P. v. Majors
Filed 8/7/12 P. v. Majors CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JANET C.
MAJORS,
Defendant and Appellant.
A134588
(Napa
County
Super. Ct.
No. CR158493)
Appellant
Janet C. Majors was convicted on her plea of nolo contendere of a felony
violation of Penal Code section 368, subdivision (d),
theft by noncaretaker from an elder adult.
The court dismissed two charged
felony violations of section 476a, subdivision (a), issuance of
nonsufficient funds checks in an amount in excess of $450.
At the time
of sentencing, on January 4, 2012,
the court granted Major’s motion pursuant to section 17,
subdivision (b) and reduced the offense to a misdemeanor.
for a period of three years, ordered her to serve 60 days in jail and
160 hours on a work program, awarded 3 days of actual custody
credits, but no conduct credits. The
court also imposed a $100 restitution fund fine, $40 court security fee, $71
jail booking fee, $30 criminal conviction assessment, and $240 per year payment
for probation supervision. The court
ordered restitution to the victim in the amount of $14,046.06, plus interest at
10 percent per year.
Majors
filed a timely notice of appeal on January 31, 2012, challenging only
the amount of restitution ordered.
Assigned
counsel has submitted a Wende
brief, certifying that counsel has been unable to identify any issues for
appellate review. Counsel also has
submitted a declaration confirming that Majors has been advised of her right to
personally file a supplemental brief raising any points which she wishes to
call to the court’s attention. No
supplemental brief has been submitted.
As required, we have independently reviewed the record. (People
v. Kelly (2006) 40 Cal.4th 106, 109–110.)
We find no
In
July 2011, Majors signed an agreement with the victim, who was
90 years old, for the lease of a home in Pacifica,
California, at a rent of $1850 per month.
and wrote personal checks for a required $1,500 deposit and the August
rent. The personal checks were written
on a Wells Fargo bank account which had been closed over a year earlier. Majors continued to occupy the victim’s
residence after her arrest and release on her own recognizance, and, the victim
was required to retain an attorney and sue to obtain an
Majors from the property.
The victim
claimed restitution totaling $14,046.06, which included monies expended in
obtaining the civil judgment, attorney fees and costs, rent (for the months of
September, October, and part of November), late charges, charges for occupancy
by a person not authorized by the lease, water usage, and damages to the
premises. The probation officer’s
presentence report included a victim restitution worksheet itemizing the loss.
At the sentencing
hearing, defense counsel argued that the harm to the victim was limited to the
two bad checks that she had written, that restitution had been made on those
checks, and that the other amounts claimed by the victim were a “civil matter.”
Majors’ crime was obtaining the tenancy of the victim’s property by trick or
device, and that the victim was entitled to be made whole for the entire
resulting loss. The court observed that
the victim had incurred “some real significant loss” in removing Majors from
the victim’s property and was “out that money.”
“That’s a consequence or a loss related to [Majors’] criminal conduct,
and therefore, I think the restitution is appropriate.”
Under
section 1237.5 and California Rules of Court, rule 8.304(b), a defendant
seeking to appeal after entering a guilty or no contest plea generally must
first obtain a certificate of probable cause.
(People v. Panizzon (1996)
13 Cal.4th 68, 74.) Since Majors
did not seek or obtain a certificate of probable cause, the scope of issues
cognizable on appeal is narrow. There
are no cognizable issues relating to her guilt, or to her plea. (People
v. Mendez (1999) 19 Cal.4th 1084, 1097.)
We therefore consider only the restitution order.
A trial
court’s obligation to order payment of restitution to victims of crime derives
from article I, section 28, subdivision (b), of the California Constitution
which requires that restitution be ordered in “every case, regardless of the
sentence or disposition imposed, in which a crime victim suffers a loss.” (Cal. Const., art. I, § 28,
subd. (b), par. (13)(B); see People
v. Moloy (2000) 84 Cal.App.4th 257, 259–260.) There is also a statutory mandate for victim
restitution. (§ 1202.4,
subds. (f)(3) & (g).) Victims
have “a right to restitution based on the full
amount of their losses.” (
229; see § 1202.4, subd. (f)(2).)
Further, a
trial court has broad discretion to impose probation conditions to foster
rehabilitation and protect public safety.
(People v. Lent (1975) 15
Cal.3d 481, 486.) “ ‘Restitution is
an effective rehabilitative penalty because it forces the defendant to
confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant
differently than a traditional fine, paid to the State as an abstract and
impersonal entity, and often calculated without regard to the harm the
defendant has caused. Similarly, the
direct relation between the harm and the punishment gives restitution a more
precise deterrent effect than a traditional fine.’ ” (People
v. Carbajal (1995) 10 Cal.4th 1114, 1124, quoting Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10.) Because a primary purpose of restitution is
rehabilitation, trial courts have wide discretion on “how to fashion the amount
and manner in which restitution is to be made.”
(People v. Carbajal, at
p. 1125, fn. 11.)
“In
imposing restitution as a condition of probation, ‘[a] court may also consider
[in imposing victim restitution] crimes which were charged but dismissed
[citation]; uncharged crimes, the existence of which is readily apparent from
the facts elicited at trial [citation]; or even charges of which the defendant
was acquitted, if justice requires they be considered. [Citation.]’
[Citation.]” (
452, 459.)
No abuse of
discretion is shown, and no arguable issue
is presented.
The
judgment is affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Needham, J.
name="_ftn1" title=""> [1] All statutory references are
to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Although the matter was
reduced to a misdemeanor, we have appellate jurisdiction because the
information charged three felonies.
(§§ 691, 949, 1235, subd. (a).)
