1 Filed 12/18/13 In re Chauncey M. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

In re CHAUNCEY M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,

v. CHAUNCEY M., Defendant and Appellant. A137798
(San Francisco City & County Super. Ct. No. JW10-6474)

This appeal arises from three autom obile burglaries that resulted in minor Chauncey M. (defendant) being declared a ward of the court under Welfare and
Institutions Code section 602. Defendant appeals solely on th e basis of a restitution order which awarded, among other amounts, $3,300 for three items of photographic equipment stolen during one of the burgla ries. He claims the evidence was insufficient to support
the award because the items we re not included in the original police report as having been lost in the burglary. We conclude th e order was supported by substantial evidence
and did not involve an abuse of di scretion. We therefore affirm.
FACTUAL AND PROCED URAL BACKGROUND Because of the limited nature of the appeal , we recite only briefly the facts of the underlying crimes.2 The first burglary was that of a Ford Ex plorer while it was parked on Beach Street in San Francisco on September 12, 2010. A laptop was stolen from the car. Defendant was apprehended for the offense shortly afterw ards when he and two friends were spotted carrying

― and then abandoning

― a laptop bag near the Mari na Safeway. The bag contained the stolen laptop, which was returned to its owner. On September 14, 2010, the district atto rney filed a four-count wardship petition
under Welfare and Institutions Code secti on 602, alleging defendant had committed second degree burglary of the Ford Explorer (Pen. Code, § 459), 1 theft of the laptop (§ 487, subd. (a)), and felony vandalism of the car based on damage to the window (§ 594, subd. (b)(2)(A)). Th e fourth count pertained to a separate incident when defendant allegedly threw a bottle at an occupied car on the highway. (Veh. Code, § 23110, subd. (b).) Defendant was initially granted informal probation, but the petition was reinstated on April 12, 2011. Shortly thereafter, defend ant was declared incompetent to stand trial and proceedings were suspended. The second burglary occurred on July 24, 2011. The victim was Chloe Jackman, a professional photographer. Sh e parked her Volksw agen Jetta on Hollis Street in San Francisco at 2:00 a.m. on July 24. At a pproximately 2:45 p.m. a neighbor in the area heard a car alarm go off and looked out her fr ont window. She saw three black juveniles about 12 years old surrounding the Jetta. On e—whom she later identified as defendant— was rummaging through a green camera bag a nd placing items in his pants. He then walked down Hollis Street and disappeared from the witness’s view. Nearby police apprehended him and two other suspects. The neighbor identified two of them, including defendant, as having be en involved in the burglary. On July 26, 2011, a second wardship petition was f iled alleging burglary (§ 459) and receipt of stolen property (§ 496, subd. (a)). Defe ndant was again found incompetent to stand trial and proceedings were suspended.

1 Statutory references without code designation are to the Penal Code.3 Proceedings on both petitions were reinstated on August 14, 2012. The third burglary occurre d on August 23, 2012, when defendant and two of his companions were seen casing a car by two Sa n Francisco police officers in an unmarked car. The officers saw the window of a Toyota sh atter just where the boys were standing. Defendant’s companions took a backpack and make-up bag out of the car. The officers then approached and arrested defendant and his friends. As they approached they saw defendant untie a spark plug from the draw string of his sweatshirt and throw it on the ground. They seized the spark plug as eviden ce, apparently believing it had been used to
break the car window. On August 27, 2012, a th ird petition was filed, alle ging burglary of the Toyota (§ 459) and misdemeanor possession of burglary tools (§ 466). On August 29, 2012, defendant entere d admissions on all three petitions, as amended. On the first petition, the pros ecutor dismissed counts one and four and amended count two to allege a violation of section 32 (accessory to burglary) and count three to allege misdemeanor vandalism. Defe ndant then admitted coun ts two and three. As to the second petition, the prosecutor amended the charge under section 17, subdivision (b), to allege mi sdemeanor receiving stolen property (§ 496), and he dismissed the burglary count. Defendant then admitted the misdemeanor receiving allegation. With respect to the third pe tition, defendant admitte d a felony burglary (§ 459), and the misdemeanor count was dism issed. All told, defendant admitted one felony and three misdemeanors. On October 2, 2012, a dispositional he aring was held in which defendant’s custody was vested in the pr obation department and he wa s placed at the 33rd Avenue Shelter. On January 28, 2013, a hearing on restitution was conducted at which defendant was ordered to pay the victim of the first bur glary $400 to repair the broken window. He was ordered to pay Jackman $10,201.37 for ca mera equipment stolen during the second burglary and a broken car window. No res titution was ordered on the third burglary because the victim had not provided an estimate of loss on the broken glass. The restitution was ordered joint and several with a co-defendant.4 This timely appeal raises an issue only with respect to the restitution ordered in
connection with the second burglary.
DISCUSSION As noted, the restitution order for the s econd burglary, of J ackman’s car, was for $10,201.37. Defendant claims the restituti on order was unsupported to the extent of $3,300, for three pieces of photographic equipment and t hus constituted an abuse of discretion. More specifically, defendant cont ends that the finding implicitly underlying
that order

