Opinion
No. 2-15-0200
07-13-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAVIER ZAMUDIO, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Lake County.
No. 14 CF 2839
Honorable Daniel B. Shanes, Judge, Presiding.
JUSTICE BURKE delivered the judgment of the court.
Justices Birkett and Spence concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err in ordering restitution based on replacement cost instead of fair market value at the time of the burglary, and since no error occurred, we conclude that the plain error doctrine does not apply and we honor defendant's forfeiture of this issue; affirmed.
¶ 2 Following a jury trial, defendant, Javier Zamudio, was found guilty of robbing the victim of her cell phone (720 ILCS 5/18-1(a) (West 2012)). The trial court imposed a sentence of 30 months' probation and, as a condition of defendant's probation, ordered restitution of $481.48 based on the victim's statement regarding the cost of replacing her cell phone, which was damaged during the robbery. Defendant never contested this amount in the trial court. On
appeal, defendant contends that the trial court erred in ordering restitution based on replacement cost instead of fair market value at the time of the robbery. We affirm.
¶ 3 I. BACKGROUND
¶ 4 At the sentencing hearing, the trial court considered the presentence investigation report (PSI), which contained a victim impact statement in which she explained that her phone was irreparably damaged and, as part of her phone plan, she was required to pay off her old phone and purchase a new one. The damaged phone was a Google Nexus 5 and she purchased a Samsung Galaxy V for $481.48. When the State requested defendant pay that amount as restitution, defendant never contested it.
¶ 5 After the trial court ordered the $481.41 in restitution, the judge advised defendant that he had "a right to appeal," but if he wanted the court to "reconsider the sentence or challenge it in some way," he must first file a motion to reconsider and "include in that all the reasons for the motion" and anything that is left out "would be deemed forfeited for appeal." There is nothing in the trial court record challenging the restitution order, and defendant did not file a motion to reconsider sentence. Defendant timely appeals.
¶ 6 II. ANALYSIS
¶ 7 Defendant contends that the trial court erred in ordering restitution based on the cost to replace the victim's damaged phone rather than using the fair market value at the time it was damaged. He concedes that he forfeited the error (see People v. Rathbone, 345 Ill. App. 3d 305, 309 (2003) (citing People v. Enoch, 122 Ill. 2d 176, 186 (1988)) but contends that we should review it as plain error.
¶ 8 The plain-error doctrine allows review of a forfeited claim of error if the error is clear or obvious, and either (1) "the evidence is so closely balanced that the error alone threatened to tip
the scales of justice against the defendant, regardless of the seriousness of the error" or (2) "the error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. McDonald, 2016 IL 118882, ¶ 48. Defendant has the burden of persuasion to establish plain error. Id. If he fails to meet his burden, his forfeiture will be honored. People v. Hillier, 237 Ill. 2d 539, 545 (2010). The first step in plain-error review is to determine whether clear and obvious error is present. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 9 Accordingly, we first turn to whether the trial court erred in ordering restitution based on replacement cost. The restitution statute requires the court to "assess the actual out-of-pocket expenses, losses, damages, and injuries proximately caused by the defendant." 730 ILCS 5/5-5-6(b) (West 2014). Our district, in People v. Rednour, 279 Ill. App. 3d 1000 (1996), stated that replacement cost is an appropriate measure of restitution for non-depreciable items, but for depreciable items, the better measure is fair market value of the damaged goods at the time they were damaged. Id. at 1002 (and the cases cited therein). In this case it makes sense since the victim should not be allowed to replace an obsolete phone with one that is worth much more. That is not to say that replacement cost is not appropriate where the new item is comparable to the damaged item. See, e.g., People v. Hamilton, 198 Ill. App. 3d 108, 115 (1990), rev'd in part on other grounds by People v. Williams, 149 Ill. 2d 467, 495 (1992) (cost of replacing damaged doors with comparable doors is sufficient to establish fair market value).
¶ 10 Here, there is nothing in the record and defendant does not argue on appeal that the victim's damaged Google Nexus 5 and the replacement Samsung Galaxy V are not comparable cell phones. Also, defendant admits that the record is devoid of any information regarding the fair market value of the victim's damaged phone at the time of the offense. The trial court thus
had no evidence to discredit the victim's account of the cost of replacing the phone. See Rednour, 279 Ill. App. 3d at 1002 (defendant had an opportunity to offer evidence to prove the replacement expense differed from the fair market value but offered no such evidence); see also Hamilton, 198 Ill. App. 3d at 115) (trial court did not err because defendant did not object to the PSI or offer evidence to prove replacement costs were not fair market value). Therefore, there is no indication of a clear and obvious error, and we will hold defendant to his forfeiture of this issue.
¶ 11 III. CONCLUSION
¶ 12 Based on the preceding, we affirm the judgment of the circuit court of Lake County.
¶ 13 Affirmed.