Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF176574, Darryl B. Ferguson, Judge.
Barbara J. Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Kane, J.
Appellant Isidro Anthony Anaya pled no contest to felony vandalism (Pen. Code, § 594, subd. (a)). The court imposed a two-year midterm prison sentence and ordered appellant to pay $13,000.14 to the victim as restitution.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant’s sole contention is that the amount of restitution ordered exceeded the replacement value of the damaged items, and therefore the court, in ordering restitution in that amount, abused its discretion. We will affirm.
FACTUAL BACKGROUND
The Instant Offense
The report of the probation officer (RPO) states that according to Tulare Police Department Records, the following occurred on January 5, 2007. At approximately 8:32 a.m., police officers, responding to a report of a theft in progress, made contact with Jeff Pena, who informed them that he observed a person, later identified as appellant, “on the roof, taking apart the air conditioning units in the apartment complex.” Pena made contact with appellant, who stated he had permission to take the air conditioners. Pena then called his brother, the owner of the apartment complex, who stated no one had permission to take the air conditioners. The owner confirmed this to the officers.
Probation Officer’s Recommendation
The RPO, filed July 30, 2007, states that the probation officer had been unable to contact the victim, and “recommended restitution to this victim remain open.” However, on July 31, 2007, the probation officer filed a document stating that he had received a fax from Pena “indicating the restitution amount is [$]13,000.14,” and recommended that restitution be ordered in that amount.
The Restitution Hearing
Jeff Pena was the manager of the property where the damaged air conditioning units were located. He brought with him to the hearing a copy of a report from an insurance adjustor, which indicated the following: the damaged units were 10 years old; each had an average maximum life of 20 years; the “Net Claim if Depreciation is Recovered” was $13,000.14; the “ACV” was $6,757.74. Pena testified the larger figure represented the cost to replace the damaged units with new units. He also testified he did not investigate the possibility of replacing the damaged units with used air conditioning units of approximately the same age.
The court noted that the adjustor’s report was attached to the RPO.
The court found that the “ACV” figure of $6,757.74 was the “actual cash value” of the damaged units, and that that figure indicated the insurance adjustor “applied 50 percent depreciation.”
After Pena testified, the court stated, “My question is, is [appellant] responsible for $13,000 or is he responsible for six. That’s the issue that I have.” The court then solicited argument on that question. Defense counsel argued that restitution should be based on “the replacement value of something that is like what is damaged,” and argued as follows: “I would assert that there is a market for used equipment and such. Ask the Court to take judicial notice that there is a secondary market for used equipment in general in our economy and used air conditioning units could be obtained. They would fit the role of the damaged air conditioning units.”
The court did not explicitly rule on the defense request for judicial notice, and ruled on the restitution question as follows: “[R]equiring the owner of the property to go out and try to find used air conditioners that are of the same quality or the same condition as [the] air conditioners that [were] damaged in this vandalism placed an undue burden upon the victim and further victimize[s] this person or this company. Therefore, I believe that the appropriate amount of restitution is the $13.000.14 as ordered or recommended by the appraiser. So I’m going to order that amount of restitution.”
DISCUSSION
Section 1202.4 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.” (§ 1202.4, subd. (f).) The amount of restitution must be “sufficient to fully reimburse the [victim] for every determined economic loss … including, but not limited to … [¶] … payment for the value of … damaged property.” (§ 1202.4, subd. (f)(3)(A).) Section 1202.4 defines “[t]he value of … damaged property” as “the replacement cost of like property ….” (§ 1202.4, subd. (f)(3)(A).)
Appellant argues that because the court based its restitution order on the value of new air conditioning units rather than units of the same age and condition as the damaged ones, the court violated the statutory directive to base restitution on “the replacement cost of like property.” (§ 1202.4, subd. (f)(3)(A), italics added.) We disagree.
Standard of Review
“A trial court’s determination of the amount of restitution is reversible only if the appellant demonstrates a clear abuse of discretion.” (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) In determining the amount of restitution, all that is required is that the trial court “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.) Therefore, we “will not disturb the trial court’s determination unless it is arbitrary, capricious and exceeds the bounds of reason.” (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.)
Analysis
Appellant relies chiefly on People v. Thygesen, supra, 69 Cal.App.4th 988. In that case, the defendant pled guilty to theft of a cement mixer, which he had rented but not returned. (Id. at pp. 990-991.) At the restitution hearing, James Flores, the manager of the business that had rented the cement mixer, testified that the replacement cost of the mixer was $3,331 and that the company had lost $3,822 in rental income. Flores did not know the age of the mixer and did not testify as to its original cost. (Id. at p. 991.) He “did provide redacted parts of a catalogue which showed list and discounted prices for cement mixers which were close, but not exact, to the model [the defendant] had stolen” (id. at p. 991, fn. omitted) but the “record was unclear as to whether the catalogue was strictly for new cement mixers, or whether it also contained prices for used mixers” (id. at p. 991, fn. 2). The report of the probation officer estimated the mixer’s value at “$1,400 (new) or $500-$700 (used) ….” (Id. at p. 991.)
