P. v. Olalde

Filed 10/11/07 P. v. Olalde CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Defendant Luis Rodrigo Galvan Olalde pleaded no contest to theft or unauthorized use of a vehicle (Veh. Code, 10851, subd. (a)), with an enhancement for committing the offense while out of custody on his own recognizance (Pen. Code, 12022.1); driving with a blood alcohol level of 0.08 percent or higher (Veh. Code, 23152, subd. (b)), with the additional allegation that defendant was under the age of 21 years at the time (Veh. Code, 13202.5); and grand theft of personal property of a value over $400 (Pen. Code, 484; 487, subd. (a)), with an enhancement for committing the offense while out on his own recognizance (Pen. Code, 12022.1). The trial court placed defendant on probation for three years, provided he serve seven months in county jail and pay restitution in the amount of $485 to Jaqueline Arevalo, the victim, and $1,500 to Pablo Arevalo, the victims father, among other terms and conditions.

On appeal, defendant contends the restitution award was based on speculation and did not have a rational basis. Defendant requests that Jaqueline Arevalos award be reduced to $118.75 to reflect one day of missed work rather than four days, and that the award to Pablo Arevalo be reduced to $750 due to a lack of evidence regarding the need for a replacement of the clutch in the car that was stolen and subsequently recovered.

For reasons that we will explain, we find no merit in defendants contentions and, therefore, we will affirm the order for restitution in its entirety.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background[1]

Defendant was stopped by Milpitas police officers in the early morning of July 23, 2006, while driving a 2000 Toyota. The vehicle had previously been reported stolen by defendants coworker, Jaqueline Arevalo, on the evening of July 22, 2006. In addition to defendant, another coworker and other passengers were in the vehicle. Ms. Arevalos purse and car had been taken without her permission from the Chevys restaurant in Pleasanton, where she, defendant, and one of the passengers were working on the evening of July 22, 2006.

Between the time defendant left work and the time he was stopped by police, defendant attended a party where he drank beer. Empty beer containers were in the passenger seat of the vehicle at the time of the vehicle stop by police. Defendant appeared intoxicated to police, and two Draeger breathalyzer tests subsequently administered by police indicated readings of 0.08. Defendant was 18 years old at the time.

Ms. Arevalos purse was located in the stolen car, which was eventually towed to a police yard. A cellular phone that was in her purse at the time the car was stolen was never recovered.

B. The No Contest Plea and Sentencing

The information was filed on August 18, 2006, alleging four counts: felony theft or unauthorized use of a vehicle (Veh. Code, 10851, subd. (a); count 1); driving under the influence of alcohol with the additional allegation that defendant was under the age of 21 years at the time of the crime (Veh. Code, 23152, subd. (a); 13202.5; count 2); driving with a blood alcohol level of 0.08 percent or higher with the additional allegation that defendant was under the age of 21 years at the time of the crime (Veh. Code,  23152, subd. (b); 13202.5; count 3); and felony grand theft of personal property of a value over $400 (Pen. Code, 484; 487, subd. (a); count 4). The information was later amended to add enhancements to counts 1 and 4, the theft counts, for committing the offenses while defendant was out of custody on his own recognizance. (Pen. Code, 12022.1)

Defendant pleaded no contest on October 11, 2006, to count 1, theft or unauthorized use of a vehicle (Veh. Code, 10851, subd. (a)), with an enhancement for committing the offense while out on his own recognizance (Pen. Code, 12022.1); count 3, driving with a blood alcohol level of 0.08 percent or higher (Veh. Code,  23152, subd. (b)), with an enhancement for being under the age of 21 years at the time of the offense (Veh. Code, 13202.5); and count 4, grand theft of personal property of a value over $400 (Pen. Code, 484; 487, subd. (a)), with an enhancement for committing the offense while out on his own recognizance (Pen. Code, 12022.1). Count 2 was submitted for dismissal at time of sentencing.