― that the loss of those three items wa s caused by defendant’s criminal
conduct

― was not supported by substantial evidence. We disagree.
The victim Jackman filled out a victim impact form, evidently provided by the probation department, which in part detailed her claim for lost equipment, as follows: “Nikon D700 $2,700 [Serial number] Nikon D300s $1,700 [Serial number] SB 900 $450 [Serial number] SB 900 $450 [Serial number] 24 mm 2.8 $200 [Serial number] 50 mm 1.4 $350 [Serial number] 60 mm 2.8 $600 [Serial number] 85 mm 1.4 $1,400 [Serial number] 17-55 mm 2.8 $1,200 [Serial number] Lighting Equip $1,000 NA” Jackman also claimed $151.37 for her broken window, with a receipt for the repair included. The list of stolen photographic eq uipment was not signed by Jackman or made
under oath.
In the trial court defendan t offered briefing, but no evid ence, to oppose an order of restitution with respect to thre e disputed pieces of photogra phic equipment: the Nikon D300s camera valued at $1,700, the Nikon 60 mm lens valued at $600, and a lighting kit5 valued at $1,000. 2 Defendant’s primary argument is th at these three items were not listed as stolen at the time the second burglary wa s reported to the police, and therefore the victim’s written statement listing them as items subject to restitution was “not facially credible and insufficiently detailed to support the restitution order.” 3 We conclude the court could properly consider the victim’s uns worn statement as evidence of the fact of
her loss as well as the value of the stolen items, and thus di d not abuse its discretion in determining that the three items were, in fact, stolen during the car burglary, causing the loss claimed by the victim. Restitution in juvenile cases is govern ed by Welfare and Institutions Code section 730.6, subdivision (h), which requires the juvenile court to order restitution of “a dollar amount sufficient to fully reimburse th e victim or victims for all determined
economic losses incurred as th e result of the minor’s conduct for which the minor was found to be a person described in Section 602 . . . .” Res titution orders are reviewed for abuse of discretion. ( People v. Chappelone (2010) 183 Cal.Ap p.4th 1159, 1173; Gemelli , supra , 161 Cal.App.4th at p. 1542.) Where ther e is a factual and rational basis for the

2 Defense counsel argued in the court be low that the “lighting equipment” listed on the restitution inventory was the same as the “power bag” reported to the police and valued at $600.

