IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
July 6, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD PYLE, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF114038A)
The opinion of the court was delivered by: Hoch, J.
P. v. Pyle
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Richard Pyle challenges the sufficiency of the evidence in support of a restitution order entered after he pled guilty to receiving stolen property. (Pen. Code, § 496, subd. (a).)*fn1 Defendant contends the property owner's testimony failed to prove $1,100 in losses for the theft of 21 computer cables. Finding substantial evidence to support the $1,100 restitution, we affirm.
FACTUAL AND PROCEDURAL HISTORY
When defendant pled guilty to receiving stolen property, he was advised that the People would seek restitution for theft victims, Diamond Transportation and Automeister, Inc. Defense counsel indicated an intent to contest the prosecution's assertion that Diamond Transportation suffered a loss of $3,350 and Automeister a loss of $1,200.
The trial court sentenced defendant to state prison for five years, with an enhancement for a prior serious felony conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (b)-(c).) The court set the issue of restitution for a contested hearing.
At the restitution hearing, David Alcoriza testified on behalf of Automeister and Harnek Atwal on behalf of Diamond Transportation. Alcoriza stated that Automeister incurred a loss of $10,699.25 as a result of stolen items he found in defendant's possession.
The prosecution introduced a letter written by Atwal on behalf of Diamond Transportation, which stated: "The entire computer wires were damaged the cost of that was $1100. The front window was broken into the cost of that was $650."
Atwal testified that he was sole owner of Diamond Transportation. He further testified:
"Q. [by the district attorney] Did you--where did you arrive at this figure for the computer wires, the $1100? [¶] Where did that number come from?
"A. We bought that product from Staples.
"Q. From Staples?
"A. (Nods head affirmatively). I tried to find the receipt, but I couldn't find the receipt, so--
"Q. And this is how much you remember spending at Staples?
Defense counsel cross-examined Atwal as follows:
"Q. [by defense counsel] Now, what is this about the computer wires?
"A. Computer wires, like all the electrical wires where you put the plugs in--
"A. --all the internet connections and the screen--the screen to the computer wire.
"Q. And that cost $1100?
"A. Yes. Not just one. It was six or seven computers. And seven was screens, because the two computer he didn't took it out [sic]. We had seven computers there.
"Q. So how many total wires was this?
"A. I don't know the exact amount, how many.
"Q. But there were seven computers--
"A. They are all computer wire, we have to change it. [¶] . . . [¶]
"Q. . . . So this would be 14 wires then, correct? Six--
"A. Internet and screens, that's the electric one. That's three in each computer.
"Q. So 21 wires?
"Q. And they totaled--21 wires totaled $1100.
Atwal also testified that a broken window had cost $650 to repair. Although Diamond Transportation also lost $750 in cash, the business did not seek restitution for the money.
The trial court ordered defendant to pay restitution in the amount of $9,734.25 to Automeister and $1,750 to Diamond Transportation. The court explained the amount of restitution ordered to be paid to Diamond Transportation as follows: "On the amount of Diamond Transportation Inc., the total with the $1100 equals $1,750. With regard to the cable, as [the district attorney] pointed out, the case law is such, and the statute is such that the defendant actually has the burden of proof to establish that the numbers submitted by the victims are erroneous. And I did not see anything submitted that would lead me to believe that $1100 is not the correct amount. I cannot sit here and place a value on it myself. That's not the status of the law that I can say, well, I think the numbers should be . . . And I have no basis for saying anything other than that. As I said, the defendant actually has the burden of disproving the amount. So I am going to indicate that the amount with regard to Diamond Transportation is $1,750."
Defendant's appeal is timely filed.
Defendant's sole contention on appeal is that $1,100 of the restitution ordered to be paid to Diamond Transportation lacks substantial evidence in support of the sum. We disagree.
Section 1202.4, subdivision (a)(1), declares that "[i]t is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." To this end, subdivision (f) provides 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." Restitution "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 . . . : [¶] . . . 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." (§ 1202.4, subd. (f)(3).)
In ordering restitution under section 1202.4, "the trial court is entitled to consider . . . as prima facie evidence of loss . . . a property owner's statement made in the probation report about the value of stolen or damaged property. (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.) Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. (People v. Fulton (2003) 109 Cal.App.4th 876, 886.) The defendant has the burden of rebutting the victim's statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. (Ibid.)" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).)
In this case, the evidence supported the trial court's conclusion that Diamond Transportation was entitled to $1,100 in restitution. Atwal described the number and type of cables for which Diamond sought restitution. And, Atwal established the cost of replacement by his personal knowledge of the price paid for their replacements.
