Filed 1/22/20 P. v. Bird CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

LOREN JOEL BIRD,

Defendant and Appellant.

2d Crim. No. B297973

(Super. Ct. No. 1497723)

(Santa Barbara County)

Loren Joel Bird appeals an order imposing $2,875.18 in victim restitution after he was convicted of receiving stolen property and identity theft (Pen. Code, §§ 496d, subd. (a), 530.5). He contends the trial court erred when it ordered restitution in an amount greater than the value of the stolen property. We affirm.

FACTS AND PROCEDURAL HISTORY

The victim agreed to sell Bird a motorcycle for $2,000. Bird paid with a fraudulent check. The motorcycle was later recovered and returned to the victim in damaged condition.

Bird was convicted of receiving stolen property and identity theft (§§ 496d, subd. (a), 530.5). The trial court placed him on probation. The prosecution filed a claim for victim restitution, and Bird requested a restitution hearing.

The probation memorandum claimed $2,875.18 in total restitution. This amount included expenses the victim already paid, including a $125.95 parking fee, a $420 towing fee, a $12 returned check fee, and $670.73 in initial repair costs. The amount also included an estimate totaling $1,646.50 for additional repairs to restore the motorcycle “to the condition it was in before the crime.”

The trial court awarded the victim the requested amount of $2,875.18 in restitution.

DISCUSSION

Bird contends the trial court did not have a rational basis for ordering restitution for repair costs in an amount that exceeds the value of the motorcycle. We disagree.

Victims of crime are entitled to restitution for their economic losses. (Cal. Const., art. I, § 28, subd. (b); § 1202.4, subd. (a)(1).) The amount is “based on the amount of loss claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).) The amount shall be “sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to . . . [¶] [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.” (§ 1202.4, subd. (f)(3)(A).)

The standard of proof at a restitution hearing is preponderance of the evidence. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 (Gemelli).) “Once a 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.” (Id. at p. 1543.) We review the order for abuse of discretion and affirm if “there is a rational and factual basis for the amount of restitution ordered.” (Id. at p. 1542.)

The trial court rationally and factually based the restitution order on the victim’s statement of losses. Here, Bird does not contest the amount of $557.95 for parking, towing, and bank fees. He contests the $2,317.23 for repair costs ($670.73 plus $1,646.50). The victim provided evidence of payment of the initial repairs and obtained an estimate for additional repairs needed to restore the motorcycle “to the condition it was in before the crime.” The victim thus made a prima facie showing of total economic losses of $2,875.18. Bird did not provide evidence to disprove this amount. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)

Bird argues that awarding repair costs in an amount greater than the value of the motorcycle resulted in a “windfall” for the victim. But restitution may be based on the cost to repair damaged property, even if it exceeds the value of the property. (See People v. Stanley (2012) 54 Cal.4th 734, 738-739 [trial court had discretion to award repair costs for the vandalized truck, even though the repair costs were three times what the victim had paid for the truck].) The victim is entitled to recover the “value of stolen or damaged property . . . or the actual cost of repairing the property.” (§ 1202.4, subd. (f)(3)(A), italics added.) There was no abuse of discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

James F. Iwasko, Judge

Superior Court County of Santa Barbara

______________________________

Tracy Macuga, Public Defender, Mark Saatijian, Deputy Public Defender, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Idan Ivri, William H. Shin and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.