Filed 7/17/17 P. v. Newman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JAMES ANDREW NEWMAN,

Defendant and Appellant.

F074115

(Super. Ct. No. CRM007954A)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Merced County. Ronald W. Hansen, Judge.
Stephen M. Hinkle, 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, Kathleen A. McKenna and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant James Andrew Newman was convicted by jury of four counts of first degree robbery (Pen. Code, § 211; counts 1-4), false imprisonment (§ 236; count 5), and receiving stolen property (§ 496, subd. (a); count 6). As to the robbery counts, the jury found true an enhancement alleging defendant personally used a firearm in the commission of the offenses (§ 12022.53, subd. (b)). In addition, the court found defendant had suffered eight prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prison priors (§ 667.5, subd. (b)).
Defendant was sentenced to an indeterminate term of 25 years to life on count 1, plus an additional determinate sentence of 10 years for the gun enhancement and two years for the prison priors. Sentences on all other counts were stayed pursuant to section 654, and count 6 was reversed by the court.
On appeal, defendant challenges the trial court’s victim restitution award of $8,504. He specifically contends certain items taken during the robbery, including a plasma television, two PlayStation Portable (PSP) handheld gaming devices, and $1,300 in cash, were returned to the victims. As a result, he asserts the trial court abused its discretion in ordering defendant to pay restitution for those items. We affirm.
FACTUAL HISTORY
In February 2010, defendant, Gil Reyes Lopez, and Gordon Rafferty perpetrated a home invasion and robbery. Luis Gerardo Avila, his father Gerardo Avila Ramirez, his mother Rosa Avila, his brother Jose Avila, and two other individuals in the household were bound, gagged, and robbed. Among other items, Ramirez’s flat screen television, jewelry, money, and pickup truck were taken. The sheriff’s department recovered and returned most of the stolen property.
On January 7, 2013, following the close of Lopez and Rafferty’s trial, the trial court conducted a restitution hearing. At the hearing, Ramirez testified some of the property taken during the robbery had been returned, but “the majority [of the property] was [still] missing.” He recalled a television, stereo, car stereo, silver coins, gold rings, two PlayStation Portable gaming devices, and $1,300 in cash had not been returned. Ramirez estimated the damage to his pickup truck was $3,500. At the conclusion of the hearing, the trial court made the following findings:
“Court finds by a preponderance of the evidence that the following items or damages were sustained in the home invasion, which is the subject matter of these cases: The 42-inch Plasma TV, $1,200. The two PlayStation players, $120. Cash, $1,300. Collectible coins and silver, $2,500. One man’s watch, $200. Three gold rings, $200. Cost to repair the bedroom door, $100. The DVD player for the motor vehicle or car stereo, $300. Damages to the Ram truck, I’m mainly relying on the son’s testimony and Rumin [Auto Body]’s estimate as to what he says was related to this event, and I come up with a total of $2,584 on that. Total restitution is $8,504.”
On June 2, 2016, the trial court conducted a restitution hearing following defendant’s conviction in the instant case. The parties stipulated to admit evidence of the 2013 restitution hearing. Defense counsel requested the court consider Luis’s “Property Release Request” dated March 16, 2010, a 51-page report by the Merced County Sheriff’s Department related to the investigation of the home invasion, and inventory returns for the search of defendant’s residence and the residence of a codefendant. Defendant requested a continuance so he could present an additional document that was in his daughter’s possession. The court granted his request.
On June 9, 2016, the trial court made the following findings at defendant’s restitution hearing:
“The property receipt return showed many of the items were returned. One of the items returned was a 32-inch Vizio plasma TV. However, there’s no mention of a 42-inch plasma TV. And Mr. Ramirez testified that the TV that was missing was a 47-inch to a 60-inch ….
“Now, the victim’s testimony is sufficient to support the missing items. The victim’s testimony is also sufficient to support the value, not only as to the missing items, but also to damage sustained.”
The court concluded the victims’ testimony was sufficient to show certain items were taken and not returned. As a result, the burden shifted to defendant to prove the items were not missing, or that the value of the items the victims testified to was not correct. At the conclusion of the hearing, the court ordered defendant to pay restitution in the sum of $8,504 and held Lopez and Rafferty jointly and severally liable for payment of the award.
ANALYSIS
Defendant challenges the trial court’s restitution award. He contends the award was erroneous because the record shows there was only one television taken, which the victim got back. He further contends the property release request demonstrates the victims received $900 in cash of the $1,300 taken, and the victims received both PSP gaming devices taken during the robbery. We conclude substantial evidence supports the trial court’s restitution award.
A. Standard of Review
