THE PEOPLE v. CESAR FERNANDEZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Cesar Fernandez appeals from the judgment entered upon his conviction by guilty plea of vandalism with over $400 in damages (Pen.Code, § 594, subd. (a)).¹  Pursuant to the plea agreement, on October 7, 2009, the trial court suspended imposition of sentence and placed appellant on three-years formal probation on the condition, among others, that he serve 365 days in county jail, and ordered him to pay victim restitution in an amount to be set in a separate restitution hearing.   At that hearing, appellant was ordered to pay a total of $790 allocated among three victims.   Appellant contends that the amount of restitution ordered was not supported by substantial evidence nor calculated pursuant to a rationale method.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

Charges and plea

On May 30, 2009, appellant was arrested by police officers, who observed him spray painting two dumpsters and two pay phone signs.   As a result, the district attorney filed a two-count criminal complaint against appellant, alleging vandalism with prior convictions (§ 594.7, count 1) and vandalism with over $400 of damage (§ 594, subd. (a), count 2).

On October 7, 2009, pursuant to a plea agreement, appellant pled no contest to vandalism with over $400 in damages, executing the “Felony Advisement of Rights, Waiver, and Plea Form.” Imposition of sentence was suspended and appellant was placed on three-years formal probation subject to the condition that he spend 365 days in county jail.   A victim restitution hearing was set for a later date.

Restitution hearing

On June 15, 2010, the trial court conducted the restitution hearing requested by appellant's attorney because he had received some documents regarding the victims' damages and doubted the propriety of the amount sought.   The prosecutor said that the probation report stated the amount of economic losses the victims reported and that those numbers were based on “documents [that] had already been provided[.]” ³  Defense counsel argued that the amounts sought were excessive, and the People failed to meet their initial burden of presenting a prima facie case to support the amounts requested.

The trial court had before it the preplea probation report which stated with respect to the victims, Allied Waste Service and Waste Management, that, “[t]he cost to remove the graffiti from the dumpster is $240 [and $450, respectively]” and with respect to victim Little John Comm., Inc., that “[t]he cost to replace the pay phone sign is $100.”   There were no receipts for the graffiti cleaning.⁴  The report did not contain a recommendation by the probation officer of the amount of victim restitution.   It did, however, state that “Operation Clean Sweep,” estimated that it would cost $450 to remove the graffiti from one of the dumpsters.

The trial court told defense counsel that it could “make a restitution order based upon the contents of a report;  but there is a hearing that your client is entitled to, and it appears that you want to contest this․  [W]hat do you want to do to contest it?   And there—and that shifts the burden, so to speak here.”   The rest of the hearing was predominated by the trial court asking appellant's counsel to present her evidence that the amounts were improper and defense counsel arguing that “the hearing has to involve evidence that the prosecution puts on.”   Appellant's counsel failed to present any evidence, but simply argued that one victim is seeking $450 to clean up one “old garbage can.”   He argued that the People had to meet their burden.

The trial court stated that “looking at the nature of what the damage was and what the loss seems to be estimated, in our present state of economy these appear to be reasonable.”   It then offered to allow appellant's counsel additional time to contact the victims and decide for herself based upon their representations if the amounts were reasonable.   Appellant's counsel stated that she did not “understand the court's position, putting this burden on us, when we have been saying all along we don't agree and the prosecution all along has been saying, fine, then we'll prove it to you pursuant to your right and our agreement.”

The trial court then ordered that appellant pay victim restitution in the amount of $240 to Allied Waste and $450 to Waste Management to paint the dumpsters and $100 to Little John Communications, Inc., to replace the pay phone sign.

DISCUSSION

Contention

Appellant's sole contention on appeal is that the amount of restitution ordered was not rationally calculated and is unsupported by substantial evidence.   He argues that the trial court erroneously shifted the burden to him to disprove the amounts in the probation report though “the statements in the probation report were completely unsupported by any documentation, receipts, or calculations indicating how the numbers were reached.”   It is not “obvious or common knowledge that it would cost $790 to remove spray-paint from two garbage cans or dumpsters and a pay phone sign.”   While we find this to be a close case, we reject appellant's contention.

Restitution obligation

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 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.”

Section 1202.4 implements the constitutional mandate of victim restitution.   Subdivision (f) of section 1202.4 requires “full restitution” of those losses incurred as a result of the commission of a crime.   The amount of loss is to be “based on the amount of loss claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f), italics added.)

Standard of review

We review a restitution order for abuse of discretion.  (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)   When there is a factual and rationale basis for the amount awarded, no abuse of discretion will be found by the reviewing court.  (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)   When assessing a trial court's restitution determination, we consider whether it is arbitrary, capricious, or beyond the bounds of reason under all the circumstances.  (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)   A trial court's discretion in setting victim restitution is broad and may use any rationale method of fixing the amount so long as reasonably calculated to make the victim whole.  (People v. Millard (2009) 175 Cal.App.4th 7, 26.)

