People v. McClintock CA3 ( 2016 )

Filed 3/21/16 P. v. McClintock 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C077953
Plaintiff and Respondent, (Super. Ct. No. CM039376)
v.
ROBERT FRANK MCCLINTOCK,
Defendant and Appellant.
Defendant Robert Frank McClintock entered a negotiated plea of no contest to
first degree murder (Pen. Code, § 187, subd. (a); undesignated section references are to
this code; count 1) and attempted murder (§§ 664, 187, subd. (a); count 3) in exchange
for an agreed-upon sentence in state prison and the dismissal of the remaining counts and
allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The court
sentenced defendant to state prison and awarded victim restitution in the amount of
$3,652.29 to Melissa Reyes (the daughter of the deceased victim), $5,973.50 to the
Victim Compensation and Government Claims Board (Board), and reserved jurisdiction
to determine restitution to the surviving victims (counts 2 & 3) and the deceased victim’s
estate.
1
Defendant appeals. He contends the $5,973.50 award to the Board was an
unauthorized sentence and must be stricken because there were no certified copies of bills
together with a statement that the bills were paid by the Board. Defendant also contends
no notice was given of any restitution owing to Reyes and claims that Reyes’s request,
which included $3,000 for attorney fees, was unconscionable and the trial court abused
its discretion in awarding the same. We affirm the judgment.
FACTS
A detailed recitation of the facts underlying defendant’s offenses is not required in
view of the contentions raised on appeal. Suffice it to say that in the early morning hours
on September 2, 2013, defendant entered the home where his brother Rodney McClintock
was living with his girlfriend Nancy T. and her 12-year-old daughter Chloe T. Defendant
proceeded first to the master bedroom where defendant shot his brother at least three
times, wounding him, and Nancy one time in the chest, resulting in her death. Defendant
then went to Chloe’s room and shot her twice in the left leg. Defendant was a transient
and had been allowed to live in a camper on the property but had, apparently, outstayed
his welcome and was about to be evicted.
DISCUSSION
I
Defendant contends copies of bills and a statement were not provided establishing
the Board paid $5,973.50 for certain services. Thus, he argues, the amount awarded was
unauthorized. We reject defendant’s claim the award amounted to an unauthorized
sentence and conclude his belated claim is forfeited.
At sentencing, the court stated it had read the probation report plus all
attachments. The court considered the Board’s request for reimbursement for monies
paid out totaling $5,973.50. Monies were paid to Nancy’s daughter Melissa Reyes for
funeral and burial expenses and to Reyes and Rodney McClintock for mental health
counseling. According to the court, the Board submitted a written request for
2
reimbursement to the probation officer who attached it to the probation report. When the
court asked defense counsel whether he stipulated to the amount, defense counsel
responded he would submit the matter. The court ordered defendant to pay the amount to
the Board “pursuant to stipulation.”
Section 1202.4, subdivision (f)(4)(B) provides the “amount of assistance provided
by the Restitution Fund shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount paid by the
board and whether the services for which payment was made were for medical or dental
expenses, funeral or burial expenses, mental health counseling, wage or support losses, or
rehabilitation.” The section further provides that certified copies of bills together with a
statement under penalty of perjury that the bills were submitted and paid meet the
requirement.
This is not a case involving an unauthorized sentence, that is, one that “could not
lawfully be imposed under any circumstance in the particular case.” (People v. Scott
(1994) 9 Cal.4th 331, 354.) Instead, defendant challenges the order as one having been
“imposed in a procedurally or factually flawed manner” which does not constitute an
unauthorized sentence. (Ibid.)
The circumstances here are similar to those in People v. Brasure (2008) 42 Cal.4th
1037, where the defendant challenged a victim restitution award based on the lack of
documentation or sworn testimony supporting the amount of losses. Brasure concluded
the defendant’s claim did not raise an unauthorized sentence but instead a challenge to
the award as unwarranted by the evidence and thus his failure to object rendered his
claim forfeited. (Id. at p. 1075.)
We conclude the same here. While the trial court erroneously stated defense
counsel stipulated to the amount, defense counsel did not object but simply submitted the
matter. Defendant argues to “submit” preserves the right to challenge the evidence as
insufficient to support the order, citing In re Richard K. (1994) 25 Cal.App.4th 580, 589.
3
But the statute requires defendant to “dispute the determination of the amount of
restitution.” (§ 1202.4, subd. (f)(1), italics added; see People v. Chappelone (2010)
183 Cal.App.4th 1159, 1168-1185.) Defendant did not “dispute” the amount so
defendant’s claim is forfeited.
Moreover, sufficient evidence supports the trial court’s order. The Board
submitted a written request, showing the monies paid out on behalf of the victims and the
purpose for the same. Defendant submitted no contrary evidence and did not ask for a
continuance for a restitution hearing on the amounts. The amounts are thus presumed
correct. (§ 1202.4, subd. (f)(4)(A), (C).)
II
Defendant contends he was not given any notice of Reyes’s claim for restitution in
the amount awarded. We reject his claim.
“Due process is satisfied if [defendant] is given notice of the amount sought and a
hearing to contest that amount. [Citation.]” (People v. Thygesen (1999) 69 Cal.App.4th
988, 993.)
At sentencing, the court considered the written request for victim restitution in the
amount of $3,652.29 to Reyes ($3,000 for attorney fees and the rest for mileage).
Although not “listed” in the probation report, Reyes’s written request was attached to the
probation report, according to the statements of the prosecutor and the court. Defense
counsel received the probation report prior to sentencing, having referred to the report at
the beginning of sentencing. Defendant thus had notice of Reyes’s claim. When the
court asked defense counsel whether he stipulated to the amount, defense counsel
submitted the matter. He did not dispute the amount, did not present contrary evidence,
and did not request a hearing or a continuance. The court awarded the requested amount
to Reyes. Defendant had an opportunity to contest the amount. Due process was
satisfied.
4
III
For the first time on appeal, defendant contends Reyes’s request for
reimbursement of $3,000 for attorney fees was unconscionable, unreasonable, and
exorbitant. He speculates Reyes’s attorney helped her in obtaining reimbursement only
for her mileage to and from court. We need not consider this argument because his claim
is forfeited. In any event, there is no evidence Reyes’s attorney did no more than make
efforts to obtain reimbursement for Reyes’s mileage.
Reasonable attorney fees are recoverable as restitution when incurred by a victim
for services rendered in efforts to collect restitution permitted under the statute.
(§ 1202.4, subd. (f)(3)(H); People v. Fulton (2003) 109 Cal.App.4th 876, 879, 884-885.)
The record reflects Reyes’s economic losses included mileage, funeral and burial costs,
and the costs of mental health counseling. Defendant did not dispute the amount
requested as restitution for attorney fees. His claim is thus forfeited. Moreover, absent
contrary evidence, defendant has failed to demonstrate the award was not proper.
(Fulton, supra, at p. 890.)
DISPOSITION
The judgment is affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
MAURO , J.
5