1 Filed 10/15/13 P. v. Wright CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado)

---- THE PEOPLE, Plaintiff and Respondent,

v. RANDAL LOY WRIGHT, Defendant and Appellant. C072372 (Super. Ct. No. P10CRF0287)

Defendant Randal Loy Wri ght pleaded no contest in Me rced County to theft or unauthorized taking of a vehicle (Veh. Code , § 10851, subd. (a)) and fraudulent removal of a leased vehicle (Pen. Code, § 504a). 1 The trial court placed defendant on three years’ felony probation and deferred any fi nding on victim restitution. Defendant was granted a certificate of pr obable cause and appealed, asserting the trial court erred in failing to conduct an ev identiary hearing on his motion to withdraw the plea. The Fifth District Court of Appeal affirmed the judgment of conviction in an unpublished opinion.

1 Undesignated statutory references are to the Penal Code.2 Defendant’s probation was transferred to El Dorado County pu rsuant to section 1203.9 while the appeal was pending. De fendant requested a hearing to dispute the restitution amount. Following a contested hear ing, the court impose d $9,804 in victim restitution. Defendant appeals, contending the restitu tion award is an abuse of discretion and a 10 percent administrative fee was improperly in cluded in the clerk’s minutes. We modify the restitution order and remand for the co urt to impose the administrative fee. BACKGROUND Defendant leased a Mercedes-Benz auto mobile, but fell behind on the payments and returned the car to the dealership. He later took the car from the dealership, had the tracking device removed, and re located it to Mexico. At his sentencing hearing, defense counsel informed the court th at the car was later brought back and returned to the dealership. Mercedes-Benz Financial submitted a re stitution claim form, signed under penalty of perjury, claiming $9,800.04 in restitution. Attached to the form was a document titled “PAYMENT PLAN,” which an attached e-mail explained was “a breakdown of the deficiency balance.” The payment plan document showed “RENT DUE” of $11,752.45 with a $3,557.58 offset for a total of $8,194.87. The docu ment listed “SALES EXP” of $235, a “DISPO FEE” of $595 , and a “LATE CHG” of $50. The document showed a subtotal of $9,074.87, a tax of $7 25.17, and a total of $9,800.04. The document was admitted at the contested restitution hearing. Defense counsel argued the document was not authenticated and there was “nothing to indicate for what purpose that money is claimed.” Since ther e was “nothing about damage to the vehicle, nothing about lost equipment from the vehicle, nothing about a diminution in value of the vehicle,” counsel concluded “there’s nothing upon which this Court can reasonably base an order of restitution.”3 The trial court applied People v. Gemelli (2008) 161 Ca l.App.4th 1539 ( Gemelli ), and ordered incorrectly, restituti on for $9,804. In support of its ruling, the trial court found the victim presented a verified, admissible claim fo r its loss. The attached recovery sheet showed a balance of $11,752, an offset of $3,557, for a balance of $8,194, plus the expenses set forth in the document. If the victim “accelerated the contract, and got more credits because they we re able to use the vehicle, o ffsets are set forth within the Vehicle Code.” The court also conclude d the document claiming the loss and showing how the victim arrived at that loss was le gally sufficient to support restitution. DISCUSSION I Defendant contends it was an abuse of di scretion for the court to order restitution based on the statement from Mercedes -Benz Financial. We disagree. Section 1202.4, subdivision (a)(1 ) declares that “[i]t is th e intent of the Legislature that a victim of crime who incurs any econom ic loss as a result of the commission of a crime shall receive restitution di rectly from a defendan t convicted of that crime.” To this end, subdivision (f) provides that “in every ca se in which a victim has suffered economic loss as a result of the defendant's conduct, th e court shall require that the defendant make restitution to the victim or victims in an amount established by cour t order, based on the amount of loss claimed by the victim or vict ims or any other showing to the court.” 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 not limited to . . . [¶] . . . [f]ull or partial payment for the value of stolen or damaged property. Th e 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, s ubd. (f)(3)(A).) In ordering restitution under section 1202.4, “the trial co urt is entitled to consider . . . [a] property owner’s statements in th e probation report about the value of [the]4 property . . . as prima facie evidence of value for purposes of restitution.” ( People v. Foster (1993) 14 Cal.App.4th 939, 946 ( Foster ).) Once the victim makes a prima facie showing of economic losses incu rred 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. Fulton (2003) 109 Cal.App.4th 876, 886.) “The defe ndant has the burden of rebutting the victim’s statement of losses, a nd to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]” ( Gemelli, supra, 161 Cal.App.4th at p. 1543.) The evidence here supported the court’s fi nding of $9,804 in vi ctim restitution to Mercedes-Benz Financial. The court could reasonabl y conclude the submitted documents showed Mercedes-B enz Financial was deprived of the ability to lease the vehicle for the period it was stolen. Sin ce there is no evidence defendant made any payments or restitution after he stole the vehicle, the court could conclude that the document showed gross losses equal to the am ount left on defendant’s lease, plus additional expenses related to taxes and fees, with offsets fo r the time they were able to lease it again after the car was recovered from Mexico. Defendant argues that the documents submitted by Mer cedes-Benz Financial were not enough to support the re stitution order. A similar argument was rejected in Foster,

