Opinion
H045667
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DANIEL CORDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1765808)
I. INTRODUCTION
Defendant Michael Daniel Cordoza appeals after pleading no contest to forgery (Pen. Code, § 470, subd. (a)). The trial court placed defendant on probation for three years under various terms and conditions, including that he pay victim restitution.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that the trial court abused its discretion in ordering restitution because it determined that the victim was a bailee and found defendant was estopped from arguing that the victim had not suffered an economic loss because he had abandoned his property. Defendant also contends there is insufficient evidence to support the amount of restitution awarded.
For reasons that we will explain, we will affirm the February 6, 2018 restitution order.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts of the offense are taken from the probation report.
Scott Bassett reported that his 1998 Ford Explorer was found in defendant's possession after defendant was involved in a collision while driving under the influence. The Explorer was totaled in the accident. Defendant had forged Bassett's signature on documents pertaining to the vehicle's ownership.
The probation report inaccurately identifies Bassett's vehicle as a 1998 Ford Expedition.
B. Charge and Plea
On August 18, 2017, defendant was charged with one count of forgery. (§ 470, subd. (a)). The complaint stated that defendant, "with the intent to defraud, and knowing he[] had no authority to do so, sign[ed] the name of another person on a[n] Application for Duplicate or Paperless Title."
On August 25, 2017, defendant executed an "Advisement of Rights, Waiver, and Plea Form" (change of plea form) and pleaded no contest to the charge. (Some capitalization omitted.) The change of plea form included a section entitled "Plea Agreement with the District Attorney" that stated: "The prosecutor, my attorney, and I have agreed that if I plead guilty or no contest to the charge(s) . . . the Court will sentence me to: [¶] . . . [¶] County jail for 60 days and up to 5 years on probation," and "Additional term(s): includes misdemeanor [violation of probation]; may serve on sheriff's work program." (Some capitalization omitted.) After those terms, the plea agreement section of the form stated: "There are no other agreements, and everything above is the total agreement. All other sentencing requirements/terms are left to the discretion of the Court." Defendant initialed the plea agreement section. A subsequent section of the change of plea form entitled "Restitution" stated: "I understand the Court will order me to pay full restitution to any victim(s) for his/her/their losses." (Some capitalization omitted.) Defendant initialed the restitution section.
C. Sentencing Hearing
At sentencing on October 27, 2017, defense counsel informed the trial court there was a disagreement regarding restitution. A supplemental memorandum filed by a deputy probation officer stated that due to various personal circumstances, Bassett had been unable "to gather all the documentation related to his financial loss." Bassett had provided the probation officer with a document outlining the $8,000 loss he incurred, which included the value of the vehicle, storage fees, registration fees, and personal items located inside the vehicle when it was taken.
Bassett attended the sentencing and told the trial court that he had tried to resolve the matter informally. Bassett explained to the court that he had discovered defendant's cellphone in his vehicle after defendant was involved in the accident that totaled Bassett's car. Bassett was able to determine that defendant texted someone named "Cynthia" after the collision. Bassett stated that he contacted Cynthia and told her that he planned to report that the vehicle was stolen because defendant had taken it without his permission and was "in the process of transferring the car into his name and filing the documentation." Bassett knew "this because [he] recovered the documents where [his] signature was forged on the paperwork." Bassett said that he told Cynthia that he did not want to make things worse for defendant "[b]ut he did steal my car, and he or someone else forged my signature on a California state document[], and I have evidence to prove all this." Bassett told the court that he suggested that Cynthia compensate him for the loss of the vehicle, and he would consider the vehicle sold to defendant and would decline to press charges. Bassett informed Cynthia that the vehicle was worth $3,500 when it was stolen, had no current value because of the accident, and that defendant "got almost 15,000 miles out of it, so it did provide him with some significant value." Bassett informed the trial court that Cynthia initially seemed amenable to his offer, but defendant's family members got involved and started threatening him. Bassett asked the court to impose a no-contact order.
