Opinion
E065983
05-23-2017
THE PEOPLE, Plaintiff and Respondent, v. ORLANDO DANIEL CHAVEZ, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1501720) OPINION APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
On November 2, 2015, an information charged defendant and appellant Orlando Daniel Chavez with felony theft of a vehicle with a prior conviction of theft involving a vehicle (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851) (count 1); and willfully destroying property with a value exceeding $400 (Pen. Code, § 594, subd. (b)(1)) (count 2). The information also alleged that defendant suffered a prior strike conviction (Pen. Code, §§ 459, 667, subds. (d) & (e)(1), 1170.12, subd. (c)(1)), and served a prior prison term (Pen. Code, § 667.5, subd. (b)).
On December 10, 2015, defendant pled guilty to count 1 and admitted the prior strike allegation. Count 2 was dismissed subject to a Harvey waiver, which consisted of defendant agreeing to allow the trial court to consider the dismissed charge in ordering victim restitution.
People v. Harvey (1979) 25 Cal.3d 754.
On January 22, 2016, the trial court sentenced defendant to four years in prison, calculated as follows: two years for count 1, doubled to four years for the prior strike. The court held restitutions hearings on February 26, 2016, and April 29, 2016, and awarded the victim $10,975 in restitution.
On May 4, 2016, defendant filed a notice of appeal from the postjudgment victim restitution order.
Defendant's notice of appeal is from the April 29, 2016, restitution hearing, Judge Bjork presiding. On April 27, 2017, the minute order from the April 29, 2016, hearing was corrected to reflect Judge Benjamini presided over the hearing.
FACTUAL AND PROCEDURAL HISTORY
Because defendant pled guilty, the factual background is taken from the preliminary hearing transcript, police reports, probation report, plea form, and declaration in support of the restitution order.
On March 23, 2015, the victim was staying at a hotel in Riverside County, with her boyfriend and his cousin (defendant). While defendant was present in the hotel room, the victim and her boyfriend took a shower together. When the victim went back into the main room after the shower, she noticed that her keychain was missing from her purse. On the keychain were the keys to her car and to her storage unit in Cathedral City. Defendant was also gone. After going outside, the victim saw her car was missing. She suspected defendant had taken her car but believed he would return it shortly because he was "practically family." The victim attempted to contact defendant but had no way to reach him; she called multiple friends and family members to try to find a way to contact him.
The entire next day, the victim tried to find her car by driving around Desert Hot Springs, where she believed defendant frequented. Eventually, around midnight, the victim saw defendant driving her car. She attempted to stop defendant and communicate, but he ignored her and sped off. Then believing defendant had no intention of returning her car, The victim reported it as stolen to the Palm Springs Police Department.
The victim learned from her boyfriend that defendant had accessed her storage unit and was selling her belongings. A surveillance video showed defendant driving into the victim's storage facility in her empty car and then later exiting the storage facility with the car full of property.
On March 26, 2016, the victim received a phone call from defendant's ex-girlfriend and learned that the victim's car was at defendant's mother's house in Palm Springs. She went to the location and found her car. Defendant's mother turned over the keys, and the victim contacted the Palm Springs Police Department to recover her car. She was told that she needed to contact the Riverside County Sheriff's Department because the car was located within their jurisdiction. The victim feared that an associate of defendant would try to take the car again before the police arrived so she drove her car a few miles to her father's home in Palm Springs. There, the victim contacted the sheriff's department and completed the recovery of her car.
When police officers asked about the condition of her car when the victim found it, she explained there was gang graffiti scratched onto the hood and in the interior; the stereo and speakers had been stolen; and the dashboard and interior door panels were damaged from the stereo removal. The victim estimated the property damage and the loss of the stereo to be over $2,000.
The probation report suggested that defendant pay $23,330 in restitution to the victim for her losses.
