Opinion
F072224
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. NELDA FAYE RICE, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15903888)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Timothy A. Kams, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Detjen, J.
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INTRODUCTION
Appellant Nelda Faye Rice (defendant) pled no contest to one count of home invasion robbery, in exchange for which one count each of first degree burglary and assault by means likely to produce great bodily injury were dismissed. At a hearing on victim restitution, the trial court ordered defendant to pay $9,840 to the victim for lost wages. Defendant appeals this award. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Because defendant challenges only the restitution award pertaining to lost wages, we provide only a brief summary of facts pertaining to the offense. On June 21, 2015, codefendant Destiny Rodriguez, defendant's daughter, went to the home of the victim, Jaheel Montana, and asked to borrow money. Montana asked her to wait so he could retrieve some money. Shortly, Montana heard a knock at the door and Rodriguez admitted two males and then locked the door behind them.
Montana was struck several times in the head before Rodriguez and the men left. Montana called police. Montana was transported to the hospital where he was treated for a laceration to his right eyebrow; a cut and contusion to his face; and a contusion to the wall of his chest.
Rodriguez was arrested and admitted to conspiring to rob Montana. Rodriguez stated that her mother, defendant, told her Montana had drugs and money at his residence and showed Rodriguez where Montana lived. Defendant was arrested and corroborated Rodriguez's statements.
Rodriguez is not a party to this appeal.
On June 25, 2015, defendant was charged with one count of home invasion robbery, a violation of Penal Code section 213, subdivision (a)(1)(A); one count of first degree burglary in violation of sections 459 and 460, subdivision (a); and one count of assault by means likely to produce great bodily injury, in violation of section 245, subdivision (a)(4).
References to code sections are to the Penal Code unless otherwise specified.
Pursuant to a negotiated plea agreement, defendant pled no contest to the home invasion robbery charge, in exchange for which the other two counts were dismissed. Defendant was sentenced on August 10, 2015, to a term of six years in prison, with various fines and fees imposed. At this time, the trial court ordered defendant to pay the sum of $7,582.04 in restitution to Montana, representing the amount of medical costs he incurred. The issue of restitution for collateral damages incurred by Montana was reserved.
The trial court awarded $7,582.04. The abstract of judgment incorrectly reflects the amount as $7,582. --------
The trial court held a further hearing on restitution on August 31, 2015. Montana testified that after the attack, he suffered from headaches and had problems with his vision. The defense interjected and stipulated that Montana had been injured. Montana had spent two days in the hospital after the attack.
Montana testified that before the home invasion robbery, he had been working for a roofing company for about one year, working on removal of roofs. Generally, Montana worked six days a week, Monday through Saturday, unless it was raining. The work required Montana to remove old roof material and bring new wood back up to the roof. He had been unable to work, except for one day, after the attack. According to Montana, he made about $1,050 for a six-day work week. He typically made between $164 and $175 per day.
On cross-examination, Montana acknowledged that the $1,050 figure was calculated on the assumption he made $175 per day, but he sometimes made only $164. He was not paid by check by the roofing company and did not have check stubs or receipts showing the payments he received from the roofing company. Montana stated he was a "worker" for the roofing company, but not a "contractor." He did not understand the difference between an employee and a contractor. Montana did not file a 2014 tax return; did not have pay stubs or receipts; and did not have a letter from the roofing company documenting his pay.
The People asked the trial court to take judicial notice of the calendar and calculate lost wages as $9,840, based upon $164 per day and 60 days of lost work. The defense argued that Montana should have to provide proof of 12 months of income, akin to someone who works on commission. The defense maintained that Montana's lost wages were all "speculative" and the People had not met their burden of proof.
The trial court found Montana's testimony was sufficient to establish the amount of lost wages by a preponderance of the evidence. The trial court ordered defendant to pay $9,840 to Montana as restitution for lost wages. Defendant and Rodriguez were held jointly liable for the restitution.
Defendant appealed on September 1, 2015, from matters occurring after the plea.
DISCUSSION
Defendant contends the trial court's restitution order lacks a factual and rational basis for the amount ordered. She also contends the evidence is insufficient. She is mistaken.
A defendant is required to pay restitution when a victim has suffered economic loss as a result of the defendant's actions. (§ 1202.4.) The People have the burden of establishing the amount of restitution by a preponderance of the evidence. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) Once the People have made a prima facie showing of a victim's loss, the burden shifts to the defendant to establish that the loss is other than the amount claimed by the victim. (People v. Prosser (2007) 157 Cal.App.4th 682, 691.)
A restitution award is reviewed for an abuse of discretion. There is no abuse of discretion if " ' " 'there is a factual and rational basis for the amount of restitution ordered.' " ' " (People v. Baker (2005) 126 Cal.App.4th 463, 467.)
The only evidence supporting the claim for lost wages was the testimony of Montana, however, the testimony of a single witness is sufficient. (Evid. Code § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) The relevant time period of the claim for lost wages was 60 days during the months of June, July, and August of 2015, after the attack. Montana testified he worked six days a week, unless it rained, and earned a minimum of $164 each day. He had been steadily working for the roofing company, at six days a week for a minimum of $164 per day, for a period of nearly one year prior to the attack. Montana testified he had been unable to work, except for one day, subsequent to the attack.
It is not improbable that Montana would have been working six days a week and earning wages at the low end of his pay range, $164 per day, during the months after the attack, had he been able to work. Montana's testimony provides a rational and factual basis for the award of restitution for lost wages. (People v. Baker, supra, 126 Cal.App.4th at p. 467.)
Defendant, however, contends the People were required to establish lost wages by documentary proof and that Montana was required to submit documentation substantiating his lost wages and that his injuries from the attack kept him from working. There is no requirement, however, that proof of the loss be in a particular form, specifically documentary. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320.) Defendant has cited no authority for the proposition that a victim's testimony is insufficient to establish loss.
There is no merit to defendant's contention that the rules for establishing commission-based income applied to Montana. There was virtually no evidence that Montana was paid on a commission basis.
We summarily reject defendant's claim that Montana had to establish 12 months of income as required by section 1202.4, subdivision (f)(3)(D), which applies to commission income. As stated previously, there was no evidence Montana was paid on a commission basis. Additionally, Montana testified as to his income from the roofing company with which he had been working for nearly one year.
We also summarily reject defendant's contention that there is no substantial evidence supporting the restitution award for lost wages. A single witness's testimony provides sufficient evidence to support a conviction, or in this case, an award of restitution, unless the witness's testimony is physically impossible or inherently improbable. (People v. Young, supra, 34 Cal.4th at p. 1181.) Montana's testimony was neither physically impossible nor inherently improbable.
Once the People established a prima facie case for restitution, as they did here, the burden shifted to defendant to produce evidence establishing the amount of restitution claimed owing was incorrect. (People v. Prosser, supra, 157 Cal.App.4th at p. 691.) Defendant failed to rebut the evidence establishing Montana's lost wages and the trial court was entitled to credit Montana's testimony. (People v. Young, supra, 34 Cal.4th at p. 1181.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment, to reflect the award of $7,582.04 as restitution for medical costs, and to disseminate the same to the appropriate authorities.