People v. Holmes CA4/2

• Court: California Court of Appeal
• Decided: January 28, 2025
• Docket: E083994
• Status: Unpublished

Opinion

Filed 1/28/25 P. v. Holmes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E083994

v. (Super.Ct.No. FSB21003109)

JAMES SIDNEY HOLMES III, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge.

Affirmed.

Michael Reed, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant and appellant James Sidney Holmes III appeals from the trial court’s

$57,598 restitution order, seeking our review under People v. Wende (1979) 25 Cal.3d

436 (Wende). (See Anders v. California (1967) 386 U.S. 738; see also People v.

Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo) [appellate court may conduct

independent review of postconviction matters in its discretion].) Our independent review

under those authorities discloses no issue of arguable merit on which to request briefing

by the parties. (See People v. Johnson (1981) 123 Cal.App.3d 106, 109 [“an arguable

issue” requires “a reasonable potential for success” on appeal].) We therefore affirm the

trial court’s ruling.

BACKGROUND

In August 2022, defendant entered a no contest plea to a felony charge of

vandalism. (Pen. Code, § 594, subd. (b)(1); all further statutory references are to this

code.) His negotiated disposition included a sentence of two years on felony probation,

with credit for time served. As the factual basis for his plea, defendant stipulated to the

police report concerning his arrest, which reflected that he was apprehended under the La

Cadena bridge in Colton, holding a saw in his hand. Defendant admitted at the scene that

he had been offered $200 by someone named “Milo” to “see if there was copper wire in

the utility line” he had just severed. The line belonged to and was maintained by the

telecommunications company, AT&T, which had to respond to the incident to restore

service to its customers.

2 Defendant’s plea and probation terms both expressly included victim restitution.

An initial estimate prepared by the probation department put AT&T’s damages at more

than $20,000, consisting of $16,550 to “Replace and repair copper” and $5,707.20 to

“Replace and repair fiber.” The restitution hearing was continued several times.

During the interim, AT&T conducted a more thorough accounting and updated its

loss figure with detailed records. The probation department’s revised restitution memo in

advance of defendant’s May 2024 restitution hearing reflected that, as an AT&T

representative explained, defendant had “ ‘cut the cable in the worst location,’ ” such that,

“ ‘It was not a simple fix; we could not simply repair the cable.’ ”

The restitution memo stated an updated loss figure of $57,958, comprised of

“engineering costs, material costs, and labor costs to restore service.” Documentation for

the loss included enumerated line item expenses, substantiated by an engineering

checklist, internal AT&T project estimates and authorizations, project mapping and

schematic drawings, and a pricing report.

At the restitution hearing, the prosecution submitted on the probation department’s

loss report, to which defendant objected on foundation and hearsay grounds. Defense

counsel challenged the “records attached to the [restitution] memo [as] not self-

explanatory in any way.” Defense counsel contended “this is the type of restitution

request in which actual witnesses should be presented by the People . . . for this large

amount of restitution,” arguing further that “something more technical [like this] requires

witnesses or some form of additional evidence.” Defense counsel also suggested

insurance might be a factor, objecting that the restitution demand omitted “how much of

3 this was paid out,” if any. The defense requested that the court “not order any restitution”

“for today’s purposes,” but appeared to suggest a continuance, stating “restitution is

always reserved” and that “witnesses and additional evidence should be produced to

justify this high amount of restitution.”

The trial court ruled as “a textbook point of law” that insurance “is not a matter of

consideration.” With hearsay admissible “on a restitution hearing [to] create[] a

presumption, which can be rebutted,” the court then turned to the restitution memo.

Finding it “reasonable to explain what was done and what the amount is,” the court noted

in particular that it listed “10 different cablings and the amounts” and that “[i]t’s got

back-up documentation.” The court found the burden of proof satisfied and ordered

restitution in the amount of $57,598.

OUR REVIEW

This court advised defendant in separate notices of his opportunity to file a

supplemental brief on appeal, referencing first Wende and then Delgadillo. Defendant

did not respond to either notice. We note the Penal Code provides for both imprisonment

and a fine when vandalism damage exceeds $10,000 in value, and only a fine or

imprisonment for damage greater than $400, but less than $10,000. (§ 594, subd. (b)(1).)

The prosecutor sought neither a fine nor imprisonment, consenting to felony probation.

In these circumstances, given what seems at first glance a substantial restitution order on

a complaint for vandalism damage stated as “over $400,” with no cap on value identified

but for which probation was granted and no fine was sought or imposed, we exercise our

discretion to apply independent review in this postconviction matter. (Delgadillo, supra,

4 14 Cal.5th at p. 232; see also People v. Denham (2014) 222 Cal.App.4th 1210, 1213-1214

[victim restitution order separately appealable from judgment of conviction].)

While the restitution figure is high, with limited exceptions not relevant here, even

where the trial court does not impose a restitution fine, the trial court must order “full

restitution” in every case “in which a victim has suffered economic loss as a result of the

defendant's conduct.” (§ 1202.4, subd. (f).) “Under the California Constitution, a victim

is entitled to restitution. (Cal. Const., art. I, § 28, subd. (b)(13).)” (People v. Lockwood

(2013) 214 Cal.App.4th 91, 95.) “Further, the standard of proof at a restitution hearing is

by a preponderance of the evidence, not proof beyond a reasonable doubt,” and appellate

review is under the deferential abuse of discretion standard. (People v. Millard (2009)

175 Cal.App.4th 7, 26, 42 [“trial courts have discretion regarding the formalities they

follow and the evidence they consider at such hearings”]; cf. also People v. Crisler (2008)

165 Cal.App.4th 1503, 1509 [indicating victim expenses to attend court hearings would

be compensable, including travel costs and loss of wages due to time spent as a witness].)

Pursuant to Delgadillo, supra, 14 Cal.5th at p. 232 and the principles identified in

People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for

potential error. We are satisfied that defendant’s attorney has fully complied with the

responsibilities of counsel and no arguable issue exists. (Kelly, at p. 126; Wende, supra,

25 Cal.3d at pp. 441-442.)

5 DISPOSITION

The trial court’s restitution order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RAMIREZ P. J.

MENETREZ J.