IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
April 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEVEN EUGENE RAINES, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F8253)
The opinion of the court was delivered by: Nicholson , J.
P. v. Raines
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In conjunction with imposition of a four-year state prison sentence for crimes including receipt of a stolen motorcycle (Pen. Code, § 496d, subd. (a); further references are to the Penal Code), the trial court ordered defendant Steven Eugene Raines to pay restitution to the victim of the stolen motorcycle in the amount of $6,789.14. On appeal, defendant contends the restitution award was an abuse of discretion. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The record contains no facts regarding the details of the theft offense underlying the victim restitution award. However, a detailed factual summary is not necessary for the disposition of this appeal. The relevant procedural history is summarized as follows.
Defendant pleaded no contest*fn1 in case No. 09F8253 to receiving a stolen motorcycle (§ 496d, subd. (a)) in exchange for dismissal of all other charges against him and a maximum sentence of 180 days in county jail. He was released on his own recognizance.
Nearly six months later, defendant pleaded guilty*fn2 in case No. 10F1449 to fraudulent use of an access card (§ 484g) and admitted having committed that offense while released on his own recognizance (§ 12022.1) in exchange for dismissal of other charges against him and a stipulated sentence of three years four months, plus eight months for the charge as previously pled in case No. 09F8253, for an aggregate term of four years in state prison.
The court sentenced defendant in case Nos. 09F8253 and 10F1449 to a combined term of four years consistent with the negotiated plea agreement. Defendant was awarded 33 actual custody credits, plus 32 conduct credits, for a total of 65 presentence custody credits. The court imposed fees and fines, including an $800 restitution fine (§ 1202.4, subd. (b)), an $800 parole revocation fine, stayed pending successful completion of parole (§ 1202.45), and victim restitution in the amount of $6,789.14 (§ 1202.4, subd. (f)).
At defendant's request, the court held a restitution hearing. The court admitted as People's Exhibit No. 1 a one-page document entitled "Itemization of Loss and Request for Restitution," attached to which was a six-page computer generated itemized list of motorcycle parts and their corresponding cost. When the court asked whether the list was from a bike repair shop, the prosecutor responded, "Yes. I spoke to the victim, and he told me that those items -- that list was provided to him by the repair shop. He also told me he's done approximately half of the work already, and he's already put over $3,000 out of pocket." The court also admitted as Defense Exhibit No. A a one-page Kelley Blue Book valuation of the victim's motorcycle at $6,140.
The prosecutor requested an order of victim restitution in the amount of $6,789.14, arguing as follows: "The proper measure of restitution is not the retail value or the cost per Kelley Blue Book, but the Court needs to put the victim back into the position where he would have been had the crime never occurred. This . . . isn't an insurance claim where he gets today's value -- depreciated value of the vehicle or the motorcycle here. But the victim has presented an estimate for the damages and what it's going to cost to get his motorcycle back to the way that it was before the defendant committed his crime . . . ."
Defendant's counsel argued $6,100 was the appropriate amount of restitution, as follows: "[Section] 1202.4 actually states that it's the value of stolen or damaged property shall be the replacement cost of a like property or the actual cost of repairing the property when repair is possible. [¶] Based on the documentation that's been provided to the Court, all that is is a laundry list of parts and items that's been provided by the victims. It's not an estimate from a shop. All it is is a laundry list of the parts. And it doesn't show that's the actual cost of repairing the vehicle. We don't have evidence repair is possible. [¶] What I've provided is the replacement cost of a like property and that is the value. So I think the victim here is trying to gain a certain windfall when he's asking for [$]6,700. The [$6,100], the actual value of the bike if the day prior to it being taken he tried to sell that bike, that's approximately what it would be worth. So based on that I'd ask the Court [to] impose the [$]6,100 value and I'll submit."
Noting that the intent of section 1202.4 was "to make people whole for crimes committed against them," and that the value urged by defendant was only "a suggested retail value," the court ordered victim restitution in the amount of $6,789.14.
Defendant filed a timely notice of appeal.
Defendant contends there was no "factual or rational basis" for the award of $6,789.14 as restitution for repair of the victim's motorcycle. We disagree.
Absent compelling and extraordinary circumstances carefully specified in the trial court record, California law compels judges in every case to order everyone convicted of a crime to pay restitution to his or her victim, beginning, most fundamentally, with what is now article I, section 28(b)(13), of the California Constitution.
Section 1202.4, subdivision (f), codifies that constitutional mandate providing that, "in 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. . . ."
"At a victim restitution hearing, 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 victim has [i.e., 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.)
We review a challenge to the amount of victim restitution for abuse of discretion. (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.) As this court recently noted, "'"A victim's restitution right is to be broadly and liberally construed." [Citation.]'" (People v. Moore (2009) 177 Cal.App.4th 1229, 1231.)