3 This language appears to derive from People v. Gemelli (2008) 161 Cal.App.4th 1539 ( Gemelli ), where an unsworn statement of lo sses by the victim, attached to the probation report, was found to support a res titution order for more than $7,000 based on damage to a restaurant caused by a burglar, including more than $5 ,000 to reconstruct stolen business paperwork. ( Id . at p. 1544.) In commentin g on the list of losses, the Court of Appeal noted it was “detailed and faci ally credible in that it explains how each of the claimed losses is related to the burglary. In addition, each of the repair items shows an amount spent on materials, an hourly rate for labor or professional services, and the amount of time it took to comple te the necessary work.” ( Ibid .) This was merely a comment on the strength of the evidence; it was not intended to set a standard requiring a victim to explain “how each of the claimed lo sses is related to the burglary.” Moreover, it may be necessary to “explain” how an ex pense was related to a crime if, as in Gemelli , the claim includes amounts for replacing or repa iring property not stolen but damaged in the course of the crime. Here, however, wh ere it was clear in context that all items except the car window were claimed as lo sses because they were stolen during the burglary, requiring an explicit statement to th at effect would appear wholly unnecessary.6 amount awarded, no abuse of discretion will be found. ( People v. Keichler (2005) 129 Cal.App.4th 1039, 1045; In re Johnny M. (2002) 100 Cal.App. 4th 1128, 1132.) “ ‘ “ ‘In reviewing the sufficiency of the ev idence, “ ‘[t]he power of the appellate court begins and ends with a determ ination as to whether there is any substantial evidence,
contradicted or uncontradicted’ to support the trial court’s fi ndings.” [Citations.] Further, the standard of proof at a re stitution hearing is by a prepon derance of the evidence, not proof beyond a reasonable doubt. [Citation.]’ [Citation].” ( People v. Keichler , supra , at p. 1045.) “[M]ethodological imprecision” does not amount to an abuse of discretion. ( People v. Giordano (2007) 42 Cal.4th 644, 666 ( Giordano ).) Still, no court has
discretion to award restitution “not authorized by law, or to find facts for which there is not substantial evidence.” ( In re K.F. (2009) 173 Cal.A pp.4th 655, 661.) The victim seeking restitu tion has the burden of presenting “an adequate factual basis for the claim.” ( Giordano , supra , 42 Cal.4th at p. 664.) Once that prima facie showing has been made, the burden shifts to the defendant to disp rove the loss claimed by the victim. ( Gemelli , supra , 161 Cal.App.4th at p. 1543; People v. Fulton (2003) 109 Cal.App.4th 876, 886.) Defendant claims on appeal the victim never made a prima facie showing in this case. Many courts have allowed reliance up on information in a probation report to establish the prima facie showi ng, despite its being hearsay, including as proof that the claimed expense was related to the crime. ( People v. Cain (2000) 82 Cal.App.4th 81, 85-89 [restitution for victim’s counseling under § 273.5].) Li kewise, they have accepted
a victim’s unsworn written itemization of losse s as prima facie evidence of the loss. ( People v. Collins (2003) 111 Cal.App.4t h 726, 734 [victim’s claim of loss recited in probation report]; People v. Pinedo (1998) 60 Cal.App.4th 1 403, 1406-1407 [probation report requested restitution award of $7,000 to cover attorney fees in curred in recovering for losses caused by defendant’s drunk driving]; In re S.S. (1995) 37 Cal.App.4th 543, 545 [itemized statement of items lost by victim]; Gemelli , supra , 161 Cal.App.4th 1542-1545 [victim’s written statement of cost of repairs attached to probation report].)7 Nevertheless, defendant cites a handful of cases for the proposition that a more formal evidentiary show ing is required. In People v. Harvest (2000) 84 Cal.App.4th 641, our colleagues in Division Four reversed a fa mily’s claim to rest itution for a murder victim’s burial expenses because it was contai ned only in the probation report and was not supported by documentary or testimonial evidence. ( Id . at p. 653.) We do not agree with that aspect of the opinion. 4
Defendant cites People v. Hartley (1984) 163 Cal.App. 3d 126, 130, for the proposition that a court cannot base a restituti on order solely on hearsay in the probation report. But that was a case in which the de fendant requested and wa s denied a restitution hearing altogether. ( Id . at pp. 127-128.) It has no application here.
In re K.F. , supra , 173 Cal.App.4th 655 is also clear ly distinguishable in that the victim claimed as losses both out-of-pocket e xpenses and amounts paid by third parties, including “organization[ s]” and “compan[ies].” ( Id . at pp. 664-665.) The wording of the claim, together with the documentary eviden ce, strongly lent itself to an inference the victim had not actually paid for ambulan ce services provided by Kaiser. ( Id . at p. 664.) For that reason, the court limited restitution. 5 And finally, People v. Vournazos (1988) 198 Cal.App.3d 94 8 struck a restitution order where it was based solely on the value recited in the probation report, and where nothing in the probation officer’s testimony or report indicated the estimate was based on replacement value. ( Id . at pp. 958-959.) But, as we have already ruled, the holding of Vournazos is subject to serious doubt, as indicated in several cases:

