Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC805340
McAdams, J.
Defendant Stephen Lee Treacy was convicted by plea of one felony count of driving under the influence with a blood alcohol content of.08 or more and causing injury with two or more prior drunk driving convictions (Veh. Code, §§ 23153, 23566, subd. (a)) and two misdemeanor counts of driving on a license that had been suspended and revoked (Veh. Code, §§ 14601.2, subd. (a) [because of a drunk driving conviction]; 14601.5, subd. (a) [for refusing a chemical test or driving with a blood alcohol level of.08 percent or more]). Defendant admitted enhancement allegations that he had suffered a prior serious felony conviction for the purpose of the Three Strike Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and that he had a prison prior (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise stated.
Defendant’s “strike” prior was a 1983 conviction for lewd or lascivious conduct with a minor under the age of 14 (§ 288, subd. (a)). His prison prior was based on a 2004 conviction for failure to register as a sex offender (§ 290).
Prior to sentencing, the court granted defendant’s Romero motion and struck the strike prior, but denied defendant’s motion to reduce the felony to a misdemeanor. The court sentenced defendant to the lower term of two years on the felony count, struck the additional punishment for the prior prison term, and imposed a 60-day jail sentence on the two misdemeanor counts. With credit for time served, the sentence on the misdemeanor counts was deemed served. The court imposed a $400 restitution fine (§ 1202.4) and a $400 parole revocation restitution fine (§ 1202.45). Over defendant’s objection, the court ordered victim restitution of $8,589.44 payable to the victim of the auto accident that led to defendant’s arrest.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On appeal, defendant challenges the sufficiency of the evidence to support the order for victim restitution and argues that the order must be stricken. We find no abuse of discretion and will affirm the judgment.
Facts
On May 13, 2008, defendant ran a red light and struck a vehicle driven by James Morgado. At the preliminary hearing, the parties stipulated that defendant’s blood alcohol content was.32 percent.
According to one of the police officers who investigated the accident, there was “pretty severe damage” to the front end of defendant’s Isuzu Trooper and moderate damage to the rear driver’s side of Morgado’s vehicle. (The record does not identify the type of vehicle Morgado was driving.) Morgado complained of pain in the back of his neck, declined medical treatment at the scene, and told the officers he would seek medical attention on his own.
Procedural History
We shall confine our description of the procedural history to material that contains information relevant to the victim restitution claim.
In his motion to reduce the felony to a misdemeanor, defendant told the court that Morgado had complained that his neck was sore for several weeks. Defendant described this as “a common and by no means severe ailment from a car accident” and argued that the injury was insufficient to support felony charges. He told the court that although Morgado had seen a doctor, his only treatment was “muscle relaxants and anti-inflammatory pills” and that Morgado had not lost any time from work because of the accident. The motion did not contain any evidentiary material supporting defendant’s assertions.
In his sentencing memorandum, defendant characterized Morgado’s injuries as “minor soft tissue injuries (slight neck pain)” and stated that Morgado’s expenses were covered by his insurance company. Defendant did not submit any evidentiary material supporting these claims.
The probation officer tried to contact Morgado by telephone prior to sentencing, but was unable to reach him. With regard to victim restitution, the probation officer reported: “Paperwork received from the Victim Witness Assistance Center indicates that [Morgado suffered from neck pain following the accident, and he required medical attention. He also sustained damage to his vehicle, and therefore incurred fees to obtain a rental car. According to the paperwork, dated June 18, 2008, [Morgado] is requesting $8,584.44 In restitution. Therefore, this officer will recommend that restitution, including but not limited to $8,584.44 be ordered by the Court on behalf of the victim.” The probation officer told the court she tried to contact a paralegal who is a restitution specialist in the District Attorney’s office, to determine whether the California Victim Compensation and Government Board had reimbursed Morgado. However, the probation officer had not received a response from the paralegal prior to preparing her report. Based on the paperwork she received from the Victim Witness Assistance Center (VWAC), the probation officer recommended $8,584.44 in victim restitution to Morgado as compensation for his physical injuries, the damages to his vehicle, and car rental fees. The probation report did not include a copy of the “paperwork” from VWAC that the probation officer relied on to determine the amount of victim restitution.
The probation report states that “the defendant suffered from neck pain” and that “the defendant” is requesting restitution, but there does not appear to be any question that the probation officer was referring to Morgado and that she erred when she referred to the injured party as “the defendant.”
