Opinion
D070275
03-17-2017
In re H.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. H.A., Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J 233-749) APPEAL from an order of the Superior Court of San Diego County, Browder Willis, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General.
A juvenile court declared 19-year-old H.A. a ward of the court after H. admitted to committing felony burglary when he was 17 years old. (Pen. Code, §§ 459, 460; Welf. & Inst. Code, § 602.) The court placed H. on adult probation. After an evidentiary hearing, the court found the victim's losses were $75,647 and ordered H. to pay this amount in victim restitution.
H. contends the juvenile court abused its discretion because the restitution amount was not supported by substantial evidence. We reject this contention and affirm the juvenile court's order.
FACTUAL AND PROCEDURAL BACKGROUND
On May 27, 2013, Nadia and her family went to the beach. While the family was away, H. and a companion burglarized Nadia's home. They stole numerous items, including gold jewelry, computer equipment, an iPod, cash, and car keys.
Two years later, H. admitted to the burglary. The probation report stated the victim (Nadia) claimed a total loss of $92,525. The report included a list of the stolen items and the claimed value of these items. The probation officer said this list was based on the police report and had been recently verified by Nadia. The claimed monetary loss was primarily for Nadia's stolen gold jewelry, including $55,000 for gold necklaces, and $25,000 for gold earrings.
These items were identified as follows: ASUS laptop computer ($750); iPod Touch ($300); HP laptop computer ($500); GPS navigation ($100); Sony digital camera ($400); keys ($10); gold rings ($4,000); Gucci watch ($200); gold necklaces with charms ($55,000); gold ring with diamonds ($250); gold bracelets ($6,000); gold earrings ($25,000); wallet ($10); and cash ($25). --------
H. challenged the claimed amount of loss, and requested a hearing. The court granted this request, noting the court must ensure "victims have an opportunity to present as much evidence, supporting documentation and/or testimony" pertaining to the loss, and the court also has the obligation to ensure "that [the] minor, who will ultimately bear the burden of paying restitution, has an opportunity to fully question the values."
At the April 2016 restitution hearing, the prosecutor called Nadia to testify to the value of the claimed losses. Testifying through an Arabic interpreter, Nadia described the stolen items, and provided receipts or her best estimate of the value of each item. With respect to the jewelry, Nadia testified that most of these items were purchased in Saudi Arabia and Iraq. She had receipts for five of the stolen jewelry items, and she had converted the foreign currency amounts (in Saudi riyals or Iraqi dinars) to dollar amounts. She said her son assisted her with the conversion by using a computer program with an exchange rate applicable three days earlier. She was unaware of the name of the computer program.
For the stolen jewelry that did not have receipts, Nadia provided the court with a detailed handwritten list of the items, and provided additional information that had not been in the probation report. For example, she identified 10 pairs of gold earrings; seven gold rings; two gold bracelets; and 10 gold necklaces that had been stolen. She estimated the dollar value of each of these items to the best of her ability. The amounts totaled about $79,844. She testified she created the written list so "that I would be really accurate in explaining to the court the real value of each piece." She described the features of the different jewelry items and produced photographs of the stolen gold necklaces, bracelets, and earrings. Nadia said the items had been purchased by herself or by her mother, and her mother had told her the amounts she had paid for some of the items, including a $25,000 antique necklace. She explained that her mother gave her the jewelry as a form of savings and/or to help Nadia start a business. She testified to the importance of gold in her culture, stating that "wherever you go anywhere in the world you can always get your value."
H. did not testify, or present any of his own witnesses or evidence. During cross-examination, his counsel elicited Nadia's admissions that she had never insured the jewelry or had the items appraised, despite their claimed high value. Nadia also confirmed she did not have receipts for many of the items. Nadia explained she did not keep many of the receipts "[be]cause I never anticipated or expected that I'd be burglarized."
During closing argument, the prosecutor argued Nadia's testimony was credible, and urged the court to accept her testimony on the value of the stolen property. The prosecutor referred to his brief in which he had requested $79,844 for restitution for the jewelry losses, and $2,095 for the other property losses.
