F iled 3/7/14 P. v. Miller CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD DARRYL MILLER
, JR.
, Defendant and Appellant. H039406 (Santa Clara County Super. Ct. No. CC942539 )

D efendant Richard Darryl Miller
, Jr. pleaded no contest to one count of first degree burglary (Pen. Code
, § 459) 1 in exchange for a sentence of 16 months in prison

. The trial court ordered him to pay $5,500 in restitution for the victim’s loss of three

items: a television, a camera, and a camcorder

. On appeal, defendant contends the trial court erron eously imposed restitution in an

amount greater than the replacement costs incurred by the victim. The Attorney General

concedes the trial court erred as to the amount of restitution for the television, but argues the court properly determined the amount of restitution for the other two items. We agree with the Attorney General. We will reduce the a mount of restitution to reflect the replacement cost of the television, and we will affirm the judgment in all other
respects.

1 Subsequent undesignated statutory references are to the Penal Code.2 I. F ACTUAL AND P ROCEDURAL B ACKGROUND On May 5, 2009, the prosecution charged defendant with one count of first degree burglary. 2 (§§ 459, 460, subd. (a).) The complaint also alleged defendant was on bail for the commission of another felony at the time of the offense. (§ 12022.1) On December 20, 2012, defendant pleaded no contest to residential burglary , and the enhancement

all egation was stricken . In exchange for his plea
, defendant w as promised a 16

- month

sentence consecutive to a nother senten ce arising out of a separate case. On January 28, 2013, the trial court imposed a total term of 17 years and 8 months in prison for bo th

cases.
At the restitution hearing, Ling Sen Peng, the victim, testifi ed that defendant stole

three items: a 43

- inch Pioneer p lasma television, a C anon DSLR digital camera
, and a Sony camcorder. Ling bought the television in 2006 for $3,800, and he replaced it with a
4 6

- inch LCD television for $1,600. He spent $1,000 to replace the stolen Canon

camera

— which he had received as a gift

— with a Nikon camera of the same value

. The stolen Sony camcorder cost $700, and he replaced it wi th a new Canon camco rder for
$500. Although Ling spent less to replace the television and camcorder than he originally spent to buy them, he asked the court to award him restitution for the full, original cost of the items “ as a penalty. ” Defense counsel objected on the grounds that “Mr. Peng is not entitled to a windfall and he is not entitled to a penalty.” The court rejected this argument and ordered restitution for the full, original cost of the items in the amount of $5,500.

II. D ISCUSSION Section 1202.4 provid es , in relevant part, that restitution “ shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined

economic loss incurred as the result of the defendant ’ s criminal conduct, including, but

2 The record does not set forth the facts of the offense, other than those relating to restitution.3

not limited to [.

. .] [¶] [f] ull 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. ” (§ 1202.4,

subd s . (f)(3) & (f)(3)(A) .) (Italics added.) “A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall.”
( People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172. ) “[R]estitution is to be based on the replacement cost of a like item.” ( Id. at p. 1177.)

We review the trial court ’ s restitution order for abuse of discretion. ( People v. Chappelone , supra, 183 Cal.App.4th at p. 1173.) An award of restitution greater than

that necessary to compensate the victim for like property constitutes an abuse of
discretion. ( Id. at p. 1177.) The parties agree that the trial court erred in awarding Ling $3,800 for the
television, and that $1,600 will make him whole for the loss of that i tem. We agree with the parties. Furthermore, there is no dispute relating to the award of $1,000 for the

camera. The sole issue in contention concerns the proper award for the camcorder. Defendant contends the court should have awarded Ling $500, equ al to the replacement

cost of the camcorder

. The Attorney General argues that the court did not abuse its discretion in awarding $700 because the original camcorder was worth that amount , and

the record d oes not show that the new camcorder was comparable to that of the stolen

camcorder. We agree with the Attorney General. The victim is entitled to compensation for

“ like property.” ( People v. Chappelone , supra, 183 Cal.App.4th at p. 1177.) Nothing in

the record shows that the new camcorder was “like” the stolen ca mcorder

–– that is, of equal value or comparable quality. “[I]t is settled that: ‘A judgment or order of the lower

court is presumed correct . All intendments and presumptions are indulged to support it

on matters as to which the record is sil ent, and error must be affirmatively shown. This is4

not only a general principle of appellate practice but an ingredient of the constitutional

doctrine of reversible error.’ ” ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

There being no showing t o the contrary , we find no abuse of discretion in the trial court’s
award of $700 for the cam corder

. Accordingly, we will modify the restitution order to award $3,300 to the victim, equal to the sum of $1,600 for the television, $1,000 for the camera, and $700 for the

camcorder.

III. D ISPOSITION The restitution order is modified to award $3,300 to Ling Sen Peng. As modified,

t he judgment is affirmed.

_______________________________ Márquez, J.

WE CONCUR:

_____________________________________ Rushing, P. J.

______________________________________ Premo, J.