Filed 4/29/13 P. v. Devizcarra 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)


THE PEOPLE,                                                                                  C070856

                   Plaintiff and Respondent,                                             (Super. Ct. No.
                                                                                        CRF 080006580)
         v.

JAIME FERNANDO DEVIZCARRA,

                   Defendant and Appellant.




         Sentenced to state prison for committing assault by means of force likely to
produce great bodily injury (Pen. Code,1 § 245, subd. (a)(1)), with an enhancement for
personally inflicting great bodily injury (§ 12022.7, subd. (a)), and second degree
burglary (§ 459), defendant Jaime Fernando Devizcarra contends only that the trial court
abused its discretion in making its order of restitution to victim Edim Kurtovic.
(§ 1202.4, subd. (f).) We disagree and shall affirm.




1   Undesignated section references are to the Penal Code.

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                  FACTUAL AND PROCEDURAL BACKGROUND
       According to police reports, defendant and another person attempted to shoplift
from the University of California, Davis bookstore. Kurtovic, a store security officer,
stopped the two men outside the store. Defendant tried to flee, then returned and
punched Kurtovic in the jaw.
       When the trial court imposed sentence on defendant, it reserved jurisdiction to
determine victim restitution.
       The People moved for a restitution hearing, seeking an order of $4,930. In
support, they attached a statement from Kurtovic dated December 7, 2009, which gave
this amount as the total salary lost by himself and his wife from December 9, 2008, the
date of defendant‟s crime.2 A statement from University of California, Davis
Occupational Health Services indicated that defendant‟s assault fractured Kurtovic‟s
mandible, requiring hospitalization for surgery.
       Kurtovic calculated his loss of salary from August 2009, when he began to receive
80 percent of his salary due to disability, through December 2009, as $480 per month
(20 percent of his salary), for a total of $2,400. Kurtovic also stated that his salary loss
began August 14, 2009, and was ongoing, but would increase to 30 percent as of
February 12, 2010.
       The People also attached Kurtovic‟s earning statement from University of
California, Davis, which showed his gross earnings as $3,311.71 per month and his net
earnings as $2,403.29 per month.
       In a subsequent brief, the People amended their requested award to $12,991.31.
The new amount claimed included $8,061.31 for lost vacation and sick time from
December 2008.



2 The amount of lost salary defendant calculated for his wife ($2,530 for December
2008) is not at issue on appeal.

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       The probation department thereafter submitted a document “for the court‟s
consideration” requesting a total restitution award of $13,791.31. This document was a
copy of Kurtovic‟s previous statement, but with the claim of $2,400 in lost salary
replaced by a claim of $3,200 for the same time period.
       Defendant did not file opposition to the People‟s motion.
       At the hearing on the motion, defense counsel called Kurtovic as a witness, but did
not present any other evidence.
       Kurtovic testified that he began to receive 80 percent of his salary in August 2009
as disability income after running out of vacation and sick leave. He believed his total
income, absent the injury and disability, would have been around $3,200 per month; he
stated that the 80 percent figure was based on that gross amount.
       The prosecutor pointed out that Kurtovic‟s testimony was inconsistent with his
written statement. Based on gross earnings of $3,200 per month, a 20 percent loss for
one month would equal $640, not $480 as shown in the statement, and a loss of $640 per
month for five months would equal $3,200, not $2,400 as shown in the statement.
Therefore, the prosecutor asked the trial court to award $3,200 for loss of salary.
       Asked for comment on this point, Kurtovic concluded that he had based the
calculation in his written statement on his net monthly income, not his gross monthly
income.
       Defense counsel conceded that Kurtovic was entitled to 20 percent of his income
in restitution, and did not take a position on whether that amount should be based on
gross or net earnings.3




3 Counsel objected to the amounts claimed for the wife‟s lost income and for Kurtovic‟s
lost vacation and sick time. Defendant does not renew these arguments on appeal,
however, and we therefore deem them abandoned.

