Filed 7/28/22 P. v. Jones CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Allen Jones appeals from a restitution order following his guilty plea to grand theft of property, in violation of Penal Code[1] section 487, subdivision (c). The trial court ordered defendant to pay $1,600 in victim restitution plus annual interest of 10 percent and an administrative fee of up to 15 percent of the unpaid obligation. Defendant raises two issues on appeal. First, he contends that the trial court abused its discretion by ordering restitution in an amount that exceeded the value of the property damaged by his criminal conduct. Second, he argues that recently-enacted legislation requires us to strike the portion of the trial court’s judgment imposing interest and administrative fees. Respondent concedes the second issue, and we accept the concession. However, we reject defendant’s contention that the trial court abused its discretion in calculating the restitution amount. Accordingly, we strike the interest and administrative fees and remand for further proceedings as to those fines. We otherwise affirm.

BACKGROUND

We recite only the facts necessary to resolution of the issues on appeal.

Plea

Defendant was initially charged with one count of attempted second-degree robbery (§§ 211, 644) and one count of unlawful alteration of an imitation firearm (§ 20150, subd. (a).) He entered a guilty plea to an amended count 3, grand theft of property (§ 487, subd. (c)), in exchange for dismissal of the remaining two counts pursuant to a Harvey waiver.[2] Additional terms of the plea included a term of probation and restitution.

Restitution Order

At the restitution hearing on June 29, 2021, the prosecution presented evidence that the victim’s iPhone 11 Pro Max and clothing were damaged as a result of defendant’s attempt to steal the victim’s iPhone. The People requested restitution in the amount of $1,600, calculated as follows: $1,400 for the damaged iPhone, $120 for the victim’s damaged North Face sweatpants, and $80 for his damaged Tommy Hilfiger sweatshirt.

Defendant responded that (1) there was no damage to the victim’s clothing and (2) the requested amount of $1,400 for a new iPhone was excessive, because the victim likely bought the phone when it was not the latest model and the phone had depreciated in value over time. In connection with his second argument, defendant further contended that the victim was entitled only to the price of a used iPhone comparable to the victim’s phone prior to the incident, and he suggested a restitution amount of $580–the listed price of the same model iPhone on eBay.

The trial court rejected defendant’s arguments, noting that damage to the clothing was visible in the photos presented as evidence. The court awarded the full $1,600 in restitution requested by the prosecutor, and further ordered defendant to pay annual interest of 10 percent, pursuant to former section 1214.5, and up to 15 percent of the unpaid obligation to cover collection costs, pursuant to former section 1203.1.

Assembly Bill No. 177

In September 2021, after the restitution hearing, the Legislature enacted Assembly Bill No. 177 (2021–2022 Reg. Sess.) (Assembly Bill 177), which repealed section 1203.1, subdivision (l), and section 1214.5. (Stats. 2021, ch. 257, §§ 21, 33.) These sections, respectively, authorized the collection of administrative fees covering collection costs and annual interest on unpaid restitution orders. (Former §§ 1203.1, subd. (l), 1214.5.) Assembly Bill 177 amended section 1465.9, subdivision (b) to read: “[T]he balance of any court-imposed costs pursuant to Section[s] 1203.1 [and] . . . 1214.5 . . . [are] unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Stats. 2021, ch. 257, § 35.)

DISCUSSION

• I. Standard of Review

We review the trial court’s restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) Although a restitution order need not represent the precise amount of victim 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. Thygesen (1999) 69 Cal.App.4th 988, 992.) The standard of proof at a restitution hearing is preponderance of the evidence, and “ ‘ “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.’ ” (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) Abuse of discretion occurs when, absent a rational explanation, a trial court orders restitution that is not supported by substantial evidence. (Ibid.)

2. Criminal Restitution—Governing Legal Principles

In 1982, California voters approved Proposition 8, also known as the Victims’ Bill of Rights, amending the California Constitution to establish “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.” (Cal. Const., art I, § 28, subd. (b)(13)(A); People v. Stanley (2012) 54 Cal.4th 734, 736 (Stanley).) In accordance with the amended Constitution, the Legislature adopted implementing legislation: section 1202.4. (Cal. Const., art I, § 28, subd. (a)(8); Stanley, at p. 736.)

Under section 1202.4, subdivision (f)(3)(A), a “restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant’s criminal conduct, including, . . . [¶] [f]ull or partial payment for the value of . . . damaged property. The value of . . . damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.” After a victim establishes “ ‘a prima facie showing of [the victim’s] loss, the burden shifts to the defendant’ ” to demonstrate that the victim’s proposed loss amount is overstated. (Millard, supra, 175 Cal.App.4th at p. 30.)

