Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 01HF1398, William R. Froeberg, Judge.
Gilbert Garcia, in pro. per.; James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
Gilbert Garcia (defendant) was convicted of first degree murder (Pen. Code, § 187, subd. (a)), attempted murder (Pen. Code, §§ 187, subd. (a), 664), and possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), with certain enhancements (Pen. Code, §§ 667, subd. (a)(1), 12022.5, subd. (a)). He was sentenced to life without the possibility of parole on the first degree murder count (doubled per Pen. Code, §§ 667, subds. (d),(e)(1), 1170.12, subds. (b),(c)(1)), life with the possibility of parole on the attempted murder count (doubled per Pen. Code, §§ 667, subds. (d),(e)(1), 1170.12, subds. (b),(c)(1)), one year and four months on the possession of firearm count, and an additional 16 years on the enhancements. He was also ordered to pay a restitution fine of $10,000 and to pay restitution of $97,000 to the victim.
Defendant filed a motion for modification of restitution order and an amended motion for modification. He argued that the $10,000 restitution fine and the order to pay $97,000 in restitution to the victim should be vacated, except to the extent of $200, because he would be unable to pay them out of his future wages earned while imprisoned. The court vacated the $10,000 restitution fine, but denied the rest of the requested relief. Defendant filed a notice of appeal from the order denying his motion vacate the order to pay $97,000 in restitution to the victim.
We appointed counsel to represent defendant on appeal. On May 21, 2008, counsel filed a brief which set forth the facts of the case. Counsel did not argue against defendant, his client, but requested that this court conduct an independent review of the record on defendant’s behalf. We examine the entire record ourselves to see if any arguable issue is present. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.)
Defendant’s appellate counsel briefly raised a possible claim of trial court error in failing to meaningfully review defendant’s financial condition when imposing the $97,000 restitution order. However, appellate counsel gave no indication that the claim was arguable. Nonetheless, we reviewed the issue. Based on Penal Code section 1202.4, subdivision (g), we conclude the claim is not viable.
Defendant submitted a supplemental brief on June 10, 2008. He raises several issues in his supplemental brief. First, he argues that the court erred in imposing the restitution order when the victim did not file an application for compensation from the California Victim Compensation and Government Claims Board, or follow the procedures to obtain compensation therefrom. (Gov. Code, § 13950 et seq.; see also Pen. Code, §§ 1202.4, subd. (f)(2),(4), 2085.5, subd. (b).) Second, he contends the cited statutes and related authorities must be interpreted according to the plain meaning rule, and when so interpreted show that the victim was required to file an application for compensation from the California Victim Compensation and Government Claims Board and follow the procedures to obtain compensation therefrom, but the victim failed to do so. Finally, defendant argues that his inability to pay the restitution order given his imprisonment constitutes a compelling and extraordinary reason why he should not be ordered to pay restitution to the victim.
None of the authorities that defendant cites show that unless a victim files an application for compensation from the California Victim Compensation and Government Claims Board, or follows the procedures to obtain compensation therefrom, no restitution order may be imposed with respect to losses suffered by the victim. Moreover, we have found no such authority on our own.
With regard to defendant’s inability to pay the restitution order, given his imprisonment, Penal Code section 1202.4, subdivision (g) is dispositive. That provision states: “The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order.”
We have examined the record and found no other issues to argue. (People v. Kelly, supra, 40 Cal.4th 106; People v. Wende, supra, 25 Cal.3d 436.) The order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.