P. v. Edwards

Filed 10/17/06 P. v. Edwards CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

At a November 2005 hearing on victim restitution, the court ordered Santese Edwards to pay $40 per month in victim restitution and set the matter for further proceedings in November 2006. Edwards appeals from the November 2005 restitution order. His attorney has raised no issues on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) We conclude the order was not a final, appealable order and dismiss the appeal.

Discussion

Edwards and three friends were driving around the Marina district when Edwards and Daniel Mooring exited the car, ran up behind LaBonte and demanded his money. After LaBonte complied, Mooring struck him on the head with a gun and fractured his jaw. Edwards pled guilty to grand theft (Pen. Code, § 487, subd. (c)) and admitted an arming allegation (Pen. Code, § 12022, subd. (a)(1)). The court imposed a four-year suspended sentence and placed him on probation.

At a victim restitution hearing, the trial court found that LaBonte incurred a loss of $3,758, which included $8 he turned over to Edwards and Mooring and $3,750 in medical bills and lost wages due to disability. The trial court initially ordered Edwards to pay the full $3,758 at the rate of $40 a month. Edwards, however, asked the court to impose restitution for only part of the total loss, proportionate to his share of the responsibility. The court responded, “I don’t have anybody else before me; I don’t know what the terms of the sentence was, or was not, with respect to those individuals. . . . so I can’t do any apportionment. . . .[A]ll I know . . . is that Mr. LaBonte has not been paid anything.” Edwards represented that Mooring and Collier had been ordered to pay the full amount of the victim’s loss and it was possible LaBonte had received something from the Victim’s Restitution Fund.

The prosecutor suggested “that the matter go back on; if there’s a problem or a question in a year or so, after he’s paid, $500 or $480 and, see how things are going; see if there has been any contribution from the other incarcerated defendants; see if there is any issue[] . . . .” The court agreed: “Why don’t we set it for a year, and then we’ll know whether or not Mr. LaBonte is getting any money from any other source. And with the amount that you’re paying, I don’t think there’s any danger of you paying more than what you’d be obligated to pay.” The court ordered a supplemental probation report on the status of restitution to LaBonte from any other source filed on November 13, 2006.

Edwards appealed “from the final judgment of the court ordering $3,758 in victim restitution as a condition of probation, entered . . . November 10, 2005.” There is no written restitution order in the record.^[1]

Discussion

The November 2005 restitution order is not a final, appealable order. The trial court ordered Edwards to start paying restitution at the rate of $40 per month, but did not set the total amount of restitution for which Edwards was liable. Rather, it set the matter over to November 2006 to determine whether defendant would be ordered to pay the entire amount of the victim’s loss or only a part of the loss. Because the order appealed from was not final, this appeal must be dismissed. (In re Thomas R. (1991) 2 Cal.App.4th 738, 741, 743; People v. Vournazos (1988) 198 Cal.App.3d 948, 953.)

Disposition

The appeal is dismissed.

GEMELLO, J.

We concur.

JONES, P.J.

BRUINIERS, J.^*

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^[1] The minutes of the hearing state, “THE COURT ORDERS: defendant to pay restitution to Ray LaBonte in the amount of $3758.00 at $40 monthly beginning 12-10-05. The case is referred to the Adult Probation Department for a progress report to be filed by 11-13-06 re status of restitution payments.” To the extent the minutes suggest that the court made a final order on November 10, 2005, we observe that a court’s oral pronouncements prevail over conflicting court minutes. (People v. Price (2004) 120 Cal.App.4th 224, 242.)

^* Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.