4 The main issue in People v. Harvest, supra, 84 Cal.App.4th 641, was whether imposing a large restitution ob ligation on remand after appeal (where no restitution had originally been ordered) violated double jeopardy principles. ( Id. at p. 645.)

5 However, to the extent the opinion may be read as implying that losses covered by insurance are not compensable as part of a restitution award, it appears to be mistaken. Jackman had already recovered $7,899 from he r insurance company, but that would not reduce the amount of restitu tion due from defendant. ( People v. Birkett (1999) 21 Cal.4th 226, 246; People v. Vasquez (2010) 190 Cal.App. 4th 1126, 1133-1134; In re Brittany L. (2002) 99 Cal.App.4th 1381, 1389.)8 “Appellant renews in this court his c ontention that the victim’s losses were insufficiently proven by her itemi zed statement. He relies on People v. Vournazos (1988) 198 Cal.App.3d 948, where the court held insufficient a statement from the victim itemizing stolen or damaged items with a sserted values and repair costs. ( Id . at p. 952, fn. 2.) The court held that this documen t failed to show that the claimed values represented replacement costs, or that the claimed repair costs reflected ‘the actual cost of the repair.’ ( Id . at p. 958.)
“The Vournazos court professed to acknowledge the rule, adopted in an earlier case, that the defendant ‘bears the burden of proving that the amount of restitution claimed by the victim exceeds repair or repla cement cost of lost or damaged property.’ (198 Cal.App.3d at p. 959, citing People v. Hartley (1984) 163 Cal.App. 3d 126, 130.) In
fact the Hartley decision stated an even broader ru le: ‘Since a defendant will learn of the amount of restitution recommended when he reviews the probation report prior to sentencing, the defendant bears the burden at the hearing of proving that amount exceeds the replacement or repair cost.’ (163 Cal.App. 3d at p. 130, italics added, fn. omitted.) The court went on to offer guide lines for the probation officer’s ‘inquiry or investigation’ into the victim’s losses. ( Id . at p. 130, fn. 3.) However th e decision appears to mean that, at least where the items, amounts, and sources are adequately identif ied in or with the probation report, the defendant has the burden of refuting them.
“We find it difficult to re concile the holding in Vournazos with the rule just cited.” ( In re S.S. , supra , 37 Cal.App.4th at pp. 546; see also, Gemelli , supra , 161 Cal.App.4th at p. 1542 [“ Vournazos has been criticized by other courts”]; People v. Foster (1993) 14 Cal.App.4th 939, 946 ( Foster ) [finding reasoning of Vournazos “unpersuasive”].) In the present case the trial court did no t rely solely on the probation report. Rather, the victim herself filled out a victim impact form, together with an attachment itemizing losses totaling $10,050.00. 6 A victim’s written statement regarding the amount

