Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF05235C
HULL, J.Defendant Angelo Anthony Lucero entered a negotiated plea of no contest to grand theft (Pen. Code, § 487, subd. (a)) and was granted probation on the condition he serve 120 days in county jail. Following a court trial, victim restitution was set at $25,585.
Defendant appeals, challenging only the restitution order. He contends certain components of the amount ordered are not supported by the record or are duplicative. We disagree and affirm the judgment.
Facts and Proceedings
On or about March 2, 2005, defendant and two others, Emiliano Estrella Flores and Carey Marie Gonzalez, participated in a robbery of a store in Nevada City owned by Barry and Marjorie Costello, doing business as The Fur Traders. Many inventory items, including fur and leather coats, were taken. Gonzalez was an employee of the victims at the time.
The three were charged with grand theft (Pen. Code, § 487, subd. (a)) and conspiracy (Pen. Code, § 182, subd. (a)(1)). Defendant entered a negotiated plea of no contest to grand theft in exchange for dismissal of the conspiracy charge. The other defendants pleaded no contest to lesser offenses. Defendant was sentenced to three years formal probation on the condition he serve 120 days in county jail.
The codefendants stipulated to victim restitution of $15,000. The court entered an order holding defendant jointly and severally liable with the other defendants for victim restitution in the amount of $15,000 unless contested by defendant.
Defendant contested the amount of restitution, and the court conducted an evidentiary hearing at which the victims claimed losses of $45,983. Following the hearing, the court found the victims had suffered total losses of $25,585 and held defendant jointly and severally liable for $15,000 of this amount and solely liable for the rest.
Discussion
Defendant challenges two components of the restitution order. The total victim restitution consisted of the following:
1) The value of inventory items not recovered--$11,326;
2) Lost time and expenses investigating the theft--$1,734;
3) Employee time during the inventory--$352;
4) The cost of cleaning recovered items--$715;
5) Lost profits--$8,408;
6) Time of the victims in attending court hearings, meeting with the district attorney and otherwise attempting to recover property--$3,050.
Defendant challenges the award of lost profits. He argues the court provided no explanation for the amount awarded and there is no evidence to support it.
Article I, section 28, subdivision (b) of the State Constitution provides that “[r]estitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” At the time of the offenses in this matter, Penal Code section 1202.4, subdivision (f) provided: “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. . . . [¶] . . . [¶] (3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and 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, including, but not limited to, all of the following: [¶] (A) Full or partial payment for the value of stolen or damaged property. . . . [¶] . . . [¶] (E) Wages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution. . . .” (Stats. 2004, ch. 223, § 2.)
“[T]he trial court is vested with broad discretion in setting the amount of restitution; it may ‘“use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole . . . .”’” (People v. Tucker (1995) 37 Cal.App.4th 1, 6.) “Thus, while the amount of restitution cannot be arbitrary or capricious, ‘[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. . . .’ [Citation.]” (People v. Ortiz (1997) 53 Cal.App.4th 791, 800.) “In determining the amount of restitution, all that is required is that the trial court ‘use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.’ [Citations.] The order must be affirmed if there is a factual basis for the amount.” (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.)
In the present matter, it is undisputed the victims suffered lost profits as a result of both the disruption of their business while the theft was being investigated and the reduced sales price of recovered items sold as used. The victims prepared an itemized report indicating that lost profits amounted to $16,474. Mr. Costello testified that 60 percent of this amount represented the reduced value of recovered items and 40 percent represented lost sales due to the diversion of employees during the investigation. Mr. Costello also testified that revenue for March 2005, the month when the investigation occurred, had been projected at $92,000 but in fact amounted to only $74,752.
The People contend the difference in projected and actual revenue for March 2005 is $17,648, and the trial court “exercised its broad discretion to reduce the award to $8,408.00.” However, this argument ignores that revenue does not equal profits. Profits equal revenue minus expenses. Even assuming the victims would have incurred no greater operating expenses if revenues had been $92,000 rather than $74,752, there is still the matter of the cost of goods sold. If the victims had sold an additional $17,648 in goods as projected, their inventory would have been reduced by the cost of those goods.
Nevertheless, we find no abuse of discretion in the trial court’s award of lost profits. In addition to compensating the victim, one purpose of a restitution order is to rehabilitate the defendant and deter the defendant and others. “Although based in part on the harm caused to the victim [citation], restitution is imposed primarily for the benefit of the state to promote the state’s interests in rehabilitation and punishment. [Citation.] Among other things, California’s restitution law ensures that amends are made to society for a breach of the law, serves a rehabilitative purpose, and acts as a deterrent to future criminality. [Citations.] Restitution ‘is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.’” (People v. Moser (1996) 50 Cal.App.4th 130, 135-136 .)
Although we do not know the precise basis on which the trial court arrived at the amount of $8,408 for lost profits, we nevertheless find no abuse of discretion. The victims claimed lost profits of $16,474. They described the lost profits as including the reduced resale value of items recovered and lost sales during the investigation. Reduced revenue during the month of the investigation was approximately $17,648. Based on these numbers, it is not unreasonable or an abuse of discretion to conclude the victims lost profits in the amount of $8,408. As explained above, exact precision is not required, only a rough estimate of the amount necessary to make the victims whole.
Defendant next contends the addition of $3,050 for the time spent by the victims in attending court hearings, meeting with the district attorney and otherwise attempting to recover property amounted to a double recovery. He argues that because the victims are sole proprietors, lost profits fully compensated them for their time.
Defendant’s argument assumes the time spent by the victims for which the $3,050 was added to the restitution order overlapped with the time for which lost profits were computed. This assumption is unwarranted.
Lost profits were based on the short period during which the victims’ employees were preoccupied with determining the extent of losses. Mr. Costello testified that, while some regular business was conducted during this period, overall operations were disrupted. The victims made no claim for additional lost profits.
By contrast, compensation for lost time of the victims covered all times while they were away from work meeting with police or the district attorney or attending court proceedings. We do not know if the victims lost further profits during these periods due to their absence. However, Mr. Costello testified he was forced to have additional employees at the stores while he and his wife attended court hearings, thereby increasing expenses. Therefore, there was no duplication.
Inasmuch as defendant does not challenge the amount awarded for the time spent by the victims in pursuing the prosecution of this matter, we have no occasion to consider that issue.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.