P. v. Kim





















Filed 1/29/13 P. v. Kim CA4/3

















NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. DAVE DAE HONG KIM, Defendant and Appellant.

G047162 (Super. Ct. No. 08NF1399) O P I N I O N

Appeal
from a postjudgment order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, W. Michael Hayes, Judge. Affirmed.

Robert
L.S. Angres, under appointment by the Court of Appeal, for Defendant and
Appellant.

No
appearance for Plaintiff and Respondent.

*
* *

Defendant
Dave Dae Hong Kim appeals from the June 15, 2012, postjudgment order directing him to pay
restitution on behalf of victim Jack Stotts, Jr., totaling $9,153.42. (See Pen. Code, § 1202.4; all statutory
citations are to the Penal Code, unless noted otherwise.) We appointed counsel to represent Kim. Counsel filed a brief setting forth a
statement of the case, but advised this court he found no issues to support an
appeal. We provided Kim 30 days to file
his own written argument, and he has responded with a supplemental brief filed January
22, 2013. After conducting an independent review of the
record under People v. Wende (1979) 25 Cal.3d
436, we affirm.

Facts

We
presented the facts and procedural history of this case in our earlier opinion
affirming Kim’s convictions. (>People v. Kim name=I7d9ca224c62911df9b8c850332338889>name=SearchTerm>(Sept.
20, 2010, G042216) [nonpub. opn.].) Suffice it to say a jury convicted Kim of
premeditated attempted murder and other crimes for his role in a gang assault
on Jack Stotts, Jr., and Stotts’s friends at a Fullerton park in March 2008. At sentencing, the trial court reserved
jurisdiction to award restitution to Stotts.

In
November 2011, the Orange County District Attorney filed a motion seeking $9,153.42
in restitution for benefits the Victim Compensation and Government Claims Board
(VCGCB) paid on Stotts’s behalf. Records
reflected the VCGCB paid $8,479.23 for Stotts’s medical bills, and $674.19 for
lost income. The trial court conducted a
hearing on the motion on June 15, 2012. Kim
attended, represented by counsel. The
court admitted into evidence, without defense objection, certified documents
submitted by the prosecution, including the VCGCB’s request for restitution and
supporting invoices. Counsel objected
restitution would be a financial burden on his client because “he only makes
five or $10 a month” working in prison.
The trial court noted ability to pay was not a factor in awarding victim
restitution, and ordered restitution as requested.

>Potential
Issues

Kim’s
appellate lawyer identifies one potential issue for our consideration: Does substantial evidence support the
restitution award? Kim filed a
supplemental brief challenging the sufficiency of evidence to support the
award, and claims he does not have the ability to pay the award.

Victim Restitution – Substantial Evidence and
Ability to Pay

Section 1202.4
provides in relevant part, “(a)(1) It is the intent of the Legislature that a
victim of crime who incurs an economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant convicted of that
crime.” Subdivision (f) of section
1202.4 provides, “Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the defendant’s
conduct, the court shall require that the defendant make restitution to the
victim or victims in an amount established by court order, based on the amount
of loss claimed by the victim or victims or any other showing to the
court. If the amount of loss cannot be
ascertained at the time of sentencing, the restitution order shall include a
provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless
it finds compelling and extraordinary reasons for not doing so, and states them
on the record.”

Restitution
is available for economic loss suffered by the victim, which includes medical
expenses and wages lost due to injury incurred by the victim. (§ 1202.4, subd. (f)(3)(B), (D).) To the extent the victim has received
assistance from the Victim Compensation Program (see Gov. Code, § 13950),
the restitution is deposited into the Restitution Fund. (§ 1202.4, subd. (f)(2).)

Where
the Restitution Fund provides assistance to or on behalf of a victim, “the
amount of assistance provided shall be presumed to be a direct result of the
defendant’s criminal conduct and shall be included in the amount of the
restitution ordered. [¶] (B) The amount of assistance provided by the
Restitution Fund shall be established by copies of bills submitted to the
California Victim Compensation and Government Claims Board reflecting the
amount paid by the board and whether the services for which payment was made
were for medical . . . expenses [etc].
Certified copies of these bills provided by the board and redacted to
protect the privacy and safety of the victim or any legal privilege, together
with a statement made under penalty of perjury by the custodian of records that
those bills were submitted to and were paid by the board, shall be sufficient
to meet this requirement.”
(§ 1202.4, subd. (f)(4)(A)-(B).)

Finally,
“[t]he court shall order full restitution unless it finds compelling and
extraordinary reasons for not doing so, and states those reasons on the
record. A defendant’s inability to pay shall not be considered a compelling and
extraordinary reason not to impose a restitution order, nor shall inability to
pay be a consideration in determining the amount of a restitution order.” (§ 1202.4, subd. (g), italics added.)

Here,
the prosecution presented certified records from the VCGCB establishing it paid
$9,153.42 on Stotts’s behalf for medical bills and loss of income. Kim did not offer evidence rebutting the claim. A factual and rational basis supports the
amount of restitution ordered by the trial court. (See People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320; [no abuse of discretion where reviewing court finds a factual and rational basis for the amount
of restitution ordered by the trial court]; People v. Harvest (2000) 84 Cal.App.4th 641, 653 [“trial court is required to use ‘a rational method’ in computing
restitution”].)

In
his supplemental brief, Kim contends the probation officer “recommended [he]
pay restitution in [the] amount of $5,600 to the victim.” Kim is mistaken. The probation officer recommended a >restitution fine (§ 1202.4,
subd. (b)(1)) of $5,600. In fact, the
trial court imposed the minimum restitution fine of $200.

Kim
also complains at the time of the crimes he was an indigent juvenile with no
employment history, the only money he receives is from his family and by
working in the prison laundry at 13 cents an hour, or about $3 in the month of
December 2012, the restitution order may take up to 55 percent of his earnings,
and he uses his money for personal hygiene supplies purchased from the prison
canteen. As noted above, the trial court
was required to order full restitution, and Kim’s inability to pay was
not a consideration in determining the amount of the restitution order. (§ 1202.4,
subd. (g).)

After
conducting an independent review of
the record, we discern no arguable issues.


Disposition

The postjudgment order is affirmed.







ARONSON,
J.



WE CONCUR:







RYLAARSDAM, ACTING P. J.







IKOLA, J.