People v. Brown CA4/1

Filed 6/30/23 P. v. Brown CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080858

Plaintiff and Respondent,

v. (Super. Ct. No. SCD293281)

ISAIAH BROWN,

Defendant and Appellant.

APPEAL from order of the Superior Court of San Diego County, Daniel F. Link, Judge. Reversed in part and remanded with directions. Patrick Dudley, under appointment by the Court of Appeal, for Defendant and Appallant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, and Donald W. Ostertag and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent. Isaiah Brown pleaded guilty to first-degree residential burglary. (Pen.

Code,1 § 459.) The trial court sentenced him to 365 days in county jail and

1 Further unspecified section references are to the Penal Code.

two years’ probation, and imposed fines, assessments, and restitutions, including $2,866.26 in victim restitution. On appeal, Brown contends his due process right was violated when the court imposed the victim restitution without conducting a hearing and considering his ability to pay. The Attorney General concedes Brown was entitled to a hearing but not consideration of his ability to pay the victim restitution. We conclude the Attorney General has the better argument. Accordingly, we reverse the restitution order as to the $2,866.26 in victim restitution and remand for a hearing on the issue.

BACKGROUND2 In July 2022, Brown pleaded guilty to residential burglary (§§ 459 & 460, subd. (a)). At sentencing the following month, Brown stipulated to $870 in victim restitution to one of the victims. The court sentenced Brown to 365 days of county jail and two years’ formal probation with certain conditions and awarded 380 days of custody credits. It further ordered Brown to pay two amounts of victim restitution (§ 1202.4, subd. (f)), $870 and $2,866.26, to two victims, and imposed other assessments and fines. After the court imposed $2,866.26 in victim restitution, Brown’s counsel asked, “And, your honor, I apologize. Is the court—the court’s not willing to give us a restitution review?” The court responded, “[N]o . . . [¶] . . . Documents were submitted. I don’t -- That’s enough for the court.” Brown appealed. DISCUSSION Under section 1202.4, when “a victim has suffered economic loss as a result of the defendant’s conduct,” the court “shall” impose victim restitution