The sentencing hearing was held on November 8, 2006. Prior to being sentenced, defendant moved to reduce count 4, grand theft of personal property, from a felony to a misdemeanor pursuant to Penal Code section 17. The trial court denied the motion. The court then suspended imposition of sentence and placed defendant on probation for three years, on condition he serve seven months in county jail, among other terms and conditions.[2]

A waived referral memorandum was provided by the probation officer in connection with the sentencing hearing. The memorandum did not contain information regarding any loss suffered by Jaqueline Arevalo as a result of the theft, because the probation officer was unsuccessful in contacting her. The trial court set a further hearing date for determination of restitution.

C. Restitution

The probation officer was eventually able to make contact with Jaqueline Arevalo and provided a supplemental memorandum based on discussions with her and her parents, Pablo and Maria Arevalo. According to the supplemental memorandum, the parents stated that the 2000 Toyota was registered in Pablo Arevalos name. Mr. Arevalo stated he would not be able to file a claim with his auto insurance, because he had liability coverage only. Mr. Arevalo requested a total of $1,615.76 in restitution, which included $269 in towing expenses to retrieve the vehicle from a tow yard and $89 in detailing cost. The total amount also included $168 for the replacement cost of the missing cell phone, and $239.76 for monthly fees that would be incurred as a result of being forced to sign a new, two-year contract extension at $9.99 per month. Further, according to the probation officers supplemental memorandum, Mr. Arevalo stated that although the vehicle had only been stolen for one night, . . . the clutch of the vehicle does not work as properly as previously, as it is now difficult to shift gear. Mr. Arevallo had gotten an estimate of $750 in repair. Lastly, the total amount included $100 for gas mileage for the trips Mr. Arevalo and his daughter had to make from their residence in Dublin to the Milpitas Police Department, the tow yard in San Jose, and the court.

The probation officers supplemental memorandum also included Jaqueline Arevalos request for restitution. The memorandum stated: With regard to restitution, the victim would like to request $485 to cover for her 4 days loss of income from work as a waitress. ($6.75/hr for 5hrs/day + $85/day in tips). The victim elaborated that she had missed 2 work days to travel to Milpitas Police Department on two occasions to view the video tape to identify the defendant (on the first trip the investigating officer did not have the tape and she was told to return at a later time). She had missed work on two other occasions due to having no transportation and to attend one of the defendants court hearing.

The restitution hearing was held on December 8, 2006. At the beginning of the hearing, the People indicated that the victims father, Pablo Arevalo, was present in court. The People argued that it was defendants burden to show the restitution recommendation in the probation report or the victims statement is inaccurate. The People also argued that defendant has no right to confront and cross-examine the witnesses in a restitution matter. The People also made a correction as to towing costs, which should have been $227.50, and attempted to provide clarification regarding the costs for the cell phone replacement.

In response, defense counsel acknowledged the People could establish a prima facie case with evidence, but there needs to be sufficient evidence to establish a prima facie case, but that was one of the issues the next Court date is whether or not the hearsay statements in this document were enough to establish the prima facie case to say that this money was owed. Defense counsel stated that defendant was disputing the fathers request for restitution as to the clutch and cell phone, and the victims request for restitution for lost wages.

The trial court allowed defendant to call the victims father, Pablo Arevalo, as a witness and ask him questions regarding the clutch, cell phone, and lost wages, over the objection of the People. Regarding the stolen car and clutch, Pablo Arevalo testified as follows. He bought the 2000 Toyota when it was two years old. It was mostly his daughters car. She started driving it right after it was purchased, and she used that vehicle to learn how to drive a car with a stick shift.

Mr. Arevalo further testified that there were 104,000 miles on the car, and there were [a]bout 92,000 miles on the car at the time of the incident. He testified that he put [a]bout 10,000 miles on the car since the incident, or basically the difference between the 92,000 and 104,000.

Defense counsel asked Mr. Arevalo whether he ever had any work done on the clutch. Mr. Arevalo responded, no.

