People v. Earl CA3

Filed 12/21/15 P. v. Earl CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C076200

v. (Super. Ct. No. 10F07955)

BRIAN CRAIG EARL,

Defendant and Appellant.

Defendant Brian Craig Earl pleaded no contest to assault by means of force likely to cause great bodily injury (Pen. Code, former § 245, subd. (a)(1))1 and driving under

1 Undesignated statutory references are to the Penal Code.

When defendant was charged and when he entered his no contest plea, assault by means of force likely to produce great bodily injury was one of two listed alternatives in former section 245, subdivision (a)(1). (Stats. 2004, ch. 494, § 1, pp. 4040-4041.) Subsequently, the Legislature amended section 245, such that assault by means of force

1

the influence of alcohol, while having a blood-alcohol content of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)). The parties stipulated to a factual basis for the plea: on December 5, 2011, defendant “was drinking . . . at a bar. He left that bar. The bartender believed him to be intoxicated, tried to stop him, and [defendant] hit the bartender, Mark Jennings, with [his] truck on his way out of the parking lot. [¶] And while he was driving the vehicle he [had a blood alcohol content of .16].” The trial court suspended imposition of sentence and granted defendant five years formal probation for the assault, with 180 days to be served in county jail, and informal probation for three years for driving under the influence, to run concurrently with the formal probation. Defendant was subsequently ordered to pay victim restitution in the amount of $3,058. He appeals the victim restitution order, contending the amount of lost earnings is arbitrary and is not supported by substantial evidence. We agree. Based on the trial court’s determination and the record, we can calculate the correct amount of lost earnings for victim restitution. Accordingly, we modify the trial court’s order fixing restitution. FACTUAL AND PROCEDURAL BACKGROUND Based on the recommendation of the probation department, the People moved the trial court to order defendant to pay $3,216 in restitution to Jennings, which is the amount Jennings submitted he had lost in wages and tips following the assault. Defendant contested the amount, and the trial court held an evidentiary hearing on the matter.