Filed 5/27/16 P. v. Ngo 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H041981
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1473226)

         v.                                                         ORDER MODIFYING OPINION
                                                                    AND DENYING REHEARING
VY CHI NGO,                                                         [NO CHANGE IN JUDGMENT]

         Defendants and Appellants.



THE COURT:
         It is ordered that the opinion filed herein on May 2, 2016, be modified as follows:
         1. On page 4, the last paragraph is deleted and the following paragraph is inserted
in its place:
         Defendant contends on appeal that the jacket stolen on December 22 was
recovered, since he was taken to the security office immediately after the theft and he
must have been wearing the jacket at the time of his arrest. However, defendant did not
present any evidence to support that contention at the restitution hearing. Once the
prosecution established a prima facie case that the victim was entitled to the restitution
amount claimed, the burden shifted to defendant to disprove the claimed loss. (Gemelli,
supra, 161 Cal.App.4th at p. 1543.) Because defendant failed to present any evidence at
the restitution hearing regarding the recovery of the jacket, he did not satisfy his burden
to refute that claimed loss. Accordingly, we find no abuse of discretion in ordering
defendant to pay $2,534 in restitution to Abercrombie & Fitch.
      There is no change in the judgment.
      The petition for rehearing is denied.

                                         ______________________________________
                                         RUSHING, P.J.

                                         ______________________________________
                                         MÁRQUEZ, J.

                                         ______________________________________
                                         GROVER, J.




                                              2
Filed 5/2/16 P. v. Ngo CA6 (unmodified version)
                      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,                                                          H041981
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1473226)

         v.

VY CHI NGO,

         Defendant and Appellant.


         Defendant Vy Chi Ngo challenges a victim restitution order in the amount of
$2,534. Defendant pleaded no contest to one count of grand theft (Pen. Code, §§ 484–
487, subd. (a)1) based on taking merchandise from a retail store. He asserts that one of
the stolen items, a jacket, was recovered at the time of his arrest, and that the restitution
amount must therefore be reduced by the value of the jacket ($160). We conclude that
the trial court did not abuse its discretion in setting the restitution order amount, and we
will affirm the judgment.
        I.      FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS
         On December 22, 2013, Loss Prevention Officer Norm Bryan A. Cruz observed
defendant conceal four bottles of cologne in his shirt while he was inside the
Abercrombie & Fitch store at the Valley Fair Mall. Cruz saw defendant walk past all the
cashiers and leave the store without paying for the cologne. Cruz approached defendant
outside the store, and San Jose Police Officer Jonathan D. Shaheen joined them shortly


