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The People v. Noah Frank Herman Schnabel

March 1, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NOAH FRANK HERMAN SCHNABEL, DEFENDANT AND APPELLANT.



(Super. Ct. No. LF011108A)

The opinion of the court was delivered by: Hoch , J.

P. v. Schnabel CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Noah Frank Herman Schnabel entered a negotiated plea of guilty to resisting a peace officer causing death or serious bodily injury (Pen. Code, § 148.10) and driving with a blood alcohol content of .08 percent or more, a misdemeanor (Veh. Code, § 23152, subd. (b)) with a prior violation within the past 10 years (Veh. Code, § 23540), in exchange for no state prison at the outset, a lid of 12-months in county jail as a condition of probation, and dismissal of the remaining counts and allegations.

After a hearing and over defendant's objection, the trial court ordered defendant to pay direct victim restitution in the amount of $19,950. The court granted formal probation for a term of five years subject to certain terms and conditions including one year in county jail. Defendant waived his right to appeal except for the issue of victim restitution.

Defendant appeals, challenging the restitution order. He claims the prosecutor's representations concerning the exhibits she presented as to the amount the victim claimed for restitution are an insufficient factual basis to support the order. We affirm the judgment's order for victim restitution.

FACTS

On December 24, 2008, California Highway Patrol (CHP) Officer Michael Walling stopped defendant who was driving a pickup truck on Highway 99. Defendant smelled of alcohol, failed field sobriety tests, and tested at a blood alcohol level of 0.13 percent. As Officer Walling attempted to arrest defendant, defendant grabbed the officer by the shirt, ripping the uniform, and they both fell to the ground. Another officer intervened and defendant resisted. A third officer used a stun weapon but defendant continued to struggle. The officers were finally able to control defendant.

Officer Walling sustained an injury to his left ankle and lost consciousness for several minutes while he waited for medical aid. Officer Walling suffered a broken fibula of his left leg, requiring surgery. A metal plate and screws were inserted into his ankle to reposition his leg bone.

As a result of his injury, Officer Walling was off duty beginning December 24, 2008. At the preliminary hearing on April 7, 2009, Officer Walling testified that he returned to limited duty in mid-March but had another surgery scheduled to remove the plate and screws. The prosecutor represented that Officer Walling returned to duty on June 1, 2009.

On August 19, 2010, prior to the restitution hearing, the prosecutor filed a motion supporting victim restitution in the amount of $19,850.05 for lost wages and $99.95 for Officer Walling's uniform shirt. The prosecutor attached two exhibits reflecting the manner in which Officer Walling's pay was calculated. While worker's compensation payments covered Officer Walling's regular pay, he missed overtime and shift differential pay from December 24, 2008, to June 1, 2009, when he returned to duty. The first exhibit entitled, "Michael Walling's Pay Calculation Sheet" reflects the gross amounts for the officer's regular pay, overtime, and shift differential pay for each month from December 2007 through January 2009. The document's heading states, "(8/10/2010) Belinda Stevenson -- Walling Pay Calculation Sheet 1.xls." The second exhibit is exactly the same but includes the prosecutor's handwritten notes calculating the officer's total overtime pay from December 2007 to November 2008 as $18,092.56 and total shift differential pay during the same time frame as $1,757.49, for a combined total of $19,850.05.

At the hearing on November 18, 2010, defendant had no objection to the amount sought for the ripped shirt. He did object to the amounts sought for overtime and shift differential pay as "excessive." He also objected to the computation.

Called by the prosecutor, CHP Sergeant Kim Abercrombie testified that one of her duties was the assignment of overtime positions for CHP officers who worked DUI checkpoints or highway maintenance projects which, at the time of Officer Walling's injury, were regularly and consistently available on a weekly basis because of existing grants and contracts. Prior to his injury, Officer Walling was on the rotation list for overtime and was consistently available for overtime and shift work assignments. Sergeant Abercrombie explained that shift differential pay is additional pay for time worked other ...


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