Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC758493
McAdams, J.
In this appeal, defendant Warren Lee Jack challenges a victim restitution order requiring him to pay $6,100 to Gene Mason. For reasons explained below, we shall affirm the order.
BACKGROUND
In February 2007, defendant was driving a stolen Mazda Miata belonging to Evgeniy Safronov, which collided with a Chevrolet Astro van belonging to Gene Mason. Defendant fled the scene of the accident. He was later arrested.
Later that month, defendant was charged in a four-count criminal complaint with (1) felony vehicle theft of the Mazda, in violation of Vehicle Code, section 10851, subdivision (a); (2) felony receiving stolen property, in violation of Penal Code, section 496, subdivision (a); (3) misdemeanor hit and run driving causing damage to the Chevrolet, in violation of Vehicle Code, section 20002, subdivision (a); and (4) misdemeanor driving with a suspended or revoked license, in violation of Vehicle Code, section 14601.1, subdivision (a).
In April 2007, defendant entered a guilty plea to counts 1, 3, and 4 of the complaint, and count 2 was dismissed.
In June 2007, the court conducted a restitution hearing. In a memorandum submitted to the court prior to the hearing, the probation officer stated: “Phone contact was made with victim Gene Mason who stated the insurance company totaled his vehicle, and the last amount negotiated was $6,100.00. However, nothing has been paid to him and that amount continues to change.” At the hearing, defense counsel argued for an order based on prior repair estimates, which ranged between $4,600 and $5,200. He also asserted that the proposed insurance settlement amount lacked foundation, since there was no evidence indicating the vehicle’s equipment, mileage, or condition. At the conclusion of the hearing, the court ordered defendant to pay $6,100 in victim restitution to Gene Mason, “based upon the representation of the victim.”
This appeal ensued. On appeal, defendant contends that the trial court abused its discretion in ordering victim restitution in the amount of $6,100, because the evidence was “too insubstantial” to support the award.
DISCUSSION
To establish the proper framework for addressing defendant’s contention, we first describe the governing legal principles, including the standard of review. We then apply those general principles to the facts of this case.
I. General Principles
In California, crime victims have the constitutional right to restitution for losses resulting from criminal acts against them. (Cal. Const., art. I, § 28, subd. (b).) That constitutional right is implemented through section 1202.4 of the Penal Code. (See People v. Giordano (2007) 42 Cal.4th 644, 652-653, 656.) “A victim’s restitution right is to be broadly and liberally construed.” (People v. Mearns (2002) 97 Cal.App.4th 493, 500; accord, People v. Baker (2005) 126 Cal.App.4th 463, 467.)
That constitutional provision reads in pertinent part as follows: “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. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” (Cal. Const., art. I, § 28, subd. (b).)
Penal Code section 1202.4 reads in part as follows: “[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 unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f).)
Restitution “has been judicially defined to mean ‘reimbursement to the victims of crime for actual loss flowing from the charged offense or from related misconduct.’ ” (People v. Vournazos (1988) 198 Cal.App.3d 948, 954.) It “is statutorily defined as ‘full or partial payment for … losses … caused by the defendant as a result of committing the crime for which he or she was convicted.’ ” (Ibid.) “The term ‘economic losses’ is … entitled to an expansive interpretation.” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1133.) “Although restitution has an element of deterrence [citation], the primary purpose of victim restitution is to provide monetary compensation to an individual injured by crime.” (People v. Harvest (2000) 84 Cal.App.4th 641, 648.)
A. Amount
“Restitution to the victim is mandatory, although the court retains discretion as to the amount.” (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) “There 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.) But there must be “a factual and rational basis for the amount.” (People v. Akins, at p. 1382; see also, e.g., People v. Carbajal, at p. 1125; People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
B. Evidence
In determining victim restitution, the court is entitled to consider a wide variety of information, including the probation report. (People v. Baumann (1985) 176 Cal.App.3d 67, 81.) The “probation report gives notice to the defendant of the recommended amount of restitution, and the hearing offers him the opportunity to rebut the amount before the court determines the amount.” (People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as superseded by statute as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) “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. Foster, at p. 947.) “This approach complies with the statutory mandate that the amount of restitution is to be based on the ‘loss claimed by the victim’ and the designated right of the defendant to a hearing ‘to dispute the determination of the amount of restitution.’ ” (People v. Fulton (2003) 109 Cal.App.4th 876, 886.) “At the conclusion of the hearing the trial court must then make an independent judicial determination of the amount of restitution the defendant shall be required to pay based on the available evidence of the replacement or repair cost of the stolen or damaged property.” (People v. Hartley (1984) 163 Cal.App.3d 126, 130.)
