Filed 7/28/15 P. v. Agustin 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H041555
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS121847A)

         v.

JOSE ELISEO AGUSTIN,

         Defendant and Appellant.


         Defendant Jose Eliseo Agustin pleaded no contest to participating in the robbery
of a Wal-Mart store where he worked. The trial court sentenced him to four years in state
prison and, following a restitution hearing, ordered him to pay victim restitution in the
amount of $126,501.93. On appeal, defendant contends the restitution order is
unsupported by substantial evidence. We disagree and affirm.
I.       FACTUAL AND PROCEDURAL BACKGROUND
         Defendant worked at a Wal-Mart store on North Main Street in Salinas. On
August 14, 2012, that store was robbed at gunpoint while defendant and another
employee were emptying the cash registers for the night.
         The North Main Street Wal-Mart was robbed again while defendant was working
on September 27, 2012. Defendant radioed the employee working in the cash office and
gave the code indicating an armored car had arrived. The employee opened the door to
the cash office and led a man dressed in an armored car company uniform into the cash
office. Inside the office, the man pointed a gun at the employee, zip tied the employee’s
hands, emptied the safe and cash drawers, and left. Defendant told officers he had called
911. He then consented to a search of his cell phone. On defendant’s cell phone, officers
found a text message from “Junior” saying “I wanted to show you the uniform.” The
subscriber associated with the phone number belonging to “Junior” was Rachel Chacon
Ruiz. One of Ruiz’s relatives, Richard Chacon Jr., closely resembled the suspect as he
appeared in Wal-Mart surveillance videos from the two robberies. Further investigation
revealed defendant was Chacon’s nephew. Chacon was killed in a gun fight with police.
       In an amended complaint filed on November 14, 2012, the Monterey County
District Attorney charged defendant in connection with the two Wal-Mart robberies.
Defendant was charged with three counts of second degree robbery (Pen. Code, § 211)1
while a principal was armed with a firearm (§ 12022, subd. (a)(1)); three counts of assault
with a firearm (§ 245); and one count of false imprisonment by violence (§ 236) while a
principal was armed with a firearm.
       Defendant pleaded no contest to one count of second degree robbery and one
count of assault with a firearm in connection with the September 27, 2012 robbery.
Defendant also admitted the firearm allegation and executed a Harvey2 waiver, allowing
the sentencing judge to consider the August robbery in setting the amount of victim
restitution. The court sentenced defendant to four years in state prison, as called for by
his plea agreement.
       With respect to victim restitution, the probation officer’s report stated that,
according to Wal-Mart, $34,325 was stolen during the August robbery and $117,870.91
was stolen in the September robbery. At a hearing on victim restitution, the prosecutor
submitted Wal-Mart incident reports stating $34,325 was stolen in the August robbery
and $117,506.02 was stolen in the September robbery. The prosecutor also submitted the
handwritten notes of an employee showing $34,324.91 was taken in the August robbery.
       1
           Unspecified statutory references are to the Penal Code.
       2
           People v. Harvey (1979) 25 Cal.3d 754.
                                               2
Defense counsel submitted “Cash Office Room Balance” records he received from Wal-
Mart. Those records showed a “total error am[oun]t” of $34,138.83 for August 14, 2012
and a “total error am[oun]t” of $108,640.50 for September 27, 2012. Defense counsel
stated his “belief” that the records show what Wal-Mart “lost on those days.” No one
from Wal-Mart testified to the meaning of the Cash Office Room Balance records. The
parties agreed that Wal-Mart’s losses were offset by $25,329, which was recovered from
Chacon.
       On October 10, 2014, at the conclusion of the restitution hearing, the court found
$34,324.91 was taken in the August robbery and $117,506.02 was taken in the September
robbery. After offsetting the $25,329 that police recovered, the court ordered defendant
to pay $126,501.93 in victim restitution.
       Defendant timely appealed.
II.    DISCUSSION
       On appeal, defendant argues the court’s finding that $117,506.02 was taken in the
September robbery is unsupported by substantial evidence.
       Section 1202.4, subdivision (f) requires courts to order victim restitution in every
case in which a victim suffers economic loss as a result of the defendant’s conduct. “The
burden is on the party seeking restitution to provide an adequate factual basis for the
claim.” (People v. Giordano (2007) 42 Cal.4th 644, 664.) “ ‘Section 1202.4 does not, by
its terms, require any particular kind of proof.’ ” (People v. Holmberg (2011) 195
Cal.App.4th 1310, 1320 (Holmberg).) Once the prosecution has 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. Prosser (2007)
157 Cal.App.4th 682, 691.) “The standard of proof at a restitution hearing is
preponderance of the evidence, not reasonable doubt.” (Holmberg, supra, at p. 1319.)
       We review a victim restitution award for abuse of discretion. (Holmberg, supra,
195 Cal.App.4th at p. 1320.) “ ‘[T]he court’s discretion in setting the amount of
                                             3
restitution is broad, and it may use any rational method of fixing the amount of restitution
as long as it is reasonably calculated to make the victim whole.’ ” (People v. Millard
(2009) 175 Cal.App.4th 7, 26.) “ ‘ “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.” ’ ” (Holmberg, supra, at p. 1320.) But “[i]f there is no substantial
evidence to support the award, and assuming no other rational explanation, the trial court
will have obviously abused its discretion.” (People v. Thygesen (1999) 69 Cal.App.4th
988, 993.)
       Here, the People submitted a Wal-Mart incident report showing Wal-Mart lost
$117,506.02 in the September robbery. That report constituted prima facie evidence of a
$117,506.02 loss, such that the burden shifted to defendant to disprove that amount of
loss. Contrary to defendant’s suggestion, the fact that the Wal-Mart incident report does
not indicate how much money was taken from the safe and cash drawers respectively
does not render it insufficient to support the restitution award. “ ‘Section 1202.4 does not
. . . require any particular kind of proof’ ” and “ ‘the trial court . . . may accept a property
owner’s statement made in the probation report about the value of stolen or damaged
property’ ” “ ‘as prima facie evidence of loss.’ ” (Holmberg, supra, 195 Cal.App.4th at
p. 1320.) Certainly the Wal-Mart incident report is at least as reliable as an owner’s bare
statement about the value of stolen property.
       Defendant maintains that even if the prosecutor presented prima facie evidence of
a $117,506.02 loss, he carried his burden to disprove that amount by submitting the Cash
Office Room Balance record. Defendant characterizes that document as evidence “the
robber took less money than was reflected on the incident report.” But that
characterization is speculative. There is no evidence the “total error am[oun]t” on the
Cash Office Room Balance record reflects the amount stolen in the September robbery.
Defendant concedes as much, acknowledging he “was not able to explain what the
amounts on the [Cash Office Room Balance record] meant.”
                                               4
       In calculating the victim restitution award, the trial court rationally relied on the
Wal-Mart incident report and disregarded the meaningless Cash Office Room Balance
record. We find no abuse of discretion.
III.   DISPOSITION
       The judgment is affirmed.




                                              5
                                                            Walsh, J.*




      WE CONCUR:




             Rushing, P. J.




             Elia, J.




People v. Agustin
H041555

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