The opinion
Filed 10/10/24 P. v. Crosby CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A170778
v.
MARK SHANNON CROSBY, (Solano County
Super. Ct. No. VCR224048)
Defendant and Appellant.
In January 2017, a jury found that defendant Mark
Shannon Crosby fired a gun from his car into a crowd, injuring
two people. Victim A.R. was shot twice in her leg.
In a prior opinion, this court affirmed the following of
Crosby’s convictions for which A.R. was the victim: attempted
manslaughter (Pen. Code,1 §§ 664,192), assault with a
semiautomatic firearm (§ 245, subd. (b)), and willful discharge of
a firearm at a person from a vehicle (§ 26100, subd. (c)), each
with various firearm enhancements (§§ 12022.5, 12022.53,
1 All undesignated statutory references are to the Penal
Code.
subd. (d), 12022.55).2 (People v. Crosby (Dec. 30, 2019, A151328)
[nonpub. opn.].)
At a restitution hearing in May 2024, the prosecution
introduced certified records of the California Victims’
Compensation Board (CVCB), including individual payment
receipts, showing that the CVCB paid the victim a total of
$63,000 over a period of four and one-half years for lost income.
After defense counsel submitted the matter without objection,
Crosby was ordered to pay $63,000 in victim restitution for A.R.’s
lost income, payable to the CVCB.
Crosby’s counsel asked this court for an independent review
of the record pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende) to determine if any arguable issues exist. Counsel
informed Crosby of his right to file a supplemental brief and
Crosby has not done so. Insofar as a restitution order is a
postjudgment order (People v. Akins (2005) 128 Cal.App.4th 1376,
1381, fn. 3), the Wende procedure arguably does not apply. (See
People v. Delgadillo (2022) 14 Cal.5th 216, 221 [Wende procedure
applies “to the first appeal as of right and is compelled by the
constitutional right to counsel under the Fourteenth Amendment
of the United States Constitution”]; People v. Serrano (2012)
211 Cal.App.4th 496, 503 [criminal defendant afforded Wende
2 This court also upheld Crosby’s convictions on the same
charges with regard to the second victim, but reversed his
additional convictions as to both victims on two counts of willful
discharge of a firearm from a vehicle (§ 26100, subd. (d)) and
remanded the matter for resentencing due to changes in the law
regarding firearm enhancements. (People v. Crosby (Dec. 30,
2019, A151328) [nonpub. opn.].)
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review only in “first appeal of right” from conviction].)
Nonetheless, in our discretion, we have examined the entire
record and determined no arguable issues exist.
“Restitution is constitutionally and statutorily mandated in
California.” (People v. Keichler (2005) 129 Cal.App.4th 1039,
1045.) We review a restitution order under the abuse of
discretion standard and will affirm the order if there is a factual
and rational basis for the amount of restitution ordered by the
trial court. (Ibid.)
The CVCB records submitted by the People gave rise to
rebuttable presumption that the restitution order was proper.
(§ 1202.4, subd. (f)(4)(A) [amount of assistance provided by the
CVCB “shall be presumed to be a direct result of the defendant’s
criminal conduct and shall be included in the amount of the
restitution ordered”]; subd. (f)(4)(B) [amount paid by the Board to
a crime victim “shall be established by copies of bills submitted to
the California Victim Compensation Board reflecting the amount
paid by the board and whether the services for which payment
was made were for . . .wage . . . losses”]; and subd. (f)(4)(C) [“If
the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the
defendant only after reviewing that information in camera and
finding that the information is necessary for the defendant to
dispute the amount of the restitution order”].)
At the hearing, after the order was made, Crosby asked the
court, “How’s it so much? And how am I going to be able to pay
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that 63,000?” To the extent that his comments can be understood
as asserting an inability to pay, we note that section 1202.4,
subdivision (g), provides that a “defendant’s inability to pay shall
not be a consideration in determining the amount of a [victim]
restitution order.” (See also People v. Evans (2019)
39 Cal.App.5th 771, 777 [“a defendant’s ability to pay victim
restitution is not a proper factor to consider in setting a
restitution award”].)
Crosby’s question—“How’s it so much?”—is not evidence
rebutting the presumption that the amount was incurred as a
direct result of his criminal conduct. (§ 1202.4, subd. (f)(4)(C);
People v. Kelly (2020) 59 Cal.App.5th 1172, 1185 [at the
restitution hearing, it is the defendant’s burden to prove “ ‘that
the amount claimed is excessive’ ”].) And he has not filed a brief
on appeal challenging the sufficiency of People’s showing in
support of the restitution order. Accordingly, we affirm the
restitution order.
DISPOSITION
The restitution order is affirmed.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
STREETER, J.
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