People v. Munns CA2/4

Filed 10/21/21 P. v. Munns CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B308969
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA482599
v.
MATTHEW MUNNS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura F. Priver, Judge. Affirmed.
Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Matthew Munns pled no contest
to assault. (Pen. Code1, § 245, subd. (a)(4).) The trial court
sentenced him to probation for three years and ordered him to
pay the victim $1,390 in restitution. On appeal, Munns contends
only that the trial court erroneously determined the amount of
the restitution award. We hold the trial court acted within its
discretion in determining the restitution award. Accordingly, we
affirm.
BACKGROUND
The Los Angeles County District Attorney filed an
information charging Munns with battery with serious bodily
injury and assault by means of force likely to produce great
bodily injury. (§§ 243(d), 245(a)(4.) Pursuant to a plea agreement,
Munns pled no contest to assault. (§ 245(a)(4).) The trial court
imposed a suspended sentence and placed Munns on probation
for three years.
At the subsequent restitution hearing, the victim testified
that Munns punched him and stole his cell phone. The parties
stipulated the victim incurred $740 in medical costs as a result of
the assault. The victim testified he went to T-Mobile to find the
cost of a replacement cell phone. Because they no longer carried
the same phone, the employees instructed the victim to look for a
replacement on eBay. The victim testified eBay was the only
place he could find a comparable phone and testified the cost was
$650. Munns’ attorney cross-examined the victim, but her only
questions related to whether the phone was an S or SE model. On
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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redirect examination, the victim clarified the replacement phone
had 32 gigabytes of memory while his original phone had 64 gigs
of memory.
After the victim left the stand, the trial court asked the
parties if they wanted to be heard. Both parties declined. Munns’
attorney called no other witnesses, nor did she present any other
evidence. The trial court subsequently issued its ruling and
ordered Munns to pay $1,390 to the victim in restitution ($740 for
medical expenses, plus $650 for the value of the phone). Munns’
attorney made no objection to the trial court’s finding.
Munns timely appealed.
DISCUSSION
Munns contends the trial court erred because it failed to
award the actual cost of a “like” replacement for the stolen cell
phone. Consequently, Munns contends the “unlike” replacement
phone cost is an “unnecessary high price” and causes “unfair
compensation” to the victim. Munns further claims the victim
made “no good faith effort” to find a comparable phone. In sum,
Munns argues the trial court abused its discretion because,
considering all of the circumstances, its determination of the
value of the phone was arbitrary, capricious, or exceeded the
bounds of all reason.
The Attorney General argues Munns’ claim lacks merit
because there was a factual and rational basis for the trial court’s
finding that the replacement cost of the stolen phone was $650.
We agree with the Attorney General.
“There is ‘a broad constitutional mandate of California
Constitution, article I, section 28, subdivision (b), that restitution
must be imposed “in every case . . . in which a crime victim
suffers a loss . . . .”’ [Citation.]” (People v. Kelly (2020) 59
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Cal.App.5th 1172, 1178.) Section 1202.4, subdivision (a)(1)
provides: “It is the intent of the Legislature that a victim of crime
who incurs an economic loss as a result of the commission of a
crime shall receive restitution directly from any defendant
convicted of that crime.” “A victim’s restitution right is to be
broadly and liberally construed. [Citations.]” (People v. Mearns
(2002) 97 Cal.App.4th 493, 500-501.)
Section 1202.4, subdivision (f) provides: “[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 . . . in an amount established by
court order, based on the amount of loss claimed by the victim . . .
or any other showing to the court. . . . The court shall order full
restitution.” Section 1202.4, subdivision (f)(3) states restitution
“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.” (§ 1202.4, subd. (f)(3)(A).)
“The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution.”
(§ 1202.4, subd. (f)(1).) “Restitution hearings are intended to be
informal.” (People v. Weatherton (2015) 238 Cal.App.4th 676,
684.) “The standard of proof at a restitution hearing is
preponderance of the evidence[.]” (People v. Trout-Lacy (2019) 43
Cal.App.5th 369, 373.) “Courts have broad discretion in fixing the
amount of restitution, and they may use any rational method,
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provided it is reasonably calculated to make the victim whole.
[Citation.]” (People v. Hurtado (2019) 35 Cal.App.5th 871, 878.)
At the restitution hearing, the burden is on the prosecution
to make a prima facie showing of the victim’s economic loss.
(People v. Millard (2009) 175 Cal.App.4th 7, 26.) “Section 1202.4
does not by its terms require any particular type of proof.” (People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.) “[I]t is well
settled that ‘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.]’ [Citations.]”
(People v. Prosser (2007) 157 Cal.App.4th 682, 690-691.) Once the
victim makes “‘a prima facie showing of his . . . loss, the burden
shifts to the defendant to demonstrate that the amount of the loss
is other than that claimed by the victim. [Citations.]’ [Citation.]”
(People v. Millard, supra, 175 Cal.App.4th at p. 26.)
“On appeal, we review the trial court’s order for abuse of
discretion. [Citation.] No abuse of discretion occurs if the
restitution order is supported by a rational and factual basis.
[Citation.] We reverse only if the trial court’s order is arbitrary or
capricious. [Citation.]” (People v. Aguilar (2016) 4 Cal.App.5th
857, 862.) “‘“On appeal, we presume that a judgment or order of
the trial court is correct, ‘“[a]ll intendments and presumptions
are indulged to support it on matters as to which the record is
silent, and error must be affirmatively shown.”’”[Citation.]’
[Citation.]” (People v. Hurtado, supra, 35 Cal.App.5th at p. 878.)
Munns argues the trial court erred by failing to question
the victim about his representation of the cost of the phone. As
discussed above, however, “at the restitution hearing, it is the
defendant’s burden to prove ‘that the amount claimed is
excessive.’ [Citation.]” (People v. Kelly, supra, 59 Cal.App.5th at
5
p. 1185.) Here, Munns presented no evidence to show the cost of
the phone was “too high” as he now claims on appeal. In fact,
Munns offered no evidence about the cost of the replacement
phone. “Given defendant’s failure to offer any evidence to
challenge [ ] the amount[ ] presented, the trial court did not
abuse its discretion in awarding” the amount it did. (People v.
Keichler (2005) 129 Cal.App.4th 1039, 1048.)
Munns further claims the victim failed to provide
documents or evidence to support the replacement cost of the
phone. As noted above, however, section 1202.4 authorizes the
trial court to rely on “the amount of loss claimed by the victim[.]”
(§ 1202.4, subd. (f).) Here the victim testified to the replacement
cost based on an eBay search. When Munns’ attorney cross-
examined the victim, she asked only about the phone’s model
number. In fact, Munns offered no evidence about the
replacement cost of the stolen phone. “[I]t is up to the defendant
‘“‘to demonstrate that the amount of the loss is other than that
claimed by the victim,’”’ namely, that the amount claimed is
excessive. [Citation.]” (People v. Weatherton, supra, 238
Cal.App.4th at p. 684.) For the reasons discussed above, Munns
has failed to show the trial court abused its discretion in
determining the restitution amount.
Finally, Munns contends the victim made “no good effort to
compare prices” for a replacement phone. In support, Munns
claims the same phone the victim testified about is still “on
today’s eBay” (presumably referring to the date of Munns’s brief
in this court). According to Munns, it is therefore “impossible” the
victim saw no other lesser offers for a like replacement phone.
Not only is this last argument an impermissible attempt to
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introduce new evidence on appeal, it is a non-sequitur. We need
not address it further.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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