Opinion
A151333
12-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO PASILLAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 2-321083-8)
Defendant Roberto Pasillas appeals an order directing him to pay $6,995 in victim restitution for a car he stole and subsequently totaled when he attempted to evade the police. He contends the court erred in setting the amount of restitution at the price the owner had listed the car for sale rather than the owner's acquisition and carrying costs. We conclude the trial court did not abuse its discretion in setting the restitution amount, and thus affirm.
BACKGROUND
The details of defendant's offense are irrelevant to the restitution order at issue. It is enough to note that he pleaded no contest to grand theft auto with a prior offense. Following his plea, the court held a contested restitution hearing, at which Hossein Ahmadieh, the victim of defendant's crime, gave the following testimony:
Mr. Ahmadieh owned a car dealership in Berkeley. On October 3, 2015, he arrived at the dealership and discovered that a 2000 Mercedes Benz E320 was missing. The next time he saw the car was at an impound lot. The car was damaged and unrepairable, so Mr. Ahmadieh turned the title over to the impound lot in exchange for a release from liability for towing and storage.
Mr. Ahmadieh had planned to list the car for sale for $6,995. He did not recall how much he paid for it. If the car was repairable for $1,000 or $1,500, he would have had it repaired. The damage to the car was significant, however, so he made the decision that it was not worth doing the repairs.
After Mr. Ahmadieh's testimony, counsel for defendant argued that defendant should be responsible only for the loss in value of the car, that is, the difference between the value of the car before and after it was taken.
The People argued that Mr. Ahmadieh was entitled to $6,995, which was the value of the car to him, adding, "the victim was someone who does deal in the business of selling vehicles and made that business decision, and I don't believe that he is under any obligation to sort of diminish those costs by trying to repair the vehicle, or sell it in the state it was in, which was the fault of the defendant."
The court agreed with the People, reasoning: "Mr. Ahmadieh is in business. [Defendant] stole a product. He didn't steal somebody's personal car. He stole a car from a dealership. And as a result of his actions, Mr. Ahmadieh no longer had a Mercedes to sell. [¶] So I am going to award him the value of that vehicle in the amount of $6,995, and that would be direct victim restitution to Mr. Ahmadieh."
Defendant timely appealed the restitution order.
DISCUSSION
Defendant asserts one argument, set forth in a heading that reads as follows: "The trial court's order awarding the victim the price for which a car was commercially listed for sale rather than the car's actual value was error requiring remand for a new restitution hearing." In the body of his brief, he articulates his position this way: "At [the restitution] hearing the victim could not recall what he had paid the owner for the vehicle. [Defendant] did not contest he owed the victim something, but the defense objected to being responsible for paying what the car was listed for sale. The issue presented therefore is whether a victim of an auto theft who is a car dealer has a right to recover both his actual loss (i.e., cost of acquisition and holding costs) and the speculative, potential profit had the car sold precisely for his asking price or was his loss the amount he paid for the vehicle and any ancillary expenses? [Defendant] simply seeks a new restitution hearing where the People would be given the opportunity to establish the full facts justifying a restitution award."
We note that this is a different argument than that defendant made below. There, his counsel argued that the victim was only entitled to the loss in value of the car, that is, the difference between the value of the car before and after it was taken. Now, apparently, defendant concedes he should be responsible for the value of the car but claims the value should be Mr. Ahmadieh's out-of-pocket costs, not his costs plus expected profit. Like defendant's theory below, his theory on appeal lacks merit.
Penal Code section 1202.4, subdivision (f) provides that, subject to certain exceptions not applicable here, "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." "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," including "[f]ull or partial payment for the value of stolen or damaged property." (Id., subd. (f)(3)(A).)
We summarized some of the applicable principles in People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172-1173, as follows: "A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall. [Citations.] While the court need not order restitution in the precise amount of loss, it 'must 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.' (People v. Thygesen (1999) 69 Cal.App.4th 988, 992 (Thygesen); see also In re Brian S. (1982) 130 Cal.App.3d 523, 527 ['court may use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole and which is consistent with the purpose of rehabilitation']; People v. Ortiz (1997) 53 Cal.App.4th 791, 800 ['[W]hile 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." ']; People v. Akins (2005) 128 Cal.App.4th 1376, 1382 [same].)"
The trial court has broad discretion to set the amount of restitution, and we will not reverse absent an abuse of that discretion. (People v. Chappelone, supra, 183 Cal.App.4th at p. 1173; People v. Tucker (1995) 37 Cal.App.4th 1, 6.) We easily conclude there was no abuse here.
The value of the car was introduced via testimony of the car's owner, Mr. Ahmadieh. He testified that he owned a car dealership and intended to list the car for sale for $6,995. This was sufficient to constitute a prima facie showing of Mr. Ahmadieh's loss. (See People v. Prosser (2007) 157 Cal.App.4th 682, 684 ["When an owner of stolen personal property testifies as to its value at a restitution hearing, his or her testimony constitutes prima facie evidence of value"]; People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 ["statements by the victims of the crimes about the value of the property stolen constitute 'prima facie evidence of value for purposes of restitution' "]; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [probation officer's report and handwritten statement from victim itemizing losses incurred as a result of burglary were sufficient to constitute prima facie showing of losses].) As defendant presented no conflicting evidence regarding the car's value, it was rational for the trial court to accept this amount as Mr. Ahmadieh's loss. While Mr. Ahmadieh was not entitled to a windfall (People v. Chappelone, supra, 183 Cal.App.4th at p. 1172), there is no evidence he received one.
