Opinion
C082163
01-24-2018
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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) OPINION ON REHEARING
Defendant Christopher Terzo challenges the trial court's order for victim restitution. Finding an error in the trial court's calculation of interest, we shall modify the judgment to correct the amount of victim restitution. 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.
Subsequent to the filing of appellate briefing by the parties, it was discovered that a portion of the trial court's written restitution order was omitted from the record on appeal. The entirety of the court's written order (hereafter "the supplemental appellate record") is now a part of the appellate record.
DISCUSSION
Defendant initially contended 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. Without abandoning his initial claim, but in light of the supplemental appellate record, defendant now contends the trial court's victim restitution order totaling $20,061.78 ($17,445 restitution plus interest in the amount of $2,616.78) was incorrect and must be modified to reflect a total amount of $19,714.40 ($17,145 restitution plus interest in the amount of $2,569.40).
The People disagree, arguing the trial court did not err in calculating victim restitution in the amount of $17,445, but did err in calculating interest on that amount, which the People argue should have been $2,613.12, for a total award of victim restitution of $20,058.12.
As we shall explain, the People's argument is correct.
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 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.
With regard to the trial court's calculation of victim restitution, the supplemental appellate record reflects that the trial court correctly calculated the victim's household property claim as $18,345 (as opposed to the erroneous total of $18,045 reflected on the documentation provided by the victim). From that amount, the court disallowed $900 in claimed losses, for a new subtotal of $17,445. We conclude that subtotal is correct.
The $300 discrepancy is attributable to the difference between the victim's miscalculation of "Family Room" losses totaling "$1843" and the actual total of those claimed losses of $2,143. --------
However, the record reveals an error in the calculation of $2,616.78 in interest on the $17,445 in victim restitution for the period of November 14, 2014, through May 13, 2016, and therefore an error in the total award of victim restitution of $20,061.78, as pronounced by the court.
Section 1202.4 provides that an order for victim restitution shall include "[i]nterest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court." (§ 1202.4, subd. (f)(3)(G); People v. Wickham (2013) 222 Cal.App.4th 232, 238.) The period in question here was November 14, 2014, through May 13, 2016. The trial court calculated interest on $17,445 for that period as follows: "The court is hereby awarding the victim 10 percent interest per year on the $17,445.00 restitution amount from the date of loss of November 14, 2014. As of the date the order is signed interest amounts to $1,744.50 from 11/14/14-11/13/15; and $872.28 from 11/14/15-5/13/16=$2,616.78 in interest (11/14/14-5/13/16)."
The interest calculation as pronounced by the court contains a slight discrepancy regarding the number of days subject to interest. The correct calculation is as follows:
| For the period November 14, 2014 through November 13, 2015: | |
| Total Days: | 365 |
| Days Subject to Interest: | 365 |
| 10 Percent: | $17,445 x 10% = $1,744.50 |
| Interest for Period: | $1,744.50 |
| For the period November 14, 2015 through December 31, 2015: | |
| Total Days in Year: | 365 |
| Days Subject to Interest: | 48 |
| 10 Percent: | $17,445 x 10% = $1,744.50 |
| Daily Interest: | $1,744.50 / 365 = $4.78/day |
| Interest for Period: | $4.78 x 48 = $229.44 |
| For the period January 1, 2016 through May 13, 2016: | |
| Total Days in Year: | 366 (leap year) |
|---|---|
| Days Subject to Interest: | 134 |
| 10 Percent: | $17,445 x 10% = $1,744.50 |
| Daily Interest: | $1,744.50 / 366 = $4.77/day |
| Interest for Period: | $4.77 x 134 = $639.18 |
| Total Interest: $1,744.50 + $229.44 + $639.18 = $2,613.12 |
The total interest for the period November 14, 2015, through May 13, 2016, is $2,613.12, not $2,616.78 as pronounced by the court. Therefore, the correct amount of total victim restitution is $20,058.12 (victim restitution in the amount of $17,445 plus interest in the amount of $2,613.12). We consider the miscalculation of interest to be a clerical error and, under our inherent authority to " 'correct errors and omissions in abstracts of judgment' " (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328), we will modify the judgment and direct the trial court to prepare an amended abstract of judgment to reflect victim restitution in the amount of $20,058.12.
DISPOSITION
The judgment is modified to impose victim restitution in the amount of $20,058.12. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Mauro, J.