Opinion
A152490
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA M. FELIX, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 225878)
Joshua Felix appeals from two victim restitution orders. In challenging one, he argues that if the original purchase price of personal property is used as evidence of the replacement cost, the trial court is required to depreciate that amount. In challenging the other, he argues that the prosecution's evidence of the replacement cost of personal property must be disregarded if the defendant presents evidence that the property can be replaced for less. We are not persuaded by either argument, and we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As part of the negotiated disposition of a 15-count information, Felix pleaded guilty to two counts of second degree burglary of a vehicle, in violation of Penal Code section 459. The superior court sentenced Felix to county jail and, pursuant to a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), ordered him to pay restitution on all counts, including those dismissed. This appeal concerns orders of restitution to Meghan Warner and Robert Frank. We draw the underlying facts from police testimony at the preliminary hearing. A. Burglary of Warner's Vehicle
Statutory references are to the Penal Code unless otherwise stated.
A police officer patrolling the area of Brannan and Second Streets in San Francisco one evening saw Felix standing next to a sedan. Felix crouched down next to the car, and then stood up and walked away, carrying a "dark colored canvas bag." The officer examined the car and saw that the passenger window where Felix had been standing was broken. Later that evening, the officer contacted Warner, the owner of the car, who said she had parked her car earlier that evening with its windows intact and gone to a nearby restaurant. She reported that a dark blue backpack, containing a laptop computer and various school supplies and paperwork, was missing from her car. B. Burglary of Frank's Vehicle
A second police officer testified that on the same evening Warner's car was broken into, he saw Felix walking along the sidewalk near the intersection of Howard and Fifth Streets in San Francisco, using a light to look inside vehicles. Felix leaned toward the rear passenger side window of an SUV. The officer heard glass breaking, and saw Felix reach in the window and try to remove something large from the car. Felix then opened the rear passenger door, reached in, and removed two dark colored bags. Later, the officer spoke to Frank, the lessee of the SUV, who said he had parked the car with the windows intact. Frank's son reported that he was missing two backpacks, one containing a calculator and schoolbooks, and the other containing expensive camera equipment.
DISCUSSION
A. Applicable Law and Standard of Review
Section 1202.4, subdivision (f), provides, "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. . . . The court shall order full restitution." A restitution order is to be "of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant's criminal conduct." (§ 1202.4, subd. (f)(3).) Losses to be reimbursed include "full or partial payment for the value of stolen . . . property," defined as "the replacement cost of like property." (§ 1202.4, subd. (f)(3)(A).) The statute was enacted in accordance with Article I, section 28, of the California Constitution, which provides in subdivision (b)(13)(A), "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," and in (b)(13)(B), "Restitution shall be ordered from the convicted wrongdoer in every case . . . in which a crime victim suffers a loss." (See People v. Lyon (1996) 49 Cal.App.4th 1521, 1525 (Lyon) and People v. Phelps (1996) 41 Cal.App.4th 946, 949-950 [discussing history of restitution statutes].) "In keeping with the 'unequivocal intention' that victim restitution be made, statutory provisions implementing the constitutional directive have been broadly and liberally construed." (Lyon, supra, 49 Cal.App.4th at p. 1525.)
The trial court has broad discretion to choose a method for calculating the amount of restitution, but must employ a method "rationally designed to determine" a victim's economic loss. (People v. Giordano (2007) 42 Cal.4th 644, 663-664 (Giordano).) Evidence of the original cost of a stolen or damaged item is evidence of replacement cost and suffices to support a restitution award. (People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster), superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th, 226, 238-245.) Once the victim or prosecution makes a prima facie showing of economic loss, the burden shifts to the defendant to disprove the claimed amount. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).) The defendant may submit evidence to prove that the amount claimed in restitution exceeds the replacement cost. (Ibid.)
We review a trial court's restitution order for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) "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.) "In reviewing the sufficiency of the evidence, the ' "power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the trial court's findings.' [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] 'If the circumstances reasonably justify the [trial court's] findings,' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.) B. Warner Claim
1. Additional Background
The prosecution sought $1,937.35 in restitution for Warner. The district attorney submitted receipts provided by Warner, totaling $1,372.92 for the 2012 purchase of the laptop, $125.43 for the 2013 purchase of an adapter and a solid state drive, $289 for the 2015 purchase of a backpack, and $150 for the 2015 purchase of sunglasses. The parties agreed that the laptop purchase included $249 for a service contract that had expired before the laptop was stolen.
The trial court ordered restitution to Warner in the amount of $1,688.35, apparently accepting Felix's argument that the cost of the $249 service contract should not be included in the restitution award. Felix argued that the depreciated value of the laptop, rather than the purchase price, should be used to calculate the amount of restitution, and that the cost of the sunglasses, adapter and drive should not be included because those items were not listed in the police report. The court apparently rejected these arguments.
