Opinion
H046777
04-24-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEXIS GARCIA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1763259)
In a negotiated disposition, defendant Alexis Garcia pleaded no contest to one count of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). The trial court suspended imposition of sentence, placed Garcia on three years' formal probation, and ordered her to serve eight months in county jail. Over Garcia's objection, the trial court ordered that she pay a total of $9,700 in victim restitution.
Unspecified statutory references are to the Penal Code.
On appeal, Garcia challenges the $9,700 restitution order, arguing that there was insufficient evidence to support the amount awarded.
We disagree and will affirm the order of restitution.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 11, 2017, the district attorney charged Garcia with felony first degree burglary (§§ 459, 460, subd. (a)). In a negotiated disposition, Garcia pleaded no contest in exchange for an indicated sentence of eight months in county jail and three years' formal probation. Counsel stipulated to a factual basis for the plea, and the court ordered the preparation of a waived referral memorandum by the probation department.
There was no preliminary hearing, nor did the waived referral probation report include a summary of the facts underlying the offense. According to the complaint, Garcia entered "an inhabited dwelling house . . . with the intent to commit theft" "[o]n or about February 6, 2017."
In the waived referral memorandum, the probation officer reported that she spoke with "victim . . . Nguyen . . . [who] confirmed a Chanel purse (value $6,300.00), a Louis Vuitton clutch (value $2,600.00) and a Chanel men's wallet (value $800.00) were stolen from his home on February 6, 2017, which were not recovered." "Mr. Nguyen requests restitution in the amount of $9,700.00 for those items and will provide copies of the purchase receipts, which will be forwarded to the Court when received."
At the commencement of the February 6, 2019 sentencing hearing, Garcia objected to the $9,700 in restitution because no receipts had been provided. The trial court suspended imposition of sentence, placed Garcia on three years' formal probation and ordered her to complete an eight-month term in county jail with five days of credits (three days custody credits plus two days of conduct credits (§ 4019)).
Garcia also requested that the trial court strike or stay "any discretionary fines and fees" due to her inability to pay. At the conclusion of the sentencing hearing, the court expressly found an inability to pay and waived the "court security fee [§ 1495.8], the criminal conviction assessment fee [Gov. Code, § 70373], the criminal justice administration fee [Gov. Code, §§ 29550, 29550.1, 29550.2], the probation supervision fee as well as the SORP [Supervised Own Recognizance Program] fee [Santa Clara County Code § A28-6]."
The trial court then addressed restitution, stating "the Court will retain jurisdiction to order restitution in the future subject to your right to have a hearing if you disagree with the amount. In addition to that order, the Court will order the amount of $9,700" to the victim. Garcia renewed her objection to the amount, because "proper documentation" was not provided, even though the victim "indicated that he would provide copies of the purchase receipts." After the prosecution declined to respond, the trial court noted that it was not aware of any authority "that requires that an alleged victim of an offense provide receipts." It continued, "the Court does not find that the amounts that are listed for the items that were allegedly taken are so excessive as to find that [the victim]'s statements are not credibil[e]. . . . [F]or all of those reasons, the Court is, over defense objection, going to impose that restitution of $9,700."
Garcia timely appealed.
II. DISCUSSION
A. Victim restitution and standard of review
Persons who suffer losses because of a defendant's criminal activity have a constitutional right to be made whole for those losses. (Cal. Const., art. I, § 28.) "[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).) "To the extent possible, the restitution order . . . 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).)
While restitution orders must be supported by substantial evidence, there is no requirement that the evidence provided be from any specific source. "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." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli), citing 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.) The trial court applies a standard of proof of preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045 (Keichler).)
The victim must make a prima facie showing of the loss, which the defendant is entitled to rebut. "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." (Gemelli, supra, 161 Cal.App.4th at p. 1543; see also Foster, supra, 14 Cal.App.4th at p. 947.)
Restitution awards are vested in the trial court's discretion and will be disturbed on appeal only when the defendant has shown an abuse of discretion, demonstrating that the court's order was arbitrary and capricious. (People v. Fortune (2005) 129 Cal.App.4th 790, 794; Keichler, supra, 129 Cal.App.4th at p. 1045.) The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts.' " (People v. Giordano (2007) 42 Cal.4th 644, 663.)
B. Analysis
In this case, the only evidence before the trial court was the waived referral report, in which the victim told the probation officer that "a Chanel purse (value $6,300.00), a Louis Vuitton clutch (value $2,600.00) and a Chanel men's wallet (value $800.00) were stolen from his home on February 6, 2017, which were not recovered." The total value of these items was $9,700.