Defendant argues that Atwal's testimony and letter were not enough to support the restitution order. A nearly identical argument was rejected in People v. Foster (1993)14 Cal.App.4th 939. In Foster, a defendant who had been convicted of burglary argued that the trial court erred in ordering restitution based only on the victim's uncorroborated statement about the value of the items taken. (Id. at pp. 943, 945.) The Foster court rejected defendant's contention that there was insufficient evidence, noting that "[i]n many other contexts, an owner's opinion of the value of his or her property is sufficient evidence to establish value. (See Evid. Code, § 810 et seq.)" (Id. at p. 948) No reason existed to require a more stringent rule of proof for victim restitution. (Ibid.) Here, as in Foster, the testimony of the property owner sufficed to establish the amount of the loss. Atwal's testimony that the business suffered the loss of 21 cables costing a total of $1,100 constitutes solid evidence for the restitution order.
Defendant urges us to conclude that the evidence was insufficient by relying on People v. Vournazos (1988) 198 Cal.App.3d 948 (Vournazos). In Vournazos, the trial court ordered restitution solely on the basis of hearsay recounted in the probation officer's report. (Id. at p. 958-959) The Vournazos court noted 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) Nonetheless, the court reversed the probation order because it concluded that replacement and repair costs of the property had not been proven by the probation report. (Id. at p. 959)
In contrast to Vournazos, evidence of the loss in this case was adduced by testimony of the owner who paid to replace the stolen property. Such testimony constitutes adequate evidence in support of a restitution order. (Gemelli, supra, 161 Cal.App.4th at p. 1543.) Moreover, we agree with subsequent case law 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 1539, 1543.)
Defendant argues that Diamond Transportation should not be compensated for new cables when used cables might have cost less. In support, defendant relies on People v. Thygesen (1999) 69 Cal.App.4th 988 (Thygesen). Thygesen involved the theft of a used cement mixer from an equipment rental company. (Id. at p. 990) The probation report listed the cost of a new mixer as $1,400 and a used one as $500 to $700. (Id. at p. 991) At the restitution hearing, the rental company's manager testified that he did not know the age of the mixer, its original cost, or how often the mixer had been rented. (Ibid.) Nonetheless, the manager opined that the replacement cost of the mixer was $3,331, and that its rental value had been $3,822 over 13 months after the loss and before it was replaced. (Ibid.) The trial court set restitution at $3,822. (Ibid.)
The Thygesen court reversed because the replacement value of the mixer "should have been predicated on the 'replacement cost of like property,'" which meant "what it would cost to replace it with a mixer of like type and age." (Thygesen, supra, 69 Cal.App.4th 988, 995.) Thygesen explains that "the purpose of the restitution statute is to make that victim whole, not to give a windfall. [The rental company] is not entitled to replace a used mixer with a brand new one at appellant's expense, absent some extraordinary facts. If [the company] were a car rental agency that lost a 1995 Ford Taurus, it would be entitled to the replacement value of a similar 1995 Ford Taurus, not a 1999 model." (Ibid.) The appellate court also questioned the claim of 13 months' of lost rental value, noting "[l]ogic dictates that had the mixer been that valuable, [the owner] would have replaced it in a heartbeat." (Id. at p. 995.)
Here, Atwal testified that the replaced cables were fitted to the same computer equipment from which the original cables had been cut. Thus, the cables restored prior functionality. No evidence suggested that used cables would have cost less or could have been located with reasonable effort. The replacement of integral parts of the computer network did not exceed the statutory mandate that restitution for "stolen . . . property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (§ 1202.4, subd. (f)(3)(A), italics added.)
Defendant complains that the cables were not individually itemized by exact description or cost. However, as defendant acknowledges, Diamond Transportation was not required to prove its loss with the receipt for the cables' purchase. (See People v. Millard (2009) 175 Cal.App.4th 7, 26.) So too, Diamond Transportation was not required to itemize each of the 21 cables in order to establish prima facie evidence of the cumulative loss. Instead, Atwal's testimony that the 21 cables for 7 computers and monitors totaled $1,100 was sufficient.
Finally, defendant asserts that the trial judge recognized the legally insufficient nature of the evidence when stating: "I cannot sit here and place a value on it myself." Defendant reads the trial court's statement out of context. The court's explanation indicated that the prosecution had established the cables' replacement to have cost $1,100 and that defendant had not introduced any evidence of a lesser value. In short, nothing contradicted the $1,100 claim for which sufficient testimony was introduced.
The judgment is affirmed.
We concur: RAYE, P.J. HULL, J.