People v. Fay CA6 ( 2022 )

Filed 10/10/22 P. v. Fay CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049727
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2102058)
v.
DANIELLE ELIZABETH FAY,
Defendant and Appellant.
Defendant Danielle Elizabeth Fay appeals from two orders for victim restitution in
the total amount of $20,978.29, entered as a condition of probation after she pleaded no
contest to one count of using force upon and threatening force against a witness or
property of a witness. (Pen. Code, § 140, subd. (a).)1
We appointed counsel to represent Fay in this court. Her appointed counsel filed
an opening brief that states the case and the facts but raises no issues. Counsel asks this
court to conduct an independent review of the record to determine whether there are any
arguable issues. (See People v. Wende (1979) 25 Cal.3d 436.) The clerk of this court
mailed a letter to Fay’s last known address notifying her of her right to submit written
argument on her own behalf. The letter was returned as undeliverable. The clerk
checked with counsel, who experienced the same problem and was not able to find
another address. Fay did not file any written arguments on her own behalf.
1
Unspecified statutory references are to the Penal Code.
Finding no arguable error that would result in a disposition more favorable to Fay,
we affirm the restitution orders.
I. Factual and Procedural Background
On February 11, 2021, Fay was charged with three counts: (1) felony violation of
section 140, subdivision (a), for using force upon and threatening force and violence
upon a witness or property of a witness by willfully using force upon the victim because
she had provided assistance and information to a law enforcement officer in a criminal
proceeding; (2) felony violation of section 664 and section 212.5, subdivision (c), for
attempted robbery in the second degree, for attempting to take a cell phone from the
victim against her will by means of force and fear; and (3) misdemeanor violation of
section 243, subdivision (a), for battery for willfully and unlawfully using force and
violence upon the victim.2
On April 8, 2021, Fay pleaded no contest to the violation of section 140,
subdivision (a), and the other counts were dismissed pursuant to a Harvey stipulation.3
On June 8, 2021, the trial court sentenced Fay to a year in county jail, modifiable
after eight months by the Mental Health Treatment Court, and two years of probation.
The trial court also stated that it would make a general order of victim restitution
and set the matter for a hearing. The victim provided documentation in support of a
restitution claim for $20,978.29. Of that amount, $8,000 constituted the victim’s lost
wages, and the balance constituted lost wages of the victim’s adult daughter, who was
forced to leave her job to take care of the victim.
Fay, through her counsel, submitted objections to the claimed restitution. She
argued that the child of an adult victim is not entitled to recover lost wages under
section 1202.4, subdivision (f)(3)(D), and that her conduct was not the proximate cause
2
We omit a summary of the underlying facts that led to the charges against Fay, as
they are not material to our resolution of this appeal.
3
People v. Harvey (1979) 25 Cal.3d 754.
2
of the daughter’s lost wages. Fay then submitted supplemental objections, in which she
acknowledged that, under section 1203.1, the court has discretion to order restitution as a
condition of probation even when the losses are not necessarily caused by the criminal
conduct underlying the defendant’s conviction, but argued that the court should exercise
its discretion to deny restitution for the daughter in this instance because it would not
serve any of the purposes listed in the statute.
The trial court held the restitution hearing on December 22, 2021. After hearing
argument from counsel, the court ordered restitution in the full amount of $20,978.29,
finding that section 1202.4 includes an expansive definition of “victim” and noting that
the correspondence from the victim’s daughter demonstrated she needed to care for the
victim.
The trial court entered the restitution orders on December 23, 2021. Fay timely
appealed the orders.
II. Discussion
California crime victims have a constitutional and statutory right to receive full
restitution for economic losses suffered as a result of a defendant’s criminal conduct.
(People v. Walker (2014) 231 Cal.App.4th 1270, 1273-1274; Cal. Const., art. I, § 28,
subd. (b)(13); § 1202.4, subds. (a)(1), (a)(3)(B), (f).)
When a defendant is placed on probation, restitution is authorized as a condition of
probation. (§ 1203.1, subd. (a)(3); People v. Anderson (2010) 50 Cal.4th 19, 27.) Trial
courts have broad discretion in ordering restitution as a condition of probation under
section 1203.1. (People v. Martinez (2017) 2 Cal.5th 1093, 1101.)
Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire
record. We find no arguable error that would result in a disposition more favorable to
Fay.
III. Disposition
The orders are affirmed.
3
___________________________________
Wilson, J.
WE CONCUR:
______________________________________
Bamattre-Manoukian, Acting P.J.
______________________________________
Danner, J.
People v. Fay
H049727