2. Analysis
Felix initially contends, incorrectly, that no evidence was presented as to the replacement cost of Warner's property. He ignores the receipts showing the original purchase prices of the stolen items, which are properly considered evidence of replacement cost. (Foster, supra, 14 Cal.App.4th at p. 946.) Then, apparently conceding the point, Felix argues, "To the extent the original purchase price is some evidence of replacement cost, the trial court is required to depreciate that amount." Because Felix supports his argument with a citation to an unpublished decision from the Fourth District Court of Appeal, in violation of California Rules of Court, rule 8.1115, he fails to provide authority to support his claim that the trial court must engage in a depreciation analysis. And even though "section 1202.4, subdivision (f) requires that restitution be 'based on the amount of loss claimed by the victim or any other showing to the court' " (Giordano, supra, 42 Cal.4th at p. 667), Felix did not make any showing that the items he stole had depreciated in value, or what that depreciation would be. Furthermore, any claim that the trial court failed to exercise its discretion at all in making the restitution award to Warner fails in the face of the court's decision to deduct from the requested award the cost of the expired service contract for the laptop.
Felix relies on People v. Thygesen (1999) 69 Cal.App.4th 988, 995 (Thygesen) to argue that Warner is not entitled to replace used property with new property at defendant's expense, absent extraordinary facts not present here. Thygesen, which primarily concerned the need for evidence to support a restitution award, is distinguishable. There, the defendant rented a cement mixer, failed to return it, and eventually pleaded guilty to theft of the mixer. (Id. at pp. 990-991.) The trial court required the victim to choose between two restitution amounts, one purportedly representing the replacement cost of the mixer and the other purportedly representing loss of use over a period of 13 months. (Id. at p. 991.) The Court of Appeal reversed, concluding that under section 1202.4, the victim was entitled to the replacement cost of the mixer and to a reasonable amount for loss of use, but absolutely no evidence had been presented from which a rational determination as to either loss could have been made. (Id. at pp. 994-995.) Here, in contrast, the trial court's restitution award was supported by substantial evidence, in the form of receipts showing the original purchase prices of the stolen property. Accordingly, we shall affirm the Warner award. C. Frank Claim
At the restitution hearing, a representative of the rental company testified that the mixer had not yet been replaced, more than 13 months after the loss. (Thygesen, supra, 69 Cal.App.4th at p. 991.) --------
1. Additional Background
The prosecution requested $13,024.41 in restitution for Frank, which was the amount sought in a letter from Frank's insurance carrier to the district attorney and supported by an itemized list showing replacement costs plus tax. Somewhat confusingly, the district attorney submitted a separate itemized list, apparently also from the insurance carrier, that showed replacement costs plus tax of $12,483.23.
At the restitution hearing, Felix produced printouts of web pages showing sale prices for some used camera equipment that were less than the amounts that appeared on the insurance company documents. Among other things, Felix's printouts reflected that the cost for a new memory card was lower than the amount stated by the insurance. The superior court did not credit Felix's evidence, except for the cost of memory cards, and awarded restitution in the amount of $12,834.39, the amount requested, less $190.02, which the court said was the differential in the cost for memory cards.
2. Analysis
Felix argues that the trial court erred by failing to use as its baseline the lower of the two amounts reflected in the insurance company documents. This argument relies on his assumption that only the lower amount ($12,483.23), and not the higher amount ($13,024.41), reflects replacement cost, an assumption belied by the appearance of the term "replacement cost" in both itemized lists. Felix also argues that the trial court was required to reduce the award to reflect the lower costs he claimed for other items, not just the memory cards, with the result that the restitution award to Frank should have been $10,710.20.
Felix thus argues not only that the trial court was required to base its calculation on the lower of two figures submitted by Frank's insurer, but also that the trial court was required to incorporate in its calculation the replacement costs proffered by Felix where those differed from the insurance company's. His arguments go to the weight of the evidence, which is not within the scope of our review of a restitution award. (People v, Tabb (2009) 170 Cal.App.4th 1142, 1154.) We consider only whether substantial evidence supports the trial court's award, not whether the evidence might support a different one. Here, substantial evidence in the form of the insurance company documents and Felix's evidence regarding the cost of the memory cards, supports the trial court's order. We see no abuse of discretion in the trial court electing to base its calculation on one of the insurance company's lists, rather than the other, or in reducing the requested award to reflect some, but not all, of the evidence Felix presented.
Felix cites People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 for the proposition, "A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall." We do not disagree with the principle, but the facts of Chappelone are nothing like the facts here. The defendants in Chappelone stole merchandise from a department store, most of which was never going to be sold to customers. (Id. at p. 1178.) Despite that, the trial court awarded the store the value of the merchandise based on the retail price, with the result that the store was awarded a windfall of 70 to 100 percent. (Id. at pp. 1173-1174.) Much of the stolen merchandise was recovered (id. at pp. 1166-1167), and the store received a further windfall from the trial court ordering defendants to pay for all the stolen merchandise based on retail while also allowing the store to retain recovered merchandise "for disposal at its pleasure." (Id. at p. 1180.) There is no evidence of a windfall here. Instead, the court ordered a restitution award based on substantial evidence of the amount required to make the victim whole after Felix's crime.
DISPOSITION
The orders appealed from are affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.