Filed 3/1/18 P. v. Tygart CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Siskiyou)
----


THE PEOPLE,

Plaintiff and Appellant,

v.

RUSTY ALLEN TYGART,

Defendant and Respondent.
C082360

(Super. Ct. No. MCYKCRBF20154602)




The People appeal from the trial court’s refusal to reserve jurisdiction to modify restitution. A jury had convicted defendant Rusty Allen Tygart of felony vandalism with damages of $400 or more (Pen. Code, § 594; statutory section references that follow are to the Penal Code), for driving over the victim’s bicycle. After his conviction, defendant moved to modify the verdict, arguing insufficient evidence established the bicycle’s replacement value. The trial court held a restitution hearing to determine the bicycle’s value. Following the hearing, it reduced the conviction to a misdemeanor. And based on evidence from the hearing, the trial court ordered $375 in restitution to the victim.
The prosecutor, however, argued the $375 did not include the value of aftermarket components installed on the victim’s bicycle and asked the court to reserve jurisdiction to allow the People to present evidence of other items damaged by defendant. The trial court refused to retain jurisdiction, explaining a restitution hearing had already been held. The People now appeal from that refusal. Finding no error, we affirm the judgment.
FACTS AND PROCEEDINGS
Driving a Jeep, defendant drove over the victim’s bicycle, a 2009 Specialized Crosstrail Pro. A jury convicted him of felony vandalism, finding the amount of damages $400 or more. The jury acquitted him of assault with a deadly weapon, as well as the lesser included charge of simple assault.
Following the verdict, defendant moved to reduce his offense to a misdemeanor, arguing insufficient evidence supported the finding of damage of $400 or more.
On the trial court’s own motion, sentencing was continued, and a restitution hearing was ordered, the court stating, “the sentencing is going to be continued and we are going to set sentencing and a restitution hearing and the restitution hearing will go forward first. . . .” (Emphasis added.) The court explained, defendant’s motion “will be addressed after we have the restitution hearing.” (Emphasis added.) The court reiterated: “So we are going to have a restitution hearing. [¶] I’ll indicate for the record, [defense counsel], that that will be for purpose of your motion, rather than a sentencing issue. And if there is not adequate evidence it’s over $400, then the Court’s decision on your motion will be in accordance with that.” (Emphasis added.)
On the date set for the restitution hearing and sentencing, the court opened the proceedings by noting, “We are on calendar today for . . . a restitution hearing which is, in this circumstance, [is] combined with the sentencing hearing. But the prime issue before us is [the] value of the bicycle that was involved in this event.” (Emphasis added.)
At the restitution hearing, an expert for the defense estimated the bicycle’s market value at $350 to $400. On cross examination, the expert agreed that that figure was based on the bicycle model in general and not on the victim’s bicycle’s specific components. But the expert explained, the bicycle “could have the best components on the planet” but if the bike is six years old, the components will have “a little” effect on its value, but are not “a driving factor as far as determining the value of the bike.” He continued, “the value of the bike is . . . going to be dominated by its age, and, sure, [affected] a little by components and upgraded components, but not to the extent of swinging that value dramatically.”
The trial court granted defendant’s motion, finding insufficient evidence the bicycle’s replacement value was $400 or more. It reduced the vandalism conviction to a misdemeanor, suspended imposition of sentence, and placed defendant on three years’ informal probation. As to restitution, the court found the bicycle’s replacement value between $350 and $400 and ordered defendant to pay $375 in restitution.
The prosecutor asked if the court was reserving jurisdiction on any remaining balance, “because that [$375 in restitution] is just . . . what the Court is assigning as its value for the bicycle, but as indicated previously [the victim] had other components that were damaged, including the rack and other things like that.”
The court responded: “That was the purpose for the restitution hearing. That was not presented to the Court at the restitution hearing. . . . So I’m not going to reserve restitution. I’m ordering restitution at this time.”
The prosecutor replied that she understood the restitution hearing was for an evaluation of the bicycle, “and not for any and all restitution owed.” She added, she “did not subpoena the victim because I thought this was purely for the purpose of the evaluation of the bicycle itself.” She added, the victim had additional items damaged and could supply receipts for those.
The trial court responded: “All right. You talked with the witnesses about extra components, there was discussion about that, and, no, we are not going forward any further. This was a restitution hearing. That was clearly stated by the Court. [¶] So if you made an error, then that’s unfortunate, we all make errors, but we are done with that issue today.” The trial court declined to reserve jurisdiction to hold a continued restitution hearing.
DISCUSSION
On appeal, the People challenge the refusal to reserve jurisdiction to modify restitution. The People argue the trial court was required to reserve jurisdiction, noting under section 1202.4 subdivision (f), the court “shall” order full restitution — and adding, the court’s exploration of the bicycle’s value did not extinguish the victim’s constitutional right to complete restitution.
Defendant, initially, challenges the People’s statutory basis for appeal. We will assume without deciding the People have appealed from an appealable order. (See § 1238, subd. (a) [“An appeal may be taken by the people from . . . [⁋] . . . [⁋] [a]n order made after judgment, affecting the substantial rights of the people”].) Nevertheless, the challenge has no merit.
Section 1202.4 subdivision (f) requires the court to order restitution to the victim, where a victim has suffered economic loss from defendant’s conduct. This was done.
The trial court held a restitution hearing, allowing the parties to present evidence as to restitution. (Cf. People v. Petronella (2013) 218 Cal.App.4th 945, 969 [the People have the burden of proving, by a preponderance of the evidence, the amount of economic loss].) The hearing provided evidence of the bicycle’s value and the effect of aftermarket components on that value. Through this testimony, the trial court found the value of the bicycle between $350 and $400 and awarded $375 in restitution. That figure is not challenged on appeal.
At the conclusion of the hearing, the People claimed some confusion regarding the purpose of the hearing, apparently thinking that it had only to do with defendant’s motion to reduce the felony conviction to a misdemeanor. This is somewhat puzzling because the People had at least as much reason, if not more, to produce evidence at the hearing of the full value of the bicycle that was damaged in order to successfully oppose the defendant’s motion to reduce the crime to a misdemeanor.
In any event, what the prosecution sought to do, in effect, was continue the restitution hearing to allow for the introduction of additional evidence. The trial court was within its right to decline that request. The trial court, in ordering a restitution hearing and ordering restitution to the victim, complied with its statutory obligations. The People offer no compelling grounds for requiring the trial court to afford the prosecution a second opportunity to present evidence, when it did not fully avail itself of its first opportunity to do so.
DISPOSITION
The judgment is affirmed.



HULL , J.



We concur:



BLEASE , Acting P. J.



MAURO , J.