Filed 7/10/17 P. v. Condit CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

HOLLY ELIZABETH CONDIT,

Defendant and Appellant.

F073676

(Super. Ct. No. BF162647A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Holly Elizabeth Condit pled no contest to one count of felony child abuse or endangerment (Pen. Code § 273a, subd. (a)) and one count of driving under the influence of alcohol and causing bodily injury (Veh. Code § 23153, subd. (a)). Condit was ordered to pay restitution of $23,666.36 to the victim. She challenges the trial court’s determination of $14,000 as the amount of restitution owed for the victim’s vehicle. We affirm, but will direct that a corrected abstract of judgment be prepared.
FACTUAL AND PROCEDURAL SUMMARY
On December 26, 2015, Condit rear-ended a vehicle driven by Ruth Cain; Cain was stopped at a traffic signal for the red light. Condit had two of her children in the car; they were not in child restraint seats. Condit was uncooperative with officers dispatched to the scene of the accident and she showed signs of alcohol intoxication, including slurred speech, a strong odor of alcohol, stumbling, and red eyes. A warrant was procured to take a sample of Condit’s blood and three hours after the accident, she had a blood alcohol level of .248 percent. After the accident, Cain was transported to the hospital for treatment.
On February 11, 2016, an information was filed charging Condit with eight offenses arising from the accident, including two counts of felony child abuse or endangerment in violation of section 273a, subdivision (a), and one count of speeding while under the influence of alcohol and causing bodily injury, in violation of Vehicle Code sections 22350, subdivision (a), and 23153, subdivision (a).
On April 1, 2016, Condit pled no contest to count 1, violating section 273a, subdivision (a), and count 3, violating Vehicle Code section 23153, subdivision (a). In exchange for her plea, Condit was subject to a two-year maximum prison term and the other six counts were dismissed.
Prior to sentencing, the probation department filed a Victim’s Impact Statement. Cain’s vehicle, a 2012 Toyota Corolla, was totaled in the accident. Cain stated she had paid $17,000 for the car, but the Kelley Blue Book showed a value of $10,859. A list of Toyota Corolla vehicles for sale in the Bakersfield area and their asking prices, obtained from the internet, was also included in the Victim Impact Statement.
Of the Toyota Corollas listed for sale, none were a 2012 model like Cain’s car. A 2010 model was offered for sale at $11,494. Several 2013 models were offered for sale, ranging in price from $13,495 to $16,499.
At the April 27, 2016 sentencing hearing, the trial court stated it had read the probation report and reviewed all the materials submitted as part of the Victim’s Impact Statement. Counsel for Condit indicated he had “some comments with respect to the restitution.” Condit’s counsel stipulated that the trial court could consider all the materials submitted regarding restitution.
As to restitution for the vehicle, counsel stated, “I reviewed what the victim had submitted of the 10,859 instead of the 17,000. So that’s the only objection on the restitution. Just I believe legally it would be the Blue Book so I’d ask for a ruling on that.” In determining a restitution amount for the vehicle, the trial court stated:
“[B]lue Book values, while instructive, are a guideline as to actual replacement costs, and in many cases, depending on the parameters entered … they have a tendency to be somewhat low as to the actual replacement cost to a vehicle.
“So while I think it’s instructive, I think the request for the $17,000 requested is clearly based on what would be necessary to purchase not a new vehicle, a reasonable replacement vehicle but a newer one as opposed to the vehicle which was involved in this particular case. I think $14,000 is an appropriate and reasonable value based on the fact that the Blue Book estimate is also certainly a little bit lower as to what it will actually cost.”
The trial court proceeded to fix $14,000 as the amount of restitution for the vehicle and ordered restitution in the total amount of $23,666.36 to Cain. Condit was sentenced to a term of two years in prison for count 1; a term of 16 months in prison for count 3, to be served concurrently; and various fines and fees were imposed. Before concluding the hearing, the trial court inquired if the defense had “anything further” to add on Condit’s behalf. Defense counsel replied, “No, your Honor.”
The minute order reflects the $23,666.36 restitution ordered by the trial court. The abstract of judgment, however, incorrectly states that an amount is to be determined. Condit filed a notice of appeal on April 27, 2016.
DISCUSSION
Condit contends the trial court abused its discretion in setting $14,000 as the amount of restitution owed for the vehicle. We disagree.
I. Forfeiture
The People contend Condit has forfeited her challenge to the restitution award by failing to raise it below. We agree. A failure to object to the amount of the restitution award in the trial court constitutes a waiver of the issue on appeal. (People v. Anderson (2010) 50 Cal.4th 19, 26 & fn. 6.) Although Condit objected to an award of $17,000 for the car and argued for an award of $10,859, when provided an opportunity to comment or object to the $14,000 amount, she raised no objection.
“An objection to the amount of restitution may be forfeited if not raised in the trial court. ‘The unauthorized sentence exception is “a narrow exception” to the waiver doctrine that normally applies where the sentence “could not lawfully be imposed under any circumstance in the particular case,” for example, “where the court violates mandatory provisions governing the length of confinement.” [Citations.] The class of nonwaivable claims includes “obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.”’ [Citation.] The appropriate amount of restitution is precisely the sort of factual determination that can and should be brought to the trial court’s attention if the defendant believes the award is excessive.” (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.)
Consequently, any challenge to the award of $14,000 in restitution for the car was forfeited by failure to object in the trial court. (People v. Brasure (2008) 42 Cal.4th 1037, 1074-1075.)
Regardless, the contention lacks merit. The trial court did not abuse its discretion in awarding $14,000 in restitution to Cain for the car.
II. No Abuse of Discretion
California voters enacted Proposition 8 in 1982, known as the Victims’ Bill of Rights, which added a provision to the California Constitution that all victims who have suffered losses as a result of a crime are entitled to restitution from the person convicted of the crime. (People v. Stanley (2012) 54 Cal.4th 734, 736 (Stanley).) Section 1202.4 was enacted by the Legislature to implement Proposition 8. (Ibid.)
Section 1202.4, subdivision (f)(3)(A) gives the trial court the choice of awarding restitution for “replacement cost of like property, or the actual cost of repairing the property when repair is possible.” Section 1202.4, subdivision (f) provides in part that a trial court “shall order full restitution.” The standard of review for an award of restitution is abuse of discretion:
“ ‘[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.’ [Citation.] Restitution must ‘ “be set in an amount which will fully reimburse the victim for his or her losses unless there are clear and compelling reasons not to do so ....” ’ [Citations.] ‘While it is not required to make an order in keeping with the exact amount of 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.’ [Citation.]

