California Court of Appeals, First District, Fourth Division
FOR PARTIAL PUBLICATION[*]
County Super. Ct. No. FCR319582. Hon. Carlos R. Gutierrez
Counsel for Appellant: Law Office of John F. Schuck and John
F. Schuck, by Court-Appointment under the First District
Counsel for Respondents: Xavier Becerra, Attorney General;
Jeffrey M. Laurence, Senior Assistant Attorney General; Seth
K. Schalit, Supervising Deputy Attorney General; Lisa Ashley
Ott, Deputy Attorney General
Richard Anthony Evans appeals a victim restitution order. He
contends the order must be reversed because he was not
present at the restitution hearing, the trial court
misunderstood the scope of its discretion, and there was no
showing of his ability to pay the restitution ordered here.
We shall affirm the order, addressing in the published
portion of this opinion why defendant's ability to pay is
not relevant in fixing the amount of victim restitution.
FACTUAL AND PROCEDURAL BACKGROUND
was convicted of one count of sodomy of a child 10 years old
or younger (Pen. Code, § 288.7, subd. (a)) and two
counts of sexual penetration of a child 10 years old or
younger (§ 288.7, subd. (b)). He was sentenced to a
prison term of 55 years to life. Last year, a different panel
of this court affirmed the judgment. (People v.
Evans (June 12, 2018, A151459) [nonpub. opn.].)
the facts are these. Defendant and his wife, C.W., lived with
their son and C.W.'s daughters, 13-year-old M. and
9-year-old N. In February 2016, M. told her mother that
appellant sexually abused her and N. In a separate
conversation, N. told C.W. that defendant would give her Hot
Wheels when she complied with his requests to touch him or
allow him to sexually assault her. Evidence at trial showed
that defendant admitted to both C.W. and the police that he
had committed lewd acts against M. and N.
was charged with committing multiple sex offenses against
both girls, but the charges pertaining to M. were dismissed
prior to appellant's jury trial. As to N., defendant was
tried on four felonies and convicted on three.
the trial court sentenced defendant, it reserved jurisdiction
over victim restitution. The District Attorney later filed a
restitution motion seeking $4, 149.07 already paid by the
California Victim Compensation Board to M. and N., consisting
of $1, 463.75 for relocation expenses, $972 for each of them
in mental health services, and $741.32 for home security.
trial court held a restitution hearing on July 3, 2018.
Defendant was represented by counsel, but he was not
personally present. Subtracting $150.00 to reflect a
duplicate bill, the prosecutor revised the request to $3,
999.07. The parties stipulated that at the time of the
crimes, defendant was married to the victims' mother and
lived in the same house with them; he had never been out of
custody since his arrest; and he was currently serving a life
sentence. Although defense counsel argued that these facts
rendered the home security expenses superfluous, the trial
court awarded the full $3, 999.07, payable to the California
Victim Compensation Board.
Defendant's Absence at ...