P. v. >Davis>

 

 

 

 

 

 

 

 

 

Filed 9/9/13  P. v. Davis CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sutter)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   DAVID MARSHALL DAVIS,                           Defendant and Appellant.

C073288   (Super. Ct. Nos. CRF121011, CRF121645)

 

 

 

            Defendant
David Marshall Davis and his stepson, 16 year-old D.W.,  were cleaning out a room in the family home
when D.W. fell asleep.  Defendant threw a
plastic object at D.W., striking his href="http://www.sandiegohealthdirectory.com/">right eye.  Defendant also punched him in the ribs about
10 times.  As a result, D.W. had a
horizontal line across his field of vision which did not heal. 

            Later that
week, defendant assaulted his cohabitant, D.W.’s mother Page G.  He pushed her against the kitchen wall, hit
her in the face with a closed fist, and threw her to the ground.  Page G. was three months pregnant with
defendant’s child.  While she was on the
ground, defendant stomped on her href="http://www.sandiegohealthdirectory.com/">stomach with his foot and
yelled that he hoped she would miscarry. 
He also threatened to kill Page G. if she got law enforcement
involved.  D.W. distracted defendant by
letting the dogs in, and then fled with his mother. 

            In a search
incident to defendant’s arrest, officers found a marijuana growing facility in
one of the rooms.  Wiring for the
operation was stripped and spliced and hanging exposed instead of inside a
junction box.  Exposed electrical wiring
emerged from the sheetrock as well.  A
search warrant was later executed on the residence.  Officers found 390.88 grams of marijuana in a
paper bag, a sheet of paper indicating the respective values of different
amounts of marijuana, and 21 jars containing a total of 384.28 grams of
marijuana. 

            While in
jail, defendant called Page G. and instructed her to have D.W. testify that he
made up the whole story because he was angry at defendant. 

            Defendant
was charged in case No. CRF121011 with corporal injury to a child with great
bodily injury (Pen. Code, §§ 273d, subd. (a), 12022.7, subd. (a);
undesignated statutory references are to the Penal Code), child endangerment
(§ 273a, subd. (a)), corporal injury to a cohabitant (§ 273.5, subd.
(a)), dissuading a witness (§ 136.1, subd. (c)(1)), criminal threats
(§ 422), assault by means likely to cause great bodily injury (§ 245,
subd. (a)(1)), misdemeanor false imprisonment (§§ 236, 237), and possession
of marijuana for sale (Health & Saf. Code, § 11359). 

            A few days
after being released from jail, defendant confronted D.W. and accused him of
stealing some marijuana.  D.W. denied
stealing marijuana, but admitted selling some while defendant was in jail.  Defendant and Page G. told D.W. to leave the
home; D.W. went to his girlfriend’s residence. 
Defendant and Page G. drove D.W. home the following day.  After Page G. and their other children left,
defendant confronted D.W. in the room where the marijuana was grown.  Defendant, armed with an aluminum baseball
bat, told D.W. he would knock his head off if he said anything stupid.  When D.W. continued to deny stealing the
marijuana, defendant struck him in the shin with the bat.  Defendant left the residence when Page G. and
the children returned. 

            Defendant
was subsequently charged in case No. CRF121645 with corporal injury to a child
with personal use of a deadly weapon (§§ 273d, subd. (a), 12022, subd.
(b)(1)), criminal threats with personal use of a deadly weapon (§§ 422,
12022, subd. (b)(1)), dissuading a witness (§ 136.1, subd. (b)(1)),
subornation of perjury (§ 127), assault with a deadly weapon (§ 245,
subd. (a)(1)), and on bail enhancements for all counts (§ 12022.1).  

