Filed 10/1/26 P. v. Brunken 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
THE PEOPLE, C103488
Plaintiff and Respondent,
(Super. Ct. No. 23CF00204)
v.
LON MICHAEL BRUNKEN,
Defendant and Appellant.
Defendant Lon Michael Brunken plead no contest to misdemeanor vandalism.
The trial court placed defendant on probation and ordered him to pay victim restitution in
the amount of $3,597.40. On appeal, defendant contends the court abused its discretion
in calculating restitution, which gave a windfall to the victim. We will affirm.
BACKGROUND
Defendant and Larissa Brunken, his wife and codefendant, were in a
landlord/tenant dispute with the victim, who was their landlord. In September 2022,
defendant and codefendant piled items from the victim’s property onto her driveway to
block her access to the property; four granite slabs and a bird bath were damaged in the
process.
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In January 2023, the People charged defendant with felony vandalism of the
granite slabs (Pen. Code, § 594, subd. (a); count 1)1, misdemeanor vandalism of the
birdbath (§ 594, subd. (a); count 2), and misdemeanor elder abuse (§ 368, subd. (c); count
3). In April 2024, defendant plead no contest to misdemeanor vandalism. Pursuant to the
plea agreement, the trial court dismissed the remaining counts, sentenced defendant to 10
days in jail, placed him on one year of formal probation, and set a victim restitution
hearing (§ 1202.4, subd. (f)).
The People requested the following restitution amounts: $3,272.40 for four
damaged granite slabs, $325.00 for the damaged bird bath, and $1,400.00 in attorney
fees, totaling $4,997.40. The People claimed the victim suffered economic losses due to
defendant’s vandalism and provided a list of the losses with supporting documentation.
The supporting document priced four replacement granite slabs, approximately five-foot-
by-two-feet, at $818.10 each. Defendant opposed victim restitution, arguing he was not
the actual or proximate cause or a substantial factor in the victim’s losses.
In September 2024, the trial court held a restitution hearing. Both defendant and
codefendant testified.
Codefendant admitted she and defendant moved the granite slabs, which had been
located outside on the victim’s property for at least nine months. She claimed the granite
slabs were in the same condition after she and defendant moved them, the bird bath was
not broken, and the proposed replacement granite slabs were larger than the original
slabs. Codefendant estimated the granite slabs were approximately “two-and-a-half feet
… long [and] … two-feet wide,” or “three feet at best,” but conceded she was “very bad
at measurements.” She also testified it was possible there was a recorded jail phone call
between her and defendant where she admitted to breaking the granite, but she could not
1 Undesignated section references are to the Penal Code.
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remember. Defendant initially denied damaging the granite slabs, but when asked by the
prosecution, “If you and your wife acknowledge[d] breaking the granite in a jail call,
would that be the truth,” he responded, “Truth.”
The prosecutor argued the evidence submitted was sufficient to justify the
restitution award, citing the evidence submitted, defendant’s admission to breaking the
granite slabs in a recorded jail phone call, and his guilty plea to vandalism of the bird
bath. The prosector further argued the size of the replacement granite slabs was
“consistent” with the photographs submitted by defendant, the victim’s estimate the
granite slabs were “three-by-three to five-by-five pieces,” and represented a “correct
estimate.”
Codefendant’s counsel contended the bird bath was already damaged prior to
being moved; the attorney fees were related to the landlord/tenant issue, not the
vandalism; and the victim was “simply overreaching” on the value of the granite slabs.
Defendant’s counsel also claimed the victim suffered no economic loss because the
granite slabs had been left outside for several months and were abandoned property.
The trial court ordered victim restitution for the granite slabs ($3,272.40) and the
bird bath ($325), totaling $3,597.40. The court acknowledged the property had been left
outside but found that defendant should not have damaged the victim’s property. The
court said it based its decision on the evidence submitted and defendant’s admission he
broke the granite slabs. The court declined to order restitution related to the victim’s
attorney fees, finding the attorney fees were for the sole purpose of a “landlord/tenant
issue” between codefendant and the victim.
Defendant timely appealed.
DISCUSSION
Defendant argues the trial court abused its discretion by awarding the victim
restitution amounts that were not equivalent to the granite slabs defendant damaged,
resulting in a windfall to the victim. We disagree.
