People v. Herbert CA4/1

Filed 12/7/20 P. v. Herbert CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075698, D076472

Plaintiff and Respondent,

v. (Super. Ct. No. SCN376313)

DAVID C. HERBERT,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Janice R. Mazu, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted David C. Herbert of five counts of animal cruelty (Pen.

Code,1 § 597, subd. (a); counts 1, 3, 4, 5, and 6); first degree burglary (§ 459;

1 Statutory references are to the Penal Code unless otherwise specified.

count 2); animal abuse and neglect (§ 597, subd. (b); count 7), and four counts of vandalism (§ 597, subd. (a)(b)(2)(A); counts 8, 9, 10, and 11). The jury also found true that, as to count 3, Herbert used a dangerous and deadly weapon (§§ 1192.7, subd. (c)(23) and 12022, subd. (b)(1)). The court sentenced Herbert to prison for nine years eight months. The court subsequently held a restitution hearing and awarded victim restitution in the amount of $13,970. Herbert appeals the order awarding $13,970 in victim restitution, arguing the court abused its discretion in awarding such an amount. We affirm. FACTUAL BACKGROUND Because Herbert is not challenging his conviction under any counts, we eschew the traditional discussion of the underlying facts of his offenses. That said, we briefly discuss the underlying crimes relating to the family to which the court awarded the challenged restitution amount. The P. Family had two dogs—Lala, a female golden mix, and Prince, a male toy poodle. Lala was an emotional support animal to one of the P. Family children. On May 30, 2017, two days after the P. Family moved into the house next to Herbert’s home, Michelle P. returned home from work and her dogs were missing. Michelle located Prince at her neighbor’s house. Her neighbors said both dogs were running around the street earlier that morning, and they placed the dogs back in the P. Family’s yard but later discovered Prince running around by himself. Lala has never been found. Michelle testified about the stress her children have suffered as a result of the incident. Video surveillance showed Lala last outside the P. Family’s yard at 11:10 a.m. At 11:23 a.m., the video showed Herbert’s car leaving the street.