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Filed 9/9/13 P. v. Davis CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sutter)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID MARSHALL DAVIS,

Defendant and Appellant.

C073288

(Super. Ct. Nos. CRF121011, 

CRF121645)

Defendant David Marshall Davis and his stepson, 16 year-old D.W., were 

cleaning out a room in the family home when D.W. fell asleep. Defendant threw a plastic 

object at D.W., striking his right eye. Defendant also punched him in the ribs about 10 

times. As a result, D.W. had a horizontal line across his field of vision which did not 

heal. 

Later that week, defendant assaulted his cohabitant, D.W.‟s mother Page G. He 

pushed her against the kitchen wall, hit her in the face with a closed fist, and threw her to 

the ground. Page G. was three months pregnant with defendant‟s child. While she was 

on the ground, defendant stomped on her stomach with his foot and yelled that he hoped 
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she would miscarry. He also threatened to kill Page G. if she got law enforcement 

involved. D.W. distracted defendant by letting the dogs in, and then fled with his mother. 

In a search incident to defendant‟s arrest, officers found a marijuana growing 

facility in one of the rooms. Wiring for the operation was stripped and spliced and 

hanging exposed instead of inside a junction box. Exposed electrical wiring emerged 

from the sheetrock as well. A search warrant was later executed on the residence. 

Officers found 390.88 grams of marijuana in a paper bag, a sheet of paper indicating the 

respective values of different amounts of marijuana, and 21 jars containing a total of 

384.28 grams of marijuana. 

While in jail, defendant called Page G. and instructed her to have D.W. testify that 

he made up the whole story because he was angry at defendant. 

Defendant was charged in case No. CRF121011 with corporal injury to a child 

with great bodily injury (Pen. Code, §§ 273d, subd. (a), 12022.7, subd. (a); undesignated 

statutory references are to the Penal Code), child endangerment (§ 273a, subd. (a)), 

corporal injury to a cohabitant (§ 273.5, subd. (a)), dissuading a witness (§ 136.1, subd. 

(c)(1)), criminal threats (§ 422), assault by means likely to cause great bodily injury 

(§ 245, subd. (a)(1)), misdemeanor false imprisonment (§§ 236, 237), and possession of 

marijuana for sale (Health & Saf. Code, § 11359). 

A few days after being released from jail, defendant confronted D.W. and accused 

him of stealing some marijuana. D.W. denied stealing marijuana, but admitted selling 

some while defendant was in jail. Defendant and Page G. told D.W. to leave the home; 

D.W. went to his girlfriend‟s residence. Defendant and Page G. drove D.W. home the 

following day. After Page G. and their other children left, defendant confronted D.W. in 

the room where the marijuana was grown. Defendant, armed with an aluminum baseball 

bat, told D.W. he would knock his head off if he said anything stupid. When D.W. 

continued to deny stealing the marijuana, defendant struck him in the shin with the bat. 

Defendant left the residence when Page G. and the children returned. 
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Defendant was subsequently charged in case No. CRF121645 with corporal injury 

to a child with personal use of a deadly weapon (§§ 273d, subd. (a), 12022, subd. (b)(1)), 

criminal threats with personal use of a deadly weapon (§§ 422, 12022, subd. (b)(1)), 

dissuading a witness (§ 136.1, subd. (b)(1)), subornation of perjury (§ 127), assault with a 

deadly weapon (§ 245, subd. (a)(1)), and on bail enhancements for all counts (§ 12022.1). 

Pleading in both cases, defendant pleaded no contest to corporal injury to a child, 

corporal injury to a cohabitant, dissuading a witness, and assault with a deadly weapon, 

and admitted great bodily injury and on bail enhancement. The remaining charges were 

dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The trial 

court sentenced defendant to 16 years in state prison, imposed various fines and fees, and 

awarded 166 days of credit (145 actual and 21 conduct) in case No. CRF12011 and 

93 days of credit (81 actual and 12 conduct) in case No. CRF121645 (§ 2933.1). In a 

subsequent proceeding, the trial court ordered $1,681.50 victim restitution to Medi-Cal 

for Page G.‟s and D.W.‟s medical expenses and $120 to the home‟s owner for damages 

resulting from defendant‟s marijuana operation. 

Defendant appeals. He did not obtain a certificate of probable cause. 

We appointed counsel to represent defendant on appeal. Counsel filed an opening 

brief that sets forth the facts of the case and requests this court to review the record and 

determine whether there are any arguable issues on appeal. (People v. Wende (1979) 

25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental 

brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief in which he asserts that the statement of facts 

in the Wende brief filed by appellate counsel are inaccurate, trial counsel filing an 

inoperative notice of appeal, and requests dismissal of appellate counsel and appointment 

of substitute appellate counsel. 

Our review of the facts of the case show that appellate counsel‟s statement of facts 

was not inaccurate. As to defendant‟s second contention, the record shows a notice of 
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appeal was filed by trial counsel on March 7, 2013, which was filed with this court on the 

same date and is the basis for the appeal. Finally, we denied defendant‟s motion for 

substitute counsel in a separate proceeding. 

There is an error in the award of victim restitution to Medi-Cal. 

Section 1202.4, subdivision (a)(3)(B) requires the trial court to order the convicted 

defendant to pay “[r]estitution to the victim or victims, if any, in accordance with 

subdivision (f) . . . .” In turn, subdivision (f) states, in part, “in every case in which a 

victim has suffered economic loss as a result of the defendant‟s conduct, the court shall 

require that the defendant make restitution to the victim or victims in an amount 

established by court order, based on the amount of loss claimed by the victim or victims 

or any other showing to the court.” Therefore, under the plain language of section 

1202.4, “the court may order restitution only to a „victim.‟ ” (People v. Slattery (2008) 

167 Cal.App.4th 1091, 1095 (Slattery).)

“[T]he term „victim‟ has a broad and flexible meaning” (People v. Saint-Amans

(2005) 131 Cal.App.4th 1076, 1084), but it is not so broad as to encompass Medicare and 

Medi-Cal in this case. A “victim” under section 1202.4 “shall include all of the 

following: [¶] . . . [¶] (2) A corporation, business trust, estate, trust, partnership, 

association, joint venture, government, governmental subdivision, agency, or 

instrumentality, or any other legal or commercial entity when that entity is a direct victim 

of a crime.” (§ 1202.4, subd. (k)(2).) “Thus, Penal Code section 1202.4, subdivision (k) 

permits restitution to a business or governmental entity only when it is a direct victim of 

crime.” (People v. Martinez (2005) 36 Cal.4th 384, 393.) Defendant committed no 

crime against Medi-Cal, so it was not a direct victim eligible for restitution under section 

1202.4. Analogous cases so provide. (See id. at pp. 386, 393-394 [Department of Toxic 

Substances Control was not a direct victim of attempted methamphetamine production 

and may not recover as restitution its costs incurred cleaning up waste material]; Slattery, 

supra, 167 Cal.App.4th at pp. 1096-1097 [the defendant inflicted injury on an elder 
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victim; the treating hospital was not a direct victim of the crime entitled to section 1202.4 

restitution even though it incurred economic losses].) We shall modify the restitution 

award accordingly. 

Having undertaken an examination of the entire record, we find no other arguable 

error that would result in a disposition more favorable to defendant.

DISPOSITION

The restitution award is modified to strike the $1,681.50 in victim restitution to 

Medi-Cal. As modified, the judgment is affirmed. The trial court is directed to forward 

an amended abstract of judgment reflecting the modification to the Department of 

Corrections and Rehabilitation.

 HULL , J.

We concur:

 BLEASE , Acting P. J.

 NICHOLSON , J.