People v. Escobar CA1/3 ( 2020 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
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