Filed 5/4/22 P. v. Quinnine CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
| THE PEOPLE, Plaintiff and Respondent, v. DEANDRE QUINNINE, Defendant and Appellant. |
A163621
(San Francisco County Super. Ct. No. 220946-01)
|
After pleading guilty to first degree burglary, defendant Deandre Quinnine was ordered to pay victim restitution to Y.Y. in the amount of $60,000. He contends the trial court abused its discretion because there was insufficient evidence Y.Y. actually lost this sum and she did not appear at the restitution hearing or cooperate with defense counsel’s efforts to investigate the truth of her claim. We affirm.
BACKGROUND
On February 21, 2020, defendant pleaded guilty to five offenses charged in five different cases.[1] The only one relevant to this appeal is a first degree burglary (Pen. Code, § 459) committed in March 2015. On May 19, 2020, in accordance with his plea agreement, defendant was sentenced to a total prison term of 11 years. On June 18, 2020, due to the credits defendant had accumulated, the court deemed his sentence served. At a restitution hearing on August 20, 2021, defendant was ordered to pay $60,000 restitution to the victim, with his codefendant in the 2015 burglary jointly and severally liable.
The burglary victim, 77-year-old Y.Y., reported to the police that she had come home to find approximately $80,000 in cash had been taken from a safe in her bedroom; the safe, bedroom door, door to the residence, and front gate had been forced open. Y.Y. testified at the preliminary hearing through an interpreter. When asked how much cash was in the safe prior to the burglary, she replied, “Normally, I wouldn’t keep that much money in the safe, but because I was about to do remodeling for the exterior of my house, and so money was put in that safe by several of my sons, and so my estimate is approximately 100,000.” Asked if she recalled telling the police the amount was around $80,000, she testified, “Actually, a lot more than that. She was asked how sure she was that the amount was more than $65,000, and responded, “Definitely.”[2]
Y.Y. testified that most of the cash was in one-hundred-dollar bills. She had “organized” $60,000 in three bags provided by the bank, which were stacked in the safe, and her sons had added between 20,000 and 40,000 later. She did not withdraw the $60,000 from her bank account; her sons gave it to her and she did not ask where it came from. Her bank account contained her payments from Social Security and Supplement Security Income, “[s]everal hundred dollars,” which was her only income in 2015.
Y.Y. testified that the money in the safe was intended to repair damage to the walls of the house from water leakage. She had not had the work done because she no longer had the money, but thought the cost of repairing the water damage to the walls would exceed $100,000.
Asked if anyone kept track of how much money her sons put in the safe, Y.Y. testified that initially she did, but as time went by, she did not. Asked if she ever counted the money in the safe, she testified, “I’m very clear on the $60,000. That I’m very clear is the money that my sons add into that entire fund, I did not make a point of counting.” She did not recall when the money had last been put into the safe or how long she had been accumulating the money. Asked why she did not put the money in her bank account, she said “t’s to fix the house,” she never thought it would be taken and “if somebody were to do the work, I have to immediately pay them the money.”[3] Asked if her son told her why he wanted to give her cash rather than putting money into her bank account, she replied, “It’s just a matter of convenience that the money is gathered in one place so that I can readily use that money to pay contractors.” Prior to the burglary, no one had been hired to do the work on the house; they had gotten estimates but she did not recall who gave them.
Y.Y. did not think there was insurance coverage for “inside” the house, but testified she did not “know much about these things.” She did not know if anyone had made a claim on insurance for the money that was stolen.
On cross-examination, defense counsel asked Y.Y. her first son’s name and Y.Y. gave his English name; asked if she could spell his legal name, she said she did not know how. The son had two Chinese names but Y.Y. did not recall them; she did not know how old he was, but gave his birth year. Y.Y. provided her next son’s Chinese name and the year he was born. She testified that her third son had two Chinese names which “right now [she] forgot” and gave the English name he was “known by” and year he was born.
At the restitution hearing, the only witness was the investigator for defendant’s codefendant’s attorney. He testified that he served the subpoenas on Y.Y. and explained them to her in Cantonese. He asked Y.Y. if she had repaired the water damage and she said yes. She said it cost “a lot of money,” but did not give a dollar amount. The investigator researched records for Y.Y.’s address at the San Francisco Planning Department and found only one permit issued since June 2015: a permit issued in 2019 for repairs to stucco walls and windows with a cost of $3,000. The investigator found two complaints about the property, one filed in 2017 concerning remodeling without a permit, and one filed in 2016 regarding black mold.
