People v. McClaine CA1/1 ( 2014 )

Filed 12/19/14 P. v. Mcclaine CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE,
Plaintiff and Respondent,
A142001
v.
GREGORY LAMAR McCLAINE, (San Mateo County
Super. Ct. No. SC079265A)
Defendant and Appellant.
INTRODUCTION
In this case, appellate counsel has made an independent review of the trial court
proceedings and determined the record reflects no meritorious claims for appeal. He has
advised defendant of his conclusion and told McClaine he may file a supplemental brief
raising any issues defendant believes merit our review. Appellant has not filed any such
pleadings. Pursuant to People v. Kelly (2006) 40 Cal. 4th 106, 119, counsel asks this
court to conduct an independent review of the record. We have done so and find no
issues meriting further appellate consideration.
This case is an appeal of an order to pay victim restitution, following a contested
restitution hearing, and it is authorized pursuant to California Rules of Court, rule 8.304,
subdivision (b).
STATEMENT OF THE CASE
On October 21, 2013, the San Mateo District Attorney filed an information
charging defendant with one count of felony robbery in violation of Penal Code section
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212.51, subdivision (c) (count one), and one felony count of attempted robbery in
violation of section 664/212.5, subdivision (c) (count two). The information also alleged
count one was a serious and violent felony in violation of section 1192.7, subdivision
(c)(19) and 667.5, subdivision (c)(9). Count two was alleged a serious felony under
section 1192.7, subdivision (c)(39).
On December 9, 2013, before his trial was to start, defendant entered a change of
plea under a negotiated disposition. The prosecution amended the information with a
third count alleging a violation of section 487, subdivision (c), and dismissed the
remaining two counts and allegations in the interests of justice.
At the sentencing on February 14, 2014, the trial court ordered the imposition of
sentence suspended and placed defendant on three-years probation. The court also
ordered defendant to serve 364 days in the county jail and pay all fines and fees.
Defendant had 364 days credit, consisting of 182 actual days and 182 days for good-time.
The trial court held a contested restitution hearing on April 25, 2014 in this matter.
The district attorney argued there was victim restitution in the sum of $1,025. After
reviewing the preliminary hearing transcript, the court affirmed its finding the restitution
would be $1,025.
On June 3, 2014, defendant filed his notice of appeal.
STATEMENT OF FACTS
On the night of August 7, 2013, Juan Ramos was travelling home from his work
place known as Fish’s Wild restaurant in Redwood City. He had been paid that morning
the wage of $1,025 in cash. Ramos stopped at the corner of Broadway and Beech Streets
to purchase marijuana from some men standing in front of a store. Defendant was one of
the sellers of the dope and received $20 from Ramos. Concerned for his safety, Ramos
decided to enter the store to avoid the dealers.
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Unless otherwise noted, all further statutory references are to the Penal Code.
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When Ramos eventually left the store, defendant approached him and, flashing the
$20 bill, told Ramos to, “Come on. Come on.” Ramos continued to walk away towards
his home. When Ramos turned the corner onto Marshall Street, he was grabbed, punched
in the face, and knocked to the ground. Defendant held Ramos on the ground while the
other two suspects took the money from his pockets. The victim identified defendant as
the man who held him down. Some people, hearing the yells, saw the assault and called
the police. Ramos was taken to the hospital for his injuries.
Ramos was presented with a photo spread of six suspects in his robbery. He
identified defendant in that spread. He also attended a live lineup and selected defendant
in the showing.
On April 25, 2014, the trial court conducted the hearing on restitution. Defendant
was present with counsel. The hearing involved two separate cases, with the Ramos
incident described above being one. Both sides agreed to present only argument on the
issue of restitution. The prosecution relied on the preliminary hearing testimony of
victim Ramos regarding the loss. Both sides had asked about the sum of money Ramos
had and its source at the hearing. At the hearing, defendant’s counsel did indicate she
wished to inquire about the victim’s earnings because of the cash amount. However, she
had previously agreed to proceed without any witnesses presented by either side. Also,
Ramos was asked without objection about his wages during cross-examination as well as
direct. Finally, the defense presented no evidence at the hearing challenging the
restitution amount. The hearing judge had reviewed the transcript of the preliminary
hearing and determined the amount of loss established credibly for purposes of
restitution.
DISCUSSION
We have reviewed the proceedings below. There is no certificate of probable
cause here. There can be no appellate review of the proceedings dealing with the plea or
sentence in this case. The hearing on restitution was submitted on the preliminary
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hearing transcript of the victim’s testimony, supplemented by argument by counsel.
Issues of credibility were resolved by the judge. At all times, defendant was competently
represented by counsel. We find no abuse of discretion by the trial judge in the amount
of restitution awarded in this case.
DISPOSITION
We affirm the judgment in this case.
_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Banke, J.
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