Procedure for establishing victim's losses

The direct victim seeking restitution for economic loss has the burden of presenting “an adequate factual basis for the claim.”  (People v. Giordano (2007) 42 Cal.4th 644, 664 (Giordano ).)   Once the victim makes a prima facie showing of economic losses suffered 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. Gemelli, supra, 161 Cal.App.4th at p. 1543;  People v. Fulton (2003) 109 Cal.App.4th 876, 886.)  “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, supra, at p. 886.)

Appellant submitted no evidence at the restitution hearing, relying instead on his argument that it was the prosecution's burden to present a prima facie case for the amount of damages suffered, and the prosecution had failed to do so.   Thus, the sole question that we must decide is whether the probation report, the only evidence on which the prosecution relied to establish the amount of restitution, was sufficient to do so.

Evidence establishing victim's losses

“At the core of the victim restitution statutory scheme is the mandate that a victim who suffers economic loss is entitled to restitution and that the restitution is to be ‘based on the amount of loss claimed by the victim.’   Thus, a victim seeking restitution ․ initiates the process by identifying the type of loss ․ he or she has sustained and its monetary value.”  (People v. Fulton, supra, 109 Cal.App.4th pp.   885–886.)

There is some disagreement among appellate courts as what may be considered in determining if the victim has made the required prima facie case of loss.   The weight of authority sanctions the trial court's reliance on the information in the probation report to establish the victim's prima facie showing of economic losses.  (People v. Collins (2003) 111 Cal.App.4th 726, 734 [“ ‘When the probation report includes a discussion of the victim's loss and a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount’ ”];  People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406–1407 [absent a challenge by defendant, an award of the amount specified in the probation report is not an abuse of discretion when the report includes “discussion of the victim's loss and a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount”];  In re S.S. (1995) 37 Cal.App.4th 543, 545 [in determining the amount of restitution the court can rely on itemization of losses in the probation report, though the probation officer failed to verify the information and no declaration was filed];  People v. Foster (1993) 14 Cal.App.4th 939, 947 [“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. Hartley (1984) 163 Cal.App.3d 126, 130, fn.   3 [“Since a defendant will learn of the amount of restitution recommended when he reviews the probation report prior to sentencing, the defendant bears the burden at the hearing of proving that amount exceeds the replacement or repair cost”];  People v. Gemelli, supra, 161 Cal.App.4th at pp.   1542–1545 [victim made prima facie showing for restitution where probation officer's report and handwritten statement from victim listing economic losses was detailed and facially credible in explaining the costs of materials and labor for repair];  People v. Keichler, supra, 129 Cal.App.4th at p. 1048 [the trial court is entitled to consider the probation report as well as factual evidence as to cost in the form of expert testimony at hearing;  “[a]bsent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion”];  see also People v. Hove (1999) 76 Cal.App.4th 1266, 1275.)

Contrariwise, some appellate courts have required fairly rigorous presentation of evidence and do not find the bare probation report sufficient.  (People v. Harvest (2000) 84 Cal.App.4th 641, 653 [probation officer's report “may satisfy notice requirements for due process [citation], but it cannot take the place of evidence” where unsupported by documentation or testimony];  In re K.F. (2009) 173 Cal.App.4th 655, 665 [“we reject any suggestion ․ that a burden of refutation may be imposed on the defendant merely by asserting that a stated amount is sought as restitution”];  People v. Vournazos (1988) 198 Cal.App.3d 948, 958–959 [restitution based solely on recommendation of probation officer based on his conversation with the victim insufficient to establish a prima facie claim].)

Virtually all of the appellate decisions permitting a probation report to be considered in establishing the victim's prima facie case for the losses suffered involved probation reports containing more than the bald statement of the victim.   Some involved a detailed breakdown of how the losses were calculated (see, i.e., People v. Gemelli, supra, 161 Cal.App.4th at p. 1544), some involved a recommendation by the probation officer of the losses, i.e., People v. Pinedo, supra, 60 Cal.App.4th at pp.   1406–1407;  People v. Hove, supra, 76 Cal.App.4th at p. 1275) and some involved the presentation of additional factual evidence beyond that contained in the probation report (see, i.e., People v. Collins, supra, 111 Cal.App.4th at p. 734).

We find that the language of section 1202.4, subdivision (f), policy considerations and case law compel the conclusion that requiring rigorous proof of the victim's losses is not required to establish a prima facie case for restitution, but, more than the bald and unsupported statement of the victim of the amount of losses is required, at least where the amount sought appears patently inappropriate or excessive.

The purpose of the restitution statute is to assist those victimized by crime.   This policy goal is sufficiently important to be enshrined in the state Constitution, which states:  “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.”  (Calif. Const., art.   I, § 28, subd. (b).)  Section 1202.4, subdivision (f) requires “full restitution.”

This important policy favors making victims economically whole.   Increasing the evidentiary burden on victims to prove their losses would only operate in opposition to this policy.   Moreover, those committing crimes have hurt innocent victims, imposing on those victims the burden of having to seek restitution.   A defendant cannot therefore be heard to complain because proof of the victim's losses need not be established by the same exacting standard of proof as a civil damage claim and because the defendant must shoulder the burden of showing that the amounts claimed are excessive.  “ ‘ “A defendant's due process rights are protected when the probation report gives notice of the amount of restitution claimed ․, and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing.” ’   [Citation.]”  (People v. Cain (2000) 82 Cal.App.4th 81, 86.)

