THE PEOPLE v. HUBERTUS SLIS (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Hubertis Slis was charged by felony complaint with one count of assault by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) and one count of criminal threats (Pen.Code, § 422).   Following plea negotiations, appellant agreed to plead no contest to the assault count in exchange for a sentence of five years of formal probation, under the conditions that he serve 365 days in county jail and pay restitution to the victim and to the Victim Restitution Fund. Appellant also was required to undergo 52 weeks of domestic violence counseling and was subject to a 10-year criminal protective order.

After determining that appellant understood his rights and that there was a factual basis for the plea, the trial court accepted the plea as free and voluntary.   The imposition of sentence was suspended and appellant was placed on formal probation for five years, under the condition that he serve 365 days in jail, with credit for 63 actual days and 30 good time days.

At a June 29, 2009, restitution hearing, the prosecutor stated that the full amount of restitution was not yet known because the victim needed to schedule her surgery.   The parties stipulated to $8,455 in restitution, with the understanding that the court would keep the restitution hearing open to determine the further amount.   The court ordered that the conditions of probation be amended to add the $8,455 in restitution and continued the hearing.

A second restitution hearing was held on August 5, 2009.   At the second hearing, defense counsel conceded that the cost of the surgery the victim was going to have was $9,900, but argued that the restitution order should not be changed because the victim was no longer going to have the surgery.   The prosecutor responded that the victim had received estimates of the cost of surgery from several doctors, but that she had not been able to pay for the surgery up front.   In response to the court's question, the prosecutor stated that the victim still needed surgery on her hand, that it would cost at least $9,900, and that she would do so if she could obtain the funds.

The trial court found that restitution must be ordered for current and future medical expenses and that the victim accordingly had suffered an economic loss of $9,900.   The court thus ordered further restitution in the amount of $9,900, with the understanding that the matter was not closed, so that additional restitution hearings would be held if either the victim or appellant sought them.   Appellant filed a notice of appeal, challenging only the sentence or matters occurring after the plea.

After review of the record, appellant's court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On April 2, 2010, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.   No response has been received to date.

Penal Code section 1202.4, subdivision (f) addresses the restitution of victims for economic loss.   A victim's loss “refers to a victim's injuries, requiring restitution for all expenses necessary to treat those injuries, regardless of when they arise,” whether before or after the restitution hearing.  (People v. Phelps (1996) 41 Cal.App.4th 946, 950.)  “In order to restore the economic status quo, to the extent that it is possible when a criminal act has injured a victim, restitution orders must not be limited to the amount of money that has been paid or lost prior to the restitution hearing.”  (People v. Giordano (2007) 42 Cal.4th 644, 658.)   The case on which defense counsel relied below, In re Anthony M. (2007) 156 Cal.App.4th 1010, is inapposite because that case addresses whether restitution for medical expenses should be based on the amount billed by the health care provider or on the amount paid by Medi-Cal.   It does not speak to the situation found here.

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

MANELLA, J. SUZUKAWA, J.