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People v. Wasbotten

California Court of Appeals, Fourth District, Second Division

April 3, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
DODI WASBOTTEN, Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County No. FVA1100708. Ingrid Adamson Uhler, Judge.

Page 307

COUNSEL

Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James Dutton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

A jury convicted defendant, Dodi Wasbotten, of four counts of second degree robbery. (Pen. Code, § 211.)[1] She was sentenced to prison for eight years and appeals claiming the sentencing court improperly ordered her to pay restitution to each of her victims because the jury did not determine the amount of that restitution. We reject her contention and affirm.

Page 308

Facts

On each of four consecutive days, defendant, using an Airsoft gun, robbed a victim of the latter’s purse and its contents, except for the third victim, who gave defendant money instead of her purse and its contents, telling defendant that there was medication she needed in her purse.

Issue and Discussion

In her report, the probation officer stated that at least one of the victims was planning to seek counseling, therefore, she would be requesting that the sentencing court retain jurisdiction over restitution. The report went on to state that the first victim no longer had receipts for the property defendant took from her, but she itemized her losses, which totaled $1, 110, for which she was seeking restitution. The report stated that the second victim had not responded to requests for contact. It said that the third victim reported that her only loss was the $40 she gave defendant and restitution in that amount was requested for her. The report requested restitution of $100 for the fourth victim, whose purse and its contents, except for $100 cash, was recovered. These amounts were again listed in the probation report, following the statement, “It is respectfully recommended that the defendant... be ordered, pursuant to P[enal] C[ode section] 1202.4, to pay restitution to the victims....”

At the sentencing hearing, defense counsel argued for the mitigated term, asserting, inter alia, that the monetary loss to the victims was relatively small, citing the total of the requests for restitution stated in the probation report. Defense counsel said that he was submitting on the issue of restitution to the victims. The sentencing court retained jurisdiction for restitution for any future counseling required by the victims. The court ordered defendant to pay $1, 110 in restitution to the first victim, $40 to the third and $100 to the fourth. Defendant did not object.

Defendant now claims that she had a right under Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] and Southern UnionCo. v. United States (2012) 567 U.S. __ [183 L.Ed.2d 318, 132 S.Ct. 2344] (Southern Union) to ...


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