P. v. Ochoa













Filed 2/13/13
P. v. Ochoa CA5















NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.



THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. JOSE FARIAS OCHOA, Defendant and Appellant.

F063565 (Super. Ct. No. VCF250707) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare County. Joseph A. Kalashian, Judge.

Donn
Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy
Attorney General, for Plaintiff and Respondent.



-ooOoo-

On February 18, 2011, appellant, Jose Farias Ochoa, entered a
laundromat and removed a candy machine from the premises. A jury found appellant guilty of href="http://www.fearnotlaw.com/">second degree commercial burglary (Pen.
Code,href="#_ftn2" name="_ftnref2"
title="">^[1] § 459; count 1) and possession of
burglar’s tools (§ 466; count 2) and the court found that he had served a
prior prison term (§ 667.5, subd. (b)).
On August 23, 2011, the court sentenced him to a total prison term of
three years (the middle term of two years for count 1, plus one year for the
prison prior) and ordered him to pay $350 in victim restitution. Appellant now contends he is entitled to be
resentenced pursuant to section 1170, subdivision (h), which became operative
on October 1, 2011. He also
challenges the sufficiency of the evidence supporting the court’s order of
victim restitution. We affirm.

>DISCUSSIONhref="#_ftn3" name="_ftnref3" title="">^[2]

>I. Realignment

Appellant
contends that, although he was sentenced on August 23, 2011, he is
entitled to be resentenced under the “2011 Realignment Legislation addressing
public safety” (Stats. 2011, ch. 15, § 1), despite the fact the sentencing
changes made by this and subsequent related legislation expressly apply “prospectively
to any person sentenced on or after October 1, 2011.” (§ 1170, subd. (h)(6).) In People
v. Cruz (2012) 207 Cal.App.4th 664, this court held the changes “apply only
to persons sentenced on or after October 1, 2011, and such
prospective-only application does not violate equal protection.” (Id.
at p. 668, fn. omitted.) We decline
to revisit the issue.

>II. Victim Restitution

Appellant contends that $50 must be
stricken from the victim restitution order because that amount is unsupported
by the evidence presented at trial.

At trial, the laundromat owner
testified the candy machine cost “approximately $250” and the candy inside the
machine cost “[a]bout $50.” At the
sentencing hearing, the People sought $350 in restitution: $300 for the candy machine and $50 for the
candy. In support of the request, the
People referred to both the trial testimony and the probation report. The probation report stated the laundromat
owner “advised the machine was valued at $300.”
The court thereafter ordered appellant to pay victim restitution in the
amount of $350, noting “[t]hat’s $300 for the machine and $50 for the candy
that was taken.”

The general principles governing
the determination of the amount of victim restitution in criminal cases are
well established. We start from the
premise that “[a] victim’s restitution right is to be broadly and liberally
construed.” (People v. Mearns (2002) 97 Cal.App.4th 493, 500 (>Mearns).) When a criminal defendant’s conduct causes
economic losses to the victim, the trial court must order the defendant to make
restitution “based on the amount of loss claimed by the victim … or any other
showing to the court.” (§ 1202.4,
subd. (f).) “The court shall order full
restitution unless it finds compelling and extraordinary reasons for not doing
so, and states those reasons on the record.”
(§ 1202.4, subd. (g).)

The trial court has broad
discretion to calculate the amount of restitution ordered. (People
v. Giordano (2007) 42 Cal.4th 644, 663-664.) We review a trial court’s restitution order
for abuse of discretion. (>Mearns, supra, 97 Cal.App.4th at p. 498.) Abuse is established only if the trial
court’s decision is arbitrary or capricious (People v. Akins (2005) 128 Cal.App.4th 1376, 1382) or is based on a
demonstrable error of law (People v.
Jennings (2005) 128 Cal.App.4th 42, 49).
No abuse of discretion is shown simply because the order does not
reflect the exact amount of the loss. (>Akins, at p. 1382.) We will find no abuse of discretion where
there is a factual and rational basis for the amount of restitution ordered by
the trial court. (Mearns, at p. 498.)

Preliminarily, we note appellant’s
claim on appeal is forfeited because defense counsel neither objected to the
restitution order at sentencing nor requested a separate restitution hearing to
present evidence to contest the order. (>People v. Brasure (2008) 42 Cal.4th
1037, 1075.) In any event, there is a
factual and rational basis for the restitution order because it was based on
evidence presented at trial and appellant’s probation report. (See People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [“as prima facie evidence of
loss, [the trial court] may accept a property owner’s statement made in a
probation report about the value of stolen or damaged property”].) The property owner testified at trial that
the candy was worth $50 and stated in the probation report that the candy
machine was valued at $300. Appellant
provided no contrary evidence.
Therefore, the court did not abuse its discretion in setting the amount
of victim restitution at $350.

DISPOSITION

The
judgment is affirmed.