When asked whether he or his daughter was driving the car before it was missing, Mr. Arevalo testified: She drive the car but I drive it sometimes to go to the store or anything else. Mr. Arevalo was then asked how the stick shift was operating when he operated it before the car went missing. He testified: I drove it couple times. It was fine. The trial court then asked: No problem at all? to which Mr. Arevalo responded: No problem. Mr. Arevalo was asked how long before the date of the incident was the last time he drove the car. Mr. Arevalo responded: I dont recollect. I drove once in a while when I got to go to the store and car is available. When asked whether his daughter ever told him something was wrong with it before, Mr. Arevalo responded no. When further questioned as to whether She didnt say, Dad, this thing is not working right? Mr. Arevalo replied Not at all, no.

Mr. Arevalo acknowledged that he drove the car home after it was recovered. When asked whether he noticed a problem with the stick shift at that time, Mr. Arevalo testified Its hard to get the gears in.

Defense counsel then questioned Mr. Arevalo regarding the clutch repair estimates he obtained. Mr. Arevalos testimony was as follows:

[DEFENSE COUNSEL]: Now I guess you have had an estimate?

[MR. AREVALO]: Yeah. I call a couple of places.

[DEFENSE COUNSEL]: All right. Did you just call them or bring the vehicle in?

[MR. AREVALO]: No. I call it in. I call some -- somebody from the car. You say the clutch is not working right. We need an estimate. I call mechanic who take care of working on and he said it cost too much. I call another person San Bruno, California. He says cheapest. Do it for you between 700, 750.

[DEFENSE COUNSEL]: So that was without looking at the vehicle?

[MR. AREVALO]: No, that is not. I have not taken the vehicle to any shop.

[DEFENSE COUNSEL]: So that was just based on you telling them what you knew about the vehicle?

[MR. AREVALO]: Yeah. The clutch is hard to get -- the gears are hard to get in.

[DEFENSE COUNSEL]: Did they tell you anything about what they would actually do to the vehicle are?

[MR. AREVALO]: No. Just replace the clutch. I dont know anything too much. I always have disks they have to replace.

[DEFENSE COUNSEL]: And did you ever get any written estimates about that?

[MR. AREVALO]: Not at all, no.

[DEFENSE COUNSEL]: Do you know the name of the place that you were talking to?

[MR. AREVALO]: Yeah. I got two names, Precise Auto Care in Santa Clara. Thats where we take ours from my work where I work. And Anthonys Auto Care in San Bruno, California. I know the number for one in Santa Clara, if you need to call them.

Defense counsel responded that the phone number was not necessary at this time.

Later during the hearing, the People asked Mr. Arevalo [w]hat was that night like for your family? Among other things, Mr. Arevalo testified: The clutch is not the same. Four kids in the car, who knows what they did. Im not mechanic but I can tell the car was not the same. They can argue that. They can argue, yes. But in my case, I am not asking for too much. All Im asking for whats right and thats not fair what they did to us that night to my family.

Defense counsel eventually questioned Mr. Arevalo regarding his daughters employment. Mr. Arevalo first confirmed that at the time of the incident, his daughter was living with him. When asked further details about her employment, Mr. Arevalos testimony was as follows:

[DEFENSE COUNSEL]: She was working at Chevys?

[MR. AREVALO]: She was summer. She go to school and it was summer break so she came -- she got to work at Chevys.

[DEFENSE COUNSEL]: Do you remember if she was working mostly nights and weekends?

[MR. AREVALO]: Sure. She works.

The People objected at this point on the ground of relevance. The trial court overruled the objection. The questioning then resumed by defense counsel:

[DEFENSE COUNSEL]: If you could finish with your answer.

[MR. AREVALO]: She was working weekends because she take care of her daughter during the day. Nights and weekends were the best time for her to work.

[DEFENSE COUNSEL]: You dont have any of her pay stubs, tax records about tips that she would get, anything like that today, do you?

[MR. AREVALO]: No, not with me. I seen one check and they take a hundred and something dollars for her check for sometimes, I dont know. All depends, three or four days.

[DEFENSE COUNSEL]: And you dont have any of her time sheets with you or anything like that?

[MR. AREVALO]: No, not with me.

