P. v. McMillion

P. v. McMillion

Filed 11/10/08 P. v. McMillion CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. GREGORY McMILLION, JR., Defendant and Appellant.

B206174 (Los Angeles County Super. Ct. No. LA054944)

APPEAL from an order of the Superior Court of Los Angeles County, Kathryne Stoltz, Judge. Affirmed.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Gregory McMillion appeals from an order of restitution following the entry of judgment upon his no contest plea to gross vehicular manslaughter while intoxicated, count 1 (Pen. Code, 191.5, subd. (a)), and driving the wrong way on a divided highway, count 3 (Veh. Code, 21651, subd. (b)). He was sentenced to prison for six years and counts 2 and 4, violations of Vehicle Code section 23153, subdivisions (b) and (a), respectively, were dismissed pursuant to Penal Code section 1385. Following a hearing, the court ordered appellant to pay direct restitution to the spouse of the deceased in the amount of $2,389,224.

At the hearing on restitution, the decedents wife filed an amended declaration of loss claiming $2,394,774.53. The loss consisted of property damage in the amount of $9,439.21, loss of wages based upon earnings from 2006 with the projection that the decedent would have worked through age 55, and other losses arising from childcare expenses, attorneys fees, courthouse parking, transportation for the family to the decedents funeral and the cost of an organizer to pack and organize decedents personal and professional belongings. In making the restitution order, the court subtracted $5,550 for the payoff on a second car, stating that figure was encompassed in the [$]9,000 approximate reimbursement for the totalled car.[1]

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On August 5, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. No response has been received to date.

We have examined the entire record and are satisfied that no arguable issues exist. There is no indication in the record that the courts restitution order is an abuse of discretion. (See People v. Giordano (2007) 42 Cal.4th 644, 662-667.) Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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[1] It was explained that the vehicle that was. . . totalled was the decedents wifes vehicle. So that was a total loss. Then she had to pay off his car, the decedents car, because thats the car that shes driving now or otherwise she would be taking the bus.