DISCUSSION
“Under section 1202.4, subdivision (f)(3), 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 the result of the defendant’s criminal conduct . . . .’ ” ([i]People v. Hurtado (2019) 35 Cal.App.5th 871, 878.) “[T]he amount of restitution ordered is intended ‘to make [the] victim whole, not to give a windfall.’ (People v. Thygesen [(1999)] 69 Cal.App.4th [988,] 995.)” People v. Fortune (2005) 129 Cal.App.4th 790, 794–795.)
“ ‘ “The standard of review of a restitution order is abuse of discretion. ‘A victim’s restitution right is to be broadly and liberally construed.’ [Citation.] ‘ “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.]’ (People v. Baker (2005) 126 Cal.App.4th 463, 467.) ‘In reviewing the sufficiency of the evidence, 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.]’ (Id. at pp. 468–469.)” (People v. Prosser (2007) 157 Cal.App.4th 682, 686–687 (Prosser).)
Over defendant’s objection, the trial court determined the amount of restitution on the basis of the transcript of Y.Y.’s testimony at the preliminary hearing. Y.Y. did not testify at the restitution hearing despite having been subpoenaed to appear. In fact, the court had twice continued the hearing due to Y.Y.’s failure to appear before going ahead with it in her absence on the third hearing date. Nor did Y.Y. provide the defense with any of the documents specified in the subpoenas.[4]
Defendant contends the case should be remanded for a new hearing on the appropriate amount of restitution because there was “scant evidence” Y.Y. actually lost $60,000, and because of her failure to appear at the restitution hearing or cooperate with defense counsel’s efforts to investigate the truth of her claim. Defendant points out that Y.Y. did not substantiate her testimony that there had been between $60,000 and $100,000 in the safe and suggests her estimate is undermined by the absence of evidence of an application for a permit for major construction or remodeling. He urges that while the estimate may have been sufficient to show probable cause to hold him to answer at the preliminary hearing, it was insufficient to support a finding by the preponderance of the evidence that he took this sum of money.
“When an owner of stolen personal property testifies as to its value at a restitution hearing, his or her testimony constitutes prima facie evidence of value. (Prosser, supra, 157 Cal.App.4th at p. 684.) The trial court also may accept 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. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) “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.)” (Id. at p. 1543; Prosser, at p. 685.)
The trial court fully considered the fairness of basing its order on the preliminary hearing transcript. Initially, the court heard and considered the parties’ arguments as to whether the restitution hearing should be continued yet again due to Y.Y.’s failure to appear,[5] and concluded defendant’s due process rights would not be violated by proceeding because there is no right to cross-examination at a restitution hearing and no reason to believe the cross-examination at the preliminary hearing was not sufficient. The court acknowledged that many of Y.Y.’s responses at the preliminary hearing were “unsatisfying,” but stated there was no reason to think this would be different at a restitution hearing or that bank account records would provide relevant information for the defense given Y.Y.’s testimony that the money came from her sons and not her bank account.
The court’s explanation of its ruling at the conclusion of the hearing further reflects what it described as its grappling with “whether this proceeding was fundamentally unfair” due to Y.Y.’s failure to cooperate. The court concluded it was not fundamentally unfair to use the preliminary hearing transcript because there was “very extensive cross-examination about the amount of loss” and the incentives were the same due to the enhancement allegation that the amount taken exceeded $65,000. The court emphasized that Y.Y. testified under oath, thus providing evidence the court saw as “more significant than restitution awards often feature.” Although it acknowledged Y.Y.’s failure to appear in response to the subpoenas cut against her credibility,[6] it nevertheless found her testimony credible, as she was “very confident” in her testimony and consistent on the amount of money on both direct and cross-examination. The court noted that Y.Y. was adamant the amount taken was more than $60,000, but set the restitution order at $60,000 because Y.Y. acknowledged she did not actually count anything beyond $60,000. The court stated, “I think my $60,000 award may not fully make her whole, but it is the only award I can feel comfortable giving without giving a windfall to this victim.”