"'"'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.]' [Citation.] However, a restitution order 'resting upon a "'demonstrable error of law'" constitutes an abuse of the court's discretion. [Citation.]' [Citation.] 'In reviewing the sufficiency of the evidence [to support a factual finding], 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. [Citation.] "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] 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. [Citation.]' [Citation.]" (People v. Millard, supra, 175 Cal.App.4th at p. 26.)
Here, the prosecution made a prima facie case for restitution in the amount of $6,789.14 based on the victim's statement of economic loss as set forth in the computerized list of motorcycle parts and corresponding costs which, according to the prosecutor, the victim obtained from a "repair shop."
Defendant contends the victim's claim "was unsubstantiated by any meaningful documentation and the documentation [the victim] did provide did not establish the cost of repairs." Defendant claims the court accepted the victim's documentation without evidence that the parts listed therein were related to damage he caused. We are not persuaded. "'"'[S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider'"' in determining victim restitution. [Citations.]" (People v. Phu (2009) 179 Cal.App.4th 280, 283-284.) "Section 1202.4 does not, by its terms, require any particular kind of proof." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) Here, the itemization of loss submitted by the victim listed numerous motorcycle parts under the "Description of Loss" column and stated the corresponding dollar amount for each part necessary to return the stolen motorcycle to a state of complete repair. Whether the list was prepared by the victim or by a repair shop as stated by the prosecutor is of little consequence, as the trial court may consider as evidence of loss, a property owner's statement about the value of stolen or damaged property. (Id. at p. 1543.) The list represented the victim's opinion of the cost of repair and was therefore sufficient evidence for the court to consider in making its restitution determination, thus shifting to defendant the burden to rebut the victim's claim in some manner, including submitting "evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]" (Ibid.)
Defendant did not rebut the victim's evidence. Instead, he asserted the victim's claim amounted to a windfall. He merely offered a printout of a page from the Kelley Blue Book showing a suggested retail value for the motorcycle of $6,140 as evidence of "the replacement cost of a like property," stating that amount was "approximately what [the motorcycle] would be worth" if the victim had tried to sell it. However, as the trial court noted, the $6,140 suggested retail value was an approximation which did not necessarily indicate the true market value of the motorcycle, i.e., what the motorcycle would actually sell for. In any event, the suggested retail value failed to rebut the victim's claim, as that claim was based on the cost of repairing the vehicle, not replacing it.
Defendant claims the statement of loss is simply a list of motorcycle parts which does not establish the cost of either repairing or replacing the motorcycle. In particular, he argues that the list fails to include an assessment of damage, a statement of necessary repairs, or an estimate of repair and labor costs. Again, we are not persuaded. The victim's claim was submitted to the court without reservation of the right to supplement it with additional items such as labor. We assume that if the victim meant to seek reimbursement for labor, he would have included it or forfeited the right to do so. Moreover, based on the prosecutor's representation that the victim had "done approximately half of the work already, and he's already put over $3,000 out of pocket," it was reasonable to infer that the victim intended to repair the motorcycle himself, and thus his claim was for reimbursement for the parts necessary to complete the repair, not for the cost of labor.
Defendant contends the list included "unnecessary parts" such as a new frame, four steps, a sprocket hub and a drive chain, among others. However, because he fails to provide any analysis to support his assertion the objectionable items were unnecessary, we reject it. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard contentions not adequately briefed, e.g., claims perfunctorily asserted without development]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [where appellant asserts point without argument or authority, "it is deemed to be without foundation and requires no discussion by the reviewing court"].)
Although termed a windfall by defense counsel, as the People aptly point out, the small difference between the victim's claim of $6,789.14 and defendant's suggested replacement value of $6,140.00, was but $649.14, which, surely, "is not so disproportionate that a court would conclude the victim was not entitled to the repair cost." The amount of restitution was sufficient to pay the cost of repair of the motorcycle and thus make the victim whole. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1542.) Under the circumstances of this case, we cannot say the trial court abused its discretion in ordering that amount.
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Senate Bill No. 76) (see Stats. 2010, ch. 426), which amended section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served. (Sen. Bill No. 76, § 1; § 2933, subd. (e)(1), (2), (3).) It also eliminates the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50) when the person served an odd number of days in presentence custody, and it eliminates the directive in section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Thus, we conclude it applies retroactively to all appeals pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)*fn3
Here, defendant was awarded 33 days of actual credit and 32 days of conduct credit, for a total of 65 days of presentence custody credit.*fn4 However, under the Senate Bill No. 3X 18 formula, defendant is entitled to one additional day of conduct credit, for a total of 66 days of presentence custody credit.
The judgment is modified to reflect that defendant is entitled to a total of 66 days of presentence custody credits, consisting of 33 days of actual custody credit plus 33 days of conduct credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the
amended abstract to the Department of Corrections and Rehabilitation.
We concur: RAYE, P.J. MAURO , J.