At sentencing, the court ordered $8,589.44 in victim restitution to Morgado. Defendant objected to the amount of the restitution order, arguing that he did not “have any kind of substantiated claims for that amount.” The court noted the objection and ordered the restitution.
Although the probation officer recommended restitution of $8,584.44, the court ordered $8,589.44 in victim restitution at sentencing. The parties do not address or challenge this five dollar discrepancy between the recommendation and the order. We do note that the minutes and the abstract of judgment have recorded the amount of restitution awarded as $8,584.44. Where there are discrepancies between the judgment as orally pronounced and as recorded in the minutes or the abstract of judgment, the court’s oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471-472, superseded by statute on other grounds as stated in People v. Turner (1998) 67 Cal.App.4th 1258, 1268.) Since the court’s oral pronouncement controls, we shall order the abstract of judgment, which lists victim restitution as $8,584.44, corrected to conform to the court’s oral pronouncement.
Discussion
Defendant contends that the trial court abused its discretion in ordering $8,589.44 in victim restitution because there was insufficient evidence to support the amount of restitution ordered.
I. General Principles Governing Awards of Victim Restitution
“In 1982, California voters passed Proposition 8, also known as The Victims’ Bill of Rights.... Proposition 8 established the right of crime victims to receive restitution directly ‘from the persons convicted of the crimes for losses they suffer.’ ” (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) Proposition 8 added new article I, section 28 to the California Constitution, which at the time of the offenses in this case provided: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.” (Former Cal. Const., art. I, § 28, subd. (b).)
Former California Constitution article I, section 28 was amended by initiative measure (Proposition 9) on November 4, 2008. Former subdivision (b) was renumbered subdivision (b)(13) and the text of the subdivision was amended.
To implement Proposition 8, the Legislature enacted section 1202.4. Under that code section, the court must order direct victim restitution in “every case in which a victim has suffered economic loss as a result of the defendant’s conduct.” (§ 1202.4, subd. (f); see also § 1202.4, subd. (a)(1).) The court “shall require” the defendant to make restitution “based on the amount of loss claimed by the victim... 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.” (§ 1202.4, subd. (f).)
Section 1202.4, subdivision (f)(3) provides that “[t]o 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, but not limited to” 11 enumerated categories of economic losses. The categories of losses enumerated in section 1202.4, subdivision (f)(3) that are relevant in an automobile accident case include: “(A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. [¶] (B) Medical expenses. [¶] (C) Mental health counseling expenses. [¶] (D) Wages or profits lost due to injury incurred by the victim,.... [¶] (E) Wages or profits lost by the victim,..., due to time spent as a witness or in assisting the police or prosecution.... [¶]... [¶] (G) Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court.” The statutory list of economic losses that may be recovered as victim restitution is not exclusive. (People v. Thygesen (1999) 69 Cal.App.4th 988, 994.)
Other categories of losses enumerated in section 1202.4, subdivision (f)(3) include: “(F) Noneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288. [¶]... [¶] (H) Actual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim. [¶] (I) Expenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim. [¶] (J) Expenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks. [¶] (K) Expenses to retrofit a residence or vehicle, or both, to make the residence accessible to or the vehicle operational by the victim, if the victim is permanently disabled, whether the disability is partial or total, as a direct result of the crime.” The subdivisions that refer to lost wages define lost wages as including “any commission income as well as any base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown” and if the victim is a minor, lost wages includes “wages or profits lost by the minor’s parent, parents, guardian, or guardians.” (§ 1202.4, subd. (f)(3)(D), (E).)
“Direct victims of crime have a statutory right to restitution on the full amount of their losses without regard to the full or partial recoupment from other sources (except the state Restitution Fund).” (People v. Baker (2005) 126 Cal.App.4th 463, 468 (Baker).) “Determination of the amount of restitution ordered pursuant to [section 1202.4, subdivision (f)(3)] shall not be affected by the indemnification or subrogation rights of any third party.” (§ 1202.4, subd. (f)(2).) However, restitution ordered pursuant to section 1202.4, subdivision (f)(3) “shall be ordered to be deposited to the Restitution Fund to the extent that the victim,... has received assistance from the Victim Compensation Program....” (§ 1202.4, subd. (f)(2).)
Although section 1202.4 provides for full restitution of a victim’s economic losses, it “does not authorize direct restitution for noneconomic losses,” except in cases where the defendant has been convicted of lewd or lascivious acts performed on a minor. (Giordano, supra, 42 Cal.4th at p. 656; § 1202.4, subd. (f)(3)(F).)