“A property owner’s statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution.” (People v. Foster, supra, 14 Cal.App.4th at p. 946.) As a matter of due process, it is “fundamentally unfair for a court to consider … evidence which is vague or inaccurate [citation].” (People v. Goulart (1990) 224 Cal.App.3d 71, 82.) But as the weight of authority recognizes, there is no requirement “that the victim must supply a sworn proof of loss or detailed documentation of costs and expenses.” (In re S. S. (1995) 37 Cal.App.4th 543, 548, fn. 2; see also, e.g., People v. Keichler, supra, 129 Cal.App.4th at p. 1048.)
C. Appellate Review
We review the restitution order for an abuse of discretion. (People v. Giordano, supra, 42 Cal.4th at p. 663; People v. Mearns, supra, 97 Cal.App.4th at p. 498.) “A trial court’s determination of the amount of restitution is reversible only if the appellant demonstrates a clear abuse of discretion.” (People v. Akins, supra, 128 Cal.App.4th at p. 1382.) “No abuse of … discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result.” (People v. Giordano, at p. 665.) The restitution award comes clothed in a presumption of correctness. (Id. at p. 666.) “The order must be affirmed if there is a factual and rational basis for the amount.” (People v. Akins, at p. 1382; see also, e.g., People v. Rubics (2006) 136 Cal.App.4th 452, 462.)
II. Analysis
Applying the deferential review standard that governs here, we find no abuse of discretion. As explained above, the process of determining victim restitution begins with a prima facie showing of the amount of the victim’s loss. (People v. Fulton, supra, 109 Cal.App.4th at p. 886.) Once that showing has been made, the burden shifts to the defendant to rebut the claim. (Ibid.) The court then decides the question. (People v. Hartley, supra, 163 Cal.App.3d at p. 130.)
A. Prima Facie Showing
In this case, the record demonstrates a prima facie case supporting victim restitution in the amount of $6,100.
1. Probation Report
Here, the restitution claim was presented in the probation officer’s memorandum, which the trial court may consider in deciding the proper amount of victim restitution. (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.) A probation report is “inherently reliable as a document prepared by a government employee in furtherance of his or her official duties.” (People v. Cain (2000) 82 Cal.App.4th 81, 87.) The probation officer’s “memorandum is sufficient evidence to support the amount of the award.” (People v. Hove (1999) 76 Cal.App.4th 1266, 1275; compare People v. Harvest, supra, 84 Cal.App.4th at p. 653 [probation report “cannot take the place of evidence”].)
2. Information Supporting the Claim
As explained above, “a sworn proof of loss or detailed documentation” of the claim generally is not required. (In re S. S., supra, 37 Cal.App.4th at p. 548, fn. 2; People v. Keichler, supra, 129 Cal.App.4th at p. 1048.) For that reason, we find no basis for reversal in defendant’s observations that the victim offered “no documentation for his claimed loss, no repair estimate” and “no specific representations as to the vehicle’s value before or after the accident.” No such proof is required.
Nor are we persuaded by defendant’s claim that the evidence is “too insubstantial” to support the award. The challenged order was based on a proposed insurance settlement. The trial court could reasonably rely on that information. As has been said: “The probation officer should ascertain, when possible, any insurance recovery obtained by the victim since the amount of such recovery would be evidence of the replacement value of the property.” (People v. Hartley, supra, 163 Cal.App.3d at p. 130, fn. 3.)
The amount of restitution claimed here is “not shown to be based on vague or inaccurate information.” (People v. Goulart, supra, 224 Cal.App.3d at p. 83 [restitution order for stolen energy properly rested on “estimate … based on the average use determined by a line meter over a test period multiplied by the total time period involved” with adjustments “for changes in the price of gas and electricity”].) Nor did defendant pursue any further details himself. To quote In re S.S.: “Appellant contends that he was entitled to more information …, but there is no basis for a conclusion that he lacked the information sought, or could not by reasonable efforts obtain it. … If further details were needed, appellant could attempt to procure them, either by contacting the victim or by requesting that the probation officer do so. Having done none of these things, appellant cannot complain about the lack of detail in the statement.” (In re S. S., supra, 37 Cal.App.4th at p. 548.) Similar circumstances obtain here. That being so, defendant “cannot contend that it was [the prosecution’s] (or the probation officer’s) burden to further embellish the showing made.” (Ibid.)
Concerning defendant’s challenges based on the lack of finality of the negotiated settlement amount, any deviation between the proposal and the ultimate settlement may be addressed by a later motion to modify the order. (Pen. Code, § 1202.46; People v. Bufford (2007) 146 Cal.App.4th 966, 970.)
3. Repair or Replacement
Defendant also challenges the claim on the ground that “the evidence does not establish a specific repair cost or replacement value.” According to defendant, “in adult criminal cases involving stolen vehicles, courts have generally awarded the lesser of the replacement or repair value unless a higher amount has specifically been found proper for restitution purposes.” He cites People v. Thygesen (1999)69 Cal.App.4th 988, and People v. Yanez (1995)38 Cal.App.4th 1622.
