Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. SA061160, James R. Dabney, Judge.
Murray A. Rosenberg, 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, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Bruce Westin appeals from an order after judgment imposing restitution pursuant to Penal Code section 1202.4 in the amount of $94,547.48. Previously he was convicted of committing vandalism causing damage over $400 (Pen. Code, § 594, subd. (a)) and his conviction was affirmed on appeal. He contends the restitution order imposed by the trial court must be reversed as the terms of the order amount to an abuse of discretion and rest upon a demonstrable error in law. For reasons stated in the opinion, we affirm the order.
FACTUAL AND PROCEDURAL HISTORY
As we stated in our previous opinion filed August 18, 2008, in case number B202964, the evidence at trial established that appellant was involved in an ownership dispute relative to a duplex in which he was living. In February 2006, Frederick Nitowski, the determined owner, began proceedings to evict appellant. During these proceedings, appellant threatened that the apartment was not going to be worth anything when he was done. In June 2006, after obtaining an eviction order from the court, Nitowski discovered that appellant had severely damaged the unit. At the time of trial, the damage to the premises was determined to be $71,329. (People v. Westin (August 18, 2008, B202964) [nonpub. opn.].) At a later restitution hearing, the court ordered appellant to reimburse the victim in the amount of $94,547.48.
DISCUSSION
Appellant challenges $15,000 of the restitution order for three months of lost rent. He asserts the insurance company representative, who provided the court with a document outlining the damage to the duplex and the insurance company’s payments, did not present any evidence relative to the basis for the claim of $15,000 in lost rent.
At the restitution hearing, a representative of the victim’s insurance company presented a document reflecting his inspection and evaluation of the premises, including appliances, cabinetry and fixtures and stated the damage to the items listed was attributable directly to the vandalism. Mr. Nitowski, the victim, appeared at the hearing and submitted documentation reflecting payment by his insurance company, which included the payment of $15,000 for loss of rent for three months.
Appellant argued it was “a bit dishonest for Fred Nitowski to assess $15,000 in unpaid or lost rent when the property has been – it continues to be vacant. It’s for sale. . . . [¶] But both . . . sides of the property – it’s a duplex – are vacant.” Appellant acknowledged he had lived in one unit of the duplex and a renter, Eric Friedman, lived in the other unit. The prosecutor argued that the insurance representative had testified that this item had been covered and reimbursed. The court noted the damage occurred in June, the repairs were not completed until March, and because the duplex was income property, the loss of rent during the time it took to make repairs was directly attributable to the vandalism. The court found the figures presented by the insurance company, “a disinterested third party” whose best interest would not be to overinflate the estimates, were reasonable.
Penal Code section 1202.4, subdivision (f), provides in pertinent part: “[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.” Restitution “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 . . . .” (Penal Code, § 1202.4, subd. (f)(3).) “The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.” (Penal Code, § 1202.4, subd. (f)(3)(A).)
“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.] [Penal Code 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 owner’s 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 defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. [Citation.] The defendant has the burden of rebutting the victim’s statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.) A defendant does not have a constitutional right to confront witnesses at a hearing to determine the amount of restitution. The scope of a defendant’s due process rights at a hearing is “very limited.” (People v. Cain (2000) 82 Cal.App.4th 81, 86.)
The victim presented the court with evidence of the amount of lost rent; appellant does not dispute that $15,000 was the amount the insurance company determined. Appellant’s assertion that the property was “not worth” that amount was not evidence and did not rebut the victim’s showing. Accordingly, we conclude the trial court did not abuse its discretion in imposing $15,000 for three months of lost rent as part of its restitution order.
DISPOSITION
The order is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.