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The People v. Bruce Wayne White

June 26, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BRUCE WAYNE WHITE, DEFENDANT AND APPELLANT.



(Super. Ct. No. 06CR10400)

The opinion of the court was delivered by: Robie , Acting P. J.

P. v. White

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Convicted by plea of six felonies relating to construction fraud with excessive loss and white collar crime findings, defendant Bruce Wayne White was sentenced to state prison for an aggregate term of six years, execution suspended, and was placed on probation for 10 years. The court ordered defendant to serve a year in jail, to pay, among other things, victim restitution in the amount of $210,000 at the rate of no less than $1,750 per month commencing 30 days upon release from jail, and to submit financial declarations to probation every two months. The court revoked defendant's state contracting license.

A petition for revocation of probation was filed June 14, 2011, alleging that defendant failed to obey all laws and failed to pay restitution.

After a contested hearing, the court sustained both allegations finding that defendant drove under the influence of alcohol or drugs and willfully failed to make restitution payments.

The court terminated probation and executed the six-year sentence.

Defendant appeals. He contends insufficient evidence supports a finding that he had the ability and willfully failed to pay restitution. He does not challenge the evidence supporting the DUI finding. He claims remand is required because the record does not reflect the court would have terminated probation solely on the DUI finding. Concluding that sufficient evidence supports the trial court's finding that defendant willfully failed to pay restitution, we will affirm.

FACTS

"When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . ." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) "In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact." (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)

At the probation violation hearing, with respect to the allegation that defendant failed to obey all laws, the prosecution presented a minute order reflecting that on July 22, 2011, defendant entered a plea of guilty to driving under the influence and was granted probation. With respect to the failure to pay restitution, defendant's probation officer testified that he met with defendant three months after he was released from jail and confirmed defendant's obligation to pay restitution. Defendant reported monthly, usually by mail, and never paid restitution.

A district attorney investigator recounted a recorded conversation between defendant and his wife while defendant was in custody in jail. Defendant said he "wouldn't be able to pay because he couldn't work, ...


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