Opinion
E065041
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. ST. CHARLES UNIS MCGHEE, Defendant and Appellant.
Laurel Simmons, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1404508) OPINION APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey, Judge. Affirmed. Laurel Simmons, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant St. Charles Unis McGhee was charged by felony complaint with possession of a firearm by a felon. (Pen. Code, § 29800, subd. (a)(1).) Pursuant to a plea agreement, he pled no contest to the charge, in exchange for the dismissal of a separate case (case No. FSB1400220) with a Harvey waiver and the agreement to pay restitution in that case. The trial court subsequently held a restitution hearing and ordered defendant to pay victim restitution in the amount of $3,480.88.
On appeal, defendant contends that the court abused its discretion in ordering victim restitution, since there was insufficient evidence to support the court's order. We affirm.
PROCEDURAL BACKGROUND
The court held a restitution hearing on December 4, 2015. At the outset, the court stated that it reviewed the plea agreement and noted that defendant initialed the box agreeing to the Harvey waiver, which "encompass[ed] determining restitution on the dismissed case." Case No. FSB1400220, the dismissed case, involved the taking of a vehicle without the owner's consent. (Veh. Code, § 10851.) In that case, defendant and the victim agreed to trade vehicles. The victim traded his 1984 Oldsmobile Cutlass for defendant's 1976 Oldsmobile Cutlass. Defendant said he signed the certificate of title for his vehicle over to the victim, and the victim did the same. Approximately two months later, the victim's father was driving the 1976 Cutlass, and he was pulled over by the police. The victim's father was arrested for possessing a stolen vehicle. Defendant had reported the vehicle as being stolen from his residence. The restitution memorandum stated that the probation officer spoke with the victim, who requested restitution in the amount of $3,480.88. This amount consisted of $2,500 to cover the bail the victim had to pay after his father was arrested due to defendant's actions, $300 for miscellaneous items missing from the vehicle when it was returned to him, $300 for the stereo taken from the vehicle, and $380.88 for lost wages (24 hours at $15.87 an hour).
The People submitted on the restitution memorandum, and the court asked defense counsel if he had any evidence to present. Defense counsel had no evidence, but objected to the restitution request on the grounds of "[f]oundation, multiple hearsay, due process." He stated that there were no receipts for the bail bond amount paid and no business records regarding the lost wages. Defense counsel acknowledged that the plea agreement stated that defendant would have to pay restitution in case No. FSB1400220, but argued that there were no "parameters of that restitution." Thus, defense counsel objected to the entire restitution amount requested.
The court stated that it reviewed the transcript of the plea hearing, which showed that the matter was referred to the probation department for the restitution memorandum. The court remarked that it was clearly part of the bargaining process in the instant case to have the other case dismissed with a Harvey waiver and the agreement to pay restitution. Thus, the court found that defendant could "foreseeably [e]nvision that he would be paying any cost related to that dismissal of the car case [case No. FSB1400220]." It further found that defendant "was on notice at the time of the plea." The court ordered restitution in the amount of $3,480.88, in accordance with the restitution memorandum.
ANALYSIS
The Court Properly Ordered Victim Restitution
Defendant argues there was insufficient evidence to support the restitution order, so the matter should be remanded for a new restitution hearing. The People contend the victim's statement was sufficient to constitute prima facie evidence of the loss, and defendant failed to present any evidence rebutting the losses claimed. We agree with the People.
A. Standard of Review
Section 1202.4, subdivision (f), provides, in part: "[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. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so and states them on the record." (Italics added.) "Section 1202.4 does not, by its terms, require any particular kind of proof." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli).) The trial court is entitled to consider the probation report and may accept a property owner's statement of losses as prima facie evidence of loss. (Id. at p. 1543.) "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." (Ibid.)
"The standard of review of a restitution order is abuse of discretion." (In re Dina V. (2007) 151 Cal.App.4th 486, 490.) "No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. '"[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." ' " (Gemelli, supra, 161 Cal.App.4th at p. 1542.)
B. The Evidence Was Sufficient
Here, the People submitted on the victim's statement of economic loss made to the probation officer and the probation officer's recommendation, as described in the restitution memorandum. Under Gemelli, the restitution memorandum established a prima facie showing of losses incurred by the victim as a result of defendant's conduct. (Gemelli, supra, 161 Cal.App.4th at p. 1543.) Furthermore, "[w]hen the probation report includes a discussion of the victim's loss and a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount." (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406 (Pinedo); see People v. Foster (1993) 14 Cal.App.4th 939, 947 (Foster), superseded by statute on other grounds as stated in People v. Sexton (1995) 33 Cal.App.4th 64, 67-71.) The probation officer recommended restitution in the amount of $3,480.88, and it was up to defendant to demonstrate that this amount was unreasonable. (Pinedo, supra, 60 Cal.App.4th at p. 1406.) Defendant was given notice of the amount of restitution sought and a reasonable opportunity to contest that amount. (See Foster, supra, 14 Cal.App.4th at p. 947.) He did not present any evidence to disprove the amount claimed and thus failed to rebut the victim's statement of losses. (Gemelli, at p. 1543.) On the record before us, we have no basis for finding the restitution amount unreasonable.
Citing People v. Vournazos (1988) 198 Cal.App.3d 948 (Vournazos), defendant argues that the victim's unverified statement of losses is insufficient to sustain an order for victim restitution. In Vournazos, supra, 198 Cal.App.3d at pages 958-959, the trial court ordered restitution in an amount based entirely on the recommendation of the probation officer, which in turn was based solely on the victim's statement of loss and the officer's discussions with the victim. On appeal, the defendant argued the amount of restitution was not supported by substantial evidence. (Ibid.) 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.) However, it found that rule inapplicable, because the replacement or repair cost of the property was never established. (Ibid.)
This court rejected a similar argument in Foster, supra, 14 Cal.App.4th 939. The defendant in Foster burglarized a cabin and took some valuable items, including a Persian rug. (Id. at p. 943.) He argued that the trial court could not rely solely on the victim's uncorroborated statement about the value of the rug to support an order for restitution. (Ibid.) He also argued the Legislature "must have intended that determinations of value be based on evidence other than the victim's uncorroborated statement." (Id. at p. 948.) We disagreed because "[i]n many other contexts, an owner's opinion of the value of his or her property is sufficient evidence to establish value." (Ibid., citing Evid. Code § 810 et seq.) We therefore concluded there was "no justification for requiring a more stringent rule in the context of the relaxed procedure of a hearing to determine conditions of probation." (Ibid.) To the extent Vournazos might be read to require more than a victim's statement of loss and a probation officer's recommendation as prima facie evidence of value to determine an appropriate amount of restitution, we decline to follow it for the reasons set forth in Foster, supra, 14 Cal.App.4th 939.
Ultimately, the restitution memorandum indicated that the victim was claiming a loss of $3.480.88. Defendant did not come forward with any information that challenged this amount in the trial court, nor has he done so on appeal. (See People v. Collins (2003) 111 Cal.App.4th 726, 734.) On this record, we have no basis to find the amount unreasonable. We conclude that the trial court properly ordered defendant to pay $3,480.88 in victim restitution.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J. We concur: RAMIREZ
P. J. McKINSTER
J.
People v. Harvey (1979) 25 Cal.3d 754.