P. v. McCurtain
Filed 10/3/13 P. v. McCurtain 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Nevada)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTINA McCURTAIN,
Defendant and Appellant.
C073013
(Super. Ct. No.
T120312F2)
This is an
appeal pursuant to
25 Cal.3d 436 (Wende). On
May 2, 2012, R.J. returned
home to find that her home had been ransacked.
Numerous items had been taken, including jewelry, coins, and keys to two
vehicles. R.J. spent that night with a
friend. The next morning, R.J. returned
home to find that it had been broken into again and items had been taken,
including a laptop computer, a television and a pickup truck.
On May 17, 2012, J.D. returned home and
found a man in his garage. The man fled
in a pickup truck which matched the description of the pickup stolen from the R.J.’s
home. Numerous items had been taken from
J.D.’s home. Police found the truck at a
ski resort and arrested defendant Christina McCurtain and David Gish who were
in the truck.
Defendant
entered a plea of guilty to vehicle theft (R.J.’s truck) (Veh. Code,
§ 10851, subd. (a); count III), second degree burglary (J.D.) (Pen. Code,
§ 459; count V), and receiving stolen property (Pen. Code, § 496,
subd. (a); count VII) in exchange for probation for five years and subject to
certain terms and conditions including 180 days in county jail.
On September 4, 2012, the court suspended
imposition of sentence and granted probation for a period of five years subject
to certain terms and conditions including 180 days in county jail. The court ordered restitution for the benefit
of R.J. in the amount of $6,135, plus 10 percent interest, and reserved
jurisdiction to order victim restitution to J.D., assuring defense counsel that
victim restitution would be joint and several with Gish who was also convicted
of offenses arising from the two burglaries.
After a
restitution hearing on December 19,
2012, the court ordered defendant to pay $50,000 to J.D. J.D., a real estate developer, testified
about his losses which included clothing valued at more than $23,000, sports
gear worth over $7,000, electronics worth over $5,000, and household items
valued at more than $10,000. The home
also sustained damage in the amount of $19,000.
Defense counsel argued that J.D.’s claim of over $66,000 was
unreasonable in view of discovery (pages of a police report) wherein J.D. had
claimed $50,000 in restitution. After a
recess, the court recounted that in chambers, the prosecutor represented that
J.D. would be “satisfied†with $50,000.
The court found that J.D. was entitled to the $66,000 plus based on the
evidence presented but that it was charitable of J.D. to take less. The court ordered defendant’s grant of
probation modified to include $50,000 in restitution to J.D., “joint and
several†with Gish.
Defendant
appeals.
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. (Wende,
supra, 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 opening brief.
Defendant
filed a supplemental letter brief,
claiming that the restitution ordered to J.D. is “unfairly high†since “[a]bout
75% of the items he had claimed in court were not in our possession or in the
police reports.†Defendant asserts that
“[J.D.] had spoken to [her] and others along with filing police reports about
the items we were charged with being [a part] of previous break ins, months
before the incident†with which defendant was charged. Defendant states that she learned from the county
collections department that she was the only one on file to pay the restitution
and that Gish had not been served and was not on file to pay.
At the
restitution hearing, defense counsel argued that J.D.’s claim of $66,000 was
unreasonable in view of J.D.’s claim of $50,000 as reflected in the police
report. Defendant did not present any
evidence that J.D. had lost the items in previous break-ins. The record does not reflect whether any of
the items were in the possession of defendant or Gish. Defendant’s claim that the amount ordered includes
restitution for items taken in a previous burglary are not supported by the
record on appeal. Defendant’s claim that
the $50,000 amount is unfairly high fails to recognize that J.D. is entitled to
an award of restitution which fully reimburses him “for every determined
economic loss incurred as a result of the defendant’s criminal conduct†which
includes payment for the value of stolen or damaged property. (Pen. Code, § 1202.4, subd. (f)(3)(A).) The trial court’s $50,000 order is supported
by J.D.’s testimony.
With
respect to Gish’s responsibility to pay, the trial court modified defendant’s
order of probation to add that she pay victim restitution through the county
collection office for the benefit of J.D. in the amount of $50,000, plus 10
percent interest. The court directed
defendant to contact the collection office to establish a payment plan. The court ordered defendant to pay $50,000,
jointly and severally with Gish but noted the amount could be greater for Gish,
depending on the restitution hearing in Gish’s case.
The minute
order for the J.D. restitution hearing does not reflect that defendant was
ordered to pay the amount “jointly and severally†with Gish and the record on
appeal does not include an amended order of probation to reflect the $50,000
restitution order. In the trial court,
defense appellate counsel sought an amended minute order and order of probation
to reflect joint and several liability with Gish and asked that the orders be
forwarded to this court. In the
filed thereafter, she made no reference to her request in the trial court. To date, this court has not received an
amended minute order or order of probation or any indication the trial court
responded to the April 2013 letter from defense appellate counsel. Because the trial court properly exercised
its authority to make the restitution joint and several (Pen. Code,
§ 1202.4, subd. (f); People v.
Madrana (1997) 55 Cal.App.4th 1044, 1049-1052), we will order the
minute order and probation order corrected to reflect that the $50,000 to J.D.
is joint and several with Gish, if that correction has not already been
made. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.)
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 trial
court is directed to prepare an amended minute order and probation order to
reflect that the $50,000 defendant was ordered to pay as restitution to J.D. is
a joint and several obligation with David Gish, if the trial court has not
already done so. The judgment is
affirmed.
HULL ,
Acting P. J.
We concur:
MAURO ,
J.
MURRAY , J.