supra, 14 Cal.App.4th 939. In Foster , a defendant who had been convicted of burglary argued that trial counsel was ineffective for failing to object to re stitution based only on the victim’s uncorroborated statement a bout the value of the items taken. (Id. at pp. 943, 944-945.) The Foster court rejected defendant’s conten tion that there was insufficient evidence, noting that “[i]n many other contexts, an owner’s opi nion of the value of his or her property is sufficient eviden ce to establish value. (See Evid. Code, § 810 et seq.)” ( Id. at p. 948.) No reason existed to require a more stringent rule of proof for victim restitution. ( Ibid. ) Here, as in Foster , the testimony of the victim sufficed to establish the amount of the loss.5 Defendant urges us to c onclude that the evidence wa s insufficient by relying on People v. Vournazos (1988) 198 Cal.App.3d 948. In Vournazos , the trial court ordered restitution solely on the basis of hearsay reco unted in the probation officer’s report. ( Id

. at p. 958.) The Vournazos court noted that ordinarily “a defendant bears the burden of proving that the amount of restitution cl aimed by the victim exceeds repair or replacement cost of lost or dama ged property. [Citation.]” ( Id . at pp. 958-959.) Nonetheless, the court reversed the probatio n order because it concluded the replacement and repair costs had not been proven by the probation report. ( Id . at p. 959.) In contrast to Vournazos , evidence of the loss in th is case was sustained by documents submitted by the vi ctimized company showing th e lost earnings resulting from defendant’s theft. This constitutes adequate evidence in support of a restitution order. ( Gemelli, supra , 161 Cal.App.4th at p. 1543 .) Moreover, we agree with subsequent case law that “to the extent Vournazos might be read to require more than a victim’s statement of loss and a probatio n officer’s recommendation as prima facie evidence of value to determine an appropriate amount of restitution, we decline to follow it for the policy reasons set forth in Foster, supra , 14 Cal.App.4th 939.” ( Gemelli, supra, at p. 1543.) It was not an abuse of discretion for the court to apply Gemelli rather than Vournazos

