Opinion
D059361 Super. Ct. No. SCE302441
09-16-2011
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY AARON LOYA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.
This appeal is taken from a judgment of the superior court based on Jeffrey Aaron Loya's guilty plea to one count each of vandalism involving more than $400 and proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Finding no reasonably arguable appellate issue, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Loya was charged with one count each of vandalism involving more than $400, possession of a controlled substance and possession of a designated controlled substance after he was arrested for using a hammer to break several coin-operated machines at a car wash late at night. Loya later agreed to plead guilty to the vandalism count, in exchange for a dismissal of the remaining charges and a reduction of the offense from a felony to a misdemeanor, on the condition that he make a partial payment of $500 in restitution at the time of sentencing.
In the plea agreement, Loya represented that he was not under the influence of any alcohol, drugs or medicines, and that, with the assistance of counsel, he had read and understood the terms of his plea agreement. He initialed provisions of the agreement that advised him of his constitutional rights to a speedy trial by jury, to remain silent, to present evidence in his defense and to confront the witnesses against him, and agreed to waive those rights and enter the plea. The form also advised him of the penal consequences of his plea, including that (1) the maximum sentence for the charged offense was three years, plus four years of parole, (2) he would be required to pay a fine of up to $10,000, (3) he would be subject to deportation if he was not a United States citizen, and (4) he would have a prison prior on his record. Finally, with the agreement of his counsel, Loya stipulated that he had broken one of the coin-operated machines, as the factual basis for the offense. The court accepted the plea and reduced the charge to a misdemeanor.
The court subsequently sentenced Loya in accordance with the plea agreement, to a three year term. The court ordered Loya to pay various fees and fines, including a $593 restitution fine, a $100 probation revocation restitution fine (suspended unless parole was later revoked), and a $30 accounts receivable fee, and required him to pay $500 in partial restitution to the victim at the time of the sentencing hearing. The court restricted his driver's license for one year and issued an order requiring Loya to stay more than 100 yards away from the car wash.
At an evidentiary hearing on the issue of victim restitution, the president of the company that owned the car wash testified that six vending machines and a number of coin-operated vacuums had been damaged as a result of the incident, and that the machines could not economically be repaired, but instead had to be replaced at a cost of $56,000. He also testified that the car wash had to be closed until the machines could be replaced, which took about two months and resulted in lost net income of $20,000. On cross-examination, Loya's counsel elicited the president's testimony that only four of the machines were rendered completely inoperable as a result of the damage, and that a number of the machines were old at the time of the incident.
Loya also testified at the hearing. He indicated that he went with a friend to the car wash at midnight on the evening in question and started washing his car, but was unable to get the rinse cycle to work; although he tried moving the car to another wash stall and put more money in a second machine, that machine also failed to work. Loya testified that he became frustrated and took out a hammer, which he used to "tap" the receptacle, accidentally cracking the screen on it, in an attempt to get the sprayer to start working. He denied damaging any of the other machines.
After both sides rested, the prosecutor asked the court to award restitution of approximately $76,000. Loya's counsel argued that although her client had done some damage at the car wash, the amount sought bore no relationship to that damage, but instead, reflected a greedy attempt by the business "to remodel the car wash [and its antiquated facilities] on [Loya's] back." The court found that although Loya's testimony was not particularly credible, the court was not convinced that he had damaged all of the equipment that had been replaced. The court ordered Loya to pay restitution of $32,880. Loya appeals the award of restitution.
Loya's appellate counsel has filed a brief indicating that she has been unable to identify any argument for reversal and instead asks this court to review the record for error, as mandated by Wende; we invited Loya to file a brief on his own behalf, but he has not responded. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders),counsel's brief identifies the following issue as possible, but not arguable, on appeal:
1. Whether the superior court abused its discretion in determining the amount of the restitution to be awarded to the victim.
DISCUSSION
We have reviewed the record in accordance with Wende and Anders and have not found any reasonably arguable appellate issues. Loya has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR:
BENKE, Acting P.J.
HUFFMAN, J.