Filed 7/18/17 P. v. Ibarra 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

SANTIAGO IBARRA,

Defendant and Appellant.

F072788

(Super. Ct. No. CRM030279)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.
Siri Shetty, 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, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



A jury convicted appellant Santiago Ibarra of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)). The jury also found true a great bodily injury enhancement (§ 12022.7, subd. (a)) and a personal use of a firearm enhancement (§ 12022.5, subd. (a)) with respect to each offense.
On November 20, 2015, the court sentenced Ibarra to an aggregate prison term of 20 years two months; a term of five years six months on his attempted voluntary manslaughter conviction, a 10-year arming enhancement in that count, a three-year bodily injury enhancement, a stayed term on his assault conviction, and an aggregate, consecutive term of one year eight months on an unrelated case from Riverside County. The court also ordered Ibarra to pay $21,840 in victim restitution.
On appeal, Ibarra challenges the court’s award of victim restitution. We affirm.
FACTS
On February 24, 2013, Ibarra lived in an apartment that Severiano Virrueta rented. At approximately 4:00 p.m. on that date, Ibarra entered a bedroom and shot Virrueta several times, striking him in the abdomen, on his right hand, and on his left leg.
Ibarra’s probation report indicated that during a conversation with the probation officer, Virrueta stated that as a result of the shooting he lost mobility to his right arm, had been unable to work, and that he lost his fulltime employment at Castle Gardens where he earned a gross income of $420 per week. Based on Virrueta’s weekly income, the report calculated that Virrueta suffered a loss of $60,060 in lost wages for the 143 weeks from February 24, 2013, the date of the shooting, through November 20, 2015, the date Ibarra was scheduled to be sentenced.
On November 20, 2015, at the beginning of Ibarra’s sentencing hearing, defense counsel complained that there was no documentation to substantiate a claim for approximately $60,000 in lost wages or any information on whether Virrueta had received any other income in the meantime or whether he had sought other employment. The court responded that it was going to award him some lost wages, but not the $60,000 amount because the court felt that amount was excessive. Later during the hearing, defense counsel objected to the amount of $60,060 as victim restitution because there was no documentation showing what Virrueta earned, how long he had been earning that amount, or the duration of his job.
After imposing sentence on Ibarra’s convictions, the court again addressed the issue of victim restitution stating:
“With respect to … restitution, the Court’s going to award $684.96 in medical expenses, and I’m going to award him one year’s wages, $21,860 in lost wages, for a total restitution amount of $22,524.96. [The court is] basing this on the extent of the disability that the Court observed in Mr. Virrueta and with full knowledge that the burden actually shift[ed] to the defense. But I still have to be convinced on a reasonable amount of restitution. And that’s what the Court finds.”
After the prosecutor advised the court that the $684.96 was due to the Victim Compensation Board, the court reduced the victim restitution to $21,840. Defense counsel did not present any evidence to challenge this amount.
DISCUSSION
Ibarra contends Virrueta failed to make a prima facie showing of his losses because he did not testify to the amount of his lost wages or present any documentation to support his claimed loss. We disagree.
“ ‘[T]he trial court is entitled to consider the probation report when determining the amount of restitution.’ [Citation.] For example, statements by the victims of the crimes about the value of the property stolen constitute ‘prima facie evidence of value for purposes of restitution.’ [Citations.] ‘This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.’ [Citation.] Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion.” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048, italics added.)
Here, Virrueta, the victim of Ibarra’s offenses, told the probation officer that the injury to his hand caused him to lose his job where he earned $420 per week and that he had been unable to obtain work elsewhere. Thus, his statements established a prima facie case that he lost approximately $60,060 during the approximate three years he was unemployed from the time Ibarra shot him to the date of his sentencing hearing. The court reduced this amount to $21,840 in order to compensate the victim for only one year of lost wages. Ibarra did not present any evidence to rebut the victim’s prima facie showing that he was entitled to restitution of at least this amount.
Ibarra misplaces his reliance on People v. Harvest (2000) 84 Cal.App.4th 641, 653 (Harvest) to contend the information in the probation report was insufficient to establish a prima facie showing of the victim’s losses. The defendant in Harvest was convicted of first degree murder of one victim (Vigil) and voluntary manslaughter of another (Gialouris). (Harvest, supra, 84 Cal.App.4th at p. 645.) The trial court’s restitution order included funeral and burial expenses for both families. On appeal, the defendant challenged the $5,500 awarded to Gialouris’s mother, arguing that the restitution order lacked “ ‘an adequate factual basis.’ ” (Id. at p. 652.) The appellate court agreed and reversed that portion of the order, stating: “The Vigil family could support their claim with documentation and stood ready to testify, but the Gialouris claim had neither of these supports. There was mention of the Gialouris claim in the probation officer’s report, which may satisfy notice requirements for due process (e.g., [citation]), but it cannot take the place of evidence.” (Id. at p. 653, citing People v. Thygesen (1999) 69 Cal.App.4th 988, 995-996 (Thygesen).) This was the full extent of the court’s analysis in Harvest. Harvest is inapposite because, in addition to its cursory analysis, the Harvest court did not consider whether the prosecution had met its burden of establishing a prima facie case or whether the burden of proof had shifted to the defendant. Thygesen, on which Harvest relied, considered the sufficiency of the evidence to support the trial court’s ruling following a contested evidentiary hearing on victim restitution in which the evidence presented at the hearing was different from the estimates contained in the probation report. (Thygesen, at pp. 991, 994-996.) Thygesen is also inapposite because, like Harvest, the Thygesen court did not consider whether the prosecution had met its burden of establishing a prima facie case, or whether the burden of proof had shifted to the defendant.
Ibarra also cites In re Travis J. (2013) 222 Cal.App.4th 187 (Travis J.), apparently as additional support for his contention that the victim’s statements in the probation report were insufficient to establish a prima facie case of loss. In finding the evidence insufficient to support the court’s award of victim restitution, the Travis J. court found the restitution order was based on “nothing more than speculation” because the juvenile court found the victim’s statements to the probation officer were not credible. (Id. at p. 204.) Travis J. is inapposite because nothing in the record here indicates that the trial court did not believe the victim’s statements to the probation officer. Thus, we conclude that the court did not abuse its discretion when it ordered Ibarra to pay restitution of $21,840 to Virrueta.
DISPOSITION
The judgment is affirmed.