DISCUSSION
A. THE RESTITUTION ORDER
Defendant claims that the trial court abused its discretion in ordering him to pay $10,975 in restitution to the victim. Defendant does not contest the value of the items reported missing. Instead, he contends that there is insufficient evidence to prove the items were stolen from her car, and not the storage unit. Defendant contends that the victim's statement regarding where the items were located lacked credibility and was influenced by her belief that she would only recover restitution for the items he stole from her car. For the reasons set forth below, we find that the victim's sworn declaration constitutes substantial evidence for the restitution award.
1. RELEVANT PROCEEDINGS
a) February 26, 2016, Restitution Hearing
At the initial restitution hearing held on February 26, 2016, the victim failed to appear. The court considered taking the hearing off calendar and rescheduling it so the victim could appear. The People expressed concern that because of the victim's schedule, the court and parties would be put in the same position again at the next scheduled hearing.
The court asked the prosecutor if the victim could submit a declaration instead of testifying. In response, defense counsel stated, "She's submitted $25,000 of lost damages, mostly of expensive purses and watches with no receipts other than her writing it on a piece of paper." The court replied, "There's no right to cross-examination as it is, Mr. Gomez, at a restitution hearing. So this is not a trial. Rules are quite different." The court stated that each side could present whatever evidence they wanted at the next hearing and took the matter off calendar.
b) April 29, 2016, Restitution Hearing
At the second restitution hearing on April 29, 2016, the People asked the court to award the victim $30,015 in restitution. In support, the People submitted the victim's sworn declaration. In her declaration, the victim explained that she had been in the process of moving when her car was stolen, and that she had been storing her property both in her storage unit and her car. The list of items she reported as stolen from her car included jewelry; laundry and cleaning supplies; waxing supplies; two toolboxes and tools; a Bellisimo purse; miscellaneous shoes and boots; clothes; portable Bose Speaker Soundlink with case; and makeup. The victim valued the items stolen from her car at $10,975. In addition, the victim declared that defendant had vandalized her car. She, however, did not provide a valuation of that damage. The declaration also did not mention the car stereo system that the victim reported as stolen throughout the police report.
From her storage unit, the victim listed the following items as stolen: a Saks purse; two Prada purses; Michael Kors boots; Ferragamo boots; miscellaneous shoes; 100-150 nail polishes; makeup; Shark vacuum; Shark hand vacuum; Keurig hot brewer; HP printer; collector's edition of Marilyn Monroe boxes; Beauty Rest High Rise queen air mattress; two Calvin Klein down comforters; five new pillows; faux fur coat; clothes; Hurley backpack; and speakers. She valued the items taken at $19,040.
The trial court found the declaration sufficient to constitute a prima facie case and shifted the burden to defendant. Defense counsel argued that the victim was not entitled to restitution for the items defendant stole from the storage unit because defendant was not charged with burglary of the storage unit and he had not been granted probation, which would have allowed the court greater discretion in awarding restitution. According to defense counsel, the items taken from the storage unit were not covered by defendant's Harvey waiver.
In addition, defense counsel argued that the victim's claim in her declaration that defendant had stolen property from her car was not credible because she never mentioned that items were stolen from her car in the police reports, at the preliminary hearing, or in the three pages of handwritten notes the victim wrote when the prosecutor was preparing for trial.
The trial court agreed that the relevant restitution guidelines for a prison sentence are different than the guidelines for a grant of probation, and ruled that the victim could not recover restitution for the items stolen from her storage unit. The court, however, found that there was sufficient evidence supporting the victim's request for the items she claimed that defendant stole from her car, and ordered defendant to pay $10,975 in victim restitution to the victim.
2. THE COURT DID NOT ABUSE ITS DISCRETION IN A WARDING RESTITUTION
Defendant argues that the trial court abused its discretion in awarding $10,975 in restitution to the victim because the statements in the victim's sworn declaration were not credible. We disagree.
