People v. DePolo CA4/1

Filed 3/2/23 P. v. DePolo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080557

Plaintiff and Respondent,

v. (Super. Ct. No. SCD290277)

MIKE ANTHONY DEPOLO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Patrick Morgan Ford for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent. Mike Anthony DePolo pled guilty to one count of misdemeanor assault. On behalf of the victim, Anthony L., the People sought restitution from DePolo. At the restitution hearing, counsel for DePolo moved for a continuance after Anthony testified about his losses. The trial court denied

the motion for a continuance and ordered DePolo to pay $47,575 in direct victim restitution. DePolo now appeals from the restitution order. He argues that the denial of the continuance violated his due process rights. As a threshold matter, we find that DePolo forfeited his right to appeal the restitution order on due process grounds by failing to assert any due process claim in the trial court. Even if the claim were not forfeited, however, we would find that the denial of the continuance did not render the proceedings so fundamentally unfair as to deprive DePolo of his due process rights. Accordingly, we affirm the trial court’s restitution order. FACTUAL AND PROCEDURAL BACKGROUND In December 2020, DePolo tackled Anthony L., sending him backwards down a flight of 14 concrete stairs. Along with other more minor injuries, the assault left Anthony with two dislocated fingers and damage to his lower back. Although Anthony had preexisting back injuries before his encounter with DePolo, the assault exacerbated these injuries and forced him to “relearn how to use [his] back muscles.” In May 2021, the District Attorney for the County of San Diego filed an information charging DePolo with a single count of assault by means likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(4). In March 2022, Depolo pled guilty to the charge as a misdemeanor. The trial court sentenced DePolo to one year of probation. At some point before the May 2022 restitution hearing, DePolo paid Anthony $15,000 in restitution. At the May 2022 restitution hearing, Anthony sought restitution in the amount of $79,575, mostly in lost wages. Anthony testified that in the months leading up to the assault he had steady employment as “a vessel