Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles Super. Ct. No. GA066387 County, Lisa B. Lench, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Sonya Won, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
On April 25, 2006, defendant Phrasay Bee Sayanath burglarized the apartment of Pisit Teeyahirunwatana (Teeyahirunwatana) and his girlfriend, Sujitra Fuhtrakoon (Fuhtrakoon). Following defendant’s arrest, he was charged with, and pled no contest to, first degree residential burglary (Pen. Code, § 459 ). Prior to entering his plea, defendant was advised and understood that he might be required to pay his victims restitution for any losses or damages they suffered. At the time of sentencing, the trial court ordered defendant to pay his victims restitution in an amount to be determined later. The court subsequently held a restitution hearing, after which it ordered defendant to pay Teeyahirunwatana and Fuhtrakoon $15,000 in restitution (§ 1202.4, subd. (f)).
Defendant also admitted that he was in violation of probation in Los Angeles Superior Court Case No. BA291791.
All statutory references hereinafter are to the Penal Code.
The court imposed the previously suspended midterm sentence of two years on the probation matter, along with a consecutive sentence of one-third of the four-year midterm (16 months) on the current offense.
Defendant’s challenge on appeal is limited to the amount of the restitution award. Specifically, he contends that the amount of victim restitution is not supported by the evidence and consequently the award constitutes an abuse of discretion. We disagree and affirm.
FACTS
Following the burglary of their Alhambra apartment, Teeyahirunwatana and Fuhtrakoon itemized the belongings stolen from their residence and listed the purchase price or estimated value for each. This list was admitted into evidence at the restitution hearing as People’s Exhibit No. 1. Also admitted into evidence were photographs depicting some of the jewelry that was missing after the burglary, available receipts and the testimony of Teeyahirunwatana, Fuhtrakoon and defendant.
People’s Exhibit No. 1 is not part of the appellate record.
According to Teeyahirunwatana, ten of his watches were stolen during the burglary. One of these watches was a chronograph watch with a yellow face for which Teeyahirunwatana paid $650. Teeyahirunwatana had a receipt for $440, the discount amount he collectively paid for three other watches, the total market value of which he estimated at $740. Also stolen were a Seiko watch for which he paid $350, a Guess watch the estimated value of which he listed as $150 after looking at comparable watches at the mall, a Casio G-Shock watch for which he paid $90, a Casio watch with night light for which he paid $50, a Diesel watch for which he paid $70, a Rolex watch that he purchased from a friend for $4,000 and a leather jacket he purchased at the Gap for $300. Teeyahirunwatana further testified that a woman’s watch which cost $80 also was stolen during the burglary.
Fuhtrakoon testified that four gold necklaces for which she paid $2,500 collectively were stolen during the burglary. Of these four necklaces, she only had the receipt for one necklace, which cost $800.
Also missing after the burglary were four diamond rings, which Fuhtrakoon collectively valued at $4,800. One of these rings was a gift from Teeyahirunwatana and cost $1,300. The other three diamond rings were gifts from her mother. Fuhtrakoon could only estimate the value of these three rings.
Fuhtrakoon also testified that three white gold necklaces were stolen. The total amount Fuhtrakoon paid for these necklaces was $2,100. A pearl necklace and bracelet, which were gifts from her mother, also were stolen. Fuhtrakoon estimated the value of these items by going to the mall and looking at comparable items. Finally, a diamond pendant for which her mother paid $2,000 was stolen.
Following the burglary, the victims saw the chronograph watch with a yellow face for which Teeyahirunwatana paid $650 and the gold necklace for which Fuhtrakoon paid $800 in a pawn shop. At the time of the restitution hearing, these items had not been returned to the victims.
Defendant admitted burglarizing Teeyahirunwatana and Fuhtrakoon’s apartment and stealing the two items the police located in the pawn shop, as well as some tools. Defendant denied stealing anything else. Although the probation officer’s pre-conviction report listed the estimated loss to all victims at $22,480, defendant presented no evidence challenging the value of the stolen items.
After listening to counsels’ arguments, the court ruled: “I’m going to order restitution to Ms. Fuhtrakoon and Mr. Teeyahirunwatana by [defendant] in the amount of $15,000. [¶] That is giving credence to the testimony concerning the amount that was paid for each of the items about which there is testimony, about the amount paid, plus $3,000 for the other jewelry that clearly was taken even though it was not — there was not testimony about its value or the amount paid, it clearly had value. [¶] It was clearly a significant amount of jewelry. And I think that given what was taken, and the fact that it clearly had value, including sentimental value, which cannot be reimbursed, I’m going to add $3,000 for that additional jewelry.”