The trial court gave the victim the choice of accepting either replacement cost of $2,098.98 or the rental loss to which Flores testified. (People v. Thygesen, supra, 69 Cal.App.4th at p. 991.) The appellate court held the victim was entitled to restitution reflecting both loss of use and replacement cost, and that “there was absolutely no evidence presented to the trial court from which a rational determination as to either type of loss could have been made” (id. at p. 995), and remanded the matter for a new hearing.
As indicated above, the court found the evidence insufficient to support the trial court’s findings as to both rental loss and replacement cost. With respect to the latter, the court stated: “Flores had no idea of the age of the mixer, other than he doubted it was more than 10 years old. It would seem to have been a simple thing for someone connected with Bonner [the equipment rental business] to testify as to the age of the mixer, its original price, and what it would cost to replace it with a mixer of like type and age.” (People v. Thygesen, supra, 69 Cal.App.4th at p. 995.) And in the portion of the opinion upon which appellant relies, the court further stated, in dictum: “As to a victim, the purpose of the restitution statute is to make that victim whole, not to give a windfall. Bonner is not entitled to replace a used mixer with a brand new one at appellant’s expense, absent some extraordinary facts. If Bonner were a car rental agency that lost a 1995 Ford Taurus, it would be entitled to the replacement value of a similar 1995 Ford Taurus, not a 1999 [the year Thygesen was decided] model.” (Ibid.)
Appellant asserts that Thygesen stands for the proposition that “like property” within the meaning of section 1202.4, subdivision (f)(3)(A) means property of the same age and condition as the damaged or stolen property for which restitution is sought, and that a court errs when it bases a restitution order for lost or damaged used property on the value of new property. Thus, he argues, the court in the instant case “did exactly what Thygesen holds that it may not do, [i.e.,] the court ordered restitution in an amount that would provide for the purchase of new air conditioning units, not [ten-year] old units.” However, to the extent the dictum in Thygesen quoted above suggests a court can never use the value of a new item as the basis for restitution for a stolen or damaged used item of the same kind, we disagree. On this point we find instructive People v. Foster (1993) 14 Cal.App.4th 939.
In that case, the defendant burglarized a cabin and stole, among other items, a Persian rug. As a condition of probation, the trial court ordered the defendant to pay restitution of $8,000 based on the victim’s statement to the probation officer that she had paid that amount for the rug. The appellate court rejected the defendant’s argument that “original cost of the stolen property is not an acceptable basis for a restitution award” (People v. Foster, supra, 14 Cal.App.4th at p. 945), and “conclude[d] that absent unusual circumstances, or a showing by the defendant to the contrary, the original cost of a stolen item may be treated as evidence of replacement cost for purposes of restitution” (id. at p. 946). The court indicated that to require the victim to produce evidence of the cost of an item of comparable age and condition would “impose[] an unwarranted burden on the trial court, the prosecutor, and the victim.” (Id. at p. 946, fn. omitted.) In this connection the court noted, “The only information about … [the] value [of the stolen Persian rug] easily available to the victim, unless she happened to be an expert in the field, was the cost of the item to her. Otherwise, she would have had to consult an expert appraiser, probably incurring a fee, to determine the replacement cost of the rug.” (Id. at p. 946, fn. 5.) The appellate court also noted the trial court was entitled to consider the evidence contained in the probation office’s report because “[w]hen the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount”; “‘[a] defendant’s due process rights are protected if he is given notice of the amount of restitution sought and an opportunity to contest the amount;’” and the defendant “was given a reasonable opportunity to be heard on the issue of restitution.” (Id. at p. 947.)
The question before us is whether the court used a “rational method” in arriving at its restitution order. (People v. Thygesen, supra, 69 Cal.App.4th at p. 992.) We conclude it did. First, as the court found, limiting the restitution to the cost of air conditioning units in the same condition and of the same age as the damaged units would require the victim, like the Persian rug owner in Foster, to find such items at his own expense. As the Thygesen court suggests, the burden of finding comparable property may be minimal where, as with used cars, it is well known that a market for such items exists and information regarding the cost of such items is easily obtainable. However, it is by no means clear that a successful search for used air conditioning units of the type belonging to the victim in the instant case could easily be accomplished, if indeed it could be accomplished at all. A victim should not be required to undertake such a search. Limiting restitution to the cost of used units would not make the victim whole.
In addition, the probation officer in the instant case recommended a restitution award of $13,000.14, and appellant had a fair opportunity at the hearing to answer the question posed by the court, i.e., whether to order restitution in that amount or base its determination on the lower depreciated value of the units set forth in the adjustor’s report. This placed the burden on appellant to present evidence supporting his claim of the lesser amount. (People v. Foster, supra, 14 Cal.App.4th at p. 947.) However, appellant presented no such evidence. We reject appellant’s suggestion that the court erred in not basing its restitution order on the figure of $6,757.74, labeled in the adjustor’s report as the “ACV,” because that figure is “based on standard principles of depreciation.” There was no evidence before the court that a value arrived at by the application of such principles actually reflects the price of items of like age and condition on the open market. Indeed, there was no evidence such a market exists.
On the record before us, given the absence of any evidence that used air conditioning units comparable to those damaged by appellant are available for sale, and the fact that appellant had a fair opportunity to present such evidence, we conclude that the court’s decision to base its restitution award on the cost of new air conditioning units was far from arbitrary or irrational.
DISPOSITION
The judgment is affirmed.