3. Analysis

1. Restitution Order

1. Clothing

Defendant first contends that the trial court abused its discretion by imposing the replacement cost of new clothing, rather than imposing the cost to repair the minor damage. We disagree. Defendant’s argument relies on his interpretation of section 1202.4, subdivision (f)(3)(A), which establishes that the value of “damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.” (Italics added.) In Stanley, however, our Supreme Court made clear that the restitution award need not be the lesser of the two choices. (Stanley, supra, 54 Cal.4th at p. 737.) The court explained that when there is a choice of “whether to award the property’s replacement cost or cost of repair ‘when repair is possible’ [it] is left to the sound discretion of the trial court. [Citations.]” (Ibid.)

Here, the trial court found damage to the victim’s sweatshirt and sweatpants and awarded the replacement cost to the victim. The replacement cost amounted to $80 for the sweatshirt and $120 for the sweatpants. Although repairing the clothing was likely possible, the trial court has discretion in how to make the victim whole and is not required to order the lesser of the two valuations laid out in section 1202.4, subdivision (f)(3)(A). Given the likelihood that sewing up a hole in designer clothing would not return the items to their pre-incident condition, the trial court did not abuse its discretion in awarding the replacement cost of the damaged clothing.

Defendant alternatively argues that the trial court erred in awarding the replacement cost of the clothing without receiving any documentation of the replacement cost from the victim. We are again unpersuaded. Under section 1202.4, the prosecution is not required to offer any “particular kind of proof” to establish its prima facie case. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542–1543 (Gemelli).) 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 . . . damaged property.” (Id. at p. 1543.)

The trial court’s restitution order was based on the probation report, which included the victim’s restitution request valuing his loss at $120 for his sweatpants and $80 for his sweatshirt.[3] We agree with the trial court that the victim’s statement in the probation report suffices as prima facie evidence of the victim’s total clothing loss resulting from defendant’s criminal conduct, and no further documentation was required.

iPhone

Defendant initially argued that restitution should be limited to the replacement cost, suggesting $580 as the appropriate amount on the theory that $580 was the listed price for the same model iPhone in used condition on eBay. In his reply brief, however, defendant concedes that the appropriate amount is the value of a new 11 Pro Max iPhone from the manufacturer.

Defendant nonetheless contends that the trial court abused its discretion by awarding the requested amount of $1,400 without sufficient documentation. This argument fails to satisfy defendant’s burden of demonstrating that the victim’s proposed loss amount is overstated. (Millard, supra, 175 Cal.App.4th at p. 30.)

The trial court’s restitution order as to the iPhone was based on the probation report and the victim’s statement on the night of the offense, valuing his phone at $1,400. We agree with the trial court that this statement in the probation report suffices as prima facie evidence of the loss resulting from defendant’s criminal conduct; again, no further documentation is required. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)

2. Unpaid Portion of Administrative Fees

In his second argument, defendant contends that the recent enactment of Assembly Bill 177 abrogated the trial court’s imposition of interest pursuant to former section 1203.1, subdivision (l) and collection cost fees pursuant to former section 1214.5. He therefore requests vacatur of any unpaid portion of these fees as of January 1, 2022. Respondent concedes that the fees should be vacated, and we agree. (§ 1465.9, subd. (b).) Accordingly, we strike any unpaid balance of the fees imposed under former section 1214.5 and former section 1203.1, subdivision (l).

DISPOSITION

The victim restitution order is modified as follows: (1) the court-imposed fee under former section 1214.5 and the portion of this cost that remains unpaid as of January 1, 2022, are vacated; and (2) the portion of the fee imposed under former section 1203.1, subdivision (l), to cover the administrative cost of collection of court-ordered restitution that remains unpaid as of January 1, 2022, is vacated. The trial court is directed to amend the abstract of judgment and the victim restitution order consistent with this opinion and provide a copy to the appropriate authorities, including the probation department and the entity tasked with collecting the court-ordered restitution. The judgment is otherwise affirmed.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

STREETER, J.

People v. Jones (A163106)

[1] Subsequent undesignated statutory citations are to the Penal Code.

[2] People v. Harvey (1979) 25 Cal.3d 754.

[3] We are cognizant of section 1203.05, which limits the public’s access to a probation report. Probation reports’ partially confidential status derives from the Legislature’s intention “to restrict access only to personal information about a defendant (such as details concerning his or her family background, medical and psychological condition, financial status, military record, and substance abuse history) not nonpersonal information, such as the factual summary of an offense and the . . . analyses . . . of the probation officer.” (People v. Williams (2021) 63 Cal.App.5th 990, 996, fn. 9.) We reference the probation report in accordance with the limitations of section 1203.05.