In her argument, defense counsel focused on the jewelry items and argued there was no evidentiary support to convert the price of the foreign jewelry purchases into dollar amounts. Defense counsel asserted: "There is not enough evidence for the court to accurately calculate the amount of restitution in this case because there is not a preponderance of evidence of how these calculations were done. Based upon how these are valued, we aren't sure as to [whether] the conversions are correct, how [the] conversions were done . . . ."
In response to this latter argument, the court ordered counsel to meet and jointly convert the listed values to dollars based on the current exchange rate. After counsel met and reached agreement on these issues, they provided the court with the converted dollar amounts. The court then found the total losses to be $75,647, accepting most of Nadia's testimony, but reducing the claimed jewelry losses by about $6,000. The court stated: "I went through the evidence of the exhibits that have been admitted and based upon what I understood the testimony to be and the exhibits, I found the jewelry at $73,595, the other items marked personal at $2,052. The total is [$]75,647." The court ordered H. to pay $75,647 in victim restitution.
DISCUSSION
H. contends the court abused its discretion in calculating the amount of restitution for the jewelry he stole from Nadia.
A. Applicable Law
Penal Code section 1202.4, subdivision (f) states: "[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." This 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. . . ." (Pen. Code, § 1202.4, subd. (f)(3).) Under this code section, 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." (Pen. Code, § 1202.4, subd. (f)(3)(A).)
An owner's testimony may establish the value of stolen property, even without any supporting documentation. (Evid. Code, § 813, subd. (a); People v. Prosser (2007) 157 Cal.App.4th 682, 690-691 (Prosser); People v. Foster (1993) 14 Cal.App.4th 939, 947 (Foster).) " '[S]tatements by the victims of the crimes about the value of the property stolen constitute "prima facie evidence of value for purposes of restitution.". . .' . . . . Once the victim has 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." (Prosser, supra, at pp. 690-691.) These rules recognize that crime victims may not have saved receipts or other documentation showing the nature or value of stolen property, and therefore it is fair to place the burden on the thief to rebut the owner's testimony, particularly because the defendant had possession of the stolen property for at least a brief period. (Id. at p. 691.)
" 'The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed.". . . " 'When 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.' ". . .' . . . . 'In reviewing the sufficiency of the evidence [to support a restitution amount], the " 'power of the appellate court begins and ends with a determination as whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings.". . . "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. . . . We do not reweigh or reinterpret the evidence . . . .' " (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
"The trial court is not required to order restitution equal to the exact amount of the loss," and need only "employ a rational method that makes the victim reasonably whole." (People v. Garcia (2011) 194 Cal.App.4th 612, 617; accord, People v. Millard, supra, 175 Cal.App.4th at p. 26; People v. Baker (2005) 126 Cal.App.4th 463, 470.)
B. Analysis
At the restitution hearing, Nadia described each stolen jewelry item; identified the monetary value of the item; and explained the basis of her knowledge (a receipt, her personal knowledge based on her purchase, or information from her mother who had purchased some of the items). Nadia provided a detailed written list to support her testimony and said she was attempting to be accurate and complete when she made the list. She also explained that buying and receiving gold jewelry is a traditional form of savings in her culture, and indicated she was aware of the value of each jewelry item because she was knowledgeable about the purchase price and because the gold jewelry reflected her savings and/or assets to start a business.
This testimony (and the supporting lists, photographs, and receipts) provided ample support for the court's restitution award. (See People v. Prosser, supra, 157 Cal.App.4th at pp. 686, 692 [victim testimony regarding value of stolen jewelry sufficient to uphold approximately $174,000 restitution award].) After considering the testimony and documentary evidence, the court found most of the claimed losses were supported, except for about $6,000 of the claimed values. This finding was within the court's broad discretion. There was a rational basis for the award based on the facts presented at the hearing.