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       The trial court awarded Kurtovic $13,791.31 in restitution, consisting of $2,530
for his wife‟s lost income, $3,200 for his lost salary, and $8,061.31 for lost vacation and
sick time.
                                       DISCUSSION
       Defendant challenges only the $3,200 award for Kurtovic‟s lost salary. Defendant
contends: (1) that award was too high because Kurtovic requested a lesser amount, and
(2) even if the court could properly base the award on Kurtovic‟s gross monthly income
rather than his net monthly income, the amount awarded is too high because Kurtovic‟s
loss of income began on August 14, 2009, not August 1, 2009. We are not persuaded.
       “[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 . . . in an amount established by court order, based on the amount of loss claimed
by the victim . . . or any other showing to the court.” (§ 1202.4, subd. (f).)
       “A defendant is entitled to a restitution hearing to „dispute the determination of the
amount of restitution.‟ (§ 1202.4, subd. (f)(1).) As recently explained, „At a victim
restitution hearing, a prima facie case for restitution is made by the People based in part
on a victim‟s testimony on, or other claim or statement of, the amount of his or her
economic loss. [Citations.] “Once the . . . [ . . . People have] made a prima facie
showing of [the victim‟s] loss, the burden shifts to the defendant to demonstrate that the
amount of the loss is other than that claimed by the victim.” ‟ (People v. Millard (2009)
175 Cal.App.4th 7, 26 (Millard); see also [People v.] Giordano [2007] 42 Cal.4th [644,]
664 [„The burden is on the party seeking restitution to provide an adequate factual basis
for the claim.‟].)” (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172
(Chappelone).)
       “We review the trial court‟s restitution order for abuse of discretion. [Citations.]”
(Chappelone, supra, 183 Cal.App.4th at p. 1173.) Where there is a factual and rational



                                              4
basis for the order under the substantial evidence standard, an abuse of discretion will not
be found. (People v. Millard, 175 Cal.App.4th 7, 26 (Millard).)
       Here, the People documented the basis for every dollar of restitution awarded by
the trial court. Defendant made no showing below that the amount of Kurtovic‟s lost
salary was other than that set out in the People‟s documentation. Defendant also did not
raise either of the objections to the amount of the lost salary award which he raises on
appeal. A party may not offer a new theory of the case on appeal, especially if it depends
on factual questions which could have been raised below but were not. (Bogacki v.
Board of Supervisors (1971) 5 Cal.3d 771, 780 (Bogacki); Fretland v. County of
Humboldt (1999) 69 Cal.App.4th 1478, 1489 (Fretland).)
       So far as defendant asserts that the trial court abused its discretion by ordering
restitution based on Kurtovic‟s gross earnings because his original request was based on
his net earnings, the argument also fails on the merits. Defendant cites no authority
holding that a trial court may award only the amount of restitution originally requested by
the victim, or that the court must disregard later and more reliable evidence of the
victim‟s actual losses, and we know of no such authority. In any event, it appeared from
Kurtovic‟s testimony that he had meant to claim lost salary based on gross earnings all
along and simply made a mistake in arithmetic in his original statement.
       Defendant‟s claim that the trial court abused its discretion by awarding lost salary
for the full month of August 2009 rather than for only the second half of the month is
forfeited because he did not raise it below. (Bogacki, supra, 5 Cal.3d at p. 780; Fretland,
supra, 69 Cal.App.4th at p. 1489.) Had he done so, the People would have had the
opportunity to explain why they considered the first of August an appropriate starting
date. Because defendant did not challenge that premise, he failed to meet his burden of
showing that the true amount of loss was other than that claimed by the victim. (Millard,
supra, 175 Cal.App.4th at p. 26.)



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                                    DISPOSITION
     The order of victim restitution is affirmed.



                                           BLEASE   , J.


We concur:


        RAYE                     , P. J.


        NICHOLSON                , J.




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