Filed 12/16/19 P. v. Ross CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO DWAYNE ROSS,

Defendant and Appellant.

H045743

(Santa Clara County

Super. Ct. No. C1774569)
Defendant Ricardo Dwayne Ross pleaded no contest to felony assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A)). Ross was sentenced to 10 months in county jail, with 10 months credit for time served, and placed on three years’ formal probation. The two offenses involved separate victims. The court ordered restitution of $400 to the victim of the misdemeanor vandalism and, following a contested hearing, $1,000 to the victim of the felony assault.

On appeal, Ross challenges the $1,000 restitution order to the second victim, arguing that there was insufficient evidence presented to demonstrate that the damage was caused by his assault.

We disagree and will affirm the order of restitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 4, 2017, the district attorney charged Ross with felony assault with a deadly weapon (§ 245, subd. (a)(1); count 1) and misdemeanor vandalism (§ 594, subds. (a), (b)(2)(A); count 2). The complaint further alleged a prison prior sentence enhancement (§ 667.5, subd. (b)). In a negotiated disposition, the district attorney dismissed the prison prior allegation and added a third count, assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3). Ross pleaded no contest to counts 2 and 3 in exchange for an indicated sentence of 10 months in county jail and three years formal probation. Counsel stipulated to a factual basis for the plea, and the court ordered the preparation of a waived referral memorandum by the probation department.

In the waived referral memorandum, the victim in count 3 informed the probation officer that “he sustained a small cut to his right wrist, but believes he may have injured himself while wrestling with” Ross. The victim did not seek medical treatment for his injury. With respect to restitution, the victim “advised his Samsung Galaxy S8+ was completely shattered during the incident. He purchased the mobile telephone for $1,000.00, and recently paid $1,000.00 to replace it.” The victim believes he is still on good terms with Ross, with whom he was drinking on the night of the assault.

At the February 21, 2018 sentencing hearing, the trial court suspended imposition of sentence, placed Ross on three years formal probation and ordered him to complete a 10 month term in county jail with 292 days of credits (146 custody credits plus 146 days of conduct credits (§ 4019)). The trial court ordered Ross to pay $400 to the victim in count 2 and $1,000 to the victim in count 3. Ross objected to the $1,000 restitution order and requested a contested hearing.

At the restitution hearing, the district attorney advised the trial court that he had telephoned the victim and invited him to either attend in person or send an e mail “relating information he wanted to provide.” The victim was not present at the hearing, and the district attorney stated that he did not receive any e mails from the victim. Regardless, the district attorney asked that the court order Ross to pay $1,000 in restitution to the victim as it “sound[s] like a reasonable amount based on charges[,] [although] admittedly, the police report was silent about this cellphone.” The trial court inquired if “[i]t being absent from the police report, does it still make sense . . . that that loss occurred?” The district attorney responded that he did not have “reason to doubt the victim” because “[t]here was an altercation and a [§] 245 [i.e., assault with force likely to produce great bodily injury].” Defense counsel responded that, although Ross admitted “there was an altercation, . . . [he] never saw a cellphone. There is no indication when the police interviewed any witness there was anything damaged regarding the cellphone.”

The trial court noted that the victim “received an injury, a small injury, in this case” but did not seek medical treatment or any reimbursement for his physical injury. The victim also “[d]escribes himself as being a friend with Mr. Ross and pretty much minimized what happened . . . saying that they were both drinking that night.” The trial court concluded that it found the victim’s request to be credible and ordered that Ross pay $1,000 in restitution.

Ross timely appealed.

II. DISCUSSION

A. Victim restitution and standard of review

Persons who suffer losses as a result of a defendant’s criminal activity have a constitutional right to be made whole for their loss. (Cal. Const., art. I, § 28.) “[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.” (§ 1202.4, subd. (f).) “To the extent possible, the restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.” (§ 1202.4, subd. (f)(3).)

While restitution orders must be supported by substantial evidence, there is no requirement that the evidence provided be from a particular source. “Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property.” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 1543 (Gemelli), citing People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster), superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238 245.) The trial court applies a standard of proof of preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045 (Keichler).)

The victim must make a prima facie showing of the loss, which the defendant is entitled to rebut. “Once the 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. [Citation.] The defendant has the burden of rebutting the victim’s statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property.” (Gemelli, supra, 161 Cal.App.4th at p. 1543; see also Foster, supra, 14 Cal.App.4th at p. 947.)

Restitution awards are vested in the trial court’s discretion and will be disturbed on appeal only when the defendant has shown an abuse of discretion, demonstrating that the court’s order was arbitrary and capricious. (People v. Fortune (2005) 129 Cal.App.4th 790, 794; Keichler, supra, 129 Cal.App.4th at p. 1045.) The abuse of discretion standard “ ‘asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts.’ ” (People v. Giordano (2007) 42 Cal.4th 644, 663.)

B. Analysis

In this case, the only evidence before the trial court was the waived referral report, in which the victim told the probation officer that his cellphone “was completely shattered during the incident,” and it cost him $1,000 to replace it.

