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In re Michael K.

Court of Appeal of California
Sep 3, 2008
No. D051471 (Cal. Ct. App. Sep. 3, 2008)

Opinion

D051471

9-3-2008

In re MICHAEL K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL K., Defendant and Appellant.

Not to be Published


After Michael K. admitted to possessing stolen property, the trial court held a hearing under Welfare and Institutions Code section 730.6 and ordered the minor to pay $2,982.96 in restitution. Michael contends that order was not supported by substantial evidence because the victims testimony regarding the items stolen from her home and the costs to replace them was "vague and speculative." Because we conclude there is substantial evidence in the record to support the restitution order, we affirm.

All statutory references are to the Welfare and Institutions Code unless otherwise specified.

FACTS

On October 2, 2006, a San Diego police officer responded to the residence of Nowell Hernandez, who claimed someone had entered her home through an unlocked door sometime between 10:30 a.m. and 4:15 p.m. and taken personal property without permission. On October 10, 2006, Hernandez informed the detective assigned to her case that two of her sons "friends," Kyel Y. and Michael, were involved in the crime and had returned some of the stolen property, including an X-box video game system and a PSP console belonging to her son. After questioning by the detective, Kyel admitted that two days before the burglary he took the X-box while visiting the victims son. Kyel also admitted to ordering a pair of tennis shoes online using the victims spouses credit card.

Kyel Y. is not a party to this appeal.

Michael told the detective he took the PSP console, a memory chip and the victims sons wallet. Michael claimed he had returned the PSP console and the memory chip to the victim, but had kept the wallet. Because Michael was then in possession of the wallet, which he turned over to the detective, Michael was charged with possession of stolen property. Both Kyel and Michael told the detective they had returned all the items they had taken from the victims home.

In a subsequent interview at the juvenile probation center, Michael denied any responsibility in the burglary, claiming he took the victims sons wallet about four months earlier, after the victims son had refused to return some of Michaels property he accidently had left at the victims house. According to Michael, the victims son knew Michael had his wallet "all along." When Michael was asked how he had ended up with the PSP console and the memory chip belonging to the victims son if he had not participated in the burglary, the probation report noted Michael became very quiet. Michael also could not explain why he previously had confessed his involvement in the burglary if he was innocent of that crime.

On March 28, 2007, the San Diego County District Attorneys Office filed a section 602 petition alleging Michael committed residential burglary (Pen. Code, § 459; count 1, a felony); stole money and personal property (Pen. Code, § 487, subd. (a); count 2, a felony); and possessed stolen property (Pen. Code, § 496, subd. (a); count 3, also a felony). The prosecutor subsequently reduced count 3 to a misdemeanor, and Michael admitted he committed count 3 in exchange for the dismissal of counts 1 and 2 with a "Harvey waiver," based on People v. Harvey (1979) 25 Cal.3d 754. At the disposition hearing on June 8, 2007, the court placed Michael on probation and ordered him to pay victim restitution.

At the restitution hearing on August 8, 2007, Hernandez testified regarding the items stolen and the costs to replace them. She previously had included this information on a victim report she had prepared in April of 2007, which was attached to Michaels probation report.

Hernandez testified a memory chip was stolen during the burglary. Hernandez did not have a receipt, nor could she remember when her husband had purchased this item. However, she presented the court with a computer printout of a memory chip similar to the one stolen, which put the replacement cost at $129.99 (rounded up to $130.00).

Hernandez testified that a ruby ring belonging to her was also stolen. She had purchased the ring from the QVC website. Although she did not have a purchase receipt, she provided the court with a "printout of the exact ring taken," which cost $116.

Hernandez testified her husbands gold wedding band was taken, although it was not discovered missing until two days after the burglary. Hernandez said the wedding band had been purchased 20 years ago for slightly less than $3,000. Hernandez did not have a receipt for the wedding band, and the jewelry store where it was purchased was no longer in business. Although the wedding band had never been appraised, Hernandez testified it would cost about $2,500 to replace.

Hernandez also testified about a stolen MP3 player her husband had purchased "sometime in 2006" at a cost between $100 and $ 130. She could not recall where her husband purchased the MP3 player, nor did she have a receipt. However, Hernandez provided the court with a printout showing an MP3 player similar to the one missing, which cost $119.99 to replace.

Hernandez produced copies of the shipping and credit card receipts for the tennis shoes purchased from her familys home computer. The tennis shoes had a value of $94.99. Hernandez also produced a copy of her cable bill showing two pornographic movies ordered through her cable provider on the same day as the burglary, at a cost of $10.99 each.

In rebuttal, Michael testified he took the PSP console, a memory chip and the wallet, but nothing else. On cross-examination, Michael said he took the memory chip because he thought it would work in the MP3 player, although he denied taking the missing MP3 player. Michael also testified he took these items between "July or August," or about four months before the burglary. Michael claimed he returned the memory chip and PSP console "the day after" he took them, but kept the victims sons wallet until he returned it to the detective.

