Filed 5/22/13 P. v. Molina CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B240948

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA079155)
         v.

MATTHEW TOMAS MOLINA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia
Rayvis, Judge. Affirmed.
         Jolene Larimore, under appointment by the Court of Appeal for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.




                                        _________________________
       Following his conviction for receiving stolen property, Matthew Tomas Molina
appeals from the judgment, contending the evidence is insufficient to support the victim
restitution award. We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND
       1. The Complaint and Plea and Sentencing Hearings
       Molina was charged in a felony complaint with committing first degree burglary
and grand theft of personal property.
       Represented by appointed counsel, Molina waived his rights to a preliminary
hearing and to a jury trial and entered a negotiated plea of no contest to an amended third
count of receiving stolen property. In accordance with the plea agreement, the trial court
suspended imposition of sentence and placed Molina on three years of formal probation.
The remaining counts were dismissed on the People’s motion.
       As a condition of probation, the trial court ordered Molina to make restitution to
the victim, Fred Benson IV, pursuant to Penal Code section 1202.4, subdivision (f) in an
amount to be determined at a restitution hearing.

       2. The Restitution Hearing
       At the restitution hearing, Benson testified he arrived at his apartment with a
computer bag, a red duffel bag and some clothes on the morning of July 29, 2011.
Benson left his bags inside his open front door and went upstairs to put away his clothes.
When Benson returned minutes later, both bags were gone. After he was unable to find
the bags in the apartment complex, Benson reported the theft to police, who subsequently
recovered the red duffel bag and some of the stolen items it contained. Among the items
police never found were a camera worth $1,200 or $1,300, an iPhone and a Blackberry
phone each worth $500, a belt worth $275, diamond earrings worth $1,400, a diamond
and 18 karat gold bracelet worth $5,000, custom-made jewelry worth $350, dental
retainers worth $300, the computer bag worth $239, prescription glasses worth $200 and
about $1,000 in cash. Benson calculated the value of most of these items based on their

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original purchase price and provided some receipts to the defense. While the older model
Blackberry phone was probably worth $390, Benson’s cell phone provider charged him
$500 because it was a replacement cell phone, which he had intended to send back to the
provider before it was stolen. The bracelet was a gift, which Benson had previously used
to obtain a $500 loan from a pawn shop. The proprietor had estimated the bracelet’s
value as $5,000. Photographs of the bracelet were admitted into evidence. Most of these
items were listed in a police report admitted into evidence at the hearing.
       Molina testified he lived in the same apartment complex as Benson in July 2001
but was at work on the morning of the theft, as corroborated by a time sheet introduced
into evidence. According to Molina, on a different morning, he saw a red duffel bag near
Benson’s front door. After knocking on the door and receiving no answer, Molina took
the duffel bag to his apartment. Inside the bag, Molina found a camera, a laptop
computer, a bracelet, an iPad2, and a Blackberry phone. Molina later returned the duffel
bag and its contents to police, except for the watch, the camera and the bracelet. Officers
recovered the watch during a search of Molina’s home. Molina gave the camera to a
friend in exchange for a different camera, and he pawned the bracelet for $1,000. Molina
denied seeing any cash, earrings, a second cell phone, or any other of the missing items.
       Following the presentation of evidence, the trial court found Molina was
responsible for the missing items described by Benson and calculated the restitution
award as follows: “Camera in the amount of $1,200; a Blackberry cell phone in the
amount of $500, which is what Mr. Benson had to pay; an iPhone in the amount of $500;
a bracelet in the amount of $5,000. And the Court does find that that’s a realistic amount
given the number of diamond chips in the bracelet and taking a look at the bracelet;
earrings in the amount of $1,400; a computer bag in the amount of $239; one belt for
$275; a pair of glasses for $200, custom jewelry in the amount of $350; and two retainers
in the amount of $300 for a total of $9,964.”




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                                             DISCUSSION

          Molina contends the trial court abused its discretion in assessing restitution for all
of the unrecovered stolen items because the evidence was insufficient he was responsible
for the loss of any item other than the camera and the bracelet. Molina further argues the
restitution award should not have included the value of the Blackberry phone, because it
was returned to Benson.
          Molina pleaded no contest to receiving stolen property and, as a condition of
probation, was ordered to pay restitution in an amount to be determined following a
contested hearing. Because it was imposed as a condition of probation, rather than
pursuant to Penal Code section 1202.4, the restitution award in this case was not only
intended to compensate Benson, but also to address the broader goal of rehabilitating
Molina. (See People v. Anderson (2010) 50 Cal.4th 19, 27; § 1203.1, subd. (j).)
“Restitution ‘impresses upon the offender the gravity of the harm he has inflicted upon
another and provides an opportunity to make amends.’ [Citation.]” (Anderson, supra, at
p. 27.)
          Restitution awards are vested in the trial court’s discretion and will be disturbed
on appeal only where an abuse of discretion appears. (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.’ [Citation.]” (People v. Mearns (2002) 97 Cal.App.4th 493, 499.) The
standard of proof at a restitution hearing is by a preponderance of the evidence, not proof
beyond a reasonable doubt. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
          “[I]t is well settled that ‘statements by the victims of the crimes about the value of
the property stolen constitute “prima facie evidence of value for purposes of restitution.”
[Citations.]’ [Citations.]” (People v. Prosser (2007) 157 Cal.App.4th 682, 690-691.)
Here, Benson testified at length concerning the nature and value of the items stolen and
provided supporting documentation. This constituted prima facie evidence of his loss
and shifted the burden to “defendant to demonstrate that the amount of the loss [was]
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other than that claimed by the victim.” (Id. at p. 691.) Molina, in turn, testified he was
responsible only for the loss of the camera and bracelet; he denied having seen any of the
other stolen items inside the red duffel bag when he found it. Molina also challenged
Benson’s valuation of the bracelet.
       The trial court was free to discount Molina’s testimony and to believe Benson’s
testimony. Resolving credibility issues and evidentiary conflicts were the exclusive
province of the trial court, and Benson’s testimony constituted sufficient evidence to
establish the appropriate restitution in this case. (People v. Zamudio (2008) 43 Cal.4th
327, 357.)1
       We also reject Molina’s contention the restitution award must be reduced by $500
because the Blackberry phone was returned to Benson, as amounting to no more than a
request that we reweigh the conflicting evidence and substitute our judgment for that of
the trier of fact, which is not the function of a reviewing court. (People v. Ceja (1993) 4
Cal.4th 1134, 1138-1139, People v. Culver (1973) 10 Cal.3d 542, 548.)




1
        To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances beyond a reasonable doubt. [Citation.]
The record must disclose substantial evidence to support the verdict—i.e., evidence that
is reasonable, credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.]
A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict.” (People v. Zamudio, supra, 43 Cal.4th 327, 357.)
 
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       In sum, because there was sufficient evidence Molina was responsible for all of
the stolen items, the trial court did not abuse its discretion in requiring him to pay
restitution for the stolen items that were never recovered.

                                          DISPOSITION

       The judgment is affirmed.




                                                   ZELON, J.




       We concur:




              PERLUSS, P. J.




              WOODS, J.




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