Opinion
A157066
09-26-2019
THE PEOPLE, Plaintiff and Respondent, v. BRETT ROCK LEBARRE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51718212)
Defendant Brett Rock LeBarre appeals from a victim restitution order entered after final judgment. (Pen. Code, § 1237, subd. (b).) His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) to determine whether there are any arguable issues on appeal. Defendant was informed of his right to file a supplemental brief and did not do so. (People v. Kelly (2006) 40 Cal.4th 106, 124.) Having independently reviewed the record, we conclude there are no reasonably arguable issues requiring further review. We affirm.
All further statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with six felony sex offenses after an incident during which he digitally penetrated and had sexual intercourse with a minor who alleged this happened while she was intoxicated and unconscious. Defendant was convicted by a jury of unlawful sexual intercourse with a minor who was more than three years younger than himself (§ 261.5, subd. (c)) and sexual penetration of a person under the age of eighteen (§ 289, subd. (h)). The jury acquitted defendant on counts of rape of an unconscious person (§ 261, subd. (a)(4)) and sexual penetration of an unconscious person (§ 289, subd. (d)), and was unable to reach verdicts on counts of rape by intoxication (§ 261, subd. (a)(3)) and sexual penetration of an intoxicated person (§ 289, subd. (e)).
On October 19, 2018, the trial court suspended imposition of a sentence and placed defendant on three years of formal probation. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)) plus a suspended probation revocation restitution fine (§ 1202.44), and reserved its ability to make further restitution orders. At a hearing on October 25, 2018, the court dismissed the two mistried counts upon motion of the prosecutor. That motion was made in exchange for defendant's waiver of his right to appeal.
On April 12, 2019, the trial court held a further restitution hearing. The prosecutor sought victim restitution in the amount of $2,592 to the Victim Compensation Board (the Board) for mental health services for the victim, and $1,809.70 to the victim for lost wages, lost property, and transportation costs to court. In support, the prosecutor relied on documentary evidence, including a claim submitted by the Board for mental health services for the victim, documents provided by the victim, and the probation report which contained statements by the victim about the impact of the crimes on her. Defense counsel opposed all the requested amounts, arguing they were not reasonably related to the crimes defendant was actually convicted of, since he was acquitted of two counts and the jury could not reach verdicts on two other counts. Defense counsel simultaneously acknowledged defendant was convicted of counts the victim had to come to court for, and he seemed to differentiate between the amount requested for lost wages, property and transportation, and the amount requested for mental health services. The prosecutor contended the claims were reasonably related to the offenses, stating the victim was a teenage victim, and her testimony and appearance in court revealed she suffered significant psychological trauma as a result of the crimes. The court ordered both amounts, finding them reasonable and reasonably related to the crimes. Thereafter, defendant filed a notice of appeal concerning the orders at the contested restitution hearing.
DISCUSSION
Our review is limited to the victim restitution order made on April 12, 2019 and the attendant record. (See § 1237, subd. (a) [order granting probation is considered an appealable final judgment]; Cal. Rules of Court, rule 8.308(a) [notice of appeal generally must be filed within 60 days after the rendition of the judgment or order being appealed]; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 ["an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment"].)
Here, appellate counsel has filed a Wende brief raising no arguable issues and requesting this court review the record independently. The opening brief includes a declaration from appellate counsel stating he advised defendant of his intention to file a Wende brief, and of defendant's right to submit supplemental briefing on his own behalf. Defendant has not submitted any supplemental briefing.
Our independent review of the record reveals no reasonably arguable issue that requires further briefing. (Wende, supra, 25 Cal.3d 436; Anders v. State of California (1967) 386 U.S. 738, 744.) Although defendant raises no issues, we note the record indicates that counsel representing defendant at the April 12, 2019 restitution hearing contested the requested amounts solely on the ground they were not reasonably related to the crimes he was convicted of. Section 1202.4, subdivision (f)(3), states that a restitution order "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (Italics added; see People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320-1322.) Here, regardless of the counts the jury acquitted defendant of and the mistried counts that were ultimately dismissed, defendant—an adult at the time of the offenses—was still convicted of sex crimes involving a younger, minor victim. At the restitution hearing, evidence was presented to establish that the victim suffered losses as a result of defendant's crimes. Defense counsel did not object to the evidence relied on by the trial court to make its award, nor did the defense present any evidence countering that his sexual misconduct towards the victim caused the claimed losses. (In re S.S. (1995) 37 Cal.App.4th 543, 547-548; § 1202.4, subd. (f)(4).)
DISPOSITION
The judgment is affirmed.
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.