In re Luis G.

Filed 6/24/08 In re Luis G. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge.

Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A juvenile wardship petition alleged (Welf. & Inst. Code, 602) that appellant Luis G., a minor, committed one felony count of vandalism (Pen. Code, 594, subd. (b)(1), count 1)^[1]with a gang enhancement ( 186.22, subd. (d)) and participated in a criminal street gang ( 186.22, subd. (a), count 2). The court dismissed, with prejudice, both the enhancement and count 2. The court found true count 1 as alleged.

The court adjudged appellant a ward of the court and placed him on probation subject to conditions. In addition, the court ordered that appellant pay victim restitution in the amount of $725.

On appeal, appellant contends the court abused its discretion in ordering direct victim restitution in an amount not supported by the evidence. We will affirm.

FACTUAL BACKGROUND

On the evening of May 2, 2007, at approximately 10:00 p.m., Graciela G. heard a noise outside her familys residence. When she looked out of the window of her second floor apartment, Graciela observed two heads near one of the familys cars. She informed her mother, Genoveva J. and her brother. The family went outside to investigate, but the boys had run away. They found both of their vehicles had been sprayed with fresh paint and the tires were flat or deflating.

Later that evening, Deputy Sherriff Carlos Ramirez located appellant and his brother. The boys were taken into custody. Appellant denied being with his brother and vandalizing the cars. Appellants mother testified that her son was with her the entire evening and only left her home briefly that evening to go to a corner store.

Graciela knew the boys she saw around the vehicles from the neighborhood. During her testimony, Graciela identified appellant and his brother as the two people she saw that night. The court found the allegation of vandalism true.

At the adjudication hearing, Genoveva J. testified that it cost her over $600 to replace all the tires and the family removed the spray paint from the vehicles themselves. After the adjudication hearing, the probation officer contacted Genoveva J., who reported that it would cost a total of $725.00 to fix all eight punctured tires and remove the spray paint from her cars. The probation report recommended that the court order $725 for restitution.

At the dispositional hearing, the court stated that it had received dispositional reports as to each of the minors. The court asked if there were any objections to proceeding with disposition. Appellant did not raise objections. The court then stated that counsel had received the recommendations, and asked if there were any comments on them. Again, appellant did not raise any objections. The court read the general terms of the probation and ordered restitution to the victim in the amount of $725. Appellants counsel did not object to the amount ordered.

DISCUSSION

I. Substantial Evidence Supports the Restitution Order

A. The Issue is Waived

Appellant contends there was insufficient evidence to support the trial courts order for restitution in the amount of $725. We conclude the issue is waived.

An appellate court will ordinarily not consider procedural defects or erroneous rulings where an objection could have been but was not presented to the [trial] court by some appropriate method .... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver .... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] (In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)

In the instant case, appellant failed to object when the court stated that it intended to impose victim restitution of $725. Because counsel had made factual arguments regarding the extent of damage to the vehicles, it is reasonable to assume appellant would also have made any arguments relating to the restitution amount had there been any worthy of support. Further, had appellant objected to the courts order of $725 when the court imposed it, both parties would have had an opportunity to present relevant evidence on the issue. Because appellant did not object in the trial court, he has waived the issue on appeal.

B. The Restitution Amount is Supported by the Evidence

In any event, the evidence supports the restitution order imposed by the trial court. Appellant contends there is insufficient evidence to sustain a direct victim restitution of $725 because the victim testified to a lesser amount at the adjudication hearing. We disagree.

The courts restitution order must be sustained unless it rests upon a demonstrable error of law or constitutes an abuse of discretion. A victims right to restitution is to be broadly and liberally construed by the trier of fact. 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. (People v. Baker (2005) 126 Cal.App.4th 463, 467.)

When reviewing the sufficiency of the evidence, the reviewing court will determine whether there is any substantial evidence, contradicted or uncontradicted, to support the trial courts findings. The standard of proof at a restitution hearing is preponderance of the evidence, rather than proof beyond a reasonable doubt. If the circumstances reasonably justify the [trial courts] findings, the trial court will not be overturned when the circumstances might also reasonably support a contrary finding. (People v. Baker, supra, 126 Cal.App.4th at p. 468.)

Appellant argues that other than the testimony provided by Genoveva J. regarding her loss, [n]o other evidence was introduced at anytime as to the value of the damaged property. Appellant is mistaken. The trial court had sufficient evidence provided by the probation report to support its order. The trial court is entitled to consider the probation report and its recommendations when determining the amount of restitution. For example, statements by the victims of the crimes about the value of the property stolen or damaged constitute prima facie evidence of value for purposes of restitution. (People v. Keichler (2005)129 Cal.App.4th 1039, 1048.) When the probation report provides information on the amount of the victims loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount. (Ibid.) When a defendant does not challenge such information, an award of the amount specified in the probation report is not an abuse of discretion. (Ibid.)

Given appellants failure to offer any evidence to challenge the amount stated in the probation report, the trial court did not abuse its discretion in ordering restitution in the amount of $725.

DISPOSITION

The judgment is affirmed.

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

^*Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

^[1] All further statutory references are to the Penal Code, unless otherwise indicated.