DISCUSSION
Restitution
In California, “[r]estitution is constitutionally and statutorily mandated.” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) Article I, section 28, subdivision (b), of the California Constitution provides: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section . . . .”
The Legislature effectuated this constitutional mandate by enacting section 1202.4. (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) Subdivision (a)(1) of that statutory provision states, “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Thus, “the primary purpose of victim restitution is to provide monetary compensation to an individual injured by crime.” (People v. Harvest (2000) 84 Cal.App.4th 641, 648.)
Subdivision (f) of section 1202.4 in relevant part provides that “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. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.”
Whenever possible, the restitution order “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, all of the following: [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property . . . .” (§ 1202, subd. (f)(3)(A).)
The standard of proof at a restitution hearing is preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) The trial court’s discretion to award restitution is quite broad, but it is not unlimited. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) “Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial 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. Thygesen (1999) 69 Cal.App.4th 988, 992.) On appeal, the court’s restitution order is reviewed for abuse of discretion. (Keichler, supra, at p. 1045.) As long as there is a factual and rational basis for the restitution awarded, the court’s order will not be disturbed on appeal. (People v. Rubics (2006) 136 Cal.App.4th 452, 462; People v. Baker (2005) 126 Cal.App.4th 463, 467.) Only a restitution order that is arbitrary or capricious will be reversed. (Rubics, supra, at p. 462.)
Defendant Did Not Forfeit His Claim
Before reaching the merits of defendant’s contention, we address and reject the People’s assertion that defendant’s failure to object to the amount of the restitution award below precludes him from challenging the sufficiency of the evidence to support the award on appeal. No objection is required to preserve a sufficiency of the evidence challenge on appeal. (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17; In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.)
No Abuse of Discretion Has Been Demonstrated
Defendant asks this court to reduce the restitution award, contending that “the evidence does not support a rational estimate for any amount exceeding $10,930, which is the total of the amounts the witnesses remembered were actually paid for certain items.” We disagree with defendant’s contention and note that he miscalculated the total of the amounts Teeyahirunwatana and Fuhtrakoon testified were paid for specific items.
Although section 1202.4, subdivision (f)(3)(A), states that the value of stolen property “shall be the replacement cost of like property,” defendant does not take issue with the court’s use of the purchase price to calculate the amount of restitution.
Teeyahirunwatana testified that he paid $650 for his chronograph watch with a yellow face, $440 for three other watches, $350 for a Seiko watch, $90 for a Casio G-Shock watch, $50 for a Casio watch with night light, $70 for a Diesel watch, $4,000 for a Rolex watch, $80 for a woman’s watch and $300 for a leather jacket. The collective cost for these items is $6,030.
Fuhtrakoon testified that the purchase price was $2,500 for the four gold necklaces, $1,300 for the diamond ring Teeyahirunwatana gave her, $2,100 for the three white gold necklaces, and $2,000 for the diamond pendant her mother gave her. The amount paid for these items totaled $7,900. Thus, the total of the actual purchase prices remembered by Teeyahirunwatana and Fuhtrakoon was $13,930, not $10,930 as represented by defendant. Moreover, absent evidence that the items in the pawn shop had been retrieved and returned to the victims, the value of these items properly were included in the restitution equation. (People v. Collins (2003) 111 Cal.App.4th 726, 734.)
Here, the trial court credited the testimony of the victims as to the amounts that actually were paid for specified items. This credibility determination cannot be disturbed on appeal. (People v. Baker, supra, 126 Cal.App.4th at pp. 468-469.)
Teeyahirunwatana also estimated the cost of a stolen Guess watch at $150 after looking for comparable watches at the mall. Fuhtrakoon similarly estimated the value of her stolen pearl necklace and bracelet as $1,200 after looking for comparable jewelry at the mall. Inasmuch as comparable shopping constitutes a rational method for estimating the value of stolen items, the court would have been justified in relying upon the victims’ estimates in calculating the amount of restitution to be awarded. We reiterate that in setting the amount of restitution, the trial court “may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.” (People v. Baker, supra, 126 Cal.App.4th at p. 470.) Adding $150 and $1,200 to $13,930 totals $15,280.
Inasmuch as substantial evidence supports the trial court’s restitution award of $15,000, we need not determine if the court abused its discretion in awarding an additional $3,000 for the jewelry about which there was no testimony as to value or the amount paid.
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.