Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06-1208
BUTZ, J.Defendant William Jacob Ladd entered a plea of no contest to first degree burglary. (Pen. Code, § 459.) He was granted three years of formal probation and was ordered to serve 270 days in the county jail. Following a restitution hearing, defendant was ordered to pay $2,394.66 in restitution to the victim.
Undesignated statutory references are to the Penal Code.
Defendant was also ordered to pay a “surcharge” of $239.
Defendant appeals, claiming the trial court abused its discretion in setting the amount of restitution. Concluding there was a rational basis for the trial court’s order, we shall affirm.
PROCEDURAL AND FACTUAL BACKGROUND
The victim “ha[d] been having trouble keeping [defendant] away from her residence.” On the date of the incident, she awoke at approximately 2:00 a.m. to the sound of her back door sliding open. She thought it was her son returning home. In the morning, she learned her son had not returned until 5:30 a.m. and that he had awakened at 6:00 a.m. to find defendant, a friend who lived a few houses away, standing in his room. He told defendant to leave.
The victim noticed that four speakers and a DVD player were missing from her residence. The DVD player had been in her daughter’s room. The victim also reported that, approximately a week earlier, she noticed a silver JVC video camera missing from her residence and she suspected defendant stole this item as well.
During a search of defendant’s bedroom, the four stolen speakers, as well as two hypodermic syringes, were located. Defendant’s uncle later discovered the stolen DVD player under the couch in the living room.
In an interview with a probation officer, defendant maintained he found the speakers in a bag outside the victim’s home with some trash. He denied any knowledge of the DVD player that was discovered in his home. Defendant admitted he used heroin “every couple of days.”
The victim told the probation officer that, in addition to the items listed in the police report, she was seeking reimbursement for a black Sony video camera and approximately 50 DVD’s. Included in her estimate of restitution was the silver JVC video camera that had been discovered missing a week before the burglary.
At the restitution hearing, the victim provided a list of 85 missing DVD’s with replacement prices and testified regarding the replacement cost of the two missing video cameras. According to the victim, one of the missing video cameras was taken from her son’s room, while the DVD’s and the other video camera had been in her bedroom--the DVD’s in a bag on top of an entertainment center and the video camera in a drawer. The victim testified that, at the time of the burglary, she “heard rustling around” and heard someone in her room, but she explained: “[M]y son comes and goes through everything. I don’t bother getting up. . . . [¶] . . . [¶] . . . My son comes in my room all the time.” She testified that it also “wasn’t unusual” for defendant to come into her bedroom while she was asleep. When asked about the theft of a bag of DVD’s, the victim explained she had “a very large room.”
Following the victim’s testimony, defendant’s attorney contested the value that the victim assigned to the DVD’s and argued that the victim’s testimony was not credible regarding the items stolen from her bedroom. The trial court ordered defendant to pay restitution for the DVD’s and the two video cameras.
DISCUSSION
Defendant contends the trial court abused its discretion by ordering him to pay restitution for the DVD’s and the two video cameras because “there is no credible evidence he stole them.” Defendant is incorrect.
“[I]n 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.” (§ 1202.4, subd. (f).) The court “‘must 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.’” (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found. (Id. at p. 499.)
“‘“[S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider”’” in determining victim restitution. (People v. Foster (1993) 14 Cal.App.4th 939, 947, quoting People v. Baumann (1985) 176 Cal.App.3d 67, 81.) Restitution orders are reviewed for abuse of discretion. (People v. Mearns, supra, 97 Cal.App.4th at p. 498.)
Initially, we reject the People’s contention that defendant has forfeited any claim that the victim perjured herself because he did not raise this objection in the trial court. To the contrary, defendant’s trial counsel asserted that the victim’s testimony lacked credibility, which was sufficient to preserve the issue.
Defendant contends the victim’s testimony was not credible that he stole the DVD’s and a video camera from her bedroom because “[i]t is impossible to believe [the victim] lay in her bed while someone came into her bedroom in the middle of the night and went through drawers to find a camera and took a large bag of DVD’s” without the victim saying “one word to him.” In support of his claim that this was “blatant perjury,” defendant points out that the victim initially did not list these items as stolen even though “she was present and aware of them being taken.” He also notes that these items were not located at defendant’s residence. Defendant asserts the victim’s testimony was insufficient to prove he took the items in question.
It is not this court’s province to reweigh the evidence or evaluate the credibility of witnesses. (People v. Calvert (1993) 18 Cal.App.4th 1820, 1828.) The victim provided an explanation as to how the items could have been stolen from her bedroom while she was there: She was accustomed to people coming into her room while she slept. The fact that the victim’s son awoke to find defendant in his room and that defendant stole a DVD player from the bedroom of the victim’s daughter corroborates the victim’s testimony that defendant entered her bedroom as well. And we agree with the People’s assertion that “it is not unreasonable for a victim of a crime to notice items missing in a piecemeal fashion,” particularly where, as here, the victim was asleep when defendant entered her room and removed property.
Nor is defendant’s culpability for the theft refuted by the fact that some of the items were not located in defendant’s residence. Only one stolen item was located during a search of the residence by law enforcement personnel. Another item was discovered later in a different location by defendant’s uncle. Thus, it is clear that defendant did not put all the stolen items in the same place. And, of course, it is possible he had already disposed of some of the stolen items by the time the police became involved.
Defendant contends that “[b]asing the [restitution] order on such evidence also denies [him] basic due process,” because the victim’s testimony did not prove beyond a reasonable doubt that defendant stole the items in question. Initially, we note that, at a sentencing hearing, proof by a preponderance of the evidence ordinarily is the standard. (People v. Baumann, supra,176 Cal.App.3d at p. 80.) Moreover, due process issues generally are forfeited absent an objection (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395), and defendant did not advance a due process argument in the trial court. In any event, due process was satisfied here, as defendant was given notice of the items the victim claimed had been stolen and participated in a hearing on the issue of restitution.
Defendant also argues it was error to order restitution for the video camera that the victim noticed was missing a week before the charged burglary because there was no evidence he stole this item.
The trial court has a great deal of leeway in ordering terms of probation, including setting restitution. (People v. Rubics (2006) 136 Cal.App.4th 452, 459.) A trial court may consider uncharged crimes in setting the amount of restitution in cases in which probation is granted. (People v. Goulart (1990) 224 Cal.App.3d 71, 78-79; cf. People v. Lai (2006) 138 Cal.App.4th 1227, 1246-1247 [restitution is limited to losses attributable to convicted offenses when a defendant is sentenced to state prison].)
Here, defendant had access to the victim’s house; in fact, she had been having trouble keeping him away. The two missing video cameras had been in the bedrooms of the victim and her son, locations where defendant had gone during the burglary. The item--a video camera--was the same type of property that defendant took during the more recent burglary. And defendant did not question the victim about the earlier missing video camera or contest the restitution order with regard to this item. Under these circumstances, we conclude there was a rational basis for the trial court to include this item in its restitution order.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., RAYE , J.