The court found the victim suffered losses based on Michaels unlawful conduct, and ordered him to pay restitution in the amount of $2,982.96.

DISCUSSION

Section 730.6, subdivision (h) provides in part, "Restitution . . . shall be imposed in the amount of the losses, as determined," and "shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as a result of the minors conduct . . . ." Subdivision (h)(1) of section 730.6 provides 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."

Upon a showing by the victim of the losses suffered, the burden switches to the defendant contesting the amount of restitution to prove that the amount sought exceeds the replacement cost. (People v. Hartley (1984) 163 Cal.App.3d 126, 130 (Hartley).) A trial court does not abuse its discretion in setting restitution if there is a factual and rational basis for the amount set. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.)

When a "factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . ." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) In making this determination, we view the record in the light most favorable to plaintiffs, and resolve all evidentiary conflicts and indulge all reasonable inferences in support of the judgment. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)

Michael argues the court abused its discretion in awarding restitution to the victim under section 730.6. because: (1) there is a dearth of evidence, and the evidence that exists is inconsistent, to support the finding he took personal property belonging to the victim and her family other than the PSP console, the memory chip and the victims sons wallet; and (2) the victim was unable to produce documentary evidence of items she claimed to be missing to prove ownership and the costs of replacement.

The court heard testimony and considered various exhibits from Hernandez regarding the items missing from her home and the costs to replace them as a result of the October 2, 2006 burglary. The court also heard Michaels testimony, where he stated he did not participate in the burglary, and instead had taken the PSP console, memory chip and the wallet. He also testified he returned the PSP console and the memory chip—but not the wallet—within a day or two of taking them. He also testified he took the memory chip because he thought it would work in an MP3 player, but denied any responsibility for the missing MP3 player.

Michaels probation report, which included the victim report prepared by Hernandez and the detectives investigation and conclusions regarding the crime, also included incriminating statements by Michael. The probation report notes that Michael claimed he had not participated in the burglary, but that he could not explain to the detective why he had been in possession of items belonging to the victim and her family (e.g., the PSP console and memory chip), or why he initially had admitted to committing the crime if he was innocent.

The court also heard Michaels argument that Hernandezs testimony was speculative and unreliable because she discovered additional items missing after first reporting the burglary, and sought reimbursement for those additional items.

We conclude the trial court did not abuse its discretion in awarding victim restitution in the amount of $2,982.96. The record contains sufficient evidence to support the trial courts determination regarding both the items stolen from the victim and her family and the costs to replace them. The court was entitled to rely on the statements of the victim and the evidence she proffered in making this determination. (See People v. Prosser (2007) 157 Cal.App.4th 682, 687-688 [statements of victims of burglaries regarding the value of stolen property constitute prima facie evidence of ownership and valuation for purposes of restitution].) The fact the victim was unable to produce documentary evidence to support proof of ownership and costs of replacement is a factor the trial court may consider in determining an award of restitution, but is not a condition to such an award. (Ibid.)

With respect to the wedding band in particular, we conclude it would be burdensome, not to mention defeat the purpose behind section 730.6, subdivision (h)(1), to require Hernandez to present documentary evidence to prove ownership and replacement cost of that item, inasmuch as it was purchased 20 years ago from a store that is no longer in business.

Here, the trial court heard testimony both from the victim and from Michael, and weighed the evidence and considered their credibility in arriving at a restitution award. (See People v. Ortiz (1997) 53 Cal.App.4th 791, 799-800 [trial court has "`broad discretion" in setting the amount of restitution, and "while the amount of restitution cannot be arbitrary or capricious, `[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action"]; see also People v. Roldan (2005) 35 Cal.4th 646, 688 [abuse of discretion standard "reflects the trial courts superior ability to consider and weigh the myriad factors that are relevant to the decision at hand"].) On this record, we find no evidence to support Michaels contention the court abused its discretion.

We further note Michael received a list of the missing items and the costs to replace them before the restitution hearing. Because Hernandez made a prima facie showing of losses she and her family suffered due to the burglary, the burden shifted to Michael to show the amount of restitution sought exceeded the replacement costs of the stolen property. (See Hartley, supra, 163 Cal.App.3d at p. 130.) Other than his testimony that he only took the PSP console, memory chip and the wallet, Michael submitted no other evidence in rebuttal. Although the evidence is conflicting, the trial court understandably resolved that conflict against Michael. We conclude there is sufficient evidence to support the courts restitution award.

DISPOSITION

The restitution order is affirmed.

We Concur:

McDONALD, Acting P. J.

McINTYRE, J.


Summaries of

In re Michael K.

Court of Appeal of California
Sep 3, 2008
No. D051471 (Cal. Ct. App. Sep. 3, 2008)
Case details for

In re Michael K.

Case Details

Full title:In re MICHAEL K., a Person Coming Under the Juvenile Court Law. THE…

Court:Court of Appeal of California

Date published: Sep 3, 2008

Citations

No. D051471 (Cal. Ct. App. Sep. 3, 2008)