Case law reflects this focus on the victim.   A crime victim's restitution right is to be broadly and liberally construed.  (People v. Keichler, supra, 129 Cal.App.4th at p. 1045;  People v. Mearns (2002) 97 Cal.App.4th 493, 500.)   It also reflects the flexible, nontechnical manner in which victims' losses can be determined.  “ ‘ “ ‘․ [S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.’  [Citation.]”  [Citation.]  [¶] This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.  [Citation.]' ”  (People v. Hove, supra, 76 Cal.App.4th at p. 1275;  People v. Foster, supra, 14 Cal.App.4th at p. 947.)   The trial court must use a rationale method of calculation that can be said to reasonably make the victim whole.   (People v. Keichler, supra, at p. 1045.)  “No abuse of discretion [in awarding restitution] occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result.”  (Giordano, supra, 42 Cal.4th at p. 665.)   The amount awarded need not be limited to the exact amount of the loss for which the defendant is culpable or the amount that might be recoverable in a civil action.  (People v. Millard, supra, 175 Cal.App.4th at pp.   26–27.)

Section 1202.4, subdivision (f) states that the amount of loss is to be “based on the amount of loss claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f), italics added.)   Use of the word “claimed” by the Legislature would be an odd way of requiring the victim to prove losses, if proving the claim was intended.   This wording indicates that something less than proof is required to establish the victim's economic losses and shift the burden to the defendant to challenge the amount of losses sought.

Relying on Giordano, appellant argues that the trial court must make a clear statement of the calculation method used and how that justifies the amount ordered.  Giordano has no application here.   That case involved the question of how to determine the method of calculating the loss suffered by a surviving spouse whose husband was killed by a drunk driver.   Our Supreme Court considered the “method for calculating the amount of restitution.”   (Giordano, supra, 42 Cal.4th at p. 663.)   Here, there is no dispute as to “the method of calculating the amount of restitution” of the victims' losses, which is the cost of removing the graffiti, but only a question of the amount of those losses.

In that regard, the $790 restitution order here was not unreasonable.   The probation report specified that appellant had spray painted two dumpsters and two pay telephone signs.   It provided the victim's claimed costs for spray paint removal on two dumpsters and the replacing of one telephone sign.   Thus, the probation report established that the damages sought related to appellant's criminal acts.   Appellant plead guilty to vandalism with over $400 of damages, an admission that the damages were in excess of $400.   The victim statements state their claims for cost to remove the graffiti to be a total of $790.   While we agree that something more than the victim's bare, unexplained claim of loss in a probation report is sometimes required, the quantum of additional evidence required depends on the magnitude of the particular losses involved, the complexity of those losses, and the extent to which the claimed losses are patently unreasonable.

Here, the probation report was adequate to support the trial court's restitution order.   First, the claimed losses in the report clearly indicated that it was to remove graffiti, a direct result of appellant's crime.   Second, by admitting the crime of vandalism with over $400 damages, appellant admitted that the victims were entitled to at least $400 of restitution.   Further, there was nothing complicated in determining what the cost of removing the graffiti would be.   The amounts claimed to remove the graffiti from a dumpster were not on the face patently unreasonable.   Even if it might be a few dollars higher than the actual costs, the amount awarded need not be limited to the exact amount of the loss for which the defendant is culpable or the amount that might be recoverable in a civil action.  (People v. Millard, supra, 175 Cal.App.4th at pp.   26–27.)   Further, the trial court could reasonably have concluded that an estimate by “Operation Clean Sweep,” that it would cost $450 to remove appellant's graffiti from one of the dumpsters corroborates the victim's claims.   Thus, in this case, the trial court did not abuse its discretion by concluding that the probation report established the victim's prima facie case of loss, and the burden was shifted to appellant to prove that the amount sought was excessive.   Having failed to introduce any evidence that the losses claimed were excessive, the trial court's award consistent with the prima facie claim was proper.

We caution that a victim's mere statement alone, in a probation report, of the value of his economic losses, where patently unreasonable, where very large losses are involved, where there is no recommendation by the probation officer indicating the officer's efforts to determine the losses or where there is no other corroborating evidence, will ordinarily not be sufficient to establish the victim's prima facie showing of loss.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN–GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Because the issue presented does not turn upon the underlying facts, we present only a brief reference to those facts, which we take from the preplea probation report..  FN2. Because the issue presented does not turn upon the underlying facts, we present only a brief reference to those facts, which we take from the preplea probation report.

FN3.  The referenced documents are not in the record on appeal..  FN3.  The referenced documents are not in the record on appeal.

FN4. The probation report suggests an estimate of damages of $450 for a fourth victim “ILD.” However, at the restitution hearing, the prosecutor clarified that this was simply a duplicate claim for the loss by Waste Management..  FN4. The probation report suggests an estimate of damages of $450 for a fourth victim “ILD.” However, at the restitution hearing, the prosecutor clarified that this was simply a duplicate claim for the loss by Waste Management.

_, P.J. BOREN _, J. DOI TODD