Opinion
A150225
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. MANUEL CORTES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR306842)
Manuel Cortes appeals from the superior court order that he pay $11,155.91 in restitution to the owner of a truck he stole and damaged. The court did not abuse its discretion in issuing the award, so we affirm.
BACKGROUND
In April 2014, Cortes led Fairfield police officers on a high-speed chase driving a stolen car. He abandoned the car and fled on foot. He found a truck at a nearby residence, stole it and drove away through a wire fence. Officers continued to pursue him. Cortes crashed the truck and ran. Eventually, he was found and taken into custody.
The facts are taken from the probation report.
Cortes was charged in a felony complaint with evading an officer with willful disregard for safety (Veh. Code, § 2800.2, subd. (a)); the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); and vandalism with over $400 damage (Pen. Code, § 594, subd. (a)). Two prior prison term enhancements were also alleged. Pursuant to a negotiated disposition, Cortes pled no contest to several of the charges plus an enhancement, and he was sentenced to three years in state prison. The court reserved jurisdiction over restitution.
All further statutory references are to the Penal Code.
In March 2016, the prosecution moved for restitution to the owner of the damaged truck in the amount of $11,155.91. In November 2016, at Cortes's request, the court held a restitution hearing. Through an interpreter, the truck owner testified that his truck was stolen in April 2014 and was returned to him in damaged condition. He took the damaged truck to an auto body shop for a repair estimate. In a four-page written estimate, the repair shop tallied $11,155.91 for repairs needed throughout the truck, including its front bumper, front lamps, grille, front door, rear lamps, and rear bumper, none of which were damaged before the truck was stolen. The owner testified that he did not use the body shop to repair the truck but made the repairs himself. He explained, "I try to fix my own things because I have no money for somebody else to do it." Even with his do-it-yourself repairs, he could not afford to fix all the damage. No other witnesses were called to testify. The court took the matter under submission and left the record open for two weeks, inviting supplemental submissions from the parties. Cortes did not submit anything further. In December 2016, the court ordered Cortes to pay the truck owner $11,155.91 in restitution. Cortes now appeals that order.
DISCUSSION
Cortes argues that the restitution award was not supported by substantial evidence because it was based on an auto body shop repair estimate rather than documentation of the truck owner's actual costs incurred in doing the repair himself. He contends the award should be reversed because the truck owner "was not . . . entitled to have Mr. Cortes pay him for the hypothetical costs of a body shop repair that was not actually performed." We disagree.
"[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.) "[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." (§ 1202.4, subd. (f).) 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 . . . ." (§ 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." (§ 1202.4, subd. (f)(3)(A).)
" '[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.' [Citation.] 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. [Citation.] 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 (Gemelli).)
"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." (Gemelli, supra, 161 Cal.App.4th at p. 1542.)
Here, the court did not abuse its discretion in ordering Cortes to pay restitution to the truck owner in the amount of the body shop estimate for the truck's repair. In People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245, the court observed that in determining the amout of restitution, " '[s]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.' [Citation.]" (Id. at p. 947.) Even "[a] property owner's statements in [a] probation report about the value of her property should be accepted as prima facie evidence of value for purpose of restitution." (Ibid.) Thus, in People v. Stanley (2012) 54 Cal.4th 734 (Stanley), the Supreme Court affirmed a restitution order based on a written car repair estimate. (Id. at pp. 738-739.) Likewise, the trial court here could also rely on the body shop's repair estimate as prima facie evidence of the actual cost of repair and use it as a proper measurement of restitution absent any rebuttal.