Bassett acknowledged to the trial court that his "original offer was $3500," but stated that he was "uniformed at the time" and "was trying to dispense with this." Bassett explained that he had since learned that when a car is totaled, insurance companies reimburse for registration, tax, and other expenses and that his initial loss estimate had gone up substantially. Bassett added that the storage facility "where [he] went and saw the car" was currently owed $3,785, and noted that the vehicle was in "excellent shape."
Defense counsel told the trial court that "there's a dispute as to the quality of the car" and that "[t]he car was abandoned for a year." Defense counsel stated that defendant "bought the car from his uncle, who did not do a proper lien sale after [the vehicle] was abandoned. [¶] That's why this is here . . . because when [defendant] got into an accident with the car, [Bassett] was concerned that he was going to be held responsible for the accident, and that's what happened. [¶] But the reality is that it was abandoned. The service had not been fully paid, and the person at Precision Tune sold the car to [defendant] for a few hundred dollars."
The trial court placed defendant on formal probation for three years under various terms and conditions, including that he serve 60 days in jail. The court imposed a general order of restitution and set the matter for hearing.
D. Restitution Hearing
The restitution hearing was held on January 26, 2018. At the outset of the hearing, the trial court observed that Bassett had previously submitted a claim for $8,000, which consisted of $3,785 in storage fees, $3,500 for the vehicle, a $315 "[u]se [t]ax," $100 for registration, $50 for a smog check, and $250 worth of tools and personal items.
The trial court asked Bassett to explain the basis for the storage fees. Bassett responded that after the vehicle was totaled by defendant in the accident, the car was towed and stored. The court inquired whether Bassett had paid for the storage, and Bassett stated that he "ha[d] not yet been billed." Defense counsel interjected that it was her understanding that defendant had been billed for the storage and his wages were being garnished.
The trial court asked Bassett how he estimated the vehicle's value. Bassett stated that his original $3,500 estimate was inaccurate and that "[b]ased on quite a bit of research," he believed his car was worth $5,754 when it was taken. Bassett explained that his friend had an Explorer that was a year older than his vehicle that had also been totaled, and Bassett followed his friend's insurance company's reimbursement method. Bassett included in his estimate the value of after-market equipment he had installed on the car, including a Yakima rack and push bars.
The trial court identified September 12, 2016 as "the date that the theft occurred," which was when "the DMV paperwork was signed," and asked Bassett what he thought "the base value of the vehicle" was at that point. Bassett responded, "$4,353." The court asked Bassett how he arrived at that value, and Bassett stated that he had "a copy of the breakdown from . . . AAA" from his friend's insurance settlement and provided it to the court. The court observed that the insurance company had determined that "the[] adjusted value" of Bassett's friend's 1997 Ford Explorer was $2,663. Bassett explained that he estimated his own car was worth $4,353 based on the vehicle's excellent condition, recent repairs, and upgrades. Bassett also stated that the difference in value between a 1997 and 1998 Ford Explorer was $100.
The trial court asked Bassett whether he had paid the prices listed for the grill guard and the upgraded bumper, and Bassett responded that "[i]t is not what I paid. I tried to mimic what my friend's car was worth when it was totaled." The court then inquired about the smog check and use tax fees. Bassett stated that in his friend's settlement, the insurance company "added nine percent or whatever percent it is for the use tax that you have to pay when you register a car" and the costs for the smog check because those fees are "required to be able to use that car."
The trial court observed that "the defense has the burden to dispute the victim's amount," and asked defendant to proceed. Defendant stated that Bassett's vehicle "was serviced at Precision Auto Tuning on March 18th, 2016. [¶] It wasn't picked up. The vehicle registration expired about five months later. [¶] The date of this offense, the conversion, happened on September 12, 2016. That would be after the car had been abandoned at Precision Auto Tuning by Mr. Bassett." Defendant argued that because the September 12, 2016 conversion occurred after Bassett had abandoned the vehicle at the auto repair shop, the court could not order restitution to reimburse Bassett for the value of the car. Defendant added that Bassett's vehicle was not reported stolen until after the accident, which occurred approximately 14 months after the car "had been serviced and then abandoned at Precision Auto Tuning." Defendant argued that Bassett had also abandoned his tools and the vehicle's after-market equipment, such as the grill guard and bumper, six months before "the crime [defendant] pled to and has been convicted of." Defendant asked the trial court not to award restitution.
