Filed 5/27/16 P. v. Rogers CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G052346

         v.                                                            (Super. Ct. 12NF1269)

CHRISTOPHER LEE ROGERS,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Edward
W. Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
                   Leonard J. Klaif, by appointment of the Court of Appeal, for Defendant and
Appellant.
                   No appearance for Plaintiff and Respondent.
              Christopher Lee Rogers arrives here after pleading to a series of felonies
and misdemeanors and multiple violations of probation eventually ended in 16 months of
incarceration in the Orange County jail. That order also included a restitution order
requiring him to pay $2,072.63 to an insurance company that paid the claim of a police
officer for treatment of injuries Rogers inflicted on him. Rogers appealed from the
restitution order, and we appointed an experienced and accomplished appellate attorney
to represent him on that appeal.
              Counsel filed a brief which set forth the procedural facts of the case (the
facts of the crimes themselves are irrelevant because the only available issue is the
restitution hearing). Counsel did not argue against his client, but advised us there were
no issues to argue on his behalf. Appellant was invited to express his own objections to
the proceedings against him, but did not. Under the law, this put the onus on us to review
the record and see if we could find any issues that might result in some kind of
amelioration of appellant’s lot. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) It
should be emphasized that our search was not for issues upon which appellant would
prevail, but only issues upon which he might possibly prevail.
              We have examined the record and found no arguable issue. This is not
surprising. In fact, it is what we find in the vast majority of cases in which appellate
counsel files a Wende brief. Even the most cynical observer of the appellate system
would have to recognize that appellate counsel has a financial incentive for finding
issues. The simple fact is that counsel makes more money if he/she finds an issue that is
arguable than if he/she does not. So while it sometimes happens that an appellate court
will find issues after appellate counsel has thrown in the towel, it is unusual.
              This case is not unusual – at least not in any way that would benefit
appellant. In fact, the procedural posture of the case limits us to one issue – was there
error in the restitution order entered by the court? Counsel could find none and neither
can we.
              “The scope of a criminal defendant’s due process rights at a hearing to
determine the amount of restitution is very limited[.]” (People v. Cain (2000) 82


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Cal.App.4th 81, 86.) There is no Sixth Amendment right to confrontation in the
sentencing process, and the court can consider hearsay, including the probation report.
(People v. Arbuckle (1978) 22 Cal.3d 749.)
              That’s what was done here. The probation report was submitted to the
court. The court considered documentation from the insurance company covering the
police officer’s injuries and the amounts paid for his treatment. The court considered
those documents in arriving at its decision. All of that is not only legal, but completely
routine. It suggests no issues to us, any more than it did to appellate counsel.
              Appellate counsel went the extra mile and considered an argument that
since appellant was no longer on probation at the time of the restitution hearing (it had
been continued several times), the court had no jurisdiction to decide restitution. But this
issue has been resolved against appellant in People v. Ford (2015) 61 Cal.4th 282, on
remarkably similar facts.
              We have looked in vain for other infirmities in the restitution order
challenged here. We have concluded we cannot disagree with appellate counsel that
there is no arguable issue here. The judgment is affirmed.




                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



ARONSON, J.




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