The weight of authority holds that a trial court may order restitution based on a probation officer's report and a victim's statement alone. (Foster, supra, 14 Cal.App.4th at p. 946; Keichler, supra, 129 Cal.App.4th at p. 1048; Gemelli, supra, 161 Cal.App.4th at p. 1543; People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320.) " 'When 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.' [Citation.] Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion." (Keichler, supra, at p. 1048.) Here, Garcia did not present any evidence in the trial court to disprove the amount of loss claimed by the victim. Instead, she argued that the victim's failure to provide receipts supporting the claimed value of the property meant that there was insufficient evidence to support the amount of restitution awarded.
Citing People v. Harvest (2000) 84 Cal.App.4th 641, Garcia asserts that a victim's statement of losses in a probation report is not sufficient by itself to support a restitution order. In Harvest, the defendant was convicted of one count of first degree murder and one count of voluntary manslaughter. (Id. at p. 645.) The trial court ordered that the defendant pay restitution to each of the victims' families for their funeral expenses. (Id. at p. 652.) The Court of Appeal reversed one of the two restitution orders, noting that the first victim's family "could support their claim with documentation and stood ready to testify, but the [other] claim had neither of these supports." (Id. at p. 653.) Rather "[t]here was [just] mention of the . . . claim in the probation officer's report." (Ibid.) The court noted that information in the probation report "may satisfy notice requirements for due process [citation], but it cannot take the place of evidence." (Ibid.)
Garcia also cites People v. Vournazos (1988) 198 Cal.App.3d 948, in support of her position. In Vournazos, the defendant was convicted of car theft and receiving stolen property. The trial court ordered the defendant to pay $2,180 in restitution based on the recommendation of the probation officer. (Id. at pp. 953, 958.) The Court of Appeal reversed the restitution order, stating, "[T]he trial court relied entirely on the recommendation of defendant's probation officer who, in turn, derived the figure solely from [the victim's] statement of loss and his discussions with [the victim]. Neither the statement nor the testimony of the probation officer established that the sum claimed by [the victim] for loss of property was based on the replacement cost of the property. . . . While a defendant bears the burden of proving that the amount of restitution claimed by the victim exceeds repair or replacement cost of lost or damaged property [citation], defendant here was not required to meet that burden inasmuch as the replacement . . . cost of [the victim's] property was not established." (Id. at pp. 958-959.)
We find both Harvest and Vournazos unpersuasive insofar as they conclude that a victim's itemized statement of loss without further documentation is insufficient to establish a prima facie case of what restitution is due to the victim of a crime. The weight of authority supports the conclusion that the trial court may appropriately rely on such statements.
In Foster, the Court of Appeal upheld a restitution order to replace the value of items taken in the burglary of a cabin. (Foster, supra, 14 Cal.App.4th at p. 943.) The restitution amount was based on the recommendation of the probation officer which incorporated the victim's statement of loss and law enforcement's discussions with the victim. The court in Foster disapproved of requiring a victim to provide more than a statement of losses to establish replacement cost, specifically criticizing Vournazos, stating that such a requirement "imposes an unwarranted burden on the trial court, the prosecutor, and the victim" in the context of a sentencing hearing. (Foster, supra, 14 Cal.App.4th at p. 946.) Similarly, in Gemelli the court affirmed a restitution order based on the probation officer's report with an attached handwritten statement from the victim of the burglary of a restaurant regarding sustained losses. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)
We agree that requiring the victim of a crime to provide more than a statement of loss for purposes of establishing a prima facie case of loss is inconsistent with the public policy and the constitutional requirement that victims of crime be made whole (Cal. Const., art. I, § 28, subd. (b)). Where a defendant wishes to contest a restitution claim, it is possible to request a hearing to probe the claimed loss through cross-examination or the presentation of contrary evidence.
In Garcia's case, as in Foster and Gemelli, an itemized list of losses from the victim was provided to the trial court and Garcia in the waived referral probation report. At this point, the burden shifted to Garcia to: (1) present evidence that the claimed loss was excessive or unfounded; or (2) request a further hearing to challenge the basis of the victim's assertions. Garcia did neither of those things. We therefore conclude that absent contrary evidence from Garcia, the victim's itemized statement of the value of the property taken in this case is sufficient to support the restitution order. (See, e.g., Keichler, supra, 129 Cal.App.4th at p. 1048.) The trial court did not abuse its discretion in ordering Garcia to pay $9,700 in victim restitution.
In her opening brief, Garcia states that an online search for Chanel purses indicates that "Chanel makes well over 50 purses with a wide variety of prices," and speculates that "[t]he same is undoubtedly true for Louis Vuitton and Chanel [men's wallets]." Appellate review is generally limited to matters that are included in the record from the proceedings below. (People v. Pearson (1969) 70 Cal.2d 218, 221, fn. 1.) Garcia did not present any argument or evidence to the trial court regarding the variety of products (and corresponding prices) offered for sale by these designers, and we decline to consider that argument now. --------
III. DISPOSITION
The order of restitution is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Mihara, J.