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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              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.,                                                         A137798
         Defendant and Appellant.                                    (San Francisco City & County
                                                                     Super. Ct. No. JW10-6474)



         This appeal arises from three automobile 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 the basis of a restitution order
which awarded, among other amounts, $3,300 for three items of photographic equipment
stolen during one of the burglaries. He claims the evidence was insufficient to support
the award because the items were not included in the original police report as having
been lost in the burglary. We conclude the order was supported by substantial evidence
and did not involve an abuse of discretion. We therefore affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
         Because of the limited nature of the appeal, we recite only briefly the facts of the
underlying crimes.




                                                             1
       The first burglary was that of a Ford Explorer 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 afterwards when he and two friends were spotted
carrying―and then abandoning―a laptop bag near the Marina Safeway. The bag
contained the stolen laptop, which was returned to its owner.
       On September 14, 2010, the district attorney filed a four-count wardship petition
under Welfare and Institutions Code section 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)). The 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, defendant 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. She parked her Volkswagen Jetta on Hollis Street in San
Francisco at 2:00 a.m. on July 24. At approximately 2:45 p.m. a neighbor in the area
heard a car alarm go off and looked out her front window. She saw three black juveniles
about 12 years old surrounding the Jetta. One—whom she later identified as defendant—
was rummaging through a green camera bag and 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 been involved in the burglary.
       On July 26, 2011, a second wardship petition was filed alleging burglary (§ 459)
and receipt of stolen property (§ 496, subd. (a)). Defendant was again found incompetent
to stand trial and proceedings were suspended.

       1
           Statutory references without code designation are to the Penal Code.


                                              2
       Proceedings on both petitions were reinstated on August 14, 2012.
       The third burglary occurred on August 23, 2012, when defendant and two of his
companions were seen casing a car by two San Francisco police officers in an unmarked
car. The officers saw the window of a Toyota shatter 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 drawstring of his sweatshirt and throw it on the
ground. They seized the spark plug as evidence, apparently believing it had been used to
break the car window.
       On August 27, 2012, a third petition was filed, alleging burglary of the Toyota
(§ 459) and misdemeanor possession of burglary tools (§ 466).
       On August 29, 2012, defendant entered admissions on all three petitions, as
amended. On the first petition, the prosecutor 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. Defendant then admitted counts two and three.
As to the second petition, the prosecutor amended the charge under section 17,
subdivision (b), to allege misdemeanor receiving stolen property (§ 496), and he
dismissed the burglary count. Defendant then admitted the misdemeanor receiving
allegation. With respect to the third petition, defendant admitted a felony burglary
(§ 459), and the misdemeanor count was dismissed. All told, defendant admitted one
felony and three misdemeanors.
       On October 2, 2012, a dispositional hearing was held in which defendant’s
custody was vested in the probation department and he was 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 burglary $400 to repair the broken window. He
was ordered to pay Jackman $10,201.37 for camera equipment stolen during the second
burglary and a broken car window. No restitution 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.


                                             3
      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 second burglary, of Jackman’s car, was for
$10,201.37. Defendant claims the restitution order was unsupported to the extent of
$3,300, for three pieces of photographic equipment and thus constituted an abuse of
discretion. More specifically, defendant contends that the finding implicitly underlying
that order―that the loss of those three items was 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 equipment was not signed by Jackman or made
under oath.
      In the trial court defendant offered briefing, but no evidence, to oppose an order of
restitution with respect to three disputed pieces of photographic equipment: the Nikon
D300s camera valued at $1,700, the Nikon 60 mm lens valued at $600, and a lighting kit




                                            4
valued at $1,000.2 Defendant’s primary argument is that these three items were not listed
as stolen at the time the second burglary was 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 unsworn statement as evidence of the fact of
her loss as well as the value of the stolen items, and thus did 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 governed 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 the victim or victims for all determined
economic losses incurred as the result of the minor’s conduct for which the minor was
found to be a person described in Section 602 . . . .” Restitution orders are reviewed for
abuse of discretion. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1173; Gemelli,
supra, 161 Cal.App.4th at p. 1542.) Where there is a factual and rational basis for the

       2
         Defense counsel argued in the court below 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 losses by the victim, attached to the
probation report, was found to support a restitution 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 commenting on the list of losses, the
Court of Appeal noted it was “detailed and facially 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 complete 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 losses is related to the burglary.” Moreover,
it may be necessary to “explain” how an expense was related to a crime if, as in Gemelli,
the claim includes amounts for replacing or repairing property not stolen but damaged in
the course of the crime. Here, however, where it was clear in context that all items
except the car window were claimed as losses because they were stolen during the
burglary, requiring an explicit statement to that effect would appear wholly unnecessary.


