People v. Shute CA1/2

Filed 10/23/13 P. v. Shute CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. A138259 WILLIAM CARROLL SHUTE, (Napa County Super. Ct. Defendant and Appellant. No. CR162624)

Defendant William Carroll Shute pleaded no contest to misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and to misdemeanor petty theft (Pen. Code, § 484, subd. (a)).1 The trial court ordered defendant to pay $43.86 in restitution to Wal-Mart and, on appeal, defendant challenges the amount of restitution imposed. We affirm the restitution order. BACKGROUND On August 7, 2012, a criminal complaint was filed charging defendant in count one with felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and in count three with misdemeanor petty theft (§ 484, subd. (a)).2

1 All further unspecified code sections refer to the Penal Code. 2 A codefendant was charged in count one with felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and in count two

1

The facts, as set forth in the probation report, stated that on July 13, 2012, an Asset Protection Agent (the agent) at Wal-Mart detained defendant and his companion. The agent advised the police that defendant “had opened $43.86 worth of baseball cards and placed them in his pocket.” The officer who arrived spoke to defendant and his companion and “recognized objective signs of drug use.” The police found on defendant’s companion a plastic Ziploc bag containing seven pills she claimed were “Xanax” and three small Ziploc bags containing suspected methamphetamine. The officer asked defendant if he had methamphetamine, and defendant provided a small Ziploc bag of methamphetamine, which was in his wallet, and two plastic bags of methamphetamine from his cigarette pack. The officer read defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Defendant then told the officer that “he got bored and started to open baseball card packs, [and] put the cards in his pocket[;] he had no intention of paying for them.” He also admitted that he bought three grams of methamphetamine for $300. Defendant and his companion were arrested. At a hearing in the trial court on January 30, 2013, counsel advised the court that the prosecutor and defendant had “come to a resolution in this matter.” After count 1 was reduced to a misdemeanor pursuant to section 17, subdivision (b), defendant pleaded no contest to misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor petty theft (§ 484, subd. (a)). The probation officer filed the presentence report on March 1, 2013. The probation report indicated that a letter had been sent to Wal-Mart on February 8, 2013, advising Wal-Mart of its right to restitution. As of the date of this report, Wal-Mart had not responded. With regard to the value of the items defendant removed from Wal-Mart, the report stated: “The police report indicates the