Alternatively, defendant asserted that if the trial court was going to award restitution based on the vehicle's value, the amount should be comparable to the "Blue Book" value. Defendant provided the court with the Kelly Blue Book's estimated value for a 1998, two-door Ford Explorer with 168,000 miles, which was $777 to $1,876. Defendant asserted that the restitution should not include the use tax, registration, and smog check fees because the vehicle's registration had already expired when the conversion occurred and that it should not include the storage fees because Bassett had not paid, or been billed for, those fees.
The prosecution responded that "defendant's . . . forgery is the precise reason why Mr. Bassett doesn't have access to [the] car," and Bassett added that he "strenuously object[ed] to the term abandonment" and that he did not abandon the vehicle. The trial court told Bassett, "That's not a factor here. You need not address that." Bassett stated that defendant had provided the court with "an inaccurate yard stick" because a two-door Ford Explorer was worth significantly less than a four-door Explorer and asserted that the Blue Book value was not the replacement value.
Noting that section 1202.4, subdivision (f) requires the court to order restitution in an amount sufficient to fully reimburse the victim for every economic loss incurred as a result of the defendant's criminal conduct, the trial court found that because of defendant's actions, Bassett "didn't have a truck anymore" and that Bassett was "entitled to . . . the value of his truck plus any other necessary expenses." The court observed that there was a dispute regarding the vehicle's value, and that defendant had submitted a Kelly Blue Book estimate for a slightly different car. The court found the estimate from Bassett's friend's insurance company reliable and more credible than the Kelly Blue Book because that is from "people who actually pay money for these things, as opposed to Kelly Blue Book who doesn't really have a horse in the race."
The trial court found defendant was "essentially estopped from claiming abandonment because of his misconduct" and stated that "if [it] remember[ed] [the] terms from law school, [defendant] was a bailee for hire or a bailor for hire." The court determined, "The bottom line is, the defendant had a vehicle, wrongfully. But for that action, it would not have been wrecked, and the victim would not [have been] deprived of his vehicle."
The trial court ordered defendant to pay $4,000 in restitution. Based on the information Bassett provided, the court found the "base value" of the vehicle was $2,750. The court determined that the car's after-market equipment was worth $1,000, which consisted of $100 for the bumper upgrade, $500 for the Yakima rack, and $400 for the grill guards, and that Bassett's tools and other possessions inside the vehicle were worth $250. The court declined to award restitution for storage fees because Bassett had not paid those costs. The court also did not award restitution for use tax, registration, or smog-test fees. The court concluded the hearing by ordering that defendant "pay full restitution" as a "specific condition of probation."
On February 6, 2018, the trial court filed an "Order for Restitution and Abstract of Judgment," pursuant to sections 1202.4, subdivision (f), and 1214. (Some capitalization omitted.) The order stated that defendant was convicted of a crime that entitled the victim to restitution and that the court ordered defendant to pay Bassett restitution in the amount of $4,000, which included the "value of property stolen or damaged." The order also stated that it superseded all previous orders.
III. DISCUSSION
A. Certificate of Probable Cause
The Attorney General contends that defendant's challenge to the trial court's victim restitution order is barred because defendant did not obtain a certificate of probable cause. Defendant counters that a certificate of probable cause is unnecessary because he is contesting a postjudgment order that affects his substantial rights. We conclude that a certificate of probable cause is not required.
The Attorney General refers to an appellate waiver form that defendant purportedly executed. After carefully reviewing the record, we find no evidence that defendant executed a waiver of his appellate rights.
"Section 1237.5 . . . require[s] a defendant, who has pleaded guilty or no contest to a charge, to obtain a certificate of probable cause in order to challenge the validity of the plea." (People v. Becerra (2019) 32 Cal.App.5th 178, 185, fns. omitted.) However, the California Supreme Court has "made clear that where the terms of the plea agreement leave issues open for resolution by litigation, appellate claims arising within the scope of that litigation do not attack the validity of the plea, and thus do not require a certificate of probable cause." (People v. Buttram (2003) 30 Cal.4th 773, 783 (Buttram).) "The parties to a plea agreement are free to make any lawful bargain they choose, and the exact bargain they make affects whether a subsequent appeal, in substance, is an attack on the validity of the plea." (Id. at p. 785.) "[W]hen the claim on appeal is merely that the trial court abused the discretion the parties intended it to exercise, there is, in substance, no attack on a sentence that was 'part of [the] plea bargain.' [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself." (Id. at p. 786.)
