People v. Escobar CA1/3 ( 2020 )


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  • Filed 12/28/20 P. v. Escobar CA1/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
    THE PEOPLE,
    Plaintiff and Respondent,                                  A160369
    v.
    RUTILIO ESCOBAR,                                                       (Mendocino County
    Defendant and Appellant.                                   Super. Ct. No. SCUK-CRCR-
    1931201)
    Defendant Rutilio Escobar appeals from a postjudgment restitution
    order requiring him to pay $828.18 to his wife, Wendy Escobar (Wendy), after
    he was convicted of the misdemeanor1 offense of injuring a wireless
    communication device (Pen. Code, § 591.5).2 Escobar’s counsel asked this
    court for an independent review of the record to determine if any arguable
    issues exist. (People v. Wende (1979) 
    25 Cal.3d 436
    .) Escobar was informed
    of his right to file a supplemental brief and did not do so. Having
    independently reviewed the record, we conclude there are no issues that
    require further briefing, and affirm the judgment.
    We have jurisdiction over Escobar’s appeal because he was initially
    1
    charged with two felonies, even though he was only convicted of a
    misdemeanor. (People v. Nickerson (2005) 
    128 Cal.App.4th 33
    , 36.)
    2   All further undesignated statutory references are to the Penal Code.
    1
    BACKGROUND
    Following a domestic dispute on April 11, 2019, the Mendocino County
    District Attorney charged Escobar with felony criminal threats (§ 422 [count
    one]), felony false imprisonment (§ 236 [count two]), and misdemeanor injury
    to a wireless communication device (§ 591.5 [count three]). Escobar pleaded
    no contest to count three, and the remaining charges were dismissed. The
    court placed Escobar on probation for three years with various conditions,
    including that he have no contact with Wendy. The court reserved the issue
    of victim restitution pending further hearing.
    At the restitution hearing, Escobar stipulated to the replacement cost
    of $211.29 for Wendy’s mobile phone. Wendy testified that Escobar broke her
    police and fire scanner when he took it away from her the night of April 11
    and threw it on the floor. Wendy provided a receipt for a replacement
    scanner that she bought at a factory outlet store for $104.58. Wendy further
    testified that Escobar broke her diamond necklace when he grabbed her shirt
    by the collar and broke the chain. Wendy provided a receipt showing that the
    necklace cost $15 to repair. Wendy also testified that on April 11, Escobar
    punched a hole in the bathroom door. Wendy obtained an estimate of
    $497.31 to repair the door.
    Although Escobar disputed the additional restitution claims, the court
    found Wendy’s testimony credible, and the requested restitution reasonable
    and adequately documented. The court ordered Escobar to pay Wendy
    restitution in the amount of $828.18.
    DISCUSSION
    By stipulating to the replacement cost of $211.29 for Wendy’s mobile
    phone, Escobar has waived his right to challenge this amount on appeal.
    (People v. Bradley (2012) 
    208 Cal.App.4th 64
    , 90.) Thus, we only address the
    2
    remaining award of $616.89. A trial court’s restitution calculation is not
    subject to reversal on appeal unless there is no factual and rational basis for
    it. (People v. Baker (2005) 
    126 Cal.App.4th 463
    , 467.) We conclude the record
    before us does not warrant disturbance of the court’s award.3
    In short, there are no arguable issues to be raised on appeal.
    DISPOSITION
    The judgment is affirmed.
    3 We recognize restitution does not have to be directly based on the
    conduct for which a defendant stands convicted. (People v. Carbajal (1995) 
    10 Cal.4th 1114
    .) For example, “restitution has been found proper where the
    loss was caused by related conduct not resulting in a conviction . . . and by
    conduct resulting in an acquittal [citation].” (Ibid.) Thus, Wendy’s additional
    losses beyond the replacement of her mobile phone were appropriate under
    this standard.
    3
    _________________________
    Jackson, J.
    WE CONCUR:
    _________________________
    Siggins, P. J.
    _________________________
    Petrou, J.
    A160369/People v. Rutilio Escobar
    4
    

Document Info

Docket Number: A160369

Filed Date: 12/28/2020

Precedential Status: Non-Precedential

Modified Date: 12/28/2020