II. Standard of Review
“Generally speaking, restitution awards are vested in the trial court’s discretion and will be disturbed on appeal only where an abuse of discretion appears. (People v. Fortune (2005) 129 Cal.App.4th 790, 794....) Like most generalizations, however, this one can lead to errors if not applied with circumspection. No court has discretion to make an order not authorized by law, or to find facts for which there is not substantial evidence. A reviewing court will generally examine an issue of law independently of a lower tribunal’s ruling. [Citation.] Its determination on an issue of fact is reviewed under the substantial evidence standard. [Citation.] The standard of review therefore depends on the nature of the question presented.” (In re K.F. (2009) 173 Cal.App.4th 655, 661, fn. omitted.)
“[T]he court’s discretion in setting the amount of restitution is broad and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.” (Baker, supra, 126 Cal.App.4th at p. 470.) “ ‘[E]ven though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court 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. Mearns (2002) 97 Cal.App.4th 493, 498.) “ ‘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.’ ” (Id. at p. 499.)
III. Evidence Required to Support Restitution Award
A restitution hearing is usually held at the time of sentencing and the probation officer is required to provide the court with a recommendation whether the court “shall require” victim restitution as a condition of probation and the amount thereof. (§ 1203, subd. (b)(2)(D)(ii).) “[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.” (Baker, supra, 126 Cal.App.4th at p. 469.)
“Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property.” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli), citing People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster), superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245; but see People v. Harvest (2000) 84 Cal.App.4th 641, 653 [probation officer’s report “may satisfy notice requirements for due process [citation], but it cannot take the place of evidence”].) “This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.’ ” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048, citing Foster, at p. 947.)
“Once the victim has 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.” (People v. Prosser (2007) 157 Cal.App.4th 682, 691.) Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407.)
There must be a rational relationship between the restitution order and the victim’s loss, but “[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. Carbajal (1995) 10 Cal.4th 1114, 1121.)
IV Analysis
Defendant contends that there was insufficient evidence to support the court’s order because the only evidence submitted was “multi-level hearsay” from the probation report that was “extremely unreliable.” In this case, the probation officer relied on “[p]aperwork received from the Victim Witness Assistance Center,” which indicated that Morgado “suffered from neck pain following the accident,” that “he required medical attention” and that he “sustained damage to his vehicle, and therefore incurred fees to obtain a rental car. According to the paperwork, dated June 18, 2008, [Morgado was] requesting $8,584.44 in restitution.” Based on the “paperwork,” the probation officer recommended that restitution, including but not limited to $8,584.44 be ordered by the court on behalf of Morgado. However, the probation officer did not attach a copy of the paperwork she received from the VWAC substantiating Morgado’s restitution claim.
Citing People v. Vournazos (1988) 198 Cal.App.3d 948, 958-959, defendant argues that “a probation officer’s recital of hearsay statements by a victim which do not contain evidence which proves the amount of the claimed loss or damage are insufficient to support a restitution order.” The court in Gemelli rejected a similar argument that was also based on Vournazos. The defendant in Gemelli was convicted by plea of commercial burglary of the restaurant where she had formerly worked as a bookkeeper. She had been fired from the restaurant on suspicion that she was embezzling money. The only items missing from the restaurant after the burglary were daily reports that would have shown whether the defendant had embezzled the money. (Gemelli, supra, 161 Cal.App.4th at p. 1541.) The only evidence submitted at the restitution hearing was an itemized list of damages prepared by the restaurant owner, which was attached to the probation report. The victim did not provide any receipts to support the amounts claimed in his itemized list. The defendant argued that “the victim’s bare, unverified statement of losses [was] insufficient to sustain an order for direct [victim] restitution” and that the claim must be supported by documentary evidence. (Id. at p. 1542.)
The Gemelli court rejected that assertion. First, it observed that the holding in Vournazos, had “been criticized by other courts.” (Gemelli, supra, 161 Cal.App.4th at p. 1542.) After summarizing Vournazos, the Gemelli court stated that it had “rejected a similar argument in Foster, supra, 14 Cal.App.4th at pages 946-948.” (Gemelli, at p. 1543.) The court explained, “The defendant in Foster burglarized a cabin and took some valuable items. [Citation.] He argued the trial court could not rely solely on the victim’s uncorroborated statement about the value of the items to support an order for restitution. [Citation.] He also argued the Legislature ‘must have intended that determinations of value be based on evidence other than the victim’s uncorroborated statement.’ [Citation.] 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.’ ([Citation], 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.’ ” (Gemelli, at p. 1543.)
