Opinion
C085353
12-04-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ALLEN WHITE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P14CRF0551)
Defendant Jeffrey Allen White pleaded guilty to voluntary manslaughter. On appeal he challenges a restitution order awarding a neighbor $1,717.61 for funeral expenses. He also contends the minute order must be corrected to reflect the trial court's statement that defendant may request a hearing on his ability to pay. We affirm the judgment.
FACTS AND PROCEEDINGS
In exchange for a stipulated sentence and the dismissal of other counts, defendant pleaded guilty to voluntary manslaughter and admitted to personally using a firearm. The trial court imposed a 10-year aggregate term.
Later, at a restitution hearing for which defendant waived his appearance, the prosecution requested $6,717.61 in restitution for funeral expenses. Of that amount, $5,000 was for the California Victim Compensation Board (Victim Compensation Board). The remaining $1,717.61 was for a neighbor (of both the victim and the defendant), "the one that paid all of that money." The prosecution provided documentation of the expenses from the Victim Compensation Board.
As to the Victim Compensation Board's restitution claim, defense counsel relayed defendant's position: "I will state [defendant's] position on the record, which is that the family did not pay for the funeral and the people that paid for the funeral did so of their own volition. He does not believe they are entitled to reimbursement for that as to what was paid to the Victim Compensation Board, so he is asking that we object to that."
As to the $1,717.61 reimbursement to the neighbor, defense counsel objected: "There's no itemization of that, there's simply this statement and he is not a named victim in this case, there is no supporting documentation and it was not paid by the Victim Compensation Board, so I don't believe that [the neighbor], without more, is entitled to further compensation." He added, "There's been no testimony, there's no documentation attached, and as I said, he is not a named victim in the case."
The trial court responded that there is documentation of the expenses, pointing to a September 10, 2014, statement of funeral goods and services detailing the charges. The court noted the services totaled $6,717.61, and if the Victim Compensation Board paid $5,000, the $1,717.61 balance was equal to the amount the neighbor requested.
The court then ordered defendant to pay $1,717.61 in restitution to the neighbor and $5,000 to the Victim Compensation Board.
DISCUSSION
I
The Trial Court Properly Awarded $1,717.61 in Burial Expenses
On appeal defendant contends remand is required because the trial court failed to state reasons for awarding $1,717.61 in restitution to the neighbor. He does not challenge the $5,000 awarded to the Victim Compensation Board.
Regarding restitution to the neighbor, Government Code section 13957 authorizes the Victim Compensation Board to reimburse anyone who "voluntarily, and without anticipation of personal gain" pays for funeral and burial expenses. (Gov. Code, § 13957, subd. (a)(8).)
Defendant argues that the trial court failed to make a record on two points: whether the neighbor's payment was (1) voluntary and (2) made without anticipation of personal gain. He argues his trial counsel's objection obligated the trial court to make those findings, and the failure to do so rendered the restitution order an abuse of discretion. He cites no apposite authority in support of that argument.
We review a restitution award for abuse of discretion. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) Where a factual and rational basis supports the amount of restitution ordered, no abuse of discretion will be found. (Ibid.)
Here, the trial court acted well within its discretion. The prosecution provided a statement of funeral goods and services, which itemized the expenses totaling $6,717.61. The documentation further stated that the claim had been submitted by the neighbor and paid in the amount of $5000 by the Victim Compensation Board.
Despite defendant's claim to the contrary, his trial counsel's objection did not obligate the court to make specific findings of voluntariness and lack of anticipation of personal gain. Counsel's objection claimed only a lack of itemization and documentation. As the trial court pointed out, the provided documentation addressed those concerns. To the extent counsel desired a specific finding that the payment was voluntary and done without anticipation of personal gain, it was incumbent upon counsel to request it. The failure to do so forfeits the contention on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353 ["Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention"]; see also People v. Trujillo (2015) 60 Cal.4th 850; People v. McCullough (2013) 56 Cal.4th 589.)
And even if the issue was preserved, nothing in the record indicates the neighbor's payment was involuntary or done in anticipation of personal gain. Indeed, defense counsel told the court, "the people that paid for the funeral did so of their own volition."
The trial court did not abuse its discretion in ordering the restitution at issue.
II
The Clerk's Transcript Need Not Be Corrected
Defendant next contends a discrepancy exists between the clerk's transcript and the reporter's transcript: the clerk's transcript fails to reflect the court's assurance that if defendant desired a hearing on ability to pay, one would be conducted. While the People do not object to the minute order being corrected, there is no cause to do so.
At the hearing, the trial court asked if defendant wished for a hearing on ability to pay. With defendant not present, his counsel responded, "I will write him a letter and let him know, and if he wants a hearing, I'll inform the court." The court responded that if defendant wished for a hearing, he could have one. The minute order for the hearing, however, says, "Defendant waives a hearing on the ability to pay."
While defendant did not waive an ability to pay hearing, he had no right to one in the first place. The restitution at issue, restitution for economic loss and restitution to the Victim Compensation Board, was ordered pursuant to Penal Code section 1202.4. (See Pen. Code, § 1202.4, subd. (f) & (f)(4)(A).) Under that statute, "[a] defendant's inability to pay shall not be a consideration in determining the amount of a restitution order." (Pen. Code, § 1202.4, subd. (g).) Defendant's ability to pay is therefore irrelevant to the challenged restitution and the minute order need not be corrected.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: BUTZ, J. MURRAY, J.