Section 1237.5 states: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
Here, the parties' plea agreement did not include victim restitution. Rather, the plea agreement section of the change of plea form explicitly stated that "[a]ll other sentencing requirements/terms"—other than 60 days in county jail, up to five years of probation, admission of a violation of misdemeanor probation, and eligibility for the sheriff's work program—"are left to the discretion of the Court." Defendant does not challenge any of the plea agreement's terms, but contends that the trial court abused its discretion when it imposed victim restitution. Thus, this case involves a claim that "the trial court abused the discretion the parties intended it to exercise," which is not an "attack on a sentence that was 'part of [the] plea bargain.' [Citation.] Instead, the appellate challenge is one contemplated, and reserved, by the agreement itself." (Buttram, supra, 30 Cal.4th at p. 786.) Accordingly, defendant was not required to obtain a certificate of probable cause and his appeal is not barred.
The trial court's summary of the plea agreement at the change of plea hearing was consistent with the terms stated on the change of plea form and did not include restitution. Both parties indicated that the court's summary was consistent with their understanding of the agreement.
B. Victim Restitution
Defendant contends that the trial court abused its discretion in granting victim restitution because it improperly found that defendant was a bailee and foreclosed defendant's claim that Bassett did not suffer an economic loss because he had abandoned his vehicle before defendant's crime. Defendant also contends that the trial court erred when it included the value of two "add-ons" to Bassett's vehicle in its restitution order because no evidence established the cost of those items. (Capitalization omitted.)
Defendant challenges the trial court's order that he pay $500 in restitution for a "Yak-Rack" and $400 for "grill guards."
1. Standard of Review
We review a victim restitution order for an abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).) The abuse of discretion standard asks whether the ruling in question " ' "falls outside the bounds of reason" ' " under the applicable law and the relevant facts. (Ibid.) "Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the . . . victim's economic loss." (Id. at pp. 663-664.) "[A] restitution order 'resting upon a " 'demonstrable error of law' " constitutes an abuse of the court's discretion.' " (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) However, " ' " '[w]hen there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' " [Citations.]' " (People v. Baker (2005) 126 Cal.App.4th 463, 467.)
2. General Principles Regarding Victim Restitution
California voters passed Proposition 8, the initiative also known as the Victims' Bill of Rights, in 1982. (Giordano, supra, 42 Cal.4th at p. 652.) "Proposition 8 established the right of crime victims to receive restitution directly 'from the persons convicted of the crimes for losses they suffer.' (Cal. Const., art. I, § 28, subd. (b).)" (Giordano, supra, at p. 652.) The California Constitution states: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] (B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Cal. Const., art I, § 28, subd. (b)(13)(A) & (B).)
"In the mid-1990's, the Legislature consolidated much of the state's victim restitution scheme into Penal Code section 1202.4." (Giordano, supra, 42 Cal.4th at p. 653.) Section 1202.4 declares "the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (§ 1202.4, subd. (a)(1).) Thus, "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 term " 'economic losses' " is given an "expansive interpretation" (People v. Williams (2010) 184 Cal.App.4th 142, 147) and includes "the value of stolen or damaged property" (§ 1202.4, subd. (f)(3)(A)). The value of stolen or damaged property is the replacement cost of like property, or the actual cost of repairing the property when repair is possible. (§ 1202.4, subd. (f)(3)(A).) The trial court must order "full restitution" that "shall be of a dollar amount that is sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendant's criminal conduct." (§ 1202.4, subd. (f)(3).) Therefore, "[r]estitution to the victim is mandatory, although the court retains discretion as to the amount. [Citation.]" (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.)
