P. v. Dycus

Filed 10/18/07 P. v. Dycus CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Counsel appointed for defendant Marva Dycus (defendant) has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of her right to file a supplemental brief, but she did not do so. We have conducted our review, conclude there are no arguable issues, and affirm.

Our examination reveals that in 1994, Jane Doe 1 and her four siblings immigrated to the United States from Ethiopia and were subsequently adopted by defendant and her husband, Fred Dycus (Dycus). Sometime around 1996, Jane Doe 1 was subjected to inappropriate sexual touching by Dycus on multiple occasions at home and once while the family was vacationing in Las Vegas.

Additionally, beginning approximately one year after Jane Doe 1 came to the United States, she was subjected to whippings by both defendant and Dycus where they would beat her with a tree branch from their backyard. She estimated that Dycus whipped her more than five times a month, and defendant whipped her on more than 10 different occasions. The whippings hurt a lot and would leave marks on her back that bled, lasted for a week or more, and sometimes scarred. Jane Doe 1 had a younger sister, Jane Doe 2, who was similarly whipped by defendant and Dycus.

On one particular occasion, around Christmas time in 1997, defendant whipped both girls more than twenty or almost thirty times each for failing to sing a note correctly while they were practicing a song they were going to perform for their grandparents. The girls were removed from the Dycus home on January 1, 1998.

On January 28, 1999, the District Attorney of Contra Costa County filed an information charging defendant and Dycus with two counts of felony child abuse in violation of Penal Code section 273d, subdivision (a) (counts 1 and 2). Dycus was also charged with one count of committing a lewd and lascivious act upon a child in violation of Penal Code section 288, subdivision (a) (count 3).

On May 20, 1999, defendant pleaded no contest to the charges against her. On her change of plea form, defendant placed her initials where it stated, I understand that conviction of the charge(s) will require me to pay appropriate restitution to the victim(s) of my crimes . . . . The court then found defendant guilty as charged, placed her on felony probation for five years, and ordered her to serve 180 days in county jail. The felony order of probation ordered defendant to make restitution as determined by the Probation Officer. Defendant did not appeal the courts order.

By a supplemental report dated August 4, 2003, the probation department advised the court that the California Victim Compensation and Government Claims Board (Victim Compensation Board) had, to date, paid $10,000 on behalf of Jane Doe 1 and $7,570 on behalf of Jane Doe 2 for mental health services. The department also recommended that restitution remain open since bills were still being paid.

Following a September 10, 2003 restitution hearing, which defendant did not attend, the court entered an order stating, [U]nless the amount of restitution set forth in the Probation Officers Report is contested within 60 days of the date this order is served, that amount will become the amount of restitution owed. Defendant did not contest the amount and did not appeal from that order.

On March 16, 2007, the court held another restitution hearing in light of an additional $1,010 in payments made by the Victim Compensation Board on behalf of Jane Does 1 and 2. Defendant did not attend the hearing but was represented by counsel, who stipulated to the Court adding an additional $1,010 to the previously ordered amount of $17,570. . . . [] . . . [Y]ou should issue an additional order for an additional amount of $1,010.

Thirteen days later, defendant filed this appeal from the [r]estitution order following judgment.

We begin by discussing what is not at issue in this appeal. As noted above, in her notice of appeal, defendant purports to be appealing from the [r]estitution order following judgment. And in her opening brief, she queries, Did the court abuse its discretion in ordering appellant to pay restitution for mental health services for the victims? These references suggest to us that defendant seeks to challenge the September 10, 2003 order directing defendant to pay restitution. Per the terms of that order, defendant had 60 days to contest the amount ordered. She did not do so. And even if she had contested the restitution order, she then would have had 60 days to appeal from the resulting restitution order. (Cal. Rules of Court, rule 8.308.) But, again, she did not do so. Thus, the time to present any challenge to the original order directing defendant to pay restitution for the mental health services provided to Jane Does 1 and 2 has long since passed.

Defendants notice of appeal is, however, timely as to the courts March 16, 2007 order increasing the restitution amount by $1,010 for the additional funds paid by the Victim Compensation Board. Our review is therefore confined to that order.

Defendant was represented by competent counsel who zealously guarded her rights and interests.

The trial court did not abuse its discretion in ordering defendant to pay the additional amount incurred by the Victim Compensation Board. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992 [award of victim restitution is reviewed for an abuse of discretion].)

Our independent review having found no arguable issues that require briefing, the restitution order is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Haerle, J.

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