6 Jackman itemized lost equipment as being worth $10,050, but she asked for restitution of only $8,300. The record does not elucidate the re ason for this discrepancy.9 of loss constitutes prima facie evidence for purposes of setting a restitution award. ( Keichler , supra , 129 Cal.App.4th at p. 1048.) It is not necessary that the victim’s claim be substantiated through pa rticular testimonial evidence or documentation. ( In re S.S. , supra , 37 Cal.App.4th at p. 547, fn. 2 [“None of the cases hold that the victim must supply a sworn proof of loss or detailed documentation of costs and expenses”].) “A property owner’s statem ents in the probation repo rt about the value of her property should be accepted as prima facie evidence of value for purposes of restitution. (Cf. Evid. Code, § 810 et seq. [providing ‘special rules of evidence applicable to any action in which the value of proper ty is to be ascertained.’])” ( Foster, supra, 14 Cal.App.4th at p. 946.) “ ‘Due process does not require a judge to draw sentencing information through the narrow net of courtroo m evidence rules . . . sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.’ [Citation.]” ( People v. Baumann (1985) 176 Cal.App.3d 67, 81.) “This is so because a hearing to establis h the amount of restitution does not require the formalities of other phases of a criminal prosecution. ( People v. Rivera (1989) 212 Cal.App.3d 1153, 1160.) When the proba tion report includes information on the
amount of the victim’s loss and a recommendati on as to the amount of restitution, the
defendant must come forward with contrary information to challenge that amount.” ( Foster , supra , 14 Cal.App.4th at p. 947; see al so Evid. Code § 813, subd. (a)(2) [allowing owner’s opinion as proof of value of property].) Thus, the nature of the evidence was acceptable as prima facie proof of the restitution claim.
Defendant next contends there was no evidence the three disputed items were actually stolen in the car burglary, in large part because they were not includ ed in the initial list of stolen items repor ted to the police. But we fi nd the evidence was sufficient to support the restitution awar d despite the fact that ther e was no specific statement by
the victim that the items were stolen from he r car. This allegation was implicit in her claim for restitution. (See In re S.S. , supra , 37 Cal.App.4th at p. 548 [“the trial court was10 entitled to infer that the ‘martial arts weapons and spears’ referred to by the victim [in a written statement of losses] were in the car when appellant stole it”].) We are also not willing to say her claim is foreclosed based on her failure to report all of the missing items immediately. It is true that Jackman did not tell the police on the date of the burglary the three disputed items were missing. 7 Nor, argues defendant, did she inform the police of additional missing items between the time of the burglary and the People’s request for restitution, filed f our days before the restitution hearing, more than 17 months after the burglary. 8 Nevertheless, the court did not abuse its discretion in crediting the victim’s written statement to the effect that the questioned eq uipment was lost in the burglary, despite her initial failure to inform police of the additional missing items. By the time she discovered the additional items were missing, she may well have given up hope of recovering her property and may have seen no point in reporting the additional theft to the police. Alternatively, the questioned items may have been stolen and recovered, 9 but

7 Jackman reported the following items mi ssing at the time of the burglary: a power bag estimated at $600 in value, a Nik on D700 valued at $3 ,200, two Nikon SB 900 flashes valued at $400 each, a Nikon 17-55 mm lens valued at $1,200, a Nikon 85 mm lens valued at $1,200, a Niko n 24 mm lens valued at $1,2 00, and a Nikon 50 mm lens valued at $350. Thus, the total loss attri butable to specific items was $8,550 based on the police report.

8 The record does suggest, however, that Jackman first made a claim for these items about a year after the burglary, apparen tly in connection with a claim for restitution in a co-defendant’s case.