3. Determination that Bassett Suffered an Economic Loss
Defendant contends that the trial court abused its discretion when it ordered victim restitution because the court erroneously found that defendant "was a bailee for hire or a bailor for hire" and estopped defendant from arguing that Bassett had not suffered an economic loss because he had abandoned his vehicle before defendant's crime. We conclude that the court did not abuse its discretion.
As we stated above, Article I, section 28, subdivision (b)(13)(A) of the California Constitution vests in "all persons who suffer losses as a result of criminal activity . . . the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." This provision expresses the "unequivocal intention of the People of the State of California" (Cal. Const., art. I, § 28, subd. (b)(13)(A)) that "every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss" (People v. Phelps (1996) 41 Cal.App.4th 946, 950 (Phelps)). "The only qualification is that the loss must be 'the result of criminal activity.' [Citation.]" (Phelps, supra, at p. 950.) In section 1202.4, subdivision (f)(3), "the Legislature made clear that restitution is measured by the '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.' " (People v. Martinez (2017) 2 Cal.5th 1093, 1105 (Martinez), italics omitted.)
Defendant argues that the trial court abused its discretion when it found that Bassett had suffered an economic loss and foreclosed his claim that Bassett had abandoned the vehicle because "[t]he record shows that . . . Bassett left the vehicle at an auto repair garage for over a year." However, defendant pleaded no contest to forgery. "Among other elements, a conviction of forgery requires the person utter, publish or pass, in this case, the [application for duplicate or paperless title] with the specific intent to defraud another person. [Citations.] An intent to defraud is an intent to deceive another person for the purpose of gaining a material advantage over that person or to induce that person to part with property or alter that person's position by some false statement or false representation of fact, wrongful concealment or suppression of the truth or by any artifice or act designed to deceive." (People v. Pugh (2002) 104 Cal.App.4th 66, 72; see also CALCRIM No. 1900 ["[s]omeone intends to defraud if he or she intends to deceive another person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something [else] of value), or to cause damage to, a legal, financial, or property right"].)
"[D]efendant's no contest plea . . . constituted an admission to all the elements of th[e] offense[]." (People v. French (2008) 43 Cal.4th 36, 49.) Thus, as charged in the complaint, defendant admitted that he intended to defraud Bassett when he "sign[ed] the name of another person on a[n] Application for Duplicate or Paperless Title." Under the California Constitution and section 1202.4, Bassett was entitled to reimbursement for every economic loss incurred as a result of defendant's forgery. (See Martinez, supra, 2 Cal.5th at pp. 1100-1101.)
The trial court determined that Bassett owned the vehicle damaged while in defendant's possession and that Bassett suffered an economic loss as a result of defendant's crime. The court stated, "The bottom line is, the defendant had a vehicle, wrongfully. But for that action, it would not have been wrecked, and the victim would not [have been] deprived of his vehicle." We agree.
In Martinez, supra, 2 Cal.5th at page 1097, a case involving a defendant convicted of leaving the scene of an injury accident in violation of Vehicle Code section 20001, subdivision (a), the California Supreme Court held that the trial court erroneously awarded restitution pursuant to section 1202.4 for injuries the victim suffered as a result of the accident. The court explained that "the authority to order restitution for losses caused by criminal conduct . . . does not imply . . . the power to order restitution for losses caused by noncriminal conduct that took place before the commission of any crime but gave rise to the duty that defendant ultimately breached." (Martinez, supra, at p. 1106, italics added.) However, the court emphasized that its reading of section 1202.4 did not "cast any doubt on whether direct victim restitution is available when the victim's losses are caused by conduct that does, in fact, constitute a crime. (Martinez, supra, at p. 1105.) "If, for example, a thief steals a car and a third party reckless driver damages it, we do not doubt that the owner would be entitled to reimbursement from the thief under section 1202.4, subdivision (f). . . . [T]hat is because the owner has incurred losses resulting from the thief's criminal conduct (namely, the unlawful deprivation of his or her property)." (Ibid.)