The weight of authority holds that a trial court may order restitution based on a probation officer’s report and a victim’s statement alone. (Foster, supra, 14 Cal.App.4th at p. 946; Keichler, supra, 129 Cal.App.4th at p. 1048; Gemelli, supra, 161 Cal.App.4th at p. 1543; People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320 (Holmberg).) “ ‘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.” (Keichler, supra, at p. 1048.) Here, Ross did not present any evidence to disprove the amount of loss claimed by the victim and does not challenge the specific amount awarded by the court. Instead, Ross argues that the evidence presented was insufficient to show the victim sustained any loss.

Citing People v. Harvest (2000) 84 Cal.App.4th 641, Ross asserts that a victim’s statement of losses in a probation report is not sufficient by itself to support a restitution order. In Harvest, the defendant was convicted of one count of first degree murder and one count of voluntary manslaughter. (Id. at p. 645.) The trial court ordered that the defendant pay restitution to each of the victims’ families for their funeral expenses. (Id. at p. 652.) The Court of Appeal reversed one of the two restitution orders, noting that the first victim’s family “could support their claim with documentation and stood ready to testify, but the [other] claim had neither of these supports.” (Id. at p. 653.) Rather “[t]here was [just] mention of the . . . claim in the probation officer’s report.” (Ibid.) The court noted that information in the probation report “may satisfy notice requirements for due process [citation], but it cannot take the place of evidence.” (Ibid.)

We find Harvest unpersuasive insofar as it concludes that a victim’s statement of loss without further documentation is insufficient to establish a prima facie case of what restitution is due to the victim of a crime. The weight of authority supports the conclusion that the trial court may appropriately rely on such statements.

In Foster, the Court of Appeal upheld a restitution order to replace the value of items taken in the burglary of a cabin. (Foster, supra, 14 Cal.App.4th at p. 943.) The restitution amount was based on the recommendation of the probation officer which incorporated the victim’s statement of loss and law enforcement’s discussions with the victim. The court in Foster disapproved of requiring a victim to provide more than a statement of losses to establish replacement cost, as such a requirement “imposes an unwarranted burden on the trial court, the prosecutor, and the victim” in the context of a sentencing hearing. (Id. at p. 946.) Similarly, in Gemelli the court affirmed a restitution order based on the probation officer’s report with an attached handwritten statement from the victim of the burglary of a restaurant regarding sustained losses. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)

We agree that requiring the victim of a crime to provide more than a statement of loss for purposes of establishing a prima facie case of loss is inconsistent with the public policy and the constitutional requirement that victims of crime be made whole (Cal. Const., art. I, § 28, subd. (b)).

Ross also cites Holmberg, supra, 195 Cal.App.4th 1310, in support of his position. In Holmberg, the defendant pleaded no contest to concealing stolen property after he received items that had been taken in several burglaries, including computers, computer hard drives, and other related equipment. (Id. at pp. 1313 1315.) The trial court ordered the defendant to pay more than $18,182 in victim restitution. (Id. at p. 1313.) On appeal, the defendant argued there was insufficient evidence to support $367 of the restitution award, including $20 for Ethernet cables. (Id. at p. 1324.) At the restitution hearing, the prosecutor admitted that the Ethernet cables had not been recovered by police at the defendant’s home, unlike the other stolen items, but argued that “ ‘it is reasonable to believe that the person who stole the other equipment and brought it to defendant’s home also brought’ ” the cables. (Id. at p. 1325.) This court disagreed and found that, in order to justify the restitution order, there had to be actual evidence demonstrating that the defendants possessed the cables. (Ibid.) Accordingly, this court modified the judgment to strike the $20 awarded to one of the victims for the Ethernet cables. (Ibid.)

We find Holmberg is distinguishable as well because there is no dispute in this case that Ross was directly responsible for any losses or injuries suffered by the victim as a consequence of his assault. In Holmberg, the defendant was charged with concealing stolen property, not with the burglaries themselves. Accordingly, he was ordered to pay restitution only for the stolen items either found in his possession or otherwise shown to have been in his possession following the burglaries. As there was no evidence presented, either in the probation report or by any other witnesses, to show that the defendant ever had the victim’s Ethernet cables, it was improper to require him to compensate the victim for their loss.

At the restitution hearing, Ross was aware that the victim was claiming $1,000 in restitution for the destruction of a cellphone, and the victim’s statement to the probation officer was sufficient to shift the burden to Ross to prove that the claim was unfounded. Although Ross’s counsel told the court that Ross “never saw a cellphone,” the unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) We similarly disregard the statements made by counsel in Ross’s opening brief on appeal in which he suggests that “it is equally plausible that [the victim] fell and damaged his cellphone before or after the altercation due to his own intoxication.”

We conclude that, absent contrary evidence from Ross, the victim’s statement that his cellphone was “completely shattered during the incident” was sufficient to support the restitution order. (See, e.g., Keichler, supra, 129 Cal.App.4th at p. 1048.) The trial court did not abuse its discretion in ordering Ross to pay $1,000 to the victim.

III. DISPOSITION

The order of restitution is affirmed.

Premo, J.

WE CONCUR:

Greenwood, P.J.

Elia, J.

People v. Ross

H045743