Filed 11/28/18 P. v. Navarro CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Manuel Navarro, Jr., appeals from a judgment entered after he pled no contest to driving while having .08 percent or more alcohol in his blood and causing injury. (Veh. Code, § 23153, subd. (b).)[1] Defendant’s court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436, to determine whether there are any arguable issues for review. Defendant has been informed of his right to file supplemental briefing, and he has not done so. After our independent review of the record, we find no errors or other issues requiring further briefing, and we affirm.

Based on his conduct on Christmas Day, 2015, defendant was charged in a two-count felony complaint with driving under the influence of alcohol and causing injury (count 1, § 21353, subd. (a)), and driving with .08 percent blood alcohol causing injury (count 2, § 21353, subd. (b)). It was further specially alleged that defendant’s act injured multiple victims in violation of section 23558, and that defendant had a blood alcohol content of .15 percent or more in violation of section 23578.

The parties reached a negotiated disposition: the prosecution would dismiss count 1, and strike two of the four named victims in connection with count 2, with a Harvey waiver.[2] Defendant agreed, in exchange, to plead no contest to count 2 and admit the special allegations. As part of the Harvey waiver, all four victims could seek restitution. The court accepted the change of plea, finding defendant was fully informed of his constitutional rights and the consequences of his plea, and knowingly, intelligently and voluntarily waived his rights.

Subsequently, on July 5, 2016, the court suspended imposition of sentence, and placed defendant on three years of formal probation on various terms and conditions, including 180 days in county jail. The court did not determine restitution at that time, but it retained jurisdiction to determine it at a later date. At a later court proceeding on September 2, 2016, defendant was ordered to pay $250 a month in restitution, with the full amount yet to be determined.

A contested restitution hearing was held on May 14 and June 19, 2018. One of the victims, Loretta Minchey, testified about injuries that she sustained as a result of the automobile collision caused by defendant’s conduct on Christmas Day, 2015. Among other things, she suffered a broken wrist which required two surgeries. One surgery was in early 2016; the second was in February 2017, because the injury was still severe and she lacked mobility and range of motion in her wrist. Ms. Minchey submitted invoices and proof of payment for medical care related to the accident, as well as for necessary nonmedical services such as yard work and housecleaning when she was incapacitated. She requested restitution in the sum of $9,095.

After a thorough and lengthy cross-examination by defense counsel, defendant submitted to most of the request for restitution except questioning the need for yard work and housecleaning one year after the accident. Defendant also questioned the replacement value of the Nike hoodie sweatshirt that had to be cut off Ms. Minchey when she was taken to the hospital the day of the accident. Ms. Minchey sought $100; defendant thought she should get only half that amount since the hoodie was no longer new at the time of the incident.

The district attorney pointed out that Ms. Minchey’s second surgery was in February 2017.

Finding that the testimony and documentary evidence presented by Ms. Minchey established by a preponderance of the evidence that she was entitled to restitution for her losses, the court ordered restitution in the amount of $9,095. As to the hoodie specifically, the court found that $100 was a reasonable replacement value. The court denied defendant’s earlier filed request to terminate his probation, noting that he was only halfway through the probationary period.

On June 21, 2018, defendant filed a notice of appeal based on matters occurring after the plea that do not affect its validity, specifically the contested restitution hearing.

REVIEW

We have reviewed the record on appeal for any arguable issues. Defendant was effectively represented by counsel. The sentence was consistent with the plea agreement. There are no legal errors in the sentencing or order of restitution.

We conclude there are no arguable issues within the meaning of People v. Wende, supra, 25 Cal.3d 436. The judgment is affirmed.

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Miller, J.

We concur:

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Richman, Acting P.J.

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Stewart, J.

A154843, People v. Navarro