Opinion
C082163
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER TERZO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STKCRFE20140008881 & SF130303A)
Defendant Christopher Terzo challenges the trial court's order for victim restitution as excessive and not supported by the evidence. We shall reverse the court's restitution order and remand for further proceedings. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim, defendant's girlfriend of eight years, had an argument which involved a scuffle. When the victim left the home they shared, defendant used a shovel or rake to strike the windshield of the victim's car, shattering the glass. Defendant then struck the victim, injuring her.
Following a trial, a jury found defendant guilty of simple assault, a lesser included offense of the charged offense of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), domestic violence (§ 273.5, subd. (a)), and vandalism (§ 594, subd. (a)).
Unspecified statutory references are to the Penal Code. --------
The trial court suspended imposition of sentence and placed defendant on five years of formal probation subject to terms and conditions including 270 days in county jail. The court imposed various fees and fines, including a victim restitution fine of $140 (compensation for the victim's broken windshield) subject to review by the court.
At a subsequent restitution hearing, the victim testified regarding documentation offered by the People which valued the victim's lost property at $18,045 and the amount paid by the California Victim Compensation Board (Board) at $2,134. The defendant also testified, denying most of the victim's claims and challenging her valuation of the lost property. The probation report recommended victim restitution in the amount of $6,140. At the conclusion of the hearing, the trial court ordered defendant to pay victim restitution in the amounts of $2,134 to the California Victim Compensation Fund and $20,061.78 to the victim.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court abused its discretion by imposing an amount of victim restitution in excess of that claimed by the victim, and by awarding the replacement cost of new property to replace the victim's used property.
Section 1202.4, subdivision (a)(1) provides: "It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (§ 1202.4, subd. (a)(1).) To this end, section 1202.4, subdivision (f) provides: "[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." (§ 1202.4, subd. (f).) "The value of . . . damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (§ 1202.4, subd. (f)(3)(A).)
A defendant has the right to a restitution hearing "to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) "The standard of proof at a restitution hearing is preponderance of the evidence, not reasonable doubt." (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319.) "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).) "[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 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. [Citations.]' [Citation.]" (People v. Millard (2009) 175 Cal.App.4th 7, 26; accord, Gemelli, at p. 1543.) To do so, the defendant "may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]" (Gemelli, at p. 1543.) "[V]ictim restitution is limited to economic loss but is unlimited in the amount that can be ordered." (People v. Harvest (2000) 84 Cal.App.4th 641, 649.)
A restitution order is reviewed under the abuse of discretion standard. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The trial court abuses its discretion when it acts contrary to law (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298) or fails to 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.]" (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) " '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.' [Citations.]" (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
Here, defendant was convicted of simple assault, domestic violence, and vandalism related to his attack on the victim and her car. The probation department recommended victim restitution in the amount of $6,140. The People made a prima facie case for restitution by offering documentation to substantiate the claimed value of the victim's lost property and payments made by the Board for her relocation costs and mental health counseling. The documentation included a declaration prepared by the custodian of records for the Board's Victim Compensation Program reflecting payment of relocation costs in the amount of $1,081 and mental health counseling costs in the amount of $1,053, for a total of $2,134. The documentation also included copies of the victim's rental agreement, a letter from the victim's therapist, health insurance claim forms, an itemized list of lost property, and a receipt reflecting donations to the Salvation Army.
The victim testified regarding the personal property referenced in the documentation, her efforts to retrieve her property from defendant, and the manner in which she calculated the replacement value of the lost items. In particular, she testified regarding a list of items she claimed she left at the home she shared with defendant which defendant "would not give back" to her. She stated she left their home after the domestic violence incident which resulted in defendant's conviction and thereafter tried approximately 30 times to retrieve her personal property from the home. Other than some clothes and family pictures, defendant failed to return the remainder of her personal property. Instead, according to the victim, defendant sold some of the items at garage sales and thrift stores and donated other items to the Salvation Army. The victim determined the approximate value of the lost items to be $18,045 by going online and looking on craigslist to ascertain the cost to repurchase the items.
Defendant contends $5,736 of the claimed $18,045 should be reversed and the matter remanded for a new hearing because the victim improperly calculated the value of certain used items by utilizing the cost to replace them with new property. We disagree. The victim's testimony at the restitution hearing reveals only that she determined the value of items by searching online and specifically on craigslist to find a comparable item and then assigned a value based on what it would cost to replace a new or relatively new item or to replace something older and used. For example, she determined the cost to replace of a toaster that was "almost brand new" was $57. On the other hand, she valued a used coffee pot she originally purchased for $52 at $40. The value she placed on certain items was determined by "going online" and ascertaining the cost if she "were to re-purchase the items." The trial court was well within its discretion to accept, as prima facie evidence of loss, the victim's statement about the value of the lost property. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)
Once the People made their prima facie showing, the burden shifted to defendant to demonstrate the amount of loss was other than that claimed by the victim. (People v. Millard, supra, 175 Cal.App.4th at p. 26; Gemelli, supra, 161 Cal.App.4th at p. 1543.) While defendant testified in response to the People's request for victim restitution and disputed the valuation claimed by the victim, he offered no alternative method of calculating the victim's loss, nor did he offer an alternative value for the claimed lost property. Similarly, defendant challenged the mental health portion ($1,053) of the requested reimbursement to the Victim Compensation Program, but argued only that the purported letter from the victim's therapist was not supported by testimony from the victim.
The record makes plain that defendant failed to meet his burden to demonstrate the amount of loss was other than that claimed by the victim. However, we question the court's order of restitution to the victim in the amount of $20,061.78, an amount which exceeds the $18,045 claimed by the victim by $2,016.78. The People argue there is a simple explanation: $20,061.78 is the product of the victim's claimed property loss of $18,045, plus the victim's claimed costs for relocation expenses and mental health counseling of $2,167, taking into account that the trial court made a clerical error by misplacing the decimal point as to the latter amount and using the erroneous amount of $2,016.78 instead of $2,167. Finally, the People argue the subtotal of the victim's claimed "family room" losses, erroneously reflected in her household property claim as $1,843, was actually $2,113, thus requiring a correction of $270. Hence, the People argue, we should correct the amount of victim restitution for the victim's lost property, relocation expenses, and mental health counseling to equal "$20,482 ($2,167 + $18,045 + [$]270)."
The People's assertion is problematic for two reasons. First, as defendant aptly notes, the court separately ordered the amount of $2,134 representing the victim's relocation and mental health counseling costs to be paid to the Victim Compensation Fund. As such, that amount should not have been included in the award of restitution to be paid to the victim. Second, the People fail to explain the discrepancy between the amount of $2,134 reflected in the declaration prepared by the custodian of records for the Board and the amount of $2,167 supported by the documentation attached to the declaration.
There is nothing in the record demonstrating how the trial court arrived at the higher amount of victim restitution, nor did the court provide any explanation for its decision. "The abuse of discretion standard is 'deferential,' but it 'is not empty.' [Citation.] '[I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.] Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the . . . victim's economic loss. To facilitate appellate review of the trial court's restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered." (People v. Giordano, supra, 42 Cal.4th at pp. 663-664.) In the absence of such a clear statement, and in light of the unanswered questions raised above, we must reverse the judgment and remand the matter to the trial court for further proceedings to determine the proper amount of victim restitution and provide a clear statement as to how it arrived at its decision.
DISPOSITION
The order requiring defendant to pay victim restitution in the amount of $20,061.78 is reversed and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion. In all other respects the judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Mauro, J.