Defendant's essential disagreement with the foregoing is that the People's evidence of the car's value was inadequate and the list price "speculative." He explains: "The People offered no other evidence of loss; not the acquisition cost, not any carrying costs [it was never established how long the vehicle had even been in the victim's possession], nor any other expenses the victim might have incurred to prepare the vehicle for sale. In point of fact, the victim never testified what he reasonably expected to sell the car for, and given that with rare exception, no car, new or used, sells for its list (asking) price, the actual sale price would have been expected to be less that [sic] the $6,995 asking price." This argument ignores the burdens of proof applicable at a restitution hearing. As noted, Mr. Ahmadieh's testimony established a prima facie value of the car, which then shifted the burden to defendant to refute that value. This was described in People v. Millard (2009) 175 Cal.App.4th 7, 26: "At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once the victim has [i.e., the People have] 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.' " Defendant, however, made no effort to establish a different value for the car. If, as defendant now contends, the list price was "a clearly unrealistic amount . . . that [Mr. Ahmadieh] knew he would not receive," it was incumbent upon him to demonstrate that the proffered value was erroneous. He failed to do so, and his request now for "a new restitution hearing where the People would be given the opportunity to establish the full facts justifying a restitution award" is unwarranted.
Defendant concludes his opening brief with a discussion of Thygesen, supra, 69 Cal.App.4th 988, setting forth the facts and summarizing the Court of Appeal's holding. He neglects, however, to analyze its purported applicability here. We do so, and we conclude it is actually damaging to defendant's position.
In Thygesen, defendant pleaded guilty to the theft of a cement mixer he had rented from an equipment rental company. (Thygesen, supra, 69 Cal.App.4th at pp. 990-991.) Per the probation report, the mixer was valued at $1,400 (new) or $500-$700 (used), plus loss of use. The report put the victim's total loss at $3,235.60. At a restitution hearing, the manager of the rental company testified that the replacement cost of the mixer was $3,331, the monthly rental loss was $294, and the mixer had not yet been replaced in the 13 months since the loss. He provided portions of a catalog that showed list and discounted prices for mixers of similar but different models than the one defendant had stolen. He did not know the age of the stolen mixer, nor did he testify as to its original cost or produce any evidence (via testimony or records) of how often the mixer had been rented out prior to its loss. The company requested the replacement cost of the mixer plus $3,822 ($294 times 13 months) for the loss of use. (Id. at p. 991.) Defendant presented evidence that the replacement value was between $1,647 and $1,938. (Id. at p. 993.) The trial court gave the company the option of accepting either $2,098.98 for the replacement value or $3,822 for the loss of use. The manager, not surprisingly, chose the latter. (Id. at p. 991.)
On appeal, defendant challenged the restitution award as excessive. (Thygesen, supra, 69 Cal.App.4th at p. 993.) As pertinent here, he argued that the company was only entitled to the replacement value of the mixer, an argument the court easily rejected, based on Penal Code section 1202.4, subdivision (f)(3), which plainly states that a victim is to be reimbursed "for every determined economic loss," with subdivision (f)(3)(D) specifically identifying lost profits as one such loss. (Thygesen at pp. 993-994.) Alternatively, he argued that profit should be limited to the net profit the company would have realized for the rental of the mixer, not the full rental amount. (Id. at p. 994.) Again, the court rejected this argument, holding that "in the case of a commercial loss, [profit] is reasonably interpreted as meaning 'gross profit.' " (Ibid.)
The court then went on to agree with defendant that the award was unsupported by substantial evidence. (Thygesen, supra, 69 Cal.App.4th at pp. 994-995.) First, according to the court, there was no logical reason to require the company to choose between the replacement value of the mixer or the lost rent. Instead, the company should have been awarded the " 'replacement cost of like property,' " plus a reasonable amount for loss of use. The court further held, however, that there was "absolutely no evidence presented to the trial court from which a rational determination as to either type of loss could have been made." (Ibid.) As to the value of the mixer, the court pointed out that the manager had no idea of the age of the mixer other than doubting that it was more than 10 years old. It would have been simple, the court observed, for someone from the company to testify as to the age of the mixer, its original price, and what it would cost to replace it with a mixer of like type and age. As to the loss of use calculation, given the "total lack of evidence" concerning how often the mixer was rented, it was error to speculate that the mixer would have been rented out every week for 13 months. The award of 13 full months of rent was thus unsupported by substantial evidence. (Id. at p. 995.)
Thygesen offers two lessons that are instructive here. First, for a commercial victim, the "economic loss may well include the loss of revenue the stolen item would have produced." (Thygesen, supra, 69 Cal.App.4th at p. 994.) Thus, Mr. Ahmadieh was entitled to the profit he lost as a result of defendant's theft. And second, unlike in Thygesen, there was evidence here of the value of the car—Mr. Ahmadieh testified that he intended to list the car for $6,995. He knew the age and condition of the car, and was in the auto sales business. There was no evidence the list price was unreasonable or that he was seeking to replace the stolen car with a more expensive one.
DISPOSITION
The order is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.