Opinion
2d Crim. No. B210197.
7-15-2009
THE PEOPLE, Plaintiff and Respondent, v. BRENT ALLEN SCHUELER, Defendant and Appellant.
Jolene Larimore, 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, Susan Sullivan Pithey, Supervising Deputy Attorney General, Julie A. Harris, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Brent Alan Schueler appeals from the imposition of a $65,751.38 victim restitution order. (Pen.Code, § 1202.4, subd. (f)(1).) Appellant pleaded guilty to assault by means likely to produce great bodily injury. (§ 245, subd. (a)(1).) The court sentenced him to two years in state prison and ordered him to pay restitution. Appellant challenges the sufficiency of the evidence to support the portion of the restitution order attributable to lost income. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On November 12, 2007, appellant and Taylor Fenstermacher were at Chuys bar in Thousand Oaks, together with appellants girlfriend. Raymond Kuntz, a massage therapist, offended appellants girlfriend by placing his business card in her hip pocket. Appellant accused Kuntz of inappropriately touching his girlfriend, and became very hostile. A bartender escorted appellant outside.
Fenstermacher, appellants co-defendant, is not a party to this appeal.
Appellant and Fenstermacher later confronted Kuntz in the parking lot. Kuntz tripped. Appellant and Fenstermacher kicked and punched Kuntz as he lay on the ground. Their assault shattered Kuntzs arm. Doctors surgically placed a steel plate and seven screws in his arm.
Kuntz had no medical insurance and incurred several thousand dollars of debt for medical expenses. He could not work with his hands for months following the assault. Before the assault, he had worked as a construction worker and a massage therapist. He lost his client base and his residence and lived in his vehicle or stayed with friends or family.
During a June 17, 2008, telephone interview, Kuntz told the probation officer that his annual income before the assault was $86,400 ($62,400 from construction work, and $24,000 from massage therapy). He also said that he lost six months of income (approximately $43,200) as a result of the assault. On June 19, 2008, Kuntz informed the probation department in an email message that he had earned $2,600 weekly doing construction work, and $3,000 weekly as a massage therapist, and that he lost over seven months of income (approximately $75,000) as a result of the assault.
In June, Kuntz also advised the probation department that he was going to Europe for three months. When the probation officer tried to telephone him on July 26, 2008, the phone was disconnected. The probation report was submitted to the court on July 31, 2008.
Kuntz provided the probation department with documents showing that he owed $22,551.28 for unpaid medical bills. He did not submit any documents such as tax returns, pay check stubs, statements, receipts, etc. concerning his lost income. The probation report recommended restitution in the amount of $65,751.38, including $22,551.28 for unpaid medical bills and $43,200 for lost income.
During the August 5, 2008, restitution hearing, appellant challenged the recommendation to award $43,200 for lost income restitution because there was no documentation to substantiate any amount of lost income, and because Kuntz had reported inconsistent amounts of lost income. The court responded that it would "take the lower one." Addressing counsel, the court stated, "I dont think you understand what the nature of the restitution hearing is. I can rely totally on the probation report. Its your burden by subpoenaing witnesses to show that thats not an accurate amount of restitution."
Counsel again noted that Kuntz had provided no evidence to support his lost income statement, and then suggested that the court could "order restitution as directed upon the victim providing sufficient proof." The court stated: "Youve had ample opportunity to subpoena the victim to this hearing." When counsel responded that "according to the probation report he cant even be . . . locate[d]," the court replied, "You could have tried." The court ordered $65,751.28 in restitution, including $43,200 for lost income.
DISCUSSION
Appellant challenges the sufficiency of the evidence to support the portion of the restitution order attributable to lost income and argues that the court abused its discretion when it ordered him to pay $43,200 in restitution for lost income. We disagree.
The court awarded restitution pursuant to section 1202.4, subdivision (f), which provides in pertinent part as follows: "[I]n every case in which a victim has suffered economic loss as a result of the defendants 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. . . . [¶] (1) The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. . . . [¶] (3) To the extent possible, the restitution order shall . . . fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendants criminal conduct, including, . . . [¶] (E) Wages or profits lost by the victim . . . . " "A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. `[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. (Citation.) Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owners statement made in the probation report about the value of stolen or damaged property. [Citations.] Once the victim makes a prima facie showing of economic losses incurred as a result of the defendants criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. [Citation.]" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.)
During the August 5 hearing, the trial court properly considered the probation report, and accepted the Kuntzs statement therein, as prima facie evidence of the amount of his lost income. The burden then shifted to appellant to disprove the amount of losses claimed by Kuntz. (People v. Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543.) Upon his failure to do so, the trial court properly relied upon the probation report to determine the amount of restitution for lost income.
The judgment and the restitution order are affirmed.
We concur:
YEGAN, Acting P.J.
PERREN, J.