People v. Cheng CA1/1

Filed 9/9/15 P. v. Cheng CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A142360 v. TONY CHENG, (San Francisco City & County Super. Ct. No. SCN219984) Defendant and Appellant.

BY THE COURT:1 A jury convicted defendant Tony Cheng of one count of misdemeanor assault (Pen. Code, § 240),2 a lesser included offense of assault with a deadly weapon not a firearm, and one count of vandalism exceeding $400 (§ 594, sub. (b)(1)), a wobbler, which the trial court had reduced to misdemeanor vandalism. The trial court suspended imposition of sentence and placed defendant on three years probation subject to numerous conditions, including compliance with an individualized treatment plan in cooperation with the Probation Department. We affirmed the judgment of conviction in appeal No. A139923. The trial court subsequently ordered defendant to pay $400 in victim restitution. Defendant appeals. We affirm the restitution order.

1 Before Margulies, Acting P. J., Dondero, J., and Banke, J. 2 All further references are to the Penal Code unless otherwise indicated. 1

BACKGROUND In our prior opinion in appeal No. A139923 we recited the underlying facts and procedural history, and now quote there from3: “On November 28, 2012, the District Attorney for the City and County of San Francisco filed a three-count felony complaint alleging defendant committed: (1) assault with a deadly weapon against Maradona Truong (§ 245, subd. (a)(1)) on November 26, 2012; (2) assault with a deadly weapon against Camille Rozeira (§ 245, subd. (a)(1)) on November 26, 2012; and (3) vandalism (§ 594, sub. (b)(1)). “The complaint arose out of an incident at an Enterprise Car Rental office inside the Hotel Nikko in San Francisco, when defendant tried to renew a car rental.[4] When defendant’s credit card was declined, he presented Truong with a debit card. The company’s policy on the use of debit cards required the customer to provide two forms of proof of local residency. Defendant became angry and began to walk away toward the door. He then returned to the counter and threw each of the three computer monitors on the counter toward Truong. One was broken beyond repair and had to be replaced; the other two, were repaired. The wall behind the counter also had to be repaired, where one of the monitors hit it. “On November 28, 2012, counsel was appointed for defendant, bail was set, time was not waived and a preliminary hearing was set. After a time waiver, the preliminary hearing was continued several times until April 11, 2013. “Truong and Rozeira testified at the preliminary hearing. At the close of the hearing, the trial court held defendant to answer as to counts 1 (assault against Truong) and 3 (vandalism), and dismissed and discharged defendant as to count 2 (assault against