People v. Whitter CA1/3 ( 2021 )

Filed 8/25/21 P. v. Whitter 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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, A161480
v. (City and County of San Francisco
Super. Ct. No. 230692)
SOLOMON E. WHITTER,
Defendant and Appellant.
On July 5, 2018, the San Francisco District Attorney filed a
complaint, later amended on July 12, 2019, charging defendant
Solomon E. Whitter with the felony offenses of residential burglary in
the first degree (count one) (Pen. Code,1 § 459) and grand theft of
personal property (§ 487, subd. (a)) (count two) based on a June 24,
2018 incident; and second-degree burglary (§ 459) (count three) based
on a November 30, 2018 incident.
On July 12, 2019, defendant, having waived his rights, pled
guilty to counts one and three (burglary counts), with the
understanding that the second count would be dismissed, imposition of
sentences would be suspended, and he would be placed on concurrent
1 All undesignated statutory references are to the Penal Code.
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terms of three years of formal probation. The parties stipulated there
was a factual basis for the pleas in the preliminary hearing held on
January 31, 2019, and a San Francisco police report.
On August 2, 2019, defendant was sentenced as promised at the
change of plea proceeding. The court also directed defendant to pay
victim restitution, noting that the victims of the June 24, 2018 incident
were requesting $85,614. Because the court was told the restitution
amount might be in dispute, the matter was set for a restitution
hearing which was then continued several times to allow defense
counsel to investigate the claimed restitution amount.
At a continued restitution hearing held on July 8, 2020, the
prosecutor submitted a report from the probation department seeking
$85,614. This amount was supported by an itemized insurance claim
for the “Cost(Value)” of the following items: $30,000 in cash, $24,955
black pearl necklace (separate 2005 insurance appraisal replacement
value including tax), $8,000 Chanel white pearl necklace and earrings,
$300 Burberry sunglasses, $11,000 two limited edition Louis Vuitton
bags, $1,199 Apple laptop (separate receipt), $5,300 Chanel bag, $160
Hermes perfume (separate receipt), $400 makeup products, $100 White
Air Jordans, $100 White Nike Hurricane, $600 two Beatz Headphones,
and $3,500 for “Door, Locks, and Keys Replacement.” Over defendant’s
objection, the court found the insurance claim was sufficient to meet
the prosecution’s initial burden of showing a nexus between the
claimed losses and the criminal incident (People v. Crisler (2008) 165
Cal.App.4th 1503, 1508), and noted that the insurance claim was more
information than was frequently proffered to demonstrate losses
incurred by victims and the valuation estimates appeared reasonable.
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Having found the prosecution met its burden, the court informed
defendant that the burden shifted to him to disprove the
reasonableness of the requested restitution and the matter was
continued to allow defense counsel to research the value of the stolen
items.
At the continued restitution hearing on November 18, 2020,
defense counsel confirmed that defendant was unable to disprove the
reasonableness of the sums sought for the items taken in the burglary
and the court directed defendant to pay $85,614 as direct victim
restitution. The court properly rejected defendant’s renewed objection
to the sufficiency of the prosecution’s evidence of the victims’ losses.
(See People v. Prosser (2007) 157 Cal.App.4th 682, 690 [“ ‘[i]n
determining the amount of restitution, all that is required is that the
trial court “use a rational method that could reasonably be said to make
the victim whole, and may not make an order which is arbitrary or
capricious,” ’ ” quoting in part People v. Akins (2005) 128 Cal.App.4th
1376, 1382]; People v. Birkett (1999) 21 Cal.4th 226, 246-247 [defendant
not entitled to credit for payments made to victims by their own
homeowners’ insurer]; § 1202.4, subd. (f)(2) [“[d]etermination of the
amount of restitution ordered pursuant to this subdivision shall not be
affected by the indemnification or subrogation rights of a third party”].)
Defendant filed a notice of appeal, challenging the November 18,
2020 order directing him to pay victim restitution. Appellate counsel
has filed a brief asking us to independently review the record pursuant
to People v. Wende (1979) 25 Cal.3d 436 to determine whether there are
any arguable issues on appeal. Appellate counsel has averred
defendant was advised of his right to file a supplemental brief, but he
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has not filed such a brief. Having independently reviewed the record,
we conclude there are no issues that require further briefing and affirm
the November 18, 2020 order.
DISPOSITION
The November 18, 2020 order is affirmed.
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_________________________
Petrou, Acting P.J.
WE CONCUR:
_________________________
Jackson, J.
_________________________
Chou, J.*
A161480/ People v. Whitter
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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