Filed 5/27/16 P. v. Ngo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

Plaintiff and Respondent,

v.

VY CHI NGO,

Defendants and Appellants.

 H041981

 (Santa Clara County

 Super. Ct. No. C1473226)

 ORDER MODIFYING OPINION 

 AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on May 2, 2016, be modified as follows: 

1. On page 4, the last paragraph is deleted and the following paragraph is inserted 

in its place:

Defendant contends on appeal that the jacket stolen on December 22 was 

recovered, since he was taken to the security office immediately after the theft and he 

must have been wearing the jacket at the time of his arrest. However, defendant did not

present any evidence to support that contention at the restitution hearing. Once the 

prosecution established a prima facie case that the victim was entitled to the restitution 

amount claimed, the burden shifted to defendant to disprove the claimed loss. (Gemelli, 

supra, 161 Cal.App.4th at p. 1543.) Because defendant failed to present any evidence at 

the restitution hearing regarding the recovery of the jacket, he did not satisfy his burden 
2

to refute that claimed loss. Accordingly, we find no abuse of discretion in ordering 

defendant to pay $2,534 in restitution to Abercrombie & Fitch.

There is no change in the judgment.

The petition for rehearing is denied.

______________________________________

RUSHING, P.J.

______________________________________

MÁRQUEZ, J.

______________________________________

GROVER, J.
Filed 5/2/16 P. v. Ngo CA6 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE,

Plaintiff and Respondent,

v.

VY CHI NGO,

Defendant and Appellant.

 H041981

 (Santa Clara County

 Super. Ct. No. C1473226)

Defendant Vy Chi Ngo challenges a victim restitution order in the amount of 

$2,534. Defendant pleaded no contest to one count of grand theft (Pen. Code, §§ 484–

487, subd. (a)1) based on taking merchandise from a retail store. He asserts that one of 

the stolen items, a jacket, was recovered at the time of his arrest, and that the restitution 

amount must therefore be reduced by the value of the jacket ($160). We conclude that 

the trial court did not abuse its discretion in setting the restitution order amount, and we 

will affirm the judgment. 

I. FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS

On December 22, 2013, Loss Prevention Officer Norm Bryan A. Cruz observed 

defendant conceal four bottles of cologne in his shirt while he was inside the 

Abercrombie & Fitch store at the Valley Fair Mall. Cruz saw defendant walk past all the 

cashiers and leave the store without paying for the cologne. Cruz approached defendant 

outside the store, and San Jose Police Officer Jonathan D. Shaheen joined them shortly 

 

1

 Unspecified statutory references are to the Penal Code. 
2

thereafter. Officer Shaheen placed defendant in handcuffs and escorted him to the 

Abercrombie & Fitch security office. Officer Shaheen recovered four bottles of cologne 

that were hidden inside defendant’s shirt. Defendant was then arrested and transported to 

jail. 

Cruz reviewed store security footage, which revealed that defendant had also 

stolen a blue and green jacket on December 22, as well as other items on December 14, 

18, and 20. The security footage showed that on each of those four days, defendant 

entered the store without a jacket, concealed various items in his clothes, and then left the 

store wearing a stolen jacket and concealing merchandise in his clothes.

Defendant was charged with one count of grand theft of personal property valued

over $950 (§§ 484–487, subd. (a)) taking place “[o]n or about and between” 

December 14 and December 22, 2013. After defendant pleaded no contest, the trial court 

suspended imposition of sentence for three years and placed defendant on formal 

probation. Among other conditions of probation, the trial court ordered defendant to 

serve 90 days in jail and to pay restitution. 

The trial court held a formal restitution hearing. A probation report recommended

that defendant be ordered to pay Abercrombie & Fitch $2,534 in victim restitution. A

statement of loss submitted by Abercrombie & Fitch provided a detailed accounting of 

property lost in the four thefts. The statement of loss included a description of the stolen 

items, the quantity of the items taken, the date of theft, and the value of the items. The 

statement reported 35 bottles of cologne and four outerwear jackets stolen, for a total 

value of $3,006. The statement of loss also noted that four bottles of cologne, valued at 

$472, were recovered. The victim claimed the remaining amount of $2,534 as the total 

economic loss. The trial court also reviewed security footage of the four thefts, the police 

report, and a report prepared by defendant’s investigator. 