The example provided by the court in Martinez is akin to what happened here. Through his forgery, defendant unlawfully deprived Bassett of his vehicle. Bassett's Explorer was in defendant's unlawful possession when defendant drove under the influence and totaled the car. Thus, Bassett "incurred losses resulting from [defendant's] criminal conduct (namely, the unlawful deprivation of his or her property)," and was entitled to restitution to fully reimburse him for his loss. (Martinez, supra, 2 Cal.5th at p. 1105.)
Regarding the trial court's statement that defendant was "a bailee for hire or a bailor for hire," viewing the court's comments in their entirely, it is clear the court determined that Bassett owned the vehicle and suffered an economic loss based on defendant's crime. "[W]here a judge's statements as a whole disclose a correct concept of the law and its application, no secondary remarks should be deemed to have impeached his [or her] determination." (People v. Cartier (1960) 54 Cal.2d 300, 313.) Moreover, "[a] trial court's ruling must be upheld if there is any basis in the record to sustain it." (People v. Marquez (1992) 1 Cal.4th 553, 578.)
For these reasons, we conclude that the trial court did not abuse its discretion when it determined that Bassett had suffered an economic loss as a result of defendant's crime and ordered defendant to pay Bassett restitution pursuant to section 1202.4.
4. The Value of the Vehicle's "Add-Ons"
Defendant contends that the trial court abused its discretion when it ordered him to pay Bassett $500 for the vehicle's Yakima rack and $400 for grill guards because there is no evidence in the record regarding the value of those items.
" 'Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the [defendant's] burden to affirmatively demonstrate error.' " (People v. Sullivan (2007) 151 Cal.App.4th 524, 549 (Sullivan).) "[T]he defendant further bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the defendant." (Ibid.)
"Restitution hearings are intended to be informal. ' " 'Section 1202.4 does not, by its terms, require any particular kind of proof.' " ' " (People v. Weatherton (2015) 238 Cal.App.4th 676, 684.) "At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.' " (Millard, supra, 175 Cal.App.4th at p. 26.)
Here, the reporter's transcript of the restitution hearing indicates that Bassett provided the trial court with two spreadsheets. One spreadsheet was the insurance estimate "prepared for [his] friend's 1997 Ford Explorer." The other spreadsheet contained "the adjustments" Bassett made to represent his vehicle's value based on its year, mileage, and condition. Included on this spreadsheet was the value of "the equipment adjustments [including] the rack and the upgraded bumper." Although the reporter's transcript does not state the amount Bassett was claiming for the equipment, Bassett told the court that the prices for the grill guards, the rack, and the upgraded bumper were "fully documented here by recent quotes."
After Bassett provided the trial court with the spreadsheets and answered the court's questions about the stated values, defendant gave the court a Kelly Blue Book estimate, which the court ultimately found less reliable than the information it received from Bassett. While defendant argued that Bassett was not entitled to restitution for the rack and the grill guards because Bassett had abandoned the vehicle and its after-market equipment before defendant committed the forgery, he did not provide any evidence that the value of the rack and grill guards was " 'other than that claimed by [Bassett].' " (Millard, supra, 175 Cal.App.4th at p. 26.) At the conclusion of the hearing, when the court stated that the restitution award would include "$500 for the Yak-Rack[] and $400 for the grill guards," defendant did not object or give any indication that the court had pulled these figures out of thin air.
Rather, our careful reading of the record indicates that the amounts ordered to reimburse Bassett for the rack and the grill guards were based on "the adjustments" spreadsheet Bassett provided to the trial court. This court granted defendant's motion to augment the record with Bassett's "insurance company document." However, defendant did not move to augment the record with the spreadsheet showing Bassett's adjustments, nor did he attempt to settle the record concerning its content under applicable California Rules of Court, rule 8.346. (See People v. Anderson (2006) 141 Cal.App.4th 430, 440 [settled statement designed to fill gaps in appellate record].)
Thus, we conclude that defendant has not met his burden to demonstrate error below and "provide a record on appeal which affirmatively shows . . . error." (Sullivan, supra, 151 Cal.App.4th at p. 549.) For this reason, we reject his contention that the trial court's inclusion of the value of the Yakima rack and the grill guards in its restitution award is not supported by sufficient evidence.
IV. DISPOSITION
The February 6, 2018 victim restitution order is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
MIHARA, J.