Crime victims have been afforded both constitutional and statutory rights to restitution in California. "The principle that an offender can be required, in proper cases, to make restitution to his victim is an accepted one." (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 747.) Article I, section 28, subdivision (b) of the California Constitution, states in part: "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 seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] . . . Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (See also People v. Mearns (2002) 97 Cal.App.4th 493, 498.) "[A] crime victim is entitled to restitution for 'any economic loss' incurred as the result of the defendant's criminal activity." (People v. Ortiz (1997) 53 Cal.App.4th 791, 798.) "'"A victim's restitution right is to be broadly and liberally construed."'" (People v. Baker (2005) 126 Cal.App.4th 463, 467 (Baker).)
"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,'" and the "restitution order 'shall be of a dollar amount sufficient to fully reimburse the victim' for economic losses caused by the defendant's criminal conduct." (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) The trial court is vested with broad discretion in ordering and determining the amount of restitution. (Baker, supra, 126 Cal.App.4th at p. 467; People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) "The trial 'court's allocation of restitutionary responsibility must be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law.'" (People v. Draut (1999) 73 Cal.App.4th 577, 581, quoting In re S.S. (1995) 37 Cal.App.4th 543, 550.) "'Under that standard, we are required to keep in mind that even 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, supra, 97 Cal.App.4th at pp. 498-499; see also People v. Thygesen (1999) 69 Cal.App.4th 988, 992.)
When a defendant is sentenced to state prison, section 1202.4 limits victim restitution to losses caused by the criminal conduct for which the defendant was convicted. (People v. Lai (2006) 138 Cal.App.4th 1227, 1246.)
The Harvey waiver defendant agreed to in his change of plea form allowed the trial court to consider the dismissed charge of vandalism in awarding victim restitution.
A trial court is given "virtually unlimited discretion" in the types of information it can utilize to determine victim restitution. (People v. Phu (2009) 179 Cal.App.4th 280, 283.) "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.) After the prosecution has made a prima facie showing of the victim's loss, the burden shifts to the defendant to challenge the value of the loss. (Id. at p. 1543.)
"In reviewing the sufficiency of the evidence, the '"power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the trial court's findings.' [Citations.] Further, the 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 pp. 468-469.) "'"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."'" (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
3. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
Defendant contends that the trial court erred in awarding $10,975 in restitution to the victim because her sworn declaration was not credible. We disagree.
In this case, the sworn declaration provided the trial court with an itemization of the stolen items from both the car and the storage unit. The declaration listed nine types of items stolen from the victim's vehicle, valued at $10,975. Because the victim's valuation of the items was a "statement[] by the victim[] of the crime[] about the value of the property stolen [it] constituted[ed] prima facie evidence of value for purposes of restitution. (People v. Prosser (2007) 157 Cal.App.4th 682, 690.) The burden then shifted to defendant to demonstrate that the amount of loss was other than what the victim had claimed. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) Here, defendant failed to carry that burden.
At the restitution hearing, defense counsel argued that the victim's statements in her declaration were not reliable because they contradicted her statements in the police reports and at the preliminary hearing. According to the police reports, the victim stated that when her car was returned, there was gang graffiti scratched into her hood and interior, the stereo system and speakers had been stolen, and the dashboard and interior panels had been damaged when the system was removed. The victim also stated that defendant broke into her storage unit and sold her property. There was nothing in the police reports indicating that the victim was ever asked if any personal property had been stolen from her car or what specifically had been taken from her storage unit. Similarly, the preliminary hearing transcript shows that the victim was only questioned about the condition of her car when it was found. There was no discussion about whether personal property had been stolen from her car.
The first time the victim specifically discussed what personal property had been stolen from her was in the handwritten notes she provided the prosecution in preparation for trial. The notes, however, did not specify which items were stolen from her car and which items were stolen from her storage unit. The prosecutor represented that the notes were "basically chicken scratch that the victim put together as to when she was remembering all the items that were in the vehicle and the storage locker." The list of stolen items in the victim's notes is almost identical to the list in her sworn declaration. In fact, except for the jewelry and portable Bose Speaker Soundlink, every item listed in the sworn declaration is also listed in her notes.
There is a difference in the valuation of the stolen goods between the handwritten note and sworn declaration. Defendant does not contest the valuation of the stolen items.