As defendant acknowledges, however, there is recent contrary authority, decided in the juvenile delinquency context: In re Dina V. (2007)151 Cal.App.4th 486. In that case, the court affirmed a restitution award representing the higher repair cost, saying “restitution should not be limited to replacement cost.” (Id. at p. 489.) In the court’s view: “Limiting the amount of restitution to the replacement cost would not make the victim whole.” (Ibid., fn. omitted.) The appellate court thus recognized the trial court’s discretion to order the greater of repair or replacement cost. (Ibid.)
This case does not require us to weigh in on this conflict in the law, because the evidence here suggests that repair was not a viable option. According to the probation report, the victim “stated the insurance company totaled his vehicle….” A reasonable inference from that statement is that the cost of repair exceeded the vehicle’s value. Applying that inference, we reject this challenge to the award.
In sum, on this record, an adequate prima facie showing was made to support restitution in the amount of $6,100, representing the replacement value of the victim’s vehicle.
B. Rebuttal
Once the necessary foundational showing has been made, it becomes the defendant’s burden “to show the restitution recommended in the presentencing report exceeds the losses incurred by the victim as a result of the criminal conduct involved.” (People v. Baumann, supra, 176 Cal.App.3d at pp. 81-82.) Thus, “at least where the items, amounts, and sources are adequately identified in or with the probation report, the defendant has the burden of refuting them.” (In re S. S., supra, 37 Cal.App.4th at p. 546.)
In this case, defendant suggests that his burden of challenging the claimed amount was “negated by the lack of evidence” in the probation report. In support of this proposition, defendant relies on People v. Vournazos, supra, 198 Cal.App.3d 948, 959. As defendant acknowledges, however, “Vournazos has been criticized by other courts as interpreting the statute too narrowly.” (See People v. Foster, supra, 14 Cal.App.4th at p. 946; In re S. S., supra, 37 Cal.App.4th at p. 547.)
Whatever our view of Vournazos, there is no basis for applying it here. As discussed above, the probation report in this case presents an adequate prima facie showing to support the $6,100 award. (Cf. In re S. S., supra, 37 Cal.App.4th at p. 548 [finding “no merit in the objection that the items of loss are not described with sufficient specificity”].) “The question is whether appellant received sufficient notice in advance of the hearing to investigate and oppose the probation officer’s recommendation.” (Ibid.)
Despite notice in the probation report that the victim was asserting a restitution claim of $6,100 for replacement of his vehicle, defendant failed to carry his burden of challenging that amount at the hearing. Defendant “had ample opportunity to present evidence discrediting the estimate. He made no effort to do so. … Instead, he merely noted there could have been factors which, had they been present, would affect [the] estimate.” (People v. Goulart, supra, 224 Cal.App.3d at p. 83.) In this case, the factors cited by defendant at the hearing included the vehicle’s equipment, mileage, and condition. The court properly rejected these assertions. (Ibid.)
As noted above, defendant also argued for imposition of a lower award based on prior repair estimates. According to uncontradicted statements by defense counsel at the hearing, the victim initially submitted a statement to the “Victim Witness Assistant Center” with a repair estimate between $4,600 and $5,200. Even accepting counsel’s statements as evidence that repair of the vehicle was both possible and cheaper, the court was not required to accept those statements.
It is the trial court’s province to assess the credibility of the evidence before it. “We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact.” (People v. Baker, supra, 126 Cal.App.4th at p. 469.) “If there is some evidence to support the court’s ruling, disputed or not, we will affirm the court’s order.” (People v. Rubics, supra, 136 Cal.App.4th at p. 462.) Here, the court implicitly rejected the evidence proffered by defendant, while crediting the probation report’s contents. The court explicitly based its restitution order on “the representation of the victim.” We see no basis on this record for overturning that determination.
C. Conclusion
In this case, “the trial court did not abuse its discretion in determining restitution on the basis of the claims” submitted in the probation report. (People v. Hove, supra, 76 Cal.App.4th at p. 1275.) That report constitutes “sufficient evidence to support the amount of the award.” (Ibid., fn. omitted.) To the extent that defendant attempted to rebut that evidence, the court was justified in rejecting his proffer. (People v. Baker, supra, 126 Cal.App.4th at p. 469.) The resulting “determination of economic loss is reasonable, producing a nonarbitrary result.” (People v. Giordano, supra, 42 Cal.4th at p. 665.) Because there is “a factual and rational basis for the amount” awarded, we affirm. (People v. Akins, supra, 128 Cal.App.4th at p. 1382.)
DISPOSITION
We affirm the victim restitution order of June 18, 2008, which directs defendant to pay $6,100 to Gene Mason.
WE CONCUR: Mihara, Acting P.J., Duffy, J.