Defendant argued that no restitution was owed. Defendant pointed out that on 

December 22, he was caught with four bottles of stolen cologne on his person, and “the 
3

property was returned in the same condition that it was taken.” Defendant further 

asserted that the security videos were unclear as to the identity of the thief in the three 

earlier incidents and as to how many items were stolen. Defendant asserted that the 

security videos provided insufficient evidence to support restitution. 

The prosecutor responded that defendant had pleaded no contest to stealing more 

than $950 worth of items from the store and that the security footage shows him stealing 

various items. The prosecutor argued that defendant presented no evidence to refute the 

total amount of loss claimed. 

The trial court ordered $2,534 in victim restitution. The court found that the 

victim showed economic loss of $2,534 by a preponderance of the evidence, and that 

defendant had not adequately refuted the claimed loss. 

II. DISCUSSION 

Victims of crime have a state constitutional right to restitution for losses resulting 

from criminal acts against them. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) The 

Legislature has codified this right in section 1202.4, which provides in relevant part:

“[I]n every case in which a victim has suffered economic loss as a result of the 

defendant’s conduct, the court shall require that the defendant make restitution to the 

victim or victims in an amount established by court order, based on the amount of loss 

claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).) 

Section 1202.4, subdivision (f)(3) sets forth several categories of losses for which a 

victim may claim reimbursement, including “[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 ... .” (§ 1202.4, subd. (f)(3)(A.) 

A defendant is entitled to a restitution hearing “to dispute the determination of 

the amount of restitution.” (§ 1202.4, subd. (f)(1).) “The standard of proof at a 

restitution hearing is preponderance of the evidence, not reasonable doubt.” (People v. 

Holmberg (2011) 195 Cal.App.4th 1310, 1319–1320, citing People v. Gemelli (2008) 
4

161 Cal.App.4th 1539, 1542 (Gemelli).) “Section 1202.4 does not, by its terms, require 

any particular kind of proof. However, the trial court is entitled to consider the probation 

report, and, as prima facie evidence of loss, may accept a property owner’s statement 

made in the probation report about the value of stolen or damaged property.” (Gemelli, at 

pp. 1542–1543.) After the prosecution has made a prima facie showing of the victim’s 

loss, “the burden shifts to the defendant to disprove the amount of losses claimed by the 

victim.” (Id. at p. 1543.) “Absent a challenge by the defendant, an award of the amount 

specified in the probation report is not an abuse of discretion.” (People v. Keichler

(2005) 129 Cal.App.4th 1039, 1048.)

We review a 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. Mearns (2002) 97 Cal.App.4th 493, 499.)

Here, the prosecution made a prima facie showing of Abercrombie & Fitch’s 

economic loss of $2,534. It presented security footage showing defendant entering the 

store on December 14, 18, 20 and 22 and stealing various items, including jackets and 

bottles of cologne. Further, the prosecution submitted Abercrombie & Fitch’s statement 

of loss, which detailed the items that were stolen on those four dates and the retail value 

of those stolen items. The statement of loss also specified the recovered items, which 

consisted of the four bottles of cologne stolen on December 22. The statement of loss

explicitly stated that the jacket at issue was not recovered. 

Defendant contends on appeal that the jacket stolen on December 22 was 

recovered, since he was taken to the security office immediately after the theft and he

must have been wearing the jacket at the time of his arrest. However, defendant made no 

such argument to the trial court, nor did he present any evidence to support that

contention at the restitution hearing. Once the prosecution established a prima facie case 

that the victim was entitled to the restitution amount claimed, the burden shifted to 
5

defendant to disprove the claimed loss. (Gemelli, supra, 161 Cal.App.4th at p. 1543.) 

Because defendant failed to present any evidence or argument at the restitution hearing 

regarding the recovery of the jacket, he did not to satisfy his burden to refute that claimed

loss. Accordingly, we find no abuse of discretion in ordering defendant to pay $2,534 in 

restitution to Abercrombie & Fitch. 

III. DISPOSITION 

The judgment is affirmed.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Rushing, P.J. 

____________________________

Márquez, J.