         1
              Unspecified statutory references are to the Penal Code.
thereafter. Officer Shaheen placed defendant in handcuffs and escorted him to the
Abercrombie & Fitch security office. Officer Shaheen recovered four bottles of cologne
that were hidden inside defendant’s shirt. Defendant was then arrested and transported to
jail.
        Cruz reviewed store security footage, which revealed that defendant had also
stolen a blue and green jacket on December 22, as well as other items on December 14,
18, and 20. The security footage showed that on each of those four days, defendant
entered the store without a jacket, concealed various items in his clothes, and then left the
store wearing a stolen jacket and concealing merchandise in his clothes.
        Defendant was charged with one count of grand theft of personal property valued
over $950 (§§ 484–487, subd. (a)) taking place “[o]n or about and between”
December 14 and December 22, 2013. After defendant pleaded no contest, the trial court
suspended imposition of sentence for three years and placed defendant on formal
probation. Among other conditions of probation, the trial court ordered defendant to
serve 90 days in jail and to pay restitution.
        The trial court held a formal restitution hearing. A probation report recommended
that defendant be ordered to pay Abercrombie & Fitch $2,534 in victim restitution. A
statement of loss submitted by Abercrombie & Fitch provided a detailed accounting of
property lost in the four thefts. The statement of loss included a description of the stolen
items, the quantity of the items taken, the date of theft, and the value of the items. The
statement reported 35 bottles of cologne and four outerwear jackets stolen, for a total
value of $3,006. The statement of loss also noted that four bottles of cologne, valued at
$472, were recovered. The victim claimed the remaining amount of $2,534 as the total
economic loss. The trial court also reviewed security footage of the four thefts, the police
report, and a report prepared by defendant’s investigator.
        Defendant argued that no restitution was owed. Defendant pointed out that on
December 22, he was caught with four bottles of stolen cologne on his person, and “the
                                                2
property was returned in the same condition that it was taken.” Defendant further
asserted that the security videos were unclear as to the identity of the thief in the three
earlier incidents and as to how many items were stolen. Defendant asserted that the
security videos provided insufficient evidence to support restitution.
       The prosecutor responded that defendant had pleaded no contest to stealing more
than $950 worth of items from the store and that the security footage shows him stealing
various items. The prosecutor argued that defendant presented no evidence to refute the
total amount of loss claimed.
       The trial court ordered $2,534 in victim restitution. The court found that the
victim showed economic loss of $2,534 by a preponderance of the evidence, and that
defendant had not adequately refuted the claimed loss.
                                    II.    DISCUSSION
       Victims of crime have a state constitutional right to restitution for losses resulting
from criminal acts against them. (Cal. Const., art. I, § 28, subd. (b)(13)(A).) The
Legislature has codified this right in section 1202.4, which provides in relevant part:
“[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 or victims in an amount established by court order, based on the amount of loss
claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).)
Section 1202.4, subdivision (f)(3) sets forth several categories of losses for which a
victim may claim reimbursement, including “[f]ull or partial payment for the value of
stolen or damaged property. The value of stolen or damaged property shall be the
replacement cost of like property … .” (§ 1202.4, subd. (f)(3)(A.)
       A defendant is entitled to a restitution hearing “to dispute the determination of
the amount of restitution.” (§ 1202.4, subd. (f)(1).) “The standard of proof at a
restitution hearing is preponderance of the evidence, not reasonable doubt.” (People v.
Holmberg (2011) 195 Cal.App.4th 1310, 1319–1320, citing People v. Gemelli (2008)
                                              3
161 Cal.App.4th 1539, 1542 (Gemelli).) “Section 1202.4 does not, by its terms, require
any particular kind of proof. However, the trial court is entitled to consider the probation
report, and, as prima facie evidence of loss, may accept a property owner’s statement
made in the probation report about the value of stolen or damaged property.” (Gemelli, at
pp. 1542–1543.) After the prosecution has made a prima facie showing of the victim’s
loss, “the burden shifts to the defendant to disprove the amount of losses claimed by the
victim.” (Id. at p. 1543.) “Absent a challenge by the defendant, an award of the amount
specified in the probation report is not an abuse of discretion.” (People v. Keichler
(2005) 129 Cal.App.4th 1039, 1048.)
       We review a restitution order for abuse of discretion. (People v. Giordano (2007)
42 Cal.4th 644, 663.) “ ‘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.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
       Here, the prosecution made a prima facie showing of Abercrombie & Fitch’s
economic loss of $2,534. It presented security footage showing defendant entering the
store on December 14, 18, 20 and 22 and stealing various items, including jackets and
bottles of cologne. Further, the prosecution submitted Abercrombie & Fitch’s statement
of loss, which detailed the items that were stolen on those four dates and the retail value
of those stolen items. The statement of loss also specified the recovered items, which
consisted of the four bottles of cologne stolen on December 22. The statement of loss
explicitly stated that the jacket at issue was not recovered.
       Defendant contends on appeal that the jacket stolen on December 22 was
recovered, since he was taken to the security office immediately after the theft and he
must have been wearing the jacket at the time of his arrest. However, defendant made no
such argument to the trial court, nor did he present any evidence to support that
contention at the restitution hearing. Once the prosecution established a prima facie case
that the victim was entitled to the restitution amount claimed, the burden shifted to
                                              4
defendant to disprove the claimed loss. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)
Because defendant failed to present any evidence or argument at the restitution hearing
regarding the recovery of the jacket, he did not to satisfy his burden to refute that claimed
loss. Accordingly, we find no abuse of discretion in ordering defendant to pay $2,534 in
restitution to Abercrombie & Fitch.
                                   III.   DISPOSITION
       The judgment is affirmed.




                                              5
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Rushing, P.J.




____________________________
Márquez, J.
