NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F126247B, STKCRFECOD20130009163)
Defendant Sarim Sap Chabb pled no contest to voluntary manslaughter for killing M. B. The trial court sentenced defendant to the upper term of 11 years in state prison and ordered her to pay $28,746.10 in restitution jointly and severally with codefendants. She now appeals from the restitution order, claiming the matter should be remanded so the trial court can modify the restitution order to incorporate the provisions of Family Code section 4007. Defendant concedes that the issue was not raised in the trial court when the matter of restitution was litigated. We conclude that defendant has forfeited the issue by failing to raise it in the trial court. We affirm.
Codefendants Sarth Chabb and Brian Oth are not involved in this appeal.
Family Code section 4007 provides:
"(a) If a court orders a person to make specified payments for support of a child during the child's minority, or until the child is married or otherwise emancipated, or until the death of, or the occurrence of a specified event as to, a child for whom support is authorized under Section 3901 or 3910, the obligation of the person ordered to pay support terminates on the happening of the contingency. The court may, in the original order for support, order the custodial parent or other person to whom payments are to be made to notify the person ordered to make the payments, or the person's attorney of record, of the happening of the contingency.
"(b) If the custodial parent or other person having physical custody of the child, to whom payments are to be made, fails to notify the person ordered to make the payments, or the attorney of record of the person ordered to make the payments, of the happening of the contingency and continues to accept support payments, the person shall refund all moneys received that accrued after the happening of the contingency, except that the overpayments shall first be applied to any support payments that are then in default."
FACTS AND PROCEDURAL BACKGROUND
Deputy District Attorney Zoette L. Dobbert stated the following factual basis for the defendant's plea:
"On November 30th, 2013, . . . [defendant] had a relationship with the victim in this case . . . . . They were at the BJ's in Stockton when there was a dispute regarding [the victim] having other girlfriends [who] he had been seeing at that time.
"During this dispute [the victim's] keys were left with [defendant]. [Defendant's] keys were taken by [the victim], who left the restaurant. A short time later the [co]defendants, Sarth Chab[b] [defendant's brother] and Mr. Oth, went to the restaurant at [defendant's] request to give her a ride. However, during that time, [the victim] returned to the restaurant with his friend and exchanged keys so each person had [his or her] own set of keys.
"[The victim] was on his way home when his friend that was giving him a ride indicated, 'Maybe you shouldn't stay there and I'll wait for you to go in and grab some things and you can stay with me.' As [the victim] was going to his apartment he was confronted by Mr. Oth and [defendant's brother] [at] which time he was shot numerous times and he fell just outside the apartment.
"It was determined based on the videos from the restaurant and statements by the defendants that [defendant] ha[d] indicated to her brother and [Mr. Oth] . . . that she wanted [the victim] . . . taken care of. It was also determined based on [defendant's] statement that she tried to call this off, but she was unable to get a hold of her . . . brother, Mr. Chab[b], through either his phone or his girlfriend's phone.
"[Defendant's brother] indicated at the time that he was interviewed that while he went there to confront [the victim] he didn't actually fire his weapon. He just tossed it in the bushes. That weapon that was recovered . . . at the scene was determined not to be the murder weapon. At the time Mr. Oth was arrested a search of a residence that he had been staying at [revealed] a firearm, and ballistics indicated that that was, in fact, the murder weapon in this case."
Over a month after sentencing, defendant moved to modify the restitution amount. After a hearing, the court vacated its initial order and ordered defendant to pay $3,975 for funeral expenses and $500 a month in restitution to the victim's minor child until the child reaches 18 years of age. The court ordered defendant to pay these amounts jointly and severally with codefendants.
On appeal, defendant does not challenge the amount of restitution as an abuse of discretion. She argues the amount ordered to be paid to the minor child should be modified, as a matter of law, to include the provisions of Family Code section 4007 relating to contingencies resulting in the automatic termination of a child support obligation. We conclude the issue is forfeited but in any event the claim fails on the merits.
In challenging a restitution award, a defendant must demonstrate a clear abuse of discretion. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) "In determining the amount of restitution, all that is required is that the trial court 'use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' " (Ibid.) We affirm the amount of a restitution order supported by a factual and rational basis. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.)
At the restitution hearing, defendant disputed the amount to award to the victim's minor child, presenting evidence of child support as calculated by a DissoMaster. The mother of the victim's child testified that the victim had not been ordered by a family law court to provide child support but the victim contributed a minimum of $500 a month voluntarily. There was no evidence that the victim would have stopped supporting the child had the child married prior to the age of majority or became emancipated.
Defendant does not cite any authority requiring a victim restitution order provide for the Family Code section 4007 contingencies. Having failed to request the trial court to incorporate them, defendant has forfeited her right to complain on appeal that the restitution order was improper for failing to do so. (People v. Geddes (1991) 1 Cal.App.4th 448, 457-458.)
The order of restitution is affirmed.
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________