[DEFENSE COUNSEL]: Do you have any idea about how much she made in tips?

[MR. AREVALO]: No. You got to call ask them, the restaurant probably have the record, an estimate.

Defense counsel and the People then questioned Mr. Arevalo regarding the cell phone replacement costs.

After Mr. Arevalo testified, counsel for the parties provided argument to the trial court regarding restitution for the clutch, cell phone, and the victims lost wages. Defense counsel questioned whether the damage to the clutch could be attributed to defendant, as opposed to the total number of miles on the vehicle, or the fact that the daughter had learned to drive a clutch on the vehicle, which, according to defense counsel probably did a lot more damage to the clutch than one day, or maybe about as much.

Further, while acknowledging Mr. Arevalos testimony that the clutch was behaving differently, defense counsel questioned the estimates Mr. Arevalo had received, given that they were phone estimates without the vehicle actually being inspected. Defense counsel stated: Sometimes you can just tighten up a clutch for a very small amount of money. Defense counsel further stated: I dont think the evidence presented is sufficient, certainly not to warrant the $750. At most I think a percentage of that.

Defense counsel also challenged Jaqueline Arevalos request for restitution for lost wages. Defense counsel argued there was nothing to establish the amount of tips. As for the victims statement that she missed four days of work, counsel stated: All the days that she said she missed are apparently daytime things when it was our understanding, both from the police report and the questions that I asked him, sounds like she worked mostly nights and weekends. And so its not clear. No records, no nothing to establish that she actually was scheduled to work during the day on those days that she actually had to miss, those days she had to miss those entire days, and how much tips she might have been expecting during the day where I think tipping is less than nights and weekends.

At the conclusion of the hearing, the trial court awarded $1,500 to Pablo Arevalo, and $485 to Jaqueline Arevalo. The trial court explained that Pablo Arevalos award was less than his original request of $1,615.76, because the trial court was making deductions for the cell phone replacement costs and the corrected towing costs. The trial court indicated that otherwise, it appeared the victims had done a good job in mitigating costs on everything else.

III. DISCUSSION

Defendant filed a timely notice of appeal. He contends the restitution order was based on speculation and did not have a rational basis. He seeks to eliminate any reimbursement for clutch replacement in Pablo Arevalos award, thus reducing it to $750. He also seeks to reduce Jaqueline Arevalos award to $118.75, to reflect one days lost wages and tips only. We will first address the law of restitution and the standard of review that govern our determination of the issues raised by defendant.

A.     The Standard of Review

Under article I, section 28 of the California Constitution, victims have a right to restitution for financial losses. (Cal. Const., art. I, 28, subds. (a) & (b); People v. Carbajal (1995) 10 Cal.4th 1114, 1122.) This constitutional mandate is implemented by Penal Code section 1202.4, which provides in pertinent part: (a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. (Pen. Code, 1202.4; People v. Mearns (2002) 97 Cal.App.4th 493, 498.) A victims parent, who has incurred economic loss as a result of the crime, may also receive restitution. (Pen. Code, 1202.4, subd. (k)(3)(A).)

A victim is entitled to restitution for lost wages. (Pen. Code, 1202.4, subd. (f)(3)(D) & (E).) Restitution may also include: 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).) Pursuant to subdivision (f) of section 1202.4, the sentencing court is required to order restitution in a dollar amount sufficient to fully reimburse the victim for economic losses, based on the amount of loss claimed by the victim or any other showing made to the court. However, [t]here is no requirement that the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. (People v. Carbajal, supra, 10 Cal.4th at p. 1121.)

We review the trial courts order of restitution under the abuse of discretion standard. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) While the trial court has broad discretion, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) Thus, where there is a factual and rational basis for the amount of restitution ordered by the trial court, the court does not abuse its discretion. (People v. Mearns, supra, 97 Cal.App.4th at p. 499.)

