Filed 3/7/14 P. v. Miller 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          H039406
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC942539)

         v.

RICHARD DARRYL MILLER, JR.,

         Defendant and Appellant.



         Defendant Richard Darryl Miller, Jr. pleaded no contest to one count of first
degree burglary (Pen. Code, § 459)1 in exchange for a sentence of 16 months in prison.
The trial court ordered him to pay $5,500 in restitution for the victim’s loss of three
items: a television, a camera, and a camcorder.
         On appeal, defendant contends the trial court erroneously imposed restitution in an
amount greater than the replacement costs incurred by the victim. The Attorney General
concedes the trial court erred as to the amount of restitution for the television, but argues
the court properly determined the amount of restitution for the other two items.
         We agree with the Attorney General. We will reduce the amount of restitution to
reflect the replacement cost of the television, and we will affirm the judgment in all other
respects.

         1
             Subsequent undesignated statutory references are to the Penal Code.
                         I. FACTUAL AND PROCEDURAL BACKGROUND
         On May 5, 2009, the prosecution charged defendant with one count of first degree
burglary.2 (§§ 459, 460, subd. (a).) The complaint also alleged defendant was on bail for
the commission of another felony at the time of the offense. (§ 12022.1) On December
20, 2012, defendant pleaded no contest to residential burglary, and the enhancement
allegation was stricken. In exchange for his plea, defendant was promised a 16-month
sentence consecutive to another sentence arising out of a separate case. On January 28,
2013, the trial court imposed a total term of 17 years and 8 months in prison for both
cases.
         At the restitution hearing, Ling Sen Peng, the victim, testified that defendant stole
three items: a 43-inch Pioneer plasma television, a Canon DSLR digital camera, and a
Sony camcorder. Ling bought the television in 2006 for $3,800, and he replaced it with a
46-inch LCD television for $1,600. He spent $1,000 to replace the stolen Canon
camera—which he had received as a gift—with a Nikon camera of the same value. The
stolen Sony camcorder cost $700, and he replaced it with a new Canon camcorder for
$500. Although Ling spent less to replace the television and camcorder than he
originally spent to buy them, he asked the court to award him restitution for the full,
original cost of the items “as a penalty.” Defense counsel objected on the grounds that
“Mr. Peng is not entitled to a windfall and he is not entitled to a penalty.” The court
rejected this argument and ordered restitution for the full, original cost of the items in the
amount of $5,500.
                                          II. DISCUSSION
         Section 1202.4 provides, in relevant part, that restitution “shall be of a dollar
amount that is sufficient to fully reimburse the victim or victims for every determined
economic loss incurred as the result of the defendant’s criminal conduct, including, but

         2
          The record does not set forth the facts of the offense, other than those relating to
restitution.
                                                2
not limited to [. . .] [¶] [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, or the actual cost of repairing the property when repair is possible.” (§ 1202.4,
subds. (f)(3) & (f)(3)(A).) (Italics added.) “A restitution order is intended to compensate
the victim for its actual loss and is not intended to provide the victim with a windfall.”
(People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172.) “[R]estitution is to be based
on the replacement cost of a like item.” (Id. at p. 1177.)
       We review the trial court’s restitution order for abuse of discretion. (People v.
Chappelone, supra, 183 Cal.App.4th at p. 1173.) An award of restitution greater than
that necessary to compensate the victim for like property constitutes an abuse of
discretion. (Id. at p. 1177.)
       The parties agree that the trial court erred in awarding Ling $3,800 for the
television, and that $1,600 will make him whole for the loss of that item. We agree with
the parties. Furthermore, there is no dispute relating to the award of $1,000 for the
camera.
       The sole issue in contention concerns the proper award for the camcorder.
Defendant contends the court should have awarded Ling $500, equal to the replacement
cost of the camcorder. The Attorney General argues that the court did not abuse its
discretion in awarding $700 because the original camcorder was worth that amount, and
the record does not show that the new camcorder was comparable to that of the stolen
camcorder.
       We agree with the Attorney General. The victim is entitled to compensation for
“like property.” (People v. Chappelone, supra, 183 Cal.App.4th at p. 1177.) Nothing in
the record shows that the new camcorder was “like” the stolen camcorder––that is, of
equal value or comparable quality. “[I]t is settled that: ‘A judgment or order of the lower
court is presumed correct. All intendments and presumptions are indulged to support it
on matters as to which the record is silent, and error must be affirmatively shown. This is
                                               3
not only a general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
There being no showing to the contrary, we find no abuse of discretion in the trial court’s
award of $700 for the camcorder.
       Accordingly, we will modify the restitution order to award $3,300 to the victim,
equal to the sum of $1,600 for the television, $1,000 for the camera, and $700 for the
camcorder.
                                     III.    DISPOSITION
       The restitution order is modified to award $3,300 to Ling Sen Peng. As modified,
the judgment is affirmed.



                                    _______________________________
                                    Márquez, J.




       WE CONCUR:




       _____________________________________
        Rushing, P. J.




       ______________________________________
        Premo, J.




                                              4
