Filed 10/30/15 In re O.H. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re O.H., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E063099
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. J254688)
v.
                                                                         OPINION
O.H.,

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Barbara A.

Buchholz, Judge. Affirmed.

         Wayne C.Tobin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.



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       An amended Welfare and Institutions Code section 602 petition alleged that

defendant and appellant O.H. (minor) committed two separate offenses of first degree

residential burglary. (Pen. Code, § 459, counts 1 & 2.)1 Minor admitted as true the

allegation in count 1. On motion of the district attorney, the court dismissed the

allegation in count 2. However, the parties agreed that the probation department could

consider the allegation in count 2 for the purposes of sentencing and restitution. On July

21, 2014, the court declared minor a ward of the court and placed him on probation in the

custody of his mother, under certain terms and conditions.

       The court held a contested restitution hearing on February 26, 2015. After

reviewing the itemized lists of stolen items and hearing testimony from the victims, the

court ordered minor to pay $14,600 in victim restitution.

       On appeal, minor contends that a certain portion of the restitution award should be

set aside. He claims there was insufficient evidence that the loss, in the amount of

$1,950, resulted from the burglary. We affirm.

                               FACTUAL BACKGROUND2

       First Incident

       On March 30, 2014, a residence was ransacked and numerous items were taken.

The police apprehended minor, who told the police that he was walking down the street

with a friend, when he met a second friend. The second friend offered minor and his

       1 All further statutory references will be to the Penal Code, unless otherwise
indicated.

       2   This factual background is taken from the probation report.


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friend money to help steal items from the residence. The police recovered from minor

several of the items that were taken.

       Second Incident

       On June 30, 2014, S.O. returned home and discovered that his house had been

broken into and ransacked. During a police investigation, minor’s fingerprints were

found inside the home. An officer went to minor’s house to speak to him, and minor

denied any involvement in the burglary. However, after being transported to the police

station, minor admitted that he joined three other males in breaking into the house.

                                        ANALYSIS

                    The Court’s Victim Restitution Order Was Proper

       Minor argues that the court abused its discretion in ordering him to pay the portion

of the victim restitution order that included $1,950 for items that the victim in count 2

discovered were missing from her home long after the commission of the burglary. We

find no abuse of discretion.

       A. Relevant Background

       S.O. and his wife, L.S., were present at minor’s dispositional hearing on July 21,

2015. L.S. made a written statement of the items taken from their home during the

burglary. She submitted the list to the court, and it was read in court. The items listed

included pieces of jewelry and two electronic items. The items were valued at $12,850.

       On September 10, 2014, L.S. submitted a second list of items that came up

missing after she submitted the first list. The second list consisted of three more pieces

of jewelry, valued at $1,950.


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       The court held a restitution hearing on February 26, 2015. L.S. testified at the

hearing that there was a burglary at her house and that she gave the police a list of

missing items two days after the burglary occurred. That list included numerous pieces

of jewelry and two electronic items. She then confirmed that she sent a list of additional

missing items to the probation department in September 2014. When asked why she did

not give that list to probation earlier, she stated that when the burglary occurred, she was

not in the right state of mind. She explained that she could not remember what she had at

her house, what she had left at her parents’ place, and what was left at her husband’s

parents’ place. L.S. said that when she finally found the time and the courage to actually

look through everything, she discovered that the additional items were missing.

       After the court heard closing arguments from counsel, it stated that it had reviewed

the lists of missing items, listened to testimony, and assessed the witness’s credibility and

demeanor. The court noted that L.S. testified “rather specifically, about jewelry items,”

and that it believed her testimony. The court stated that it was satisfied with the

testimony that the victim provided, regarding the identification of the items and their

value. The court reduced the value of the two electronic items and then ordered minor to

pay a total of $14,600 in restitution.

       B. Relevant Law

       Section 1202.4, subdivision (f), provides that “in 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 or victims in an amount established by court




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order, based on the amount of loss claimed by the victim or victims or any other showing

to the court.”

       “The standard of review of a restitution order is abuse of discretion. ‘A victim’s

restitution right is to be broadly and liberally construed.’ [Citation.] ‘“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.”’” (In re Johnny M. (2002) 100

Cal.App.4th 1128, 1132 (Johnny M.).) “In reviewing the sufficiency of the evidence, the

‘“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.’ [Citation.] Further, the standard of proof at a restitution hearing is by a

preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] ‘If the

circumstances reasonably justify the [trial court’s] findings,’ the judgment may not be

overturned when the circumstances might also reasonably support a contrary finding.

[Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether

there is sufficient evidence to support the inference drawn by the trier of fact.” (People v.

Baker (2005) 126 Cal.App.4th 463, 468-469 (Baker).) “Once the victim makes a prima

facie showing of economic losses incurred 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. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).)




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       C. The Court Did Not Abuse its Discretion in Awarding Restitution for the Items

on the Second List

       Minor argues that the missing items on the second list that L.S. provided on

September 10, 2014 (the second list) should not have been included in the victim

restitution order because there was no substantial evidence that those items were taken

during the burglary. He contends that there was “a substantial passage of time” between

the offense and the time L.S. discovered those items missing. He also asserts that there

was no evidence concerning where L.S. kept those items, and, “[if] she was disorganized

. . . there was ample time for these items to have been lost or misplaced.” He further

claims that there could have been other reasons why those items went missing, e.g., a

family member could have pawned them or mistakenly thrown them out.

       Here, there was a rational and factual basis for the juvenile court’s restitution

award, including the $1,950 for the items on the second list. (See Johnny M., supra, 100

Cal.App.4th at p. 1132.) The evidence showed that almost all of the items were stolen

from L.S.’s jewelry box, and minor’s fingerprints were discovered on her jewelry box.

Moreover, all of the items on the second list were pieces of jewelry. L.S. explained that

she did not claim the missing items on the second list until later because she was not in

the right state of mind right after the burglary occurred. She could not remember what

she had at her house, and what she had left at her parents’ and in-laws’ homes. Then,

when she took the time to look through everything, she discovered the additional items

missing. The court found L.S.’s testimony to be credible and was satisfied with it, noting

that the testimony was very specific. We do not reweigh or reinterpret the evidence.


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(Baker, supra, 126 Cal.App.4th at p. 469.) Ultimately, L.S. made a prima facie showing

of economic losses incurred as a result of minor’s conduct, and minor failed to disprove

the amount of losses claimed. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)

       As to minor’s characterization that there was “a substantial passage of time”

between the burglary and when L.S. claimed the additional items, we note that it was

only approximately two months. The burglary occurred on June 30, 2014, and L.S.

submitted the second list on September 10, 2014. We further note that minor’s claims

regarding how those pieces of jewelry could have gone missing are pure speculation.

       We conclude that there was sufficient evidence to support the court’s findings.

(Baker, supra, 126 Cal.App.4th at p. 469.) The court did not abuse its discretion when it

included $1,950 for the items on the second list as part of the victim restitution order.

                                      DISPOSITION

       The order is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 HOLLENHORST
                                                                           Acting P. J.


We concur:


McKINSTER
                           J.


KING
                           J.


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