            Pleading in
both cases, defendant pleaded no contest to corporal injury to a child,
corporal injury to a cohabitant, dissuading a witness, and assault with a
deadly weapon, and admitted great bodily injury and on bail enhancement.  The remaining charges were dismissed with a >Harvey waiver.  (People
v. Harvey (1979) 25 Cal.3d 754.) 
The trial court sentenced defendant to 16 years in href="http://www.mcmillanlaw.com/">state prison, imposed various fines and
fees, and awarded 166 days of credit (145 actual and 21 conduct) in case No.
CRF12011 and 93 days of credit (81 actual and 12 conduct) in case No.
CRF121645 (§ 2933.1).  In a
subsequent proceeding, the trial court ordered $1,681.50 victim restitution to
Medi-Cal for Page G.’s and D.W.’s medical expenses and $120 to the home’s owner
for damages resulting from defendant’s marijuana operation. 

            Defendant
appeals.  He did not obtain a href="http://www.fearnotlaw.com/">certificate of probable cause.  

            We
appointed counsel to represent
defendant on appeal.  Counsel filed an
opening brief that sets forth the facts of the case and requests this court to
review the record and determine whether there are any arguable issues on
appeal.  (People v. Wende (1979) 25 Cal.3d 436.)  Defendant was advised by counsel of the right
to file a supplemental brief within 30 days of the date of filing of the href="http://www.fearnotlaw.com/">opening brief.

            Defendant
filed a supplemental brief in which he asserts that the statement of facts in
the Wende brief filed by appellate
counsel are inaccurate, trial counsel filing an inoperative notice of appeal,
and requests dismissal of appellate counsel and appointment of substitute
appellate counsel. 

            Our review
of the facts of the case show that appellate counsel’s statement of facts was
not inaccurate.  As to defendant’s second
contention, the record shows a notice of appeal was filed by trial counsel on
March 7, 2013, which was filed with this court on the same date and is the
basis for the appeal.  Finally, we denied
defendant’s motion for substitute counsel in a separate proceeding. 

            There is an
error in the award of victim restitution to Medi-Cal.

            Section
1202.4, subdivision (a)(3)(B) requires the trial court to order the convicted
defendant to pay “[r]estitution to the victim or victims, if any, in accordance
with subdivision (f) . . . .”  In turn, subdivision (f) states, in part, “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.”  Therefore, under
the plain language of section 1202.4, “the court may order restitution only to
a ‘victim.’ ”  (People v. Slattery (2008) 167 Cal.App.4th 1091, 1095 (>Slattery).)

            “[T]he term
‘victim’ has a broad and flexible meaning” (People
v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1084), but it is not so
broad as to encompass Medicare and Medi-Cal in this case.  A “victim” under section 1202.4 “shall
include all of the following:  [¶]
. . . [¶]  (2) A corporation,
business trust, estate, trust, partnership, association, joint venture, government,
governmental subdivision, agency, or instrumentality, or any other legal or
commercial entity when that entity is a direct victim of a crime.”  (§ 1202.4, subd. (k)(2).)  “Thus, Penal Code section 1202.4, subdivision
(k) permits restitution to a business or governmental entity only when it is a >direct victim of crime.”  (People
v. Martinez (2005) 36 Cal.4th 384, 393.)  Defendant committed no crime against
Medi-Cal, so it was not a direct victim eligible for restitution under section
1202.4.  Analogous cases so provide.  (See id.
at pp. 386, 393-394 [Department of Toxic Substances Control was not a
direct victim of attempted methamphetamine production and may not recover as
restitution its costs incurred cleaning up waste material]; >Slattery, supra, 167 Cal.App.4th at
pp. 1096-1097 [the defendant inflicted injury on an elder victim; the
treating hospital was not a direct victim of the crime entitled to section
1202.4 restitution even though it incurred economic losses].)  We shall modify the restitution award
accordingly.

            Having
undertaken an examination of the entire record, we find no other arguable error
that would result in a disposition more favorable to defendant.

Disposition

            The
restitution award is modified to strike the $1,681.50 in victim restitution to
Medi-Cal.  As modified, the judgment is
affirmed.  The trial court is directed to
forward an amended abstract of judgment reflecting the modification to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation.

 

 

 

                                                                                              HULL                           ,
J.

 

 

 

We concur:

 

 

 

          BLEASE                       , Acting P. J.

 

 

 

          NICHOLSON              , J.