B. The Restitution Amount of $1,500 to Pablo Arevalo

Of the $1,500 awarded to Pablo Arevalo in restitution, defendant contends there was not a rational basis for awarding $750 for replacement of the clutch. On appeal, defendant seeks to reduce the award to Mr. Arevalo by this amount. Defendant contends Mr. Arevalo admitted he knew nothing about the mechanics of manual transmissions, and the repair estimates he obtained were not based on an examination of the car by the mechanics. Defendant contends: It is pure speculation to assume that no repair is possible and that the clutch needs to be replaced. No one qualified to make that judgment had even looked at the car. Obviously the car is still driveable since the Arevalos had driven it 12,000 miles since the incident. Defendant argues the $750 award for clutch replacement is thus based on pure speculation that such replacement was even necessary.

The People respond that the victims claims were detailed in the probation report and resulted in a hearing, and [a]s to the replacement of the cars clutch, Mr. Arevalo provided additional support for the claim by testifying at the restitution hearing to the estimates.

Defendant disputes the sufficiency of the evidence supporting the restitution award for a complete clutch replacement. However, as an intermediate appellate court, we are limited to a determination of whether there is any substantial evidence, contradicted or uncontradicted, to support the trial courts findings. [Citation.] (People v. Keichler, supra,129 Cal.App.4th at p. 1045.) Moreover, we are mindful that

sentencing judges are given virtually unlimited discretion as to the kind of information that they can consider and the source from whence it comes. [Citation.] (People v. Baumann (1985) 176 Cal.App.3d 67, 81.)

Here, we find that substantial evidence supports the trial courts inclusion of $750 for clutch replacement in the restitution award to Mr. Arevalo. Mr. Arevalos undisputed testimony established that there was no problem with the clutch prior to the car being stolen, and that a problem with the clutch arose after the car was recovered. Any argument that the problem was due to other factors, such as the mileage on the vehicle or prior use by the owners, is without evidentiary support in the record.

As to the extent of damage to the car, including whether or to what extent repair rather than replacement of the clutch was feasible, Mr. Arevalo testified that he contacted two auto care businesses and told them that the clutch is not working right and the gears are hard to get in. The responses he received were that the clutch would be replaced, with the lowest estimate around $700 or $750. The $750 estimate was not Mr. Arevalos own speculation as to the extent of repair needed, but rather based on his description of the problem to auto care shops, who offered their estimates as to what repair may be needed, and the cost of that repair. Based on Mr. Arevalos testimony, and in the absence of any other testimony establishing that clutch replacement was not necessary, or that a lesser repair would have been sufficient for the clutch symptoms as described by Mr. Arevalo, we find there was a factual and rational basis for the trial courts inclusion of a clutch replacement cost of $750 in the award of restitution to Mr. Arevalo.

C. The Restitution Amount of $485 to Jaqueline Arevalo

Defendant also seeks to reduce the restitution award of $485 to Jaqueline Arevalo. Ms. Arevalo claimed wage losses for four days of missed work, according to the supplemental memorandum from the probation officer. This included two days to travel to the Milpitas Police Department to view a videotape to identify the defendant, where the investigating officer did not have the tape on the first trip, and she was told to return at a later time. She also claimed to miss work on two other occasions due to a lack of transportation and to attend one of the defendants court hearings.

Regarding travel to the Milpitas Police Department, defendant contends the distance between Dublin, where the Arevalos live, and Milpitas is 24.5 miles, which equates to approximately 23 minutes of travel time. Defendant contends It is extremely difficult that such a short trip would require missing an entire day of work, particularly since Jaqueline works evenings and weekends. Regarding Ms. Arevalos attendance at the preliminary examination, defendant contends the transcript of the preliminary examination indicates it was held in the morning and was a continuous proceeding resulting in only 59 transcribed pages. Thus, according to defendant, there is no indication the proceeding continued into the afternoon and thereby required Ms. Arevalo to miss an evening shift. Defendant thus contends Ms. Arevalo is only entitled to lost wages and tips for one day rather than four days, i.e., $118.75 based on her hourly wage of $6.75 for a five-hour workday, plus $85 in tips.

