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People v. Evans

California Court of Appeals, First District, Fourth Division

September 6, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD ANTHONY EVANS, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          Solano County Super. Ct. No. FCR319582. Hon. Carlos R. Gutierrez Judge.

          Counsel for Appellant: Law Office of John F. Schuck and John F. Schuck, by Court-Appointment under the First District Appellate Project

          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

          TUCHER, J.

         Defendant 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Defendant was convicted of one count of sodomy of a child 10 years old or younger (Pen. Code, § 288.7, subd. (a))[1] 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.].)

         Briefly, 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.

         Defendant 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.

         When 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.

         The 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.

         II. DISCUSSION

         A. Defendant's Absence at ...


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