In re O.H. CA4/2 ( 2015 )

Filed 10/30/15 In re O.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re O.H., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E063099
Plaintiff and Respondent,
(Super.Ct.No. J254688)
v.
OPINION
O.H.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Barbara A.
Buchholz, Judge. Affirmed.
Wayne C.Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
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An amended Welfare and Institutions Code section 602 petition alleged that
defendant and appellant O.H. (minor) committed two separate offenses of first degree
residential burglary. (Pen. Code, § 459, counts 1 & 2.)1 Minor admitted as true the
allegation in count 1. On motion of the district attorney, the court dismissed the
allegation in count 2. However, the parties agreed that the probation department could
consider the allegation in count 2 for the purposes of sentencing and restitution. On July
21, 2014, the court declared minor a ward of the court and placed him on probation in the
custody of his mother, under certain terms and conditions.
The court held a contested restitution hearing on February 26, 2015. After
reviewing the itemized lists of stolen items and hearing testimony from the victims, the
court ordered minor to pay $14,600 in victim restitution.
On appeal, minor contends that a certain portion of the restitution award should be
set aside. He claims there was insufficient evidence that the loss, in the amount of
$1,950, resulted from the burglary. We affirm.
FACTUAL BACKGROUND2
First Incident
On March 30, 2014, a residence was ransacked and numerous items were taken.
The police apprehended minor, who told the police that he was walking down the street
with a friend, when he met a second friend. The second friend offered minor and his
1 All further statutory references will be to the Penal Code, unless otherwise
indicated.
2 This factual background is taken from the probation report.
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friend money to help steal items from the residence. The police recovered from minor
several of the items that were taken.
Second Incident
On June 30, 2014, S.O. returned home and discovered that his house had been
broken into and ransacked. During a police investigation, minor’s fingerprints were
found inside the home. An officer went to minor’s house to speak to him, and minor
denied any involvement in the burglary. However, after being transported to the police
station, minor admitted that he joined three other males in breaking into the house.
ANALYSIS
The Court’s Victim Restitution Order Was Proper
Minor argues that the court abused its discretion in ordering him to pay the portion
of the victim restitution order that included $1,950 for items that the victim in count 2
discovered were missing from her home long after the commission of the burglary. We
find no abuse of discretion.
A. Relevant Background
S.O. and his wife, L.S., were present at minor’s dispositional hearing on July 21,
2015. L.S. made a written statement of the items taken from their home during the
burglary. She submitted the list to the court, and it was read in court. The items listed
included pieces of jewelry and two electronic items. The items were valued at $12,850.
On September 10, 2014, L.S. submitted a second list of items that came up
missing after she submitted the first list. The second list consisted of three more pieces
of jewelry, valued at $1,950.
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The court held a restitution hearing on February 26, 2015. L.S. testified at the
hearing that there was a burglary at her house and that she gave the police a list of
missing items two days after the burglary occurred. That list included numerous pieces
of jewelry and two electronic items. She then confirmed that she sent a list of additional
missing items to the probation department in September 2014. When asked why she did
not give that list to probation earlier, she stated that when the burglary occurred, she was
not in the right state of mind. She explained that she could not remember what she had at
her house, what she had left at her parents’ place, and what was left at her husband’s
parents’ place. L.S. said that when she finally found the time and the courage to actually
look through everything, she discovered that the additional items were missing.
After the court heard closing arguments from counsel, it stated that it had reviewed
the lists of missing items, listened to testimony, and assessed the witness’s credibility and
demeanor. The court noted that L.S. testified “rather specifically, about jewelry items,”
and that it believed her testimony. The court stated that it was satisfied with the
testimony that the victim provided, regarding the identification of the items and their
value. The court reduced the value of the two electronic items and then ordered minor to
pay a total of $14,600 in restitution.
B. Relevant Law
Section 1202.4, subdivision (f), provides that “in 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
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order, based on the amount of loss claimed by the victim or victims or any other showing
to the court.”
“The standard of review of a restitution order is abuse of discretion. ‘A victim’s
restitution right is to be broadly and liberally construed.’ [Citation.] ‘“When there is a
factual and rational basis for the amount of restitution ordered by the trial court, no abuse
of discretion will be found by the reviewing court.”’” (In re Johnny M. (2002) 100
Cal. App. 4th 1128, 1132 (Johnny M.).) “In reviewing the sufficiency of the evidence, the
‘“power of the appellate court begins and ends with a determination as to whether there is
any substantial evidence, contradicted or uncontradicted,” to support the trial court’s
findings.’ [Citation.] Further, the standard of proof at a restitution hearing is by a
preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] ‘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, 468-469 (Baker).) “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.”
(People v. Gemelli (2008) 161 Cal. App. 4th 1539, 1543 (Gemelli).)
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C. The Court Did Not Abuse its Discretion in Awarding Restitution for the Items
on the Second List
Minor argues that the missing items on the second list that L.S. provided on
September 10, 2014 (the second list) should not have been included in the victim
restitution order because there was no substantial evidence that those items were taken
during the burglary. He contends that there was “a substantial passage of time” between
the offense and the time L.S. discovered those items missing. He also asserts that there
was no evidence concerning where L.S. kept those items, and, “[if] she was disorganized
. . . there was ample time for these items to have been lost or misplaced.” He further
claims that there could have been other reasons why those items went missing, e.g., a
family member could have pawned them or mistakenly thrown them out.
Here, there was a rational and factual basis for the juvenile court’s restitution
award, including the $1,950 for the items on the second list. (See Johnny M., supra, 100
Cal.App.4th at p. 1132.) The evidence showed that almost all of the items were stolen
from L.S.’s jewelry box, and minor’s fingerprints were discovered on her jewelry box.
Moreover, all of the items on the second list were pieces of jewelry. L.S. explained that
she did not claim the missing items on the second list until later because she was not in
the right state of mind right after the burglary occurred. She could not remember what
she had at her house, and what she had left at her parents’ and in-laws’ homes. Then,
when she took the time to look through everything, she discovered the additional items
missing. The court found L.S.’s testimony to be credible and was satisfied with it, noting
that the testimony was very specific. We do not reweigh or reinterpret the evidence.
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(Baker, supra, 126 Cal.App.4th at p. 469.) Ultimately, L.S. made a prima facie showing
of economic losses incurred as a result of minor’s conduct, and minor failed to disprove
the amount of losses claimed. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)
As to minor’s characterization that there was “a substantial passage of time”
between the burglary and when L.S. claimed the additional items, we note that it was
only approximately two months. The burglary occurred on June 30, 2014, and L.S.
submitted the second list on September 10, 2014. We further note that minor’s claims
regarding how those pieces of jewelry could have gone missing are pure speculation.
We conclude that there was sufficient evidence to support the court’s findings.
(Baker, supra, 126 Cal.App.4th at p. 469.) The court did not abuse its discretion when it
included $1,950 for the items on the second list as part of the victim restitution order.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
KING
J.
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