“Generally speaking, restitution awards are vested in the trial court’s discretion and will be disturbed on appeal only where an abuse of discretion appears. [Citation.] Like most generalizations, however, this one can lead to errors if not applied with circumspection. No court has discretion to make an order not authorized by law, or to find facts for which there is not substantial evidence. A reviewing court will generally examine an issue of law independently of a lower tribunal’s ruling. [Citation.] Its determination on an issue of fact is reviewed under the substantial evidence standard. [Citation.] The standard of review therefore depends on the nature of the question presented.” (In re K.F. (2009) 173 Cal.App.4th 655, 661, fn. omitted.)
“‘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.” (People v. Baker (2005) 126 Cal.App.4th 463, 469.)
B. Legal Principles
The California Constitution gives crime victims a right to restitution and, consequently, requires a trial court to order a convicted wrongdoer to pay restitution in every case in which a crime victim suffers a loss. (Cal. Const., art. I, § 28, subd. (b)(13)(B).) Pursuant to section 1202.4, subdivision (f)(3)(A), the restitution award “shall be of a dollar amount that is sufficient to fully reimburse the victim … for every determined economic loss incurred as the result of the defendant’s criminal conduct, including … [¶] … [¶] [f]ull 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.” “Once the victim has made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.” (People v. Prosser (2007) 157 Cal.App.4th 682, 691.)
C. Legal Analysis
We begin our analysis with the televisions. At the restitution hearing, the trial court agreed with defendant’s claim that the victims “got a 32-inch TV back” following the robbery. However, the court noted, “there’s no mention of a 42-inch plasma TV [being returned]. And Mr. Ramirez testified that the TV that was missing was a 47-inch to a 60-inch [TV].” Thus, the trial court made an implied finding that two televisions were stolen: a 32-inch television and a 42-inch television.
Our independent review of the record discloses insufficient evidence to support the trial court’s finding. In their testimony at defendant’s trial, three of the victims of the home invasion referred to the theft of only one plasma television. Further, the police report documenting the robbery indicates only one television had been reported stolen, a “37 inch LCD HD TV.”
It appears the confusion about the size and number of flat screen televisions stolen stemmed from Ramirez’s testimony at the January 7, 2013, restitution hearing.
“[PROSECUTOR:] Did you have a television stolen from your living room?
“[RAMIREZ:] Yes.
“[PROSECUTOR:] And how big was that one?
“[RAMIREZ:] Perhaps kind of like this, a little bit more.
“[PROSECUTOR:] … Could you estimate in inches?
“[RAMIREZ:] (Indicating.) More or less like this. [¶] … [¶]
“THE COURT: 48 inch screen.
“[PROSECUTOR:] And how much did you pay for that? [¶] … [¶]
“[RAMIREZ:] That was one like 47-something inches or more.
“[PROSECUTOR:] How much did you pay for that?
“[RAMIREZ:] … It was around $1200 plus 350.”
While Ramirez testified the television stolen was “47-something inches or more,” police reports showed the only flat screen television stolen was a 37-inch LCD HD television. Absent additional evidence that a 42-, 47-, or 60-inch plasma television was stolen and not returned, there is insufficient evidence to support the trial court’s conclusion that a second flat screen television was stolen.
Because the evidence shows only one flat screen television was stolen, we turn to the issue of whether there is evidence showing the television, $900 in cash, and two PlayStation Portable gaming devices were returned to the victims. Defendant directs us to the property release request executed by Luis on March 16, 2010. Luis’s three-page request sought the return of a “37 inch Vizio plasma TV,” “3 PSP[s] color black,” and “$900 in cash,” among a myriad of other items.
Defendant appears to argue Luis’s request is sufficient to show the victims received the plasma screen television, cash, and PlayStation Portables back. We have no way of knowing whether these items were in the possession of the sheriff’s department and were subsequently returned to Luis pursuant to his request, or whether Luis’s request was merely a comprehensive list of all of the items stolen. Notably, the 7-inch DVD player reported stolen by the victims appears on the property release request, but there is no evidence it had been recovered by police. Luis’s request also seeks the return of “3 PSP[s],” however, the evidence adduced at the restitution hearing showed only two PSP’s were stolen. This casts doubt on defendant’s assertion that the property release requests show the victims received this property back.
Moreover, Ramirez and Luis both testified at the January 7, 2013, restitution hearing that the plasma screen television was never returned. This hearing occurred three years after Luis’s March 16, 2010, property return request had been filed. Luis’s and Ramirez’s testimony supports the conclusion the property release request does not represent a list of items actually returned to the victims, but was likely a comprehensive list of the items stolen from them.
Absent evidence showing the victims actually received a large plasma screen television, $900 in cash, and two PlayStation Portables back, we must deny defendant’s request to reduce the restitution award. The property release request alone is insufficient to support the conclusion the victims received this property back.
DISPOSITION
The order is affirmed.