In challenging the court's finding, H. contends Nadia's testimony was not sufficiently specific or detailed because she did not establish she had knowledge of the valuation procedures and she admitted she never had the jewelry items appraised. These arguments go to the weight of the evidence, not its sufficiency. The court, as the trier of fact, was in the best position to determine whether Nadia had a reasonable basis for her valuation testimony. It is not the role of a reviewing court to reweigh the evidence or second guess the credibility of witnesses. (People v. Jessee (2013) 222 Cal.App.4th 501, 506-507.) H. could have presented his own evidence regarding the jewelry's value, including any changes to the price of gold that would have impacted the replacement cost. Because he stole the jewelry items, it was not unfair to require H. to present supporting evidence if he believed Nadia had overvalued the stolen jewelry.
H. relies on three Court of Appeal decisions. (People v. Chappelone (2010) 183 Cal.App.4th 1159 (Chappelone); People v. Vournazos (1988) 198 Cal.App.3d 948 (Vournazos); People v. Hartley (1984) 163 Cal.App.3d 126 (Hartley).) None of these decisions are helpful to H. in this appeal.
In Chappelone, the trial court valued items stolen from a retailer based on the retail price of the items. (Chappelone, supra, 183 Cal.App.4th at pp. 1170-1171.) The reviewing court reversed the restitution order, concluding the trial court abused its discretion by failing to consider that the property items had been damaged and were considered "unsellable" before the defendant stole the property. (Id. at p. 1178.) Here, unlike Chappelone, there was no evidence the gold jewelry was damaged or otherwise had lost its value before it was stolen.
In Vournazos, the trial court ordered restitution based on the probation officer's written recommendation contained in the probation report, which was based on the victim's statement. (Vournazos, supra, 198 Cal.App.3d at pp. 952-953.) The Court of Appeal recognized that ordinarily "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." (Id. at pp. 958-959.) But the court concluded the burden never shifted to defendant and the restitution order should be reversed because "[n]either the [property owner's] 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." (Id. at p. 958.)
Vournazos is distinguishable because the trial court there had relied on a double hearsay statement in the probation report, whereas in this case the court had the opportunity to observe the witness firsthand, and to evaluate her credibility and the basis for her knowledge regarding the value of the jewelry. Based on this evidence, the court could infer the replacement cost was essentially equivalent to the purchase price. Further, to the extent that Vournazos can be read as imposing an additional proof burden on a victim seeking restitution, we find Vournazos's reasoning to be unpersuasive and inconsistent with a proper interpretation of the restitution statute. (See Foster, supra, 14 Cal.App.4th at p. 946 [disagreeing with Vournazos, and finding property owner's statement about value of stolen jewelry was sufficient prima facie evidence of value for restitution purposes]; accord, People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543; Prosser, supra, 157 Cal.App.4th at pp. 690-691; see also People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; People v. Collins (2003) 111 Cal.App.4th 726, 733.)
Hartley is also inapposite. In Hartley, the defendant requested a hearing on the issues of ability to pay (an element of the restitution statute at issue) and the replacement cost of stolen jewelry. (Hartley, supra, 163 Cal.App.3d at p. 129.) The trial court " 'absolutely den[ied]' " this request. (Ibid.) The reviewing court held this denial was error. (Id. at p. 130.) In remanding the matter for an evidentiary hearing, the court recognized potential factual issues on the jewelry value issue, noting the "well-known fluctuations to which the markets in gold and gems are subject." (Ibid.) But the court made clear the defendant had the burden to show the replacement cost of the jewelry was less than the victim's claimed loss: "Since a defendant will learn of the amount of restitution recommended when he reviews the probation report prior to sentencing, the defendant bears the burden at the hearing of proving that amount exceeds the replacement or repair cost." (Ibid.)
Unlike in Hartley, the trial court here did hold an evidentiary hearing. H. had the full opportunity to present his own evidence and cross-examine the crime victim, including on issues regarding whether there was any change to gold prices and, if so, whether this change would have impacted the replacement cost of the jewelry. After evaluating the evidence before it, the court found H. did not meet his burden to rebut the claimed value of the property. Substantial evidence supported this finding.
DISPOSITION
Affirmed.
HALLER, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.