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We review a trial court’s restitution order for abuse of discretion. (People v.
Giordano (2007) 42 Cal.4th 644, 663.) The trial court has broad discretion in setting the
amount of restitution. (People v. Baker (2005) 126 Cal.App.4th 463, 470.) “When there
is a factual and rational basis for the amount of restitution ordered, no abuse of discretion
will be found.” (People v. Phu (2009) 179 Cal.App.4th 280, 284.)
In every case where a victim has suffered economic loss because of a defendant’s
conduct, the trial court is required to order the defendant to make restitution to the victim
“in an amount established by court order, based on the amount of loss claimed by the
victim … or any showing to the court.” (§ 1202.4, subd. (f).) The amount in restitution
shall be “sufficient to fully reimburse the victim … for every determined economic loss
incurred as the result of the defendant’s criminal conduct,” including “[f]ull or partial
payment for the value of the … damaged property. The value of … damaged property
shall be the replacement cost of like property, or the actual cost of repairing the property
when repair is possible.” (§ 1202.4, subd. (f)(3)(A).)
“Once the victim makes a prima facie showing of economic losses incurred as a
result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the
amount of losses claimed by the victim.” (People v. Gemelli (2008) 161 Cal.App.4th
1539, 1543.)
Here, the victim submitted documentary evidence to the trial court showing the
replacement cost of four approximately five-foot-by-two-foot granite slabs totaling
$3,272.40, which constituted a prima facie showing of her loss. Defendant failed to meet
his burden to disprove the amount of the loss. Defendant offered no evidence to
challenge the replacement value or evidence of the cost of repair. The trial court did not
abuse its discretion.
In reaching this conclusion, we note that People v. Chappelone (2010)
183 Cal.App.4th 1159, relied on by defendant, is distinguishable. In Chappelone, the
defendants stole a variety of merchandise from a retail store. (Id. at pp. 1162-1163.)
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Under the unusual facts of Chappelone, the Court of Appeal held that the trial court erred
by ordering restitution based on the full retail value of the stolen merchandise because
much of the stolen goods were damaged prior to their theft, unsellable, and items the
store intended to donate for a fraction of the price or give away for free. (Id. at pp. 1177-
1178.) The appellate court also found that the trial court awarded the store a windfall by
basing restitution on the full lost profits of the merchandise because there was “no
evidence” of the profits the store would have generated from the sales of those products.
(Id. at p. 1178.) Thus, Chappelone addressed how to determine the value of a retailer’s
lost merchandise and based its holding in part on the lack of proffered evidence, which is
not at issue here.
This case is more akin to People v. Erickson (2018) 30 Cal.App.5th 243. In
Erickson, the defendant stole copper wire from a winery. (Id. at p. 245.) The police
recovered and returned the wire to the winery, which was unusable. (Ibid.) The court
ordered the defendant to pay the replacement value in victim restitution and allowed the
winery to keep the wire that the police returned. (Ibid.) The Court of Appeal held that
the winery retaining the damaged copper wire did not create a windfall because the
winery was in a less favorable position than before defendant damaged the wire, and the
damaged wire did not hold the same value or utility. (Id. at p. 247.) The same rationale
applies here. The victim here was left with granite slabs that were damaged and did not
hold the same value or utility, and the court reasonably calculated the replacement value.
(Ibid.; People v. Akins (2005) 128 Cal.App.4th 1376, 1389, [no abuse of discretion
because there is more than one reasonable way to calculate restitution].)
We also are not persuaded by defendant’s argument that the size of replacement
granite slabs was not equivalent to the damaged granite slabs. After reviewing the
documentary evidence and testimony, the trial court weighed codefendant’s credibility
and the conflicting evidence regarding the size of the damaged granite slabs. The court
rejected codefendant’s testimony about the size of the granite slabs as not credible after
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she conceded she was “very bad at measurements” and substantial evidence supports a
finding that the size of the damaged granite slabs was “consistent” with the photographs
submitted by defendant and the victim’s estimation of the granite slabs being “three-by-
three to five-by-five pieces.”
The trial court’s award of restitution was rational, supported by substantial
evidence, and within its broad discretion.
DISPOSITION
The judgment is affirmed.
\s\
KRAUSE, J.
We concur:
\s\
MAURO, Acting P. J.
\s\
BOULWARE EURIE, J.
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