Filed 8/15/22 P. v. Jones CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Yvette Verastegui, Judge. Affirmed.

Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Christian Noel Jones pled no contest to one count of first degree burglary for stealing a gaming console, among other items. Though the console was returned to the victim, it no longer worked. At the restitution hearing, the victim testified the gaming console was approximately one to two years old, and the People introduced a printout of a website the victim had visited, showing a new console could be purchased for $499. The same printout stated, “Used for $373.95.” Appellant’s sole contention on appeal is that the court abused its discretion by awarding $499 in restitution for the gaming console instead of $373.95. Because appellant presented no evidence that the $373.95 console was similar to the victim’s console in age or condition, we find the court acted reasonably in awarding $499 and affirm.

3911719343734. OF RELEVANT FACTS

In August 2019, appellant was charged by information with first degree burglary and receiving stolen property. In February 2020, a second charge of first degree burglary was added. In January 2021, after appellant pled no contest to one count of first degree burglary, the court dismissed the other counts and sentenced appellant to one year in jail and three years of probation. The court also ordered appellant to make restitution to the victim pursuant to Penal Code section 1202.4, subdivision (f).

A restitution hearing was held in July 2021. The victim testified that after her gaming console (approximately one to two years old) was returned, it no longer worked, though it was undamaged prior to the theft. She additionally testified that she “looked . . . up” the “exact[] same” gaming console on “the Internet” and printed out a page showing a new console could be purchased for $499. The same printout stated: “Used for $373.95,” which the victim interpreted to mean a used console could be purchased for the lower price. The court awarded $499 as the replacement cost for the gaming console, finding the People had “met their burden.” Appellant timely appealed.

Appellant contends the trial court erred in awarding $499 instead of $373.95 as the replacement cost for the console. We discern no error.

“At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim’s testimony on, or other claim or statement of, the amount of his or her economic loss.” (People v. Millard (2009) 175 Cal.App.4th 7, 26.) Once a 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.) “While the court need not order restitution in the precise amount of loss, it ‘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. Chappelone (2010) 183 Cal.App.4th 1159, 1172.)

“[W]e review the trial court’s restitution order for abuse of discretion.” (People v. Giordano (2007) 42 Cal.4th 644, 663.) “‘“‘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. Millard, supra, 175 Cal.App.4th at 26.) “‘[T]he court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.’” (Ibid.)

Here, the victim testified that the stolen game console could be purchased new for $499. “[A]bsent unusual circumstances, or a showing by the defendant to the contrary, the original cost of a stolen item may be treated as evidence of replacement cost for purposes of restitution.” (People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) Here, appellant claims such a “showing by the defendant” was made when the victim testified a used console could be purchased for $373.95. We disagree.

The victim testified her console was approximately one to two years old and was undamaged prior to the theft. The value of damaged property is “the replacement cost of like property.” (Pen. Code, § 1202.4, subd. (f)(3)(A).) The People presented evidence that a similar replacement could be purchased for $499. By presenting no evidence that the used gaming console available for $373.95 was comparable in age or condition to the victim’s stolen console, appellant failed to rebut the People’s evidence. Accordingly, the trial court reasonably found $499 to be the replacement cost and was not compelled to find the cost to be $373.95.

Appellant cites two cases in support of his arguments. In People v. Chappelone, supra, 183 Cal.App.4th at 1175‑1177, the appellate court held it erroneous to award the retail price of stolen property as restitution when the evidence demonstrated most of the stolen property was damaged before it was stolen and could never have been sold at retail price. In People v. Thygesen (1999) 69 Cal.App.4th 988, 995, the appellate court stated that when the victim “had no idea of the age” of a stolen cement mixer, it would have been error to award the cost of a “brand new” mixer as restitution. Here, unlike the stolen property in Chappelone, the gaming console was undamaged before it was stolen. And unlike the victim in Thygesen, the victim testified about the approximate age of her relatively new gaming console. Chappelone and Thygesen are inapposite.

The court’s restitution order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.