that "an award of restitution is committed to the sound discretion of the trial court. No abuse of discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result." (People v. Giordano (2007) 42 Cal.4th 644, 665.) In Giordano, the Supreme Court characterized the trial court's methodology for calculating the restitution amount as imprecise, but affirmed the restitution order nonetheless, concluding the defendant had not shown that the amount ordered was an abuse of the court's discretion. (Id. at p. 666.) So it is here. Fifteen trips to the court totaling 221.8 miles results in an average round trip mileage of 14.8 miles, well within the range of 3.4 round trip miles to the West Justice Center and 18 round trip miles to the Central Justice Center. We discern no abuse of discretion in the court's determination. The award was reasonable and nonarbitrary.
Our independent review has not disclosed any arguable issue. Counsel's assessment was correct. We accordingly affirm the victim restitution order.
DISPOSITION
The victim restitution order of March 25, 2019 is affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.