P. v. Palmquist

Filed 4/10/07 P. v. Palmquist CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Cary D. Palmquist pled no contest to felony grand theft. He was sentenced to three years of informal probation, 30 days (stayed) in jail and 100 hours of community service, and ordered to pay victim restitution of $7,000.

On appeal, defendant contends the trial court abused its discretion when it imposed the $7,000 in victim restitution. He also argues that this amount must be determined not by a judge, but by a jury, and failure to do so violated his rights under the Sixth and Fourteenth Amendments according to Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. Disagreeing with these contentions, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant had his work truck towed to Jeffs Truck Service to be repaired. Although he was initially told the job would take approximately four to seven working days, work was not completed until more than three months later. When defendants son went to pick up the truck, he was told the cost for the work was $8,263.71, an amount significantly higher than what defendant understood the cost would be. Defendants son attempted to arrange a payment plan, but Jeffs demanded payment in full before it would release the truck.

Defendant and his son returned to Jeffs with a check for $8,263.71 and were permitted to retrieve the truck. However, when a Jeffs employee attempted to cash the check, she learned defendant had already placed a stop payment on it.

The following day, defendant filed an action in small claims court against Jeffs. That court made the following findings: (1) Jeffs promised not to charge defendant for towing or breakdown of the motor; (2) Jeffs and defendant never reached an agreement regarding the cost of the work prior to commencement; and (3) Jeffs took too long to do the job damaging [defendant] in the amount of $1500.00 for lost profits. In granting judgment for Jeffs, the court found the reasonable value of Jeffs services to be $7,000 and, because defendant fraudulently stopped payment on his check to obtain the truck from [Jeffs], [defendant] has paid nothing and therefore is not entitled to any relief because of offset.

Several months later, defendant was charged with grand theft to which he pled no contest. At his sentencing hearing, defendant argued against the $7,000 in victim restitution recommended in the probation report. He submitted evidence of money he spent on replacement of the trucks clutch, towing costs, and his monetary losses due to delay in repairing the truck, along with statements from third parties regarding their experience with Jeffs Truck Service.

The prosecution argued $7,000 was an appropriate amount of victim restitution based solely on the findings of the small claims court.

The court imposed victim restitution of $7,000, to be paid joint[ly] and severally by defendant and his son.^[1]

Defendant filed a timely notice of appeal.

DISCUSSION

I

The Restitution Ordered Was Not An Abuse Of Discretion

Defendant contends the trial courts imposition of $7,000 in victim restitution was an abuse of discretion for two reasons: the amount imposed was greater than Jeffs Truck Services actual economic loss, and the $7,000 should have been offset by defendants economic damage in the amount of $1,500. We disagree with both contentions.

Restitution orders are reviewed for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) The 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. (Ibid., quoting People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found. (Mearns, at p. 499.)

Where a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court. (Pen. Code, 1202.4, subd. (f).) After the prosecution establishes a prima facie case of the victims loss, the burden shifts to the defendant to prove the amount is excessive. (See People v. Fulton (2003) 109 Cal.App.4th 876, 886.)

When the probation report includes information on the amount of the victims loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount. (People v. Foster (1993) 14 Cal.App.4th 939, 947, superseded by statute on another point as stated in People v. Sexton (1995) 33 Cal.App.4th 64, 68.) Once the record contains evidence showing the victim suffered economic losses . . . this showing establishes the amount of restitution the victim is entitled to receive, unless challenged by the defendant. (People v. Fulton, supra, 109 Cal.App.4th at p. 886.)

Attached to the probation report is the order of the small claims court finding the reasonable value of the services provided by Jeffs (i.e., Jeffs economic loss) to be $7,000. The prosecution submitted the matter on that recommendation, aptly noting that the amount was the product of litigation in which both parties had participated. Defendant presented no evidence to rebut that amount, but instead offered evidence to support the claimed $1,500 offset.

While the small claims court found lost profit damages to defendant in the amount of $1,500, that amount has no relation to the economic losses suffered by Jeffs as a result of defendants failure to pay for services rendered. Once the prosecution offered the small claims courts findings as prima facie evidence of Jeffs losses, defendant had the burden of presenting contrary information to challenge that amount (such as estimates from other repair shops or expert testimony regarding the value of the services rendered). He focused, instead, on his alleged set-off in the civil action. Defendant did not meet his burden of proof and the trial court was within its discretion to accept the restitution amount offered by the probation report.

II

The Restitution Amount Need Not Be Determined By A Jury

Defendant also contends that under Blakely, he is entitled to a jury trial on the amount of victim restitution to be paid. We disagree.

A restitution fine is a form of punishment (People v. Hanson (2000) 23 Cal.4th 355, 361-362), but a victim restitution order is not (People v. Harvest (2000) 84 Cal.App.4th 641, 646-650). Thus, a victim restitution order is not a penalty for a crime within the meaning of Blakely. (Blakely v. Washington, supra, 542 U.S. at pp. 303-304 [159 L.Ed.2d at p. 413-414.) For this reason we reject defendants argument.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

MORRISON , Acting P.J.

BUTZ , J.

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^[1] His son was also charged with grand theft. This charge was reduced to a misdemeanor as a result of defendants plea.