The People acknowledge that Ms. Arevalo often worked nights and weekends. However, the People contend that as to Ms. Arevalos claim for lost wages, appellant knew precisely where his coworker and victim Ms. Arevalo worked. Had he seriously questioned her minimum wage earnings, her hours, her average tips for a shift, the conflict of her mostly afternoon and evening schedule with the preliminary hearing, or the need to make two trips to the Milpitas Police Station which conflicted with working a shift in Pleasanton, he could have developed evidence on those points. He did not.

Defendants argument is primarily based on the assumption that Ms. Arevalo only worked nights and weekends, given her fathers testimony at the restitution hearing. Mr. Arevalos testimony is not so clear in this regard. At the restitution hearing, Mr. Arevalos first response to defense counsels question on the issue is not conclusive:

[DEFENSE COUNSEL]: Do you remember if she was working mostly nights and weekends?

[MR. AREVALO]: Sure. She works.

An objection was interposed by the People and overruled by the trial court, whereupon the testimony resumed:

[DEFENSE COUNSEL]: If you could finish with your answer.

[MR. AREVALO]: She was working weekends because she take care of her daughter during the day. Nights and weekends were the best time for her to work.

Again, Mr. Arevalo did not specifically state that his daughter only worked nights and weekends. Moreover, the original question posed by defense counsel was whether Ms. Arevalo worked mostly nights and weekends. Neither defense counsels question nor Mr. Arevalos responses exclude the possibility that Ms. Arevalo may have, on one or more occasions, worked or been scheduled to work a morning or afternoon shift.

Further, the probation officer provided a supplemental memorandum, reporting that Ms. Arevalo stated she missed work on four occasions for certain obligations related to the prosecution of the case or due to a lack of transportation. In light of this memorandum from the probation officer, it was proper for the trial court to conclude that Ms. Arevalo had in fact missed work due to repeated trips to the Milpitas Police Department and a court appearance, and due to a lack of transportation. Moreover, notwithstanding the distance between Dublin and Milpitas, or the number of pages it took to transcribe the preliminary examination, there is no evidence in the record establishing how long Ms. Arevalo actually had to wait at the Milpitas Police Department on each occasion, or how long she was present for the preliminary examination.[3] Even if each of these activities took less than five hours, there is no evidence establishing whether Ms. Arevalos employer was willing to allow her to work a partial shift on these occasions. In sum, defendant has failed to provide evidence rebutting Ms. Arevalos statements that she missed four days of work, as reported in the supplemental memorandum by the probation officer.

Lastly, defendant in a footnote in his opening brief suggests the award of $485 to Ms. Arevalo is the result of arithmetic error by either Ms. Arevalo or the probation officer, or both. As stated above, the probation officers supplemental memorandum contained the following equation: $6.75/hr for 5hrs/day + $85/day in tips. This equates to $475, rather than $485 as awarded by the trial court. We have no way of determining whether Ms. Arevalos total request for $485 or the calculation which equates to $475 -- both of which were included in the probation officers supplemental memorandum -- is mistaken. It is possible the probation officer wrote down the wrong hourly wage or the wrong amount of daily tips in the equation. Nonetheless, because defendant failed to raise this discrepancy during the restitution hearing, and because the record does contain Ms. Arevalos request [of] $485 to cover for her 4 days loss of income from work as a waitress, as well as a description of the reasons for her inability to attend work on those four occasions, we find that substantial evidence supports the trial courts inclusion of $485 for wage loss in the restitution award.

IV. DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

MCADAMS, J.

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[1] These background facts are taken from the testimony presented at defendants preliminary hearing.

[2] The clerks transcript at page 167 reflects that count 2 was dismissed at the time of sentencing.

[3] The transcript of the preliminary examination indicates that towards the end of the preliminary examination, the trial court held a hearing on bail, which the trial court indicated for the Court reporters benefit would not be part of the preliminary hearing to be transcribed. . . . The transcript then indicates that after the bail hearing, the preliminary examination proceeded as transcribed. The length of time it took to complete the intervening bail hearing cannot be determined from the record on appeal.