                                              5
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 evidence, “ ‘[t]he power of the appellate court
begins and ends with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted’ to support the trial court’s findings.” [Citations.] Further,
the standard of proof at a restitution hearing is by a preponderance 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.App.4th 655, 661.)
       The victim seeking restitution 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 disprove 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 upon information in a probation report to
establish the prima facie showing, 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].) Likewise, they have accepted
a victim’s unsworn written itemization of losses as prima facie evidence of the loss.
(People v. Collins (2003) 111 Cal.App.4th 726, 734 [victim’s claim of loss recited in
probation report]; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407 [probation
report requested restitution award of $7,000 to cover attorney fees incurred 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].)



                                              6
       Nevertheless, defendant cites a handful of cases for the proposition that a more
formal evidentiary showing is required. In People v. Harvest (2000) 84 Cal.App.4th 641,
our colleagues in Division Four reversed a family’s claim to restitution for a murder
victim’s burial expenses because it was contained 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 restitution order solely on hearsay in the probation
report. But that was a case in which the defendant requested and was 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 clearly distinguishable in that the
victim claimed as losses both out-of-pocket expenses 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 evidence, strongly lent itself to an inference the
victim had not actually paid for ambulance 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 948 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 obligation 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 her insurance company, but that would not
reduce the amount of restitution 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.)


                                               7
       “Appellant renews in this court his contention that the victim’s losses were
insufficiently proven by her itemized 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 asserted values and repair costs. (Id. at p. 952,
fn. 2.) The court held that this document 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 replacement 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 rule: ‘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 guidelines for the probation officer’s ‘inquiry or investigation’
into the victim’s losses. (Id. at p. 130, fn. 3.) However the decision appears to mean that,
at least where the items, amounts, and sources are adequately identified in or with the
probation report, the defendant has the burden of refuting them.
       “We find it difficult to reconcile 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 not 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 reason for this discrepancy.


                                              8
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 particular 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 statements in the probation report 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 property 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 courtroom 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 establish 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 probation report includes information on the
amount of the victim’s loss and a recommendation 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 also 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 included in the
initial list of stolen items reported to the police. But we find the evidence was sufficient
to support the restitution award despite the fact that there was no specific statement by
the victim that the items were stolen from her 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 was



                                              9
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 four 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 equipment 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 missing at the time of the burglary: a
power bag estimated at $600 in value, a Nikon 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 Nikon 24 mm lens valued at $1,200, and a Nikon 50 mm lens
valued at $350. Thus, the total loss attributable 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, apparently 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 scattered along a nearby sidewalk during their investigation.
It may be inferred the equipment was taken 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 returned 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 ever 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 certainly

                                             10
in a damaged condition. We will not adopt 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 initially 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 hadn’t . . . fully taken an accounting of
everything that was lost. That’s quite common.”
       On the issue of value, defendant offered evidence that some of the stolen items
could be bought on the Internet for a price lower than what the victim claimed as their
value. Significantly, however, 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 opportunity to dispute Jackman’s statement 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 statement were not in fact stolen, “appellant was
competent to so testify. If further details were 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 things, appellant cannot complain about the lack of detail in
the statement”].) So long as Jackman’s statement constituted a prima facie
showing―and it did―then the burden shifted to defendant 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 those itemized in the initial incident
report.


                                                 11
       In making its ruling the court emphasized the victim was a “professional
photographer” who had “painstakingly” documented “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 values 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,” especially because it was used by her in her
business. Based on those considerations, 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 evidence, an abuse of
discretion.
       We also note parenthetically that Jackman claimed she lost business and incurred
additional expense (equipment rental) after losing her photographic 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 compensating her for lost equipment we cannot say it
abused its discretion. The policy of the law is to make the victim whole. (See generally,
Giordano, supra, 42 Cal.4th at pp. 651-656.) “The court shall order 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 determined economic losses
incurred as the result of the minor’s conduct for which the minor was found to be a
person described in Section 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 that 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 ordered for the “lighting
kit,” we find no abuse of discretion. Defense counsel himself argued below that the
“lighting equipment” corresponded to the $600 “power bag” reported stolen in the police


                                              12
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 crediting the victim’s statement regarding the value of the
lighting equipment. Again, this was a professional photographer who would be expected
to have high quality, valuable photographic equipment. The court’s acceptance of the
victim’s estimate was not an abuse of discretion.
                                      DISPOSITION
       The judgment, including the restitution 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.

                                             13
