Error and/or relief
The restitution amount is wrong, and the protective order is unauthorized.
First Holding:
Appellant contends changes to section 1001.36 that went into effect after she was denied pretrial diversion apply to her case. We agree. Appellant further contends this matter should be conditionally reversed and remanded so the trial court can exercise its discretion to determine her motion for pretrial diversion in light of the amendment. We disagree.
Appellant has forfeited this claim. Frahs, decided in 2020, made clear that recently enacted section 1001.36 applied in nonfinal cases. Thus, when the law was amended effective January 1, 2023, appellant should have known the amendments applied retroactively. Once the law was amended, appellant had more than three months before she pled and more than seven months before she was sentenced to seek reconsideration of the trial court’s denial of diversion. She did not.
Authority:
People v. Frahs (2020) 9 Cal.5th 618, 631-632
People v. Doron (2023) 95 Cal.App.5th 1, 6
People v. Trujillo (2015) 60 Cal.4th 850, 856
People v. Brown (2024) 101 Cal.App.5th 113, 128 [failure to seek reconsideration excused where amendment to statute effective after entry of plea but only 10 days before sentencing]
Second Holding:
In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient, and that the defendant suffered prejudice as a result of such deficient performance. The record is silent, however, why defense counsel failed to seek reconsideration under the amended law.
It is possible that counsel was unaware of the newly passed statute. It is also possible, however, that counsel had sound reasons not to pursue the issue. For example, appellant may have changed her mind and decided to refuse to accept the treatment required for participation in the diversion program. Because trial counsel’s reasons for not raising the issue are not readily apparent, the issue is more appropriately considered in a habeas corpus proceeding.
Authority:
People v. Mickel (2016) 2 Cal.5th 181, 198
Strickland v. Washington (1984) 466 U.S. 668, 687-692
People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267
People v. Wilson (1992) 3 Cal.4th 926, 936
Third Holding:
We review the trial court’s restitution order for abuse of discretion. We apply the substantial evidence standard in a challenge to the sufficiency of evidence to support a factual finding necessary for a victim restitution order. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. The court may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. It may make a restitution order based on truncated evidence such as declarations or probation reports, business records, and checks.
Authority:
People v. Giordano (2007) 42 Cal.4th 644, 663
People v. Jessee (2013) 222 Cal.App.4th 501, 507
People v. Hove (1999) 76 Cal.App.4th 1266, 1275
People v. Plains All American Pipeline L.P. (2024) 101 Cal.App.5th 872, 898-899
Fourth Holding:
The total restitution awarded to the victim includes two computational errors. The court erroneously included a $4,520 attorney fees bill twice and included $880 for an unknown reason. We will correct those errors.
Authority:
People v. Smith (2001) 24 Cal.4th 849, 854
Fifth Holding:
Section 136.2(i) authorizes a court to issue an order restraining a defendant for up to 10 years when the defendant has been convicted of a qualifying crime. Appellant’s conviction for assault with a deadly weapon under section 245 is not a qualifying crime under section 136(i). The court did not have statutory authority to issue the protective order, therefore, the order must be stricken.
Authority:
People v. Garcia (2022) 76 Cal.App.5th 887, 901