9 The police report included a reference to “miscellaneous camera equipment” having been found by police scat tered along a nearby sidewalk during their investigation. It may be inferred the equipment was ta ken from Jackman’s car. Whether such equipment included the three disputed items is not established by the record, but even if it did, and even if we could assume those items were returned to Jackman, we have no assurance they were retu rned undamaged. (Cf. People v. Collins , supra , 111 Cal.App.4th at p. 734 [“That the stolen items were retrieved and booked into evidence does not establish that they were ev er returned to the victim, much less that they were undamaged”].) Thus, it is possible the police were aware of additional stolen items and simply did not enumerate them because they were recovered. The police report certainly11 in a damaged condition. We will not adop t a rule that a claim for restitution is insufficient to establish a prima facie case for restitution simply because it includes a
claim for items not in itially reported stolen. As the trial court observed, a victim would not necessarily “know right away” exactly which items were missing. Since the victim was a professional photographer, it is
not unreasonable to credit her statement that she had more than one camera and several lenses in her car before it was burglarized. The court noted that once the victim “had time to reflect and get the serial numbers together,” she was in a better position to evaluate her losses. The court summarized, “I am not at all persuaded by the fact that when she first reported her loss that she ha dn’t . . . fully take n an accounting of everything that was lost. That’s quite common.” On the issue of value, de fendant offered evidence that some of the stolen items could be bought on the Internet for a price lower than what the vi ctim claimed as their value. Significantly, howeve r, his evidence did not disclose lower prices for the three items in question. Nor did defendant present testimony or other evidence that the three questioned items had not, in fact, been taken from Jackman’s car. The bottom line is that defendant
was afforded an o pportunity to dispute Jackman’s statem ent of losses in the trial court, and he presented no countervailing evidence. (Cf. In re S.S. , supra, 37 Cal.App.4th at p. 548 [if items claimed in a written statemen t were not in fact stolen, “appellant was competent to so testify. If further details we re needed, appellant could attempt to procure them, either by contacting the victim or by requesting that the probation officer do so. Having done none of these thi ngs, appellant cannot complain about the lack of detail in the statement”].) So long as Jackma n’s statement constituted a prima facie showing

― and it did

― then the burden shifted to defendan t to disprove her claim. There is no basis for resolving any ambiguity in the record in defendant’s favor.

does not disprove that Jackman had losses beyond th ose itemized in the initial incident report.12 In making its ruling the court empha sized the victim was a “professional photographer” who had “painstakingly” docu mented “serial numbers and come up with
the estimates.” It noted the amount she claimed for her broken window was “below low,” and some of her estimated equipment va lues had gone down from the estimates she gave in the police report. The court had “no reason” to disbelieve Jackman’s estimate of the value of her “professional equipment,” espe cially because it was used by her in her
business. Based on those c onsiderations, the court found the amount claimed by the victim was “reasonable,” noting specifically that it “believe[d] her amount.” We cannot call such reasons, going to the weight and credibility of the evid ence, an abuse of
discretion. We also note parenthetically that Jack man claimed she lost business and incurred additional expense (equipment rental) after losing her photographi c equipment. No specific dollar amount was claimed, however, and the court awarded her no
reimbursement for such economic losses. To the extent the court was generous in resolving any doubt in favor of compensatin g her for lost equipment we cannot say it abused its discretion. The polic y of the law is to make the victim whole. (See generally,
Giordano , supra , 42 Cal.4th at pp. 651-656.) “The court shall orde r full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (Welf. & Inst. Code, § 730.6, subd. (h).) The award is to be of a “dollar amount sufficient to fully reimburse the victim or victims for all determ ined economic losses
incurred as the result of the minor’s conduc t for which the minor was found to be a person described in Sec tion 602 . . . .” ( Ibid .) Recoverable amounts specifically could have included lost profits. ( Id ., subd. (h)(3) & (4).) We do not say the court erred in failing to award lost profits, but the fact th at the stolen equipment was used in the victim’s business certainly argues in favor of granting her full restitution for her lost equipment. Finally, with respect to the exact amount of restitution ordere d for the “lighting kit,” we find no abuse of discretion. De fense counsel himself argued below that the “lighting equipment” corresponded to the $600 “power bag” reported stolen in the police13 report, which seriously undercuts defendant’s argument on appeal that it was not initially reported missing. Although no serial numbers were provided for this item or items, we
find the court did not err in cr editing the victim’s statemen t regarding the value of the lighting equipment. Again, this was a prof essional photographer wh o would be expected to have high quality, valuab le photographic equipment. Th e court’s acceptance of the
victim’s estimate was not an abuse of discretion.
DISPOSITION The judgment, including the re stitution order, is affirmed.

_

____________ ____________ Richman, J.

We concur:

_____________ ____________ Kline, P.J.

_____________ ____________ Brick, J. *

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.