“ ‘A victim’s restitution right is to be broadly and liberally construed.’ [Citation.] ‘ “ ‘[S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider’ ” ’ in determining victim restitution. [Citations.] Restitution orders are reviewed for abuse of discretion. [Citation.] When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found.” (People v. Phu (2009) 179 Cal.App.4th 280, 283-284 (Phu).)
Analysis
Here, Condit stipulated the trial court could consider all the documentation and information submitted as part of the Victim Impact Statement. Although the documentation indicated that a hypothetical 2012 Toyota Corolla would be valued at $10,859, the documentation also established that no 2012 Toyota Corolla was advertised for sale in the area and that a similar car, two years older, was actually offered for sale at a higher amount of $11,494. Several 2013 models were offered for sale, ranging in price from $13,495 to $16,499.
Cain was entitled to “full restitution” for “like property.” (§ 1202.4, subd. (f) & (f)(3)(A).) In the Bakersfield area, $10,859 would not provide Cain with like property, because similar cars were being offered for sale at prices higher than $10,859. The documentation submitted as part of the Victim Impact Statement constituted a valid prima facie showing of value. (People v. Prosser (2007) 157 Cal.App.4th 682, 685-686.) Based upon the vehicles available for sale in the Bakersfield area, Cain likely would have difficulty finding another 2012 Toyota Corolla in the exact condition of hers prior to the accident, a factor that a trial court can consider in awarding restitution. (Stanley, supra, 54 Cal.4th at p. 739.)
In setting the $14,000 restitution amount, the trial court noted that the “Blue Book estimate is also certainly a little bit lower as to what it will actually cost.” The documentation in the Victim Impact Statement demonstrated that $10,859 was lower than the cost of similar replacement vehicles, but Cain also reasonably would incur charges in addition to the actual cost of the replacement vehicle, such as taxes and fees normally imposed on the purchase of a vehicle, and expenses incurred for transportation while seeking and obtaining a replacement vehicle. Limiting restitution to the amount of a hypothetical replacement cost does not make the victim whole. (See Stanley, supra, 54 Cal.4th at p. 738.)
The victim’s right to restitution is to be broadly construed. (People v. Moore (2009) 177 Cal.App.4th 1229, 1231.) Once a victim has made a prima facie case demonstrating an amount of loss, as Cain did here, the burden shifts to Condit to demonstrate that the loss is other than that claimed by the victim. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) Condit provided no evidence, only argument, in an attempt to refute Cain’s claim of loss.
There is a factual and rational basis for the trial court’s award of $14,000 in restitution for the damage to Cain’s car and therefore, no abuse of discretion. (Phu, supra, 179 Cal.App.4th at pp. 283-284.)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting restitution of $23,666.36 owed to the victim, Ruth Cain, and to disseminate the corrected abstract to the appropriate authorities.