Defendant argues that the trial court should have found the victim's declaration was not credible because she prepared the declaration that separated the stolen items into two lists only after she was informed by the prosecutor that she would only be able to receive restitution for the items taken from the car. However, it is the exclusive province of the trial court to determine the victim's credibility and to resolve conflicts or inconsistencies in her testimony. "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment." (People v. Maury (2003) 30 Cal.4th 342, 402.) "To warrant the rejection of the statements given by a witness who has been believed [by the trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another ground in People v. Burton (1961) 55 Cal.2d 328.) Here, because it is not apparent that the victim's sworn declaration was untrue or impossible and the court found the victim's declaration to be credible, we must uphold the restitution award.
Notwithstanding, defendant argues that the restitution award must be overturned because the victim failed to provide receipts to prove her losses. As explained in People v. Prosser, supra, 157 Cal.App.4th at p. 691, a victim who has no receipts or appraisals for property and who no longer has possession of the property, may have no way of providing a detailed description or of obtaining an appraisal.
Moreover, defendant's reliance on People v. Holmberg (2011) 195 Cal.App.4th 1310 is not helpful in this case. There, the defendant pled guilty to possession of stolen property after the police recovered several computers, hard drives, and related equipment from the defendant's home. (Id. at p. 1313.) On appeal, the restitution award of $18,072 was modified to strike $20 for two Ethernet cables that a victim claimed were missing, because no evidence supported the argument that the cables were stolen along with the rest of the recovered computer equipment. (Id. at pp. 1324-1325.) Holmberg is distinguishable because in that case, there was no victim's declaration provided to support the victim's losses. Also, the restitution order was challenged solely on the defendant's possession of the stolen property, and not on the credibility of the victim. (Id. at p. 1318.) Here, as provided ante, the victim provided a sworn declaration detailing her losses, and defendant challenges the restitution order based on the credibility of the victim's sworn declaration.
In his appellant's reply brief, defendant again challenges the credibility of the victim's declaration. In support, defendant cites to People v. Vournazos (1988) 198 Cal.App.3d 948. In Vournazos, the trial court ordered restitution in an amount based entirely on the recommendation of the probation officer, which in turn was based solely on the victim's statement of loss and the officer's discussions with the victim. On appeal, the defendant argued the amount of restitution was not supported by substantial evidence. (Id. at pp. 958-959.) The appellate court recognized that ordinarily "a defendant bears the burden of proving that the amount of restitution claimed by the victim exceeds repair or replacement cost of lost or damaged property." (Id. at pp. 958-959.) However, it found that rule inapplicable, because the replacement or repair cost of the property was never established. (Ibid.)
This court rejected a similar argument in People v. Foster (1993) 14 Cal.App.4th 939, superseded by statute on other grounds as stated in People v. Sexton (1995) 33 Cal.App.4th 64, 67-71. The defendant in Foster burglarized a cabin and took some valuable items, including a Persian rug. (Id. at p. 943.) The defendant argued that the trial court could not rely solely on the victim's uncorroborated statement about the value of the rug to support an order for restitution. (Ibid.) He also argued the Legislature "must have intended that determinations of value be based on evidence other than the victim's uncorroborated statement." (Id. at p. 948.) 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." (Ibid., 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." (Foster, at p. 948.) 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 Vournazos for the reasons set forth in Foster.