Gemelli held that the defendant’s citation to Vournazos was unpersuasive and stated that “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 policy reasons set forth in Foster, supra, 14 Cal.App.4th 939.” (Gemelli, supra, 161 Cal.App.4th at p. 1543.) The court held that the “detailed information provided in the restaurant owner’s written statement was more than adequate to advise defendant of [the cost of reconstructing the documents stolen during the burglary]. If [the] defendant believed supporting documentation or additional information was necessary to effectively rebut the amount claimed, it was up to her to obtain it. Having failed to do so, she did not meet her burden of proof. We therefore agree with the trial court’s conclusion defendant did not effectively rebut the amount claimed to reconstruct the stolen paperwork.” (Id. at p. 1545.)
We agree with Gemelli and Foster that the trial court may accept the victim’s uncorroborated statement about the value of his economic losses resulting from the defendant’s criminal conduct as prima facie evidence of loss for the purpose of awarding victim restitution and that the victim is not required to support his claim with documentary evidence. In Gemelli, the “trial court’s restitution order was based on the probation officer’s report and an attached handwritten statement from the victim listing a grand total of $7,073 in losses incurred by the restaurant as a result of the burglary. The list [was] detailed and facially credible in that it explain[ed] how each of the claimed losses [was] related to the burglary. In addition, each of the repair items show[ed] an amount spent on materials, an hourly rate for labor or professional services, and the amount of time it took to complete the necessary work.” (Gemelli, supra, 161 Cal.App.4th at p. 1544.) In Foster, the probation officer reported that the victim had told him that the property stolen from her included “a Persian rug that had cost her $8,000, for which she had received no reimbursement from the insurance company.” (Foster, supra, 14 Cal.App.4th at p. 944.) The court reasoned that given the nature of the stolen item, the only information “about its value that was easily available to the victim, unless she happened to be an expert in the field, was the cost of the item to her. Otherwise, she would have had to consult an expert appraiser, probably incurring a fee, to determine the replacement cost of the rug. Even an appraiser’s opinion would necessarily be speculative because the appraiser would not be able to examine the age, quality, or condition of the stolen rug.” (Id. at p. 946, fn. 5; see also People v. Collins (2003) 111 Cal.App.4th 726, 729 [victim’s oral statement to probation officer that he had $4,500 in losses was sufficient].)
In this case, we have neither a handwritten statement nor an oral statement from the victim to the probation officer regarding the value of his economic losses. Instead, we have the victim’s statement to a representative of the VWAC regarding the value of the victim’s losses and the VWAC’s report to probation regarding the value of those losses.
Pursuant to section 13835, et seq., the Legislature has established local assistance centers for victims and witnesses. There are 59 local assistance centers, one in each county and one in the City of Los Angeles, that work directly with the Victim Compensation and Government Claims Board in assisting crime victims. ( as of March 18, 2010.) The VWACs are statutorily mandated to provide crime victims with a variety of “[c]omprehensive services,” which are enumerated in section 13835.5. They include 14 types of mandatory, “primary services” and 10 “optional services.” (§ 13835.5.) If the victim requests it, the county VWAC must assist the victim in “obtaining restitution,” “in ascertaining the victim’s economic loss, and in providing the probation department, district attorney, and court with information relevant to [the victim’s] losses prior to imposition of sentence.” (§ 13835.5, subd. (a)(14).) That is exactly what occurred here. The probation report suggests that Morgado asked the VWAC to help him put together the paperwork for his restitution claim, which the VWAC forwarded to the probation department. Given the VWAC’s role in assisting crime victims, the probation officer and the court were entitled to rely on the report of the VWAC in determining the amount claimed as victim restitution. Although it would have been better practice for the probation officer to attach a copy of the “paperwork” she received from the VWAC to her report, the probation report nonetheless put defendant on notice of the amount claimed as victim restitution. In our view, the probation officer’s reliance on the VWAC report here was no different from the probation officer’s reliance on the victim’s detailed written statement in Gemelli or the victim’s oral statement in Foster. Defendant did not come forward with any information that challenged the amount claimed in the trial court. For these reasons, we conclude that there was sufficient evidence to support the trial court’s restitution order and that, consequently, the court did not abuse its discretion when it awarded victim restitution of $8,589.44 in this case.
Disposition
The judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment, stating that the amount of restitution ordered by the court was $8,589.44, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections.
WE CONCUR: Elia, Acting P.J.Mihara, J.