People v. McClaine CA1/1

Filed 12/19/14 P. v. Mcclaine CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A142001 v. GREGORY LAMAR McCLAINE, (San Mateo County Super. Ct. No. SC079265A) Defendant and Appellant.

INTRODUCTION In this case, appellate counsel has made an independent review of the trial court proceedings and determined the record reflects no meritorious claims for appeal. He has advised defendant of his conclusion and told McClaine he may file a supplemental brief raising any issues defendant believes merit our review. Appellant has not filed any such pleadings. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 119, counsel asks this court to conduct an independent review of the record. We have done so and find no issues meriting further appellate consideration. This case is an appeal of an order to pay victim restitution, following a contested restitution hearing, and it is authorized pursuant to California Rules of Court, rule 8.304, subdivision (b). STATEMENT OF THE CASE On October 21, 2013, the San Mateo District Attorney filed an information charging defendant with one count of felony robbery in violation of Penal Code section

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212.51, subdivision (c) (count one), and one felony count of attempted robbery in violation of section 664/212.5, subdivision (c) (count two). The information also alleged count one was a serious and violent felony in violation of section 1192.7, subdivision (c)(19) and 667.5, subdivision (c)(9). Count two was alleged a serious felony under section 1192.7, subdivision (c)(39). On December 9, 2013, before his trial was to start, defendant entered a change of plea under a negotiated disposition. The prosecution amended the information with a third count alleging a violation of section 487, subdivision (c), and dismissed the remaining two counts and allegations in the interests of justice. At the sentencing on February 14, 2014, the trial court ordered the imposition of sentence suspended and placed defendant on three-years probation. The court also ordered defendant to serve 364 days in the county jail and pay all fines and fees. Defendant had 364 days credit, consisting of 182 actual days and 182 days for good-time. The trial court held a contested restitution hearing on April 25, 2014 in this matter. The district attorney argued there was victim restitution in the sum of $1,025. After reviewing the preliminary hearing transcript, the court affirmed its finding the restitution would be $1,025. On June 3, 2014, defendant filed his notice of appeal. STATEMENT OF FACTS On the night of August 7, 2013, Juan Ramos was travelling home from his work place known as Fish’s Wild restaurant in Redwood City. He had been paid that morning the wage of $1,025 in cash. Ramos stopped at the corner of Broadway and Beech Streets to purchase marijuana from some men standing in front of a store. Defendant was one of the sellers of the dope and received $20 from Ramos. Concerned for his safety, Ramos decided to enter the store to avoid the dealers.