People v. McLaughlin CA2/2

Filed 3/29/16 P. v. McLaughlin CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B257566

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA075909) v.

MICHAEL MCLAUGHLIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Steven R. Van Sicklen, Judge. Affirmed and remanded with directions.

Law Offices of Steven Graff Levine and Steven Graff Levine for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Ana R. Duarte and Kenneth C. Byrne, Deputy Attorneys General, for Plaintiff and Respondent.

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This is the second appeal stemming from the trial court’s order of a restitution award against appellant Michael McLaughlin. In our prior opinion (People v. McLaughlin (Feb. 25, 2014, B242588) [nonpub. opn.]), we remanded the matter for a new restitution hearing. Appellant now challenges two portions of the new restitution order—that he liquidate his private retirement accounts and pay interest on certain medical bills. We agree with appellant that the trial court erred in making such rulings and we order them stricken from the restitution order. However, we remand the matter for a new hearing on the issue of whether appellant’s individual retirement account may be subject to levy. BACKGROUND As set forth in our prior opinion, on June 21, 2009, when appellant was 29 years old, he tackled Kimberly Keeler (the victim) outside a bar in Manhattan Beach while he was heavily intoxicated. (People v. McLaughlin, B242588, at p. 2.) He was initially charged with misdemeanor battery, but was later charged with felony assault and felony battery after it was discovered the victim’s injuries were more serious than originally thought. Appellant ultimately entered into a plea bargain, pursuant to which he has completed six months of an anger management program, attended 60 Alcoholics’ Anonymous meetings, performed 100 hours of community service, and paid more than $100,000 in victim restitution. At the first restitution hearing, held on April 27, 2012, the trial court ordered appellant to pay a total of $310,645.10 in direct victim restitution, including medical expenses, lost wages, interest and attorney fees, minus the amounts already paid. (People v. McLaughlin, B242588, at p. 4.) On May 11, 2012, appellant was sentenced to a misdemeanor battery; the felony assault charge was dismissed; and appellant was placed on summary probation for a period of three years. (Ibid.) Appellant appealed from this restitution order. In our prior opinion, we agreed with appellant that the trial court abused its discretion by ordering him to pay the victim lost income as a massage therapist in an excessive amount, by setting the date for the