We cannot find the trial court abused its discretion. Defendant does not suggest the prosecution was required to present victim testimony at the restitution hearing, which it is not (People v. Lehman (2016) 247 Cal.App.4th 795, 803), or that he had a right to confrontation and cross-examination at the hearing, which he did not. (People v. Cain (2000) 82 Cal.App.4th 81, 86.) As we have said, a victim’s statement of the value of stolen property constitutes prima facie evidence of the amount of loss. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543; Prosser, supra, 157 Cal.App.4th at p. 690.) The trial court heard, and was not persuaded by, defense counsel’s argument that Y.Y.’s lack of cooperation prevented her from discovering evidence to rebut Y.Y.’s testimony regarding the amount of money stolen from the safe. As the trial court observed, bank records were not likely to help defendant since as Y.Y. claimed the money was never in her bank account. Defendant’s attorney said she was unable to locate Y.Y.’s sons based on Y.Y.’s testimony about their names and birth years, but did not explain what attempt she made and whether it included any additional investigation into the sons’ identities and locations. Nothing prevented defendant from pursuing potential sources of evidence to undermine Y.Y.’s testimony that were not dependent on Y.Y.’s appearance at the hearing, as his codefendant did in presenting evidence that Y.Y. had not applied for a building permit for work of a magnitude warranting the large amount of cash she claimed to have kept in the safe for anticipated repair of the house. Defendant himself could have testified that the amount in the safe was something other than what Y.Y. claimed.
In Prosser, supra, 157 Cal.App.4th 682, the defendant unsuccessfully challenged the court’s reliance upon a victim’s estimate of the value of jewelry taken in a burglary. Regarding the defendant’s burden to refute the prima facie evidence of value supplied by Y.Y., the Prosser court observed, “Were the law otherwise, a victim in a case such as this would be without a means for recovery. A victim who has no receipts or appraisals for property received by gift, and who no longer has possession of the property, may have no way of providing a detailed description or obtaining an appraisal. Defendant has not convinced us that there is a reason why the thief, who has, or last had, possession of the property, should not bear the burden of rebutting the victim’s estimate of value. If the thief has disposed of the property and is, like the victim, ill-poised to provide a detailed description or an appraisal, it is indeed awkward. But the situation is one of the thief’s own making, and as between the victim and the thief, the equities favor the victim.” (Id. at p. 690.)
The trial court found this reasoning persuasive, and we agree. Far from the arbitrary and capricious exercise of discretion defendant suggests, the record reflects careful consideration of the issues by the court, and substantial evidence—Y.Y.’s sworn preliminary hearing testimony, which was subjected to cross-examination—supports the restitution order.
DISPOSITION
The judgment is affirmed.
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Mayfield, J.*
We concur:
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Richman, Acting P.J.
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Miller, J.
People v. Quinnine (A163621)
* Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] In the “Statement of the Case” sections of their briefs, the parties describe an information filed on September 30, 2013, charging four offenses including a first degree burglary involving alleged victim S.C. This is obviously not the information that charged the 2015 offense at issue here. “Appellant’s Opening Brief” incorrectly states that the court granted a motion to add a misdemeanor offense to the 2013 information and defendant pleaded guilty to “all five charges.” Fortunately, this confusion in the briefs and the record are not relevant to the issue on appeal.
[2] It appears that defendant was originally alleged to have taken more than $65,000 pursuant to a since-repealed enhancement statute. (Former Pen. Code, § 12022.6, repealed effective Jan. 1, 2018, Stats. 2010, ch. 711, § 5.) The judge who presided over the preliminary hearing struck the allegation at the end of that hearing due to the repeal.
[3] The trial court sustained a relevance objection when Y.Y. was asked if any of the people that came to give estimates on the work she wanted done said they would only take cash payments.
[4] The subpoenas sought “[a]ll bank records (including checks, statements, deposit and withdrawal slips) that support your claim of cash money taken” in the burglary and “[a]ll documents submitted to insurance or government agencies for reimbursement for cash taken.”
[5] These arguments included that Y.Y.’s refusal to cooperate prevented counsel from meeting her burden of disproving the prima facie evidence supplied by Y.Y.’s testimony; that counsel had not been able to locate Y.Y.’s sons based on the names and birth years Y.Y. provided at the preliminary hearing; that the court could not assess Y.Y.’s credibility from a transcript; that Y.Y.’s inability to provide her sons’ names and birthdates should cause the court to question her credibility; that at the preliminary hearing the defense did not have the information that Y.Y. had not applied for any building permits; and that Y.Y. was not required to answer when asked whether the contractors who gave estimates on the work told her she would have to pay in cash. Additionally, counsel for defendant’s codefendant argued the defense did not have the same incentive at the preliminary hearing to question Y.Y. about the amount of the loss because the specific amount did not matter at that time—a point the trial court questioned because defendant had been alleged to have taken more than $65,000 pursuant to the subsequently repealed former section 12022.6 (see fn. 2, ante) that allegation was not stricken until the end of the hearing. Responding to the court’s assumption that counsel did not know in advance that the allegation would be stricken, codefendant’s attorney stated that the statute had expired by its own terms.
[6] The court observed that Y.Y. was “older” and “we’re in a pandemic,” speculated as to other reasons she might not have appeared, and commented that “restitution procedures are not supposed to be onerous on victims.”
