P. v. Oliver

Filed 3/6/07 P. v. Oliver CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

John Paul Oliver pleaded guilty to first degree burglary (Pen. Code,  459, 460, subd. (a)) in exchange for dismissal with a Harvey (People v. Harvey (1979) 25 Cal.3d 754) waiver of one count of second degree burglary (Pen. Code, 459, 460, subd. (b)), four counts of theft of a firearm (Pen. Code, 487, subd. (d)(2)), and one count of theft of more than $400 of property (Pen. Code,  487 (a)). Defendant was sentenced to four years in prison, and ordered to pay $12,180.25 in restitution to the victim (Pen. Code, 1202.4, subd. (f)). Defendant argues, and we agree, that the restitution order was not supported by substantial evidence and that a new restitution hearing is required.

I.

The victim, Dana ConRoy, a retired Clearlake peace officer, hired defendant to take care of her ranch in 2004 while she was suffering from what she described as chronic fatigue, involving a brain injury, and staying with her mother. According to the March 2006 probation report, ConRoy reported in December 2004 that defendant had stolen property worth $5,893, consisting of three registered handguns, seven unregistered pistols, three rifles, ammunition, rifle cases, and a martial arts knife.

The report further stated that [o]n November 3, 2005, the victim submitted a supplemental and updated list of items stolen from her property. In addition to the firearms and ammunition, the victim reported that miscellaneous household items which include cookware and glassware, flashlights, Clearlake Police Department badge, handcuffs, bulletproof vest, dinnerware service set, silver utensils, coffee/tea service set, carpet shampooer, vacuum cleaners, VCR, stereo system, trimmer, weed eaters, miscellaneous computer games, garbage disposal, telephone equipment, VCR players, coffee maker, window screens, electric saw, candles, food items, miscellaneous camping equipment, compass, and miscellaneous bungees and rubber tie downs, were stolen from the premises. It appears from the report that the total value of the stolen items was $12,180.25.

The probation officer recommended that restitution to ConRoy be ordered in the amount of $12,180.25, but stated: When I spoke with the victim on the phone she sounded distraught and she mentioned that her losses would be in an amount in excess of what she had reported to the authorities. Thus, if the victim will submit additional documentation showing her losses would be in excess of the amount as reported to police, a modification may be submitted to include the additional amounts claimed by the victim.

ConRoy testified at the sentencing hearing that defendant had stolen property from her worth approximately $111,000. When asked on cross-examination to identify the items that defendant had stolen, she specified: handguns, heirloom crystal and china, a large number of construction tools, an enormous magnitude of stable equipment, a vacuum cleaner or shampooer, antiques, oriental rugs, a lot of jewelry, collectibles such as Disney items and Elvis Presley and Beatles records, and police equipment. She said that defendant took just a magnitude of things. I mean, its hard for me to evenI havent even finished going through the entire property . . . . The only stolen items to which she ascribed specific dollar values were a .38 caliber pistol ($900), a .25 caliber handgun ($50 to $125), and a martial arts knife ($85 to $125).

When ConRoy was asked how she came up with her $100,000 figure she said, By going through the property and what is missing and giving an estimate of what is missing, getting an estimate by going to stores, seeing the items, by going through catalogs, viewing the items that are similar to and have the similar functions to as those items that are missing, and/or looking through any . . . receipts that I had remaining. When she was asked if she had an itemized list of stolen items she said, I had at one time, but it was put on computer disks which no longer remain. There was a trail of them leading to Mr. Olivers truck . . . .

The court did not see justification for the $111,000 in losses ConRoy claimed, but found that the $12,180.25 figure in the probation report was a reasonable estimate of the value of the stolen property and ordered restitution in that amount.

II.

Penal Code section 1202.4, subdivision (f)(3) provides that a victim 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 the result of the defendant's criminal conduct, including . . . . [] (A) 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.

Both the abuse of discretion and substantial evidence standards have been applied in reviewing victim restitution orders. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992-993.) Whichever standard of review (or combination thereof) is used makes little practical difference in the present matter. If there is no substantial evidence to support the award, and assuming no other rational explanation, the trial court will have obviously abused its discretion. (Id. at p. 993.) There must at the least be a factual and rational basis for the amount of restitution ordered. (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)

The amount awarded here was based entirely on a conclusory total set forth in a probation report, without any supporting documentation. Such a showing was deemed insufficient in People v. Vournazos (1988) 198 Cal.App.3d 948, 958, where the order rested entirely on the recommendation of defendants probation officer, who, in turn, derived the figure solely from [the victims] statement of loss and his discussions with [the victim]. (See also People v. Harvest (2000) 84 Cal.App.4th 641, 653 [victims claim in probation report cannot take the place of evidence].) We likewise find no factual and rational basis for the order in this case.

The People contend that the order can be salvaged by the combination of the probation officers analysis, by brand name and vintage, of the items involved, and the victims testimony at the hearing . . . . But the probation report contains no such analysis, and ConRoys testimony as to the value of the stolen items was equally unfocused and undocumented (see People v. Thygesen, supra, 69 Cal.App.4th at p. 995 [victims testimony did not establish replacement value of stolen property]).

We do not disagree with People v. Cain (2000) 82 Cal.App.4th 81, insofar as it concluded that hearsay statements in a probation report may constitute substantial evidence supporting a restitution award, but that case is distinguishable. Cain involved the single issue of whether money paid to a psychotherapist for victim counseling was directly related to the crime, and probation department memoranda indicated that the State Board of Control had paid for the counseling. This information provided a   factual and rational basis   for restitution of the amount paid (id. at p. 88) because, by regulation, the Board paid only for services  required as a direct result of the qualifying crime and for no other reason  (id. at p. 90; italics deleted). Here, in contrast, there are a myriad of allegedly stolen items at issue, and the source of the information was not the inherently reliable report of a state board (id. at p. 88), but rather the undocumented claim of an individual who provided very inconsistent accounts of the items taken.

III.

The Penal Code section 1202.4, subdivision (f) restitution order is reversed, and the case is remanded for redetermination of the amount of restitution owed to the victim. In all other respects, the judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

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Swager, J.

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Margulies, J.

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