Furthermore, in his reply brief, defendant ultimately challenges the restitution order because he claims that the victim's declaration lacked credibility because the items that the victim claimed were stolen were never reported when filing the police report. This exact argument was raised at the hearing on the restitution order. Defense counsel argued "at no time when [the victim] reported this car stolen did she ever mention anything of value inside the car, such as now she's claiming the jewelry, clothing, all kinds of other items, totaling in the amount of $10,000. She said she was in the midst of moving. At no time did she make any statements to the police officers who took the reports, at no time did she make any statements to officers who recovered the vehicle. When she was asked what was damaged or missing from the vehicle, she reported a stereo was missing and there were some speakers missing and that the vehicle had been vandalized with graffiti. Other than that she never once told the police officers that she was missing any items of value such as now she's claiming." After hearing further argument from defense counsel and the prosecutor, the trial court stated: "This is my ruling: I do believe that there has been sufficient proof before me as to the restitution amounts for what was taken from the vehicle only. . . . I do believe the declaration under penalty of perjury by [the victim] is sufficient to trigger that burden. I don't believe that after the burden shifted that you have shown that the amount of restitution is or the requested restitution is incorrect and, therefore, I will award that amount." The court's assessment of credibility will not be disturbed on appeal.
Based on the above, we find that the trial court did not abuse its discretion in finding the victim's declaration to be credible and sufficient when awarding the restitution order.
Defendant contends that if his due process claim was not preserved for review, his counsel rendered ineffective assistance by failing to object on that ground. Because we address the merits of defendant's due process claim, we need not address defendant's ineffective assistance of counsel claim. --------
Defendant contends that the trial court denied him a fundamentally fair restitution hearing when it allowed the victim to provide a declaration in support of her losses instead of requiring her to testify and be subject to cross-examination. The People claim that defendant forfeited this claim by failing to raise it below. We need not address the People's forfeiture argument because defendant's claim fails on the merits.
Restitution hearings require fewer due process protections than criminal or civil trials. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184, People v. Giordano (2007) 42 Cal.4th 644, 662, fn. 6.) "The trial court violates the defendant's due process right at a hearing to determine the amount of restitution if the hearing procedures are fundamentally unfair." (People v. Cain (2000) 82 Cal.App.4th 81, 87 (Cain), citing People v. Arbuckle (1978) 22 Cal.3d 749, 754.) Due process rights regarding restitution are protected when there is notice of the amount of restitution claimed and an opportunity is provided to challenge that amount. (Cain, at p 86.) At the sentencing stage of a criminal prosecution, a defendant does not have a Sixth Amendment right of confrontation. (Arbuckle, at p. 754.) This limitation has been extended specifically to include restitution hearings. (Cain, at pp. 86-87.)
In Cain, this court considered a defendant's right to call the victim's psychotherapist at a restitution hearing. (Cain, supra, 82 Cal.App.4th 81.) The defendant sought to examine the psychotherapist regarding whether the victim's counseling was related to the defendant's crime, and contended on appeal that the trial court's denial of his request to call the psychotherapist as a witness violated his right to confront adverse witnesses and his right to due process. (Id. at pp. 84-85.) We found no error and explained that a restitution hearing "is part and parcel of the sentencing process," and because there is no Sixth Amendment right of confrontation at a sentencing hearing, the defendant did "not have a state or a federal constitutional right to cross-examine the psychotherapist who provides counseling to the victim of the defendant's crime." (Id. at p. 87, fn. omitted.) We went on to find that the defendant's right to due process was not violated and stated:
"[D]efendant had full and fair opportunity to present affirmative evidence that counseling received by the victim was not directly related to the crime. For example, defendant could have called an expert to show that in light of the length of the counseling sessions and/or the time gap between the crime and the counseling, the counseling could not have been related only to the crime. Defendant could have also introduced evidence of the victim's preexisting mental or psychological ailment or evidence that the victim was previously treated by a mental health professional." (Cain, supra, 82 Cal.App.4th at p. 87, fn. omitted.)
In this case, defendant had notice of the restitution sought by the victim. He was also provided with the opportunity to contest that amount at the restitution hearing. Defendant could have called witnesses to challenge the victim's credibility. He did not. Just as in Cain, defendant "had full and fair opportunity to present affirmative evidence" and did not. (Cain, supra, 82 Cal.App.4th at p. 87.) Therefore, because defendant had a fair opportunity to present affirmative evidence, and there is no Sixth Amendment right of confrontation at a restitution hearing, we find that defendant's right to due process was not violated.
DISPOSITION
The judgment and restitution order are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.