Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF3016, James Odriozola, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O’LEARY, J.
We appointed counsel to represent Santiago Leandro Mejia on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client but advised the court no issues were found to argue on his behalf. Mejia was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from him.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court in conducting its independent review, counsel set forth the facts and provided the court with information as to issues that might arguably support an appeal. We have reviewed the information provided by counsel and have independently examined the record. We found no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We affirm the judgment.
FACTS
Mejia pled guilty to four counts of lewd acts on a child (Pen. Code, § 288, subd. (a)) (counts 1-4), two counts of attempted lewd acts on a child (§§ 664, 288, subd. (a)) (counts 5 & 6), two counts of child annoyance (§ 647.6, subd. (a)) (counts 7 & 8), and one count of distribution of pornographic material to a child (§ 313.1, subd. (a)) (count 9). The same day the trial court suspended imposition of sentence and placed Mejia on five years of formal probation with various terms and conditions. As conditions of probation, Mejia agreed to, among other things, register as a sex offender pursuant to section 290, obey all orders, rules, regulations, and directives of the court, probation department and jail, violate no laws, use his true name and date of birth at all times, carry at all times a valid driver’s license or identification card, and consume no alcoholic beverages.
All further statutory references are to the Penal Code, unless otherwise indicated.
Less than four months later, the Orange County Probation Department notified the superior court that Mejia had failed to report to the probation officer and his whereabouts were unknown. The same day the court revoked probation and issued a warrant for Mejia’s arrest. Three days later, a petition for arraignment on probation violation was filed. The petition alleged Mejia had violated the law by driving under the influence (Veh. Code, § 23152, subd. (a)), driving with a blood alcohol over.08 percent (Veh. Code, § 23152, subd. (b)), and driving without a license on January 16, 2010 (Veh. Code, § 12500). The petition also alleged Mejia violated his probation by failing to register as a sex offender pursuant to section 290, by consuming alcoholic beverages, failing to use his true name, and failing to carry valid identification. Mejia appeared in custody for arraignment on the probation violation petition. At the defense’s request the arraignment was continued numerous times. Mejia eventually denied the allegations in the petition and the matter was set for a disposition hearing, and for a formal probation violation hearing.
Mejia moved to replace his defense counsel. At a Marsden hearing, Mejia stated he felt his lawyer was asking him to agree to a sentence that was too long. The trial court stated the sentence his lawyer suggested was the court’s indicated sentence should Mejia admit the allegations in the petition. The court then explained its reasoning regarding the indicated sentence. A discussion followed between Mejia and the court to determine whether it was the lengthy sentence that was the basis of Mejia’s complaint or the representation he was receiving from his lawyer. At the conclusion of the hearing, the court denied Mejia’s Marsden motion. Mejia then indicated he wanted to admit the allegations in the petition. As the trial court was advising Mejia of his rights, the court became concerned Mejia’s admission was not entirely voluntary. The court stated it was “not comfortable taking the admission, ” and set the matter for formal hearing.
People v. Marsden (1970) 2 Cal.3d 118.
At a formal probation violation hearing, Officer Michael Kuplast testified that on January 16, 2010, he observed a white vehicle straddling two lanes and he stopped the vehicle. Mejia was the driver of the vehicle. Mejia identified himself as Salvador Ochoa Hernandez and provided an expired driver’s license with the Hernandez name. The officer performed a “DUI” evaluation and administered a preliminary alcohol screening. Mejia did poorly on the field sobriety test, and the screening indicated Mejia had a 0.08 blood alcohol level. The court received into evidence the March 2010 probation violation petition and took judicial notice of the court minute order from December 30, 2008, when Mejia initially pled guilty and was placed on probation.
The trial court found all the allegations in the petition true by a preponderance of the evidence. Mejia waived time for sentencing, and the court revoked probation and sentenced him to a total term of six years in prison. The court ordered Mejia to pay a victim restitution fine in the amount of $990, plus 10 percent interest from December 30, 2008.
DISCUSSION
Pursuant to Anders, appellate counsel invited this court’s attention to three issues to assist this court in its independent review. Those issues are: (1) whether there was sufficient evidence to support the trial court’s finding Mejia violated probation; (2) whether the trial court properly denied Mejia’s Marsden motion; and (3) whether there was sufficient evidence to support the court’s imposition of the $990 victim restitution order. We will address each issue in turn.
Sufficiency of the Evidence-Probation Violations
“The burden of proof at a probation violation hearing is by a preponderance of the evidence.” (People v. Abrams (2007) 158 Cal.App.4th 396, 400.) We review the trial court’s revocation decision for an abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [trial court’s exercise of discretion must not be disturbed on appeal except on showing exercise of discretion was arbitrary, capricious, or patently absurd and resulted in manifest miscarriage of justice].) The record reflects there was sufficient evidence to support each of the probation violation allegations. Thus, the court properly revoked probation.
Marsden Motion
We review the denial of a Marsden motion for an abuse of discretion. (People v. Bills (1995) 38 Cal.App.4th 953, 961 (Bills).) The “defendant bears a very heavy burden to prevail on [a Marsden ] motion.” (Bills, supra, 38 Cal.App.4th at p. 961.) To prevail on such a motion, a defendant must “‘“‘clearly show[ ] that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’”’” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) Mejia was unable to inform the court of any deficiencies in the representation defense counsel provided. The record reflects Mejia’s complaint was with the indicated sentence and not his defense counsel’s performance. We have reviewed the sealed record of the Marsden hearing and find no abuse of discretion. Therefore, the trial court properly denied the Marsden motion.
Sufficiency of the Evidence-$990 Victim Restitution Order
Section 1202.4, subdivision (f), mandates the trial court require a defendant to make restitution if the victim has suffered economic loss as a result of the defendant’s conduct. The amount of restitution must be based on the amount of loss claimed by the victim or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. (§ 1202.4, subd. (f).)
A direct victim restitution order is reviewed for abuse of discretion and will not be overturned on appeal unless it is arbitrary or capricious. There is no abuse of discretion where there is a rational and factual basis for the amount of restitution ordered. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) “[T]he trial court is entitled to consider the probation report when determining the amount of restitution.” (People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) “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.” (Id. at p. 947.) There must be a rational relationship between the restitution order and the victim’s loss, but “[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407.)
Here, at the time he pled guilty and was placed on probation, Mejia agreed and was ordered to pay restitution to the victim in an amount as determined by the court. The probation report included a “Victim Restitution Claim” in the amount of $1,500. The trial court ordered victim restitution in the amount of $990, less than the restitution amount indicated in the report prepared by the probation department and reviewed by the court. Absent a challenge by the defendant, it is not an abuse of discretion to order restitution in the amount specified in the probation report. It logically follows then that the trial court does not abuse its discretion when the court orders restitution in an amount less than the amount specified in the probation report. We conclude sufficient evidence supports the trial court’s imposition of the $990 victim restitution order.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.
The Marsden proceedings occurred in a closed hearing and are included in the appellate record under seal.