Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF1408, William E. Evans, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Fybel, J., and Ikola, J.
The court sentenced Burnham Tutotasi Vilieuga to a lengthy prison term after a jury convicted him of robbery and the court found true he had suffered a prior conviction. The only issue raised on appeal is whether the trial court properly imposed a $25 victim restitution fine. (Pen. Code, § 1202.4, subd. (f).)
The victim testified at trial that appellant took some change and a brand new movie he had purchased, ripped his shirt, and punched him in the face. Although the probation report indicates the victim claimed he lost a “game & cash” valued at $25, it recommended, without explanation, that the trial court order “restitution in the amount of $20.00.” At the sentencing hearing, the court ordered restitution to the victim in the claimed amount of $25.
A fair reading of the last page of the probation report suggests the difference between the amount the victim claims and that which the report recommends is simply a typographical error. No explanation is given for the proposed $5 reduction, and it seems unlikely under the facts of this case that the probation officer would somehow feel compelled to recommend such a small reduction. That said, an appellate court reviews a “trial court’s restitution order for abuse of discretion.” (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) “When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found.” (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
Appellant argues there is no basis for the restitution order because “there is no indication on how the amount was determined.” The only proof or evidence of the amount of economic loss is a “verbal” statement to the probation officer and thus the “amount ordered is not based on substantial evidence.” He insists he is therefore entitled to a new victim restitution hearing.
The general rule is “the trial court is entitled to consider the probation report when determining the amount of restitution. A property owner’s statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution. [Citation.] ” (People v. Foster (1993) 14 Cal.App.4th 939, 946; see People v. Keichler, supra, 129 Cal.App.4th at p. 1048; cf. People v. Harvest (2000) 84 Cal.App.4th 641, 653.) And, once the defendant is provided the probation report showing the victim’s claimed loss, “the defendant must come forward with contrary information to challenge the amount.” (People v. Foster, supra, 14 Cal.App.4th at p. 947.)
Appellant received a copy of the probation report and thus he was on notice of the amount claimed by the victim. He did not object at the sentencing hearing to the victim restitution amount imposed by the court (which in and of itself may well constitute a waiver of the issue), nor did he offer contrary information as to the amount of economic loss suffered by the victim. The amount of the restitution award, moreover, appears reasonable given the victim testified appellant took his money and a movie (or a game), ripped his shirt, and punched him in the face. The trial court properly relied on the victim’s statements in the probation report, and the trial court did not abuse its discretion in setting the amount of restitution at $25.
The judgment is affirmed.