. Defendant also relies on the following statement from the Supreme Court: “Determination of loss of use necessarily invo lves evidence as to several factors. Initially, the trial court will have to determin e the length of time it took (or reasonably should have taken) the victim to replace the stolen item. Next, the court will multiply the days lost by a reasonable rental rate. In computing what is reas onable, evidence will have to be supplied as to ho w often the item was rented and the annual (or monthly/daily) income it has historically produced.” ( People v. Thygesen (1999) 69 Cal.App.4th 988, 995 ( Thygesen ).) According to defendant, the trial court did not follow this rule by relying solely on the victim ’s statement of loss.6 Thygesen involved the theft of a used cement mixer fro m an equipment rental company. ( Thygesen, supra , 69 Cal.App.4th at p. 990.) The probation report listed the cost of a new mixer as $1,400 and a used one as $500 to $700. ( Id . at p. 991.) At the restitution hearing, the rental company’s mana ger testified that he did not know the age of the mixer, its original cost, or how often the mixer had been rented. ( Ibid. ) Nonetheless, the manager opined that the replacement cost of the mixer was $3,331, and that its rental value had been $3,822 over 13 months after the loss and before it was replaced. ( Ibid. ) The trial court set restitution at $3,822. ( Ibid .) The Thygesen court reversed because the repl acement value of the mixer “should have been predicated on the ‘replacement cost of like property,’ ” which meant “what it would cost to replace it with a mixer of like type and age.” ( Thygesen, supra , 69 Cal.App.4th at p. 995, original italics.) Thygesen explained that “the purpose of the restitution statute is to make that victim w hole, not to give a windfall. [The rental company] is not entitled to replace a used mixer with a brand ne w one at appellant’s expense, absent some extraordinary facts. If [the company] were a car rental agency that lost a 1995 Ford Taurus, it w ould be entitled to the replacem ent value of a similar 1995 Ford Taurus, not a 1999 model.” ( Ibid. ) The appellate court also questioned the claim of 13 months’ of lost rental value, noting: “L ogic dictates that had the mixer been that valuable, [the owner] would have replaced it in a heartbeat.” ( Ibid .) Thygesen is readily distinguished. Here, th e victim was awarded restitution for the lost revenue from the theft of the vehicle that was returned. In Thygesen , the cement mixer was not returned, which made the re placement cost the most logical basis for determining restitution. Where, as here, the stolen item was leased for profit, stolen, and then returned, the lost lease payments resulting from the th eft is the economic loss that warrants restitution. The victim provided evid ence establishing a prima facie case of loss for the amount awarded by the trial court and defendant presented no contrary evidence. The restitution order was not an abuse of discretion.7 Although the trial court did not err in basing the restituti on on the document submitted by Mercedes-Benz Financial, th e restitution awarded exceeds the losses claimed. Mercedes-Benz Financial claimed losses of $9,800.04, wh ile the trial court awarded $9,804. The trial court clearly in tended to award the amount of restitution sought by the victim, and there is no evidence to support the award of an extra $3.96. We will modify the restitution award to th e $9,800.04 claime d by the victim. II Defendant contends that the administra tive fee ostensibly le vied pursuant to section 1203.1 must be strick en because it is at variance with the court’s pronouncement of the restitution order. The minute order contains a 10 percent ad ministrative fee of $980.40 added to the $9,804.40 restitution order pursuan t to section 1203.1, but th e court never imposed this fee when it ordered restitution. Defendant argues that where there is a discrepancy between the abstract of judgment and the court’s oral pronouncement of sentence, the oral pronouncement controls. ( People v. Zackery (2007) 147 Cal.App. 4th 380, 385.) The Attorney General agrees that the clerk’s minutes could not add the fee, but asks us to remand the matter back to the c ourt to impose it. While the clerk’s minutes cannot add a fee that was never imposed, fa ilure to include a ma ndatory fee in the judgment does not prev ent the later imposition of the fee. (See People v. Stewart (2004) 117 Cal.App.4th 907, 910 [remand to impose ma ndatory section 1464, subd. (a) & Gov. Code, § 76000, subd. (a) penalty assessments]; ( People v. Smith (2001) 24 Cal.4th 849, 854 [unauthorized sentence can be corrected at any time].) The question presented here is whether the section 1203.1, subdivision ( l ) fee is mandatory or discretionary. Section 1203.1, subdivision ( l ) states: “If the court orders restitution to be made to the victim, the entity collecting the restit ution may add a fee to cover the actual administrative cost of collection, but not to exceed 15 percent of th e total amount ordered to be paid. The amount of the fee shall be se t by the board of supervis ors if it is collected8 by the county and the fee collected shall be paid into the genera l fund of the county treasury for the use and benefit of the county. The amount of the fee shall be set by the court if it is collected by the court and the fee collected shall be paid into the Trial Court Operations Fund or account established by Section 77009 of the Government Code for the use and benefit of the court.” While the county has the di scretion to impose the fee, the trial court must impose the fee once the county determin es to add one. El Dorado C ounty Code section 1.21.020 states: “In those cases where the court orders restitution to be made to the victim of a crime pursuant to section 1203 .1 of the Penal Code there is added a fee to cover the actual administrative cost of collecting the restitution not to exceed two percent of the total amount ordered to be paid. The actual percentage fee shall be established from time to time by resolution of the board after de termination by the board of the actual administrative cost of collecting the restitution. The fees shall be paid into the general fund of the county treasury for th e use and benefit of the county.” While El Dorado County has established th e relevant fee, we cannot discern the exact amount, as it apparently varies accordin g to the amount authorized by the board of supervisors. We remand for the trial court to determine and impose the appropriate fee. DISPOSITION The restitution order is modified to $9, 800.04 to Mercedes-Benz Financial. The 10 percent section 1203.1, subdivision ( l ) administrative fee in the clerk’s minutes is stricken and the case is remanded for the trial court to ascertain and impose the fee. As modified, the restitution order is a ffirmed in all other respects.

NICHOLSON , J.

We concur:

BLEASE , Acting P. J.

HULL , J.