P. v. Madison
P. v. Madison
Filed 2/24/10 P. v. Madison 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN MADISON,
Defendant and Appellant. |
B216947
(Los Angeles County
Super. Ct. No. PA063104) |
APPEAL from an order of the Superior Court of Los Angeles County, Richard F. Walmark, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
John Madison appeals from an order of restitution following his conviction for driving under the influence of alcohol and/or drugs. (Veh. Code, 23152, subd. (a).) He was ordered to pay victim restitution in the amount of $525 to the Los Angeles Police Department and contends the restitution order must be reversed as the terms of the order amount to an abuse of discretion and rest upon a demonstrable error in law. For reasons stated in the opinion we affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
At the restitution hearing, it was noted that there had been a previous stipulation regarding part of the restitution for the window of a police car and that the hearing was concerning damage to the door of a holding cell. The prosecution introduced into evidence a memorandum from the City of Los Angeles dated December 12, 2008, indicating $525 as the total cost for the installation of a new lock, and a color photograph of the door and lock.
The defense objected to the memorandum and the photo, indicating it had been given a different memo with the exact same wording for the exact same amount of money. The defense argued it appears that they just substituted a very standard and boiler plate memo one for another. . . . I found it very suspicious that these two memos . . . [e]verything else is exactly the same. . . . Its the word of the prosecution. They have no evidence of it in the police report so we asked for a formal hearing.
The prosecution responded that as part of the agreement, appellant agreed to pay for any damages that he caused and that the prosecution was alleging one of the things appellant caused to be damaged was the holding cell door in addition to the police vehicles window. The police report filed in this case, which was the basis for the conviction, indicated the officers transported appellant to the Van Nuys station for booking and that after being placed in the holding tank at Van Nuys station [appellant] immediately began kicking the holding tank door. . . . [Appellant was ordered] to stop kicking the door, but he continued to kick the door approximately 20 additional times causing the lock to break away from the doorjamb and bending the locking mechanism . . . . The prosecution continued, that based upon the officers report that [appellant] was kicking the holding cell door and caused the damagethey took the picture that the court has in front of itand according to the memorandum from the city clerk there, the locking mechanism was replaced.
Appellant responded essentially that a previous memorandum had the wrong police station and the wrong date for services but claimed the same amount of damage. Appellant argued if the prosecution had presented something that was a receipt with the locksmiths name on it, with a work order, with anything on it, then [appellant] would have stipulated . . . . So if they brought in the documents then, if it was competent, then I would have considered it effective representation . . . to stipulate. But in the absence of that, Id like the actual witnesses to come in and testify to this. Otherwise, its very fishy to me that its the exact same amount of money and exact same wording.
Over appellants objection, the court received as evidence the photograph and memorandum. Additionally, the court received as a defense exhibit, a City of Los Angeles Inter-Departmental Correspondence, with the date of December 3, 2008.[1]
In ruling on restitution, the court stated that once the victim, in this case the Los Angeles Police Department, presented some documentary evidence and a photograph, the burden shifted to appellant to disprove the amount of claimed loss. Finding appellant had failed to do so, the court awarded restitution in the amount of $525.
DISCUSSION
Penal Code section 1202.4, subdivision (f) provides, [I]n every case in which a victim has suffered economic loss as a result of the defendants 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. . . . (1) The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. . . . (Pen. Code, 1202.4, subd. (f)(1).) (3) 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 defendants criminal conduct, including, but not limited to, all of the following: (A) Full 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. (Pen. Code, 1202.4, subd. (f)(3)(A).)
A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. [T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] 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 owners statement made in the probation report about the value of stolen or damaged property. [Citations.] Once the victim makes a prima facie showing of economic losses incurred as a result of the defendants 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 victims 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. [Citation.] (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.)
Here the courts restitution order was based on a photograph and a memorandum from the City of Los Angeles indicating $525 as the cost of a replacement lock and its installation. While appellant argued the memorandum was boilerplate and submitted another memorandum with the same cost for the replacement of a lock at a different location, appellant did not come forward with any evidence to prove the amount that was presently being claimed exceeded the repair or replacement of the subject lock. Accordingly, we conclude the trial court acted within its discretion in awarding $525 in restitution and did not err in concluding the defense had not met its burden of disproving the claim for restitution.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P.J.
SUZUKAWA, J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1] Defense counsel indicated he did not believe this document was evidence but that it was relevant as it related to the prosecutions memorandum.
|