Cortes contends that reliance on the repair estimate was improper because "[t]he evidence . . . unambiguously established" that the truck owner performed his own repairs and never used the body shop that provided the estimate, or any other repair shop. Cortes correctly summarizes the truck owner's testimony on these points, but this evidence was not enough to satisfy Cortes's burden to prove the $11,155.91 claimed exceeded the repair costs of the truck. Cortes laments the absence of evidence as to how much money or time the truck owner spent repairing his vehicle. However, "[i]f defendant believed supporting documentation or additional information was necessary to effectively rebut the amount claimed, it was up to [the defendant] to obtain it." (Gemelli, supra, 161 Cal.App.4th at p. 1545.) Cortes never offered credible evidence to rebut the truck owner's claimed losses. Moreover, we reject Cortes's contention that the truck owner's do-it-yourself repairs undermined his restitution claim. In Gemelli, supra, 161 Cal.App.4th 1539, the court addressed a similar argument: "Even if the [victim] did all of the repairs himself rather than hire someone else to do them, his time had value. There was nothing in defendant's testimony to even suggest the hourly rate or the time spent for each repair was in any way excessive and could therefore not be the actual cost of repairing the property." (Id. at p. 1544.) Cortes's argument fails for the same reason.
The main case Cortes relies on, People v. Sharpe (2017) 10 Cal.App.5th 741 (Sharpe), does not apply. In Sharpe, the court concluded that a restitution award for a damaged truck based on both diminution of value and repair costs was improper. (Id. at pp. 746-747.) Based on Sharpe, Cortes contends the trial court could have ordered him to pay restitution for the reduced value of the truck or for the costs of repair but not both, and he notes the absence of evidence regarding the truck's value before and after Cortes damaged it. But the truck's diminished value is irrelevant here. Under section 1202.4, the trial court had discretion to award the truck owner the "actual costs of repairing" his truck, so long as the "repair was possible." (§ 1202.4, subd. (f)(3)(A).) The truck owner's repair estimate indicated that a repair was possible, so it was well within the trial court's discretion to award restitution on that basis without regard to the truck's decreased value. (See Stanley, supra, 54 Cal.4th at 737 ["[T]he choice whether to award the property's replacement cost or cost of repair 'when repair is possible' is left to the sound discretion of the trial court."].) Sharpe does not direct that a property owner seeking restitution must provide evidence of both replacement and repair costs to facilitate the court's choice between the two.
We are also not persuaded by Cortes's argument that Stanley, supra, 54 Cal.4th 734, is inapplicable to this appeal. The specific issue in Stanley was whether the trial court abused its discretion by awarding restitution on the basis of a repair cost estimate that was more than triple what the victim paid for the car 18 months earlier. (Id. at p. 736.) But Stanley is properly cited for the unremarkable proposition that a written estimate of repair costs can serve as the basis of a restitution award. (Id. at p. 739; cf. Foster, supra, 14 Cal.App.4th at p. 946.)
Cortes also notes that in Stanley, the trial court, after ordering a restitution award based on an estimated repair cost, added that " 'if it ends up costing less to repair the car, then restitution will be reduced appropriately.' " (Id. at p. 738.) Cortes describes this as a "ruling" that "was in accord" with section 1202.4 which specifies restitution based on repair costs shall be for "the actual costs of repairing the property when repair is possible." Since what constitutes the "actual cost" of repair was not raised in Stanley, we need not consider it. (Mares v. Baughman (2001) 92 Cal.App.4th 672, 679 ["Cases do not stand for propositions that were never considered by the court."].) --------
Finally, there is no reason to conclude that the court's restitution award bestowed a windfall on the truck owner. The truck owner had his truck stolen in April 2014 and returned with substantial damage. He had to secure repair estimates, and he dealt with the District Attorney to make a claim for restitution. Because he could not afford to pay for the full costs of repair in advance of receiving restitution, he made his own repairs. Even then, he was unable to make all repairs necessary to restore his truck to its condition before Cortes damaged it and lived with his truck in partial disrepair for more than two years. "Judges have broad discretion in fixing the amount of restitution, and 'the court may use any rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation.' " (In re Dina V. (2007) 151 Cal.App.4th 486, 489.) Reducing the restitution award here would run counter to these purposes and serve as a windfall to Cortes, not the truck owner.
DISPOSITION
The restitution order is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.