The People v. Clinton CA2/6

Filed 9/16/13 P. v. Clinton CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B245758 (Super. Ct. No. 1386337) Plaintiff and Respondent, (Santa Barbara County)

v.

DEWITT JOHN CLINTON, JR., et al.,

Defendants and Appellants.

DeWitt John Clinton, Jr., and David Jason Prekker appeal judgments entered after they pleaded nolo contendere to assault with a semiautomatic firearm. (Pen. Code, § 245, subd. (b).)1 Chad Ryan Major appeals a judgment entered after he pleaded nolo contendere to attempted murder, possession of heroin for sale, and possession of an assault weapon, and admitted that he personally used a firearm during commission of attempted murder, personally inflicted great bodily injury upon his victim, suffered a prior narcotics conviction, and served a prior prison term. (§§ 664, 187, subd. (a); Health & Saf. Code, § 11351; §§ 12280, subd. (b), 12022.5, subd. (a)(1), 12022.7, subd. (a); Health & Saf. Code, § 11370.2, subd. (a); § 667.5, subd. (b).) We conclude that the trial court properly ordered victim restitution, and affirm. (People v. Hove (1999) 76 Cal.App.4th 1266, 1272- 1273.)

1 All further statutory references are to the Penal Code unless otherwise stated. References to sections 12022.5, 12022.7, and 12280 are to versions in effect prior to repeal effective January 1, 2012.

FACTS AND PROCEDURAL HISTORY On February 21, 2012, the Santa Barbara County prosecutor filed an information against Clinton, Prekker, and Major, alleging that on July 16, 2011, they committed attempted murder and assault against J.S. Kinsey. The prosecutor also alleged that Major alone committed several drug and firearm crimes. Following a February 8, 2012, preliminary examination at which Kinsey and others testified, Clinton, Prekker, and Major entered nolo contendere pleas to certain charged counts. On July 17, 2012, Clinton and Prekker pleaded nolo contendere to assault with a semiautomatic firearm and admitted that they participated as aiders and abettors in the assault upon Kinsey with a .22 semiautomatic pistol. (§ 245, subd. (b).) In accordance with a plea agreement, the trial court sentenced Clinton and Prekker to three-year (low- term) prison terms. The court also imposed a $240 restitution fine and a $240 parole revocation restitution fine (stayed). (§§ 1202.4, subd. (b), 1202.45.) It awarded Clinton 777 days of presentence custody credit and Prekker 578 days of presentence custody credit. On July 17, 2012, Major pleaded nolo contendere to attempted murder, possession of heroin for sale, and possession of an assault weapon. (§§ 664, 187, subd. (a); Health & Saf. Code, § 11351; § 12280, subd. (b).) He also admitted that he personally used a firearm during commission of attempted murder, personally inflicted great bodily injury upon the victim, suffered a prior narcotics conviction, and served a prior prison term. (§§ 12022.5, subd. (a)(1), 12022.7, subd. (a); Health & Saf. Code, § 11370.2, subd. (a); § 667.5, subd. (b).) Major also admitted that he "unlawfully and with malice aforethought attempted to kill J. Kinsey." In accordance with a plea agreement, the trial court sentenced him to a 17-year prison term. The court also imposed a $240 restitution fine and a $240 parole revocation restitution fine (stayed). (§§ 1202.4, subd. (b), 1202.45.) It awarded Major 402 days of presentence custody credit. On the prosecutor's motion, the trial court dismissed the remaining charged counts against Clinton, Major, and Prekker. (§ 1385.)