P. v. McNeal
Filed 11/20/09 P. v. McNeal CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, Plaintiff and Respondent, v. SAMANTHA McNEAL, Defendant and Appellant. | B207992 (Los Angeles County Super. Ct. No. SA061211 ) |
APPEAL from a postconviction order of the Superior Court of Los Angeles County. Cynthia Rayvis, Judge. Affirmed.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On March 16, 2007, an information was filed in Los Angeles County Superior Court charging appellant Samantha McNeal (McNeal) with one count of grand theft in violation of Penal Code section 487, subdivision (a)[1](count 1) and two counts of attempt to file a false or forged instrument, in violation of section 115, subdivision (a) (Counts 2 and 3). On December 7, 2007, the trial court granted the Peoples motion to amend the information to allege count 1 as a misdemeanor, pursuant to section 17, subdivision (b)(4). McNeal then withdrew her initial plea of not guilty and entered a plea of nolo contendere to the first count of the information. The trial court found McNeal guilty of count 1 and dismissed counts 2 and 3 in furtherance of justice pursuant to section 1385.
The trial court suspended imposition of sentence and ordered McNeal placed on summary probation for a period of three years. McNeal was ordered to perform 100 hours of community service. The court also imposed a $100 restitution fine pursuant to section 1202.4, subdivision (b) and a $20 court security fee in accordance with section 1465.8, subdivision (a)(1). McNeal was credited with the one day she was in custody prior to sentencing. McNeal was ordered to make restitution to the City of Santa Monica pursuant to section 1202.4, subdivision (f), in an amount to be determined at the restitution hearing.
A two-day restitution hearing began on March 25, 2008 and ended on April 30, 2008. The court admitted into evidence defense exhibits A through I.[2] The People offered nine exhibits but did not have them admitted into evidence.[3]
At the end of the proceeding, the court ordered McNeal to pay the sum of $22,404.58 in direct restitution to the City of Santa Monica pursuant to section 1202.4, subdivision (f). The court further referred McNeal to the probation department for financial evaluation of her ability to pay and to establish a monthly restitution schedule.
On May 1, 2008, McNeal filed a Notice of Appeal stating that she appealed the determination of restitution imposed after hearing.
On July 28, 2009, McNeals counsel filed an Appellants Brief Filed Pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting that this court independently review the entire record on appeal for arguable issues. Counsel stated she wrote to McNeal on July 22, 2009 at her most current address, explaining counsels evaluation of the record on appeal and the filing of the Wende brief. Counsel further informed McNeal that she had a right to file a supplemental brief. Counsel stated that she enclosed the appellate record and the Wende brief in her correspondence to McNeal.
Also on July 28, 2009, the clerk of the court sent a notice to McNeal at the same address stating that her counsel had filed a brief without raising any issues, from which it was readily inferred that counsel had been unable to find any arguable issues. (People v. Wende, supra, 25 Cal.3d at p. 442.) The notice informed McNeal that she had 30 days from the date of the notice to submit by brief or letter any grounds of appeal contentions, or argument that she wished this court to consider.
On July 30, 2009, the Attorney General sent a letter to the clerk of the court stating that the office would take no action unless briefing was requested.
As of this date, we have not heard from McNeal.
BACKGROUND
The following evidence was presented at the restitution hearing:
From January 1, 2001 to June 30, 2006, McNeal received financial assistance from the City of Santa Monica through its Section 8 housing assistance program. Doug Eaton, a fraud investigator with the City of Santa Monicas Housing Authority, testified that McNeal would no longer have qualified for further financial assistance by November 30, 2001. In the course of comparing her income or documentation with her correct income, Eaton concluded that during most of hermost if not all of her participation she had underreported her income and did not report increases in her income as she was required by documents that she signed during each certification period.
McNeal testified at the restitution hearing that she believed she was complying with all of the Housing Authority rules for providing financial information to determine her continuing eligibility for Section 8 housing and never intended to mislead them by providing false or fabricated income amounts.
The court determined that the total amount of restitution McNeal owed to the City of Santa Monica was $22,404.58.
DISCUSSION
Section 1237.5 provides that an appeal may not be taken after a plea of guilty or no contest unless the defendant has filed a statement showing reasonable grounds for appeal and the trial court has executed and filed a certificate of probable cause. This requirement does not apply, however, if the appeal is based upon grounds that arose after entry of the plea and that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b)(4)(B).) (People v. French (2008) 43 Cal.4th 36, 43.) As noted, McNeals notice of appeal stated she was appealing from the restitution determination, which was imposed after the hearing. No certificate of probable cause was necessary.
The law is well settled that [t]he standard of review of a restitution order is abuse of discretion. A victims restitution right is to be broadly and liberally construed. [Citation.] (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) Thus, while the amount of restitution cannot be arbitrary or capricious, [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 . . . . [Citation.] (People v. Ortiz (1997) 53 Cal.App.4th 791, 800, fn. omitted.)
When a defendant on appeal challenges the sufficiency of the evidence to support a trial courts restitution order, we apply the substantial evidence standard of review. (People v. Baker (2005) 126 Cal.App.4th 463, 468469.) Under this standard, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the trial courts findings. (Estate of Leslie (1984) 37 Cal.3d 186, 201.)
We have examined the entire record and are satisfied that substantial evidence supports the trial courts findings, and that the amount of restitution is not arbitrary and capricious. We are further satisfied that McNeals counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order of restitution is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
MALLANO, P. J.
CHANEY, J.
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[1]Unless otherwise indicated, all further statutory references are to the Penal Code.
[2]There does not appear to be a defense exhibit A in the record here.
[3]On April 27, 2009, McNeals counsel filed an application for permission to have the record on appeal reconstructed and/or settled in the trial court and requested augmentation of the record. On May 6, 2009, this Court ordered the trial court to settle the record regarding Peoples exhibit nos. 1 through 9, and to transmit the record to us accordingly. The augmented clerks transcript was filed on June 23, 2009.
