Filed 12/2/15 P. v. Ferrel 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040689
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS122471A & B)

         v.

MELISSA FERREL et al.,

         Defendants and Appellants.


         The main issue in this case is the scope of a criminal defendant’s due process
rights at a victim restitution hearing when the victim has died before the hearing and her
estimates of the value of jewelry stolen were relayed to a third party who testified at the
hearing.
                                                          Facts
         In general, the facts of the underlying offenses are not in dispute. We will recite
them very briefly. Over a period of approximately four months, defendants Melissa
Ferrel and Jamie Garcia stole numerous pieces of jewelry, cash, checks that came from a
garage sale, and a laptop computer from Gail Rose. Rose was able to recover some of the
jewelry. In one instance, Rose paid $157 to a pawnshop to recover an emerald and
diamond ring. Previously, she had given Ferrel a check for $1,500 to recover the ring,
but neither Ferrel nor Garcia ever returned the ring to her.
       Ferrel pleaded guilty to one count of theft from an elder or dependent adult
(Pen. Code, § 368, subd. (d)). 1 Garcia pleaded no contest to the same charge.
       The probation officer prepared a report for the restitution hearing in which he
listed the various items still missing and requested a restitution amount of $29,000—
$17,100 for the 11 rings, $1,500 for the two bracelets, $7,100 for the necklace and
pendent, $1,200 in United States currency, an unspecified amount for the checks, $1,500
for the check Rose wrote to Ferrel and $600 for the laptop computer. The probation
officer noted that the executor of Rose’s estate indicated that there were several bars of
silver valued at $20,000 still missing.
       At the restitution hearing, Salinas Police Officer Chris Swinscoe testified that the
items and value listed in the probation report were based on what the victim had told him.
He said that Rose had valued the rings at $17,100, two bracelets at approximately $1,500,
the necklace and pendant at $1,100, silver bars at $6,000, and United States currency at
$1,200. He explained that the victim reported that a $9,000 diamond ring had been
stolen, but had been recovered, so that the total loss for that theft was not $9,000 but was
rather $1,657—a check for $1,500 Rose wrote to Ferrel that was to recover the ring plus
the $157 Rose paid to the pawnshop.
       Officer Swinscoe stated that to figure out the amount stolen the victim “had to
give it some thought” before she came up with the estimates. He said that when he
interviewed Ferrel, she estimated that the value of what she had taken was $10,000, and
that the watches she had taken were recovered when her mother paid $5,175 to a
pawnshop to recover them.
       Officer Swinscoe had no information about the value of the jewelry other than
what was given to him by Rose. He stated that the victim could not recall any details
about some of the jewelry and valuables that were stolen.


       1
           All further statutory references are to the Penal Code unless otherwise indicated.

                                               2
         Austin Neale, a professional appraiser, testified for the defendants. He said that
one cannot determine the fair market value of the jewelry or precious metals described in
the probation officer’s report without having a detailed description of them. It would be
necessary to know such details as the gold content; the cut, color, and clarity of stones;
and the size and number of stones before a value could be determined. Without further
information, it was not possible to come up with either a fair market or replacement
value. As to the bars of silver, Neale said that unless he knew how many there were, the
weight of the bars, and the date of the loss, he would not be able to determine an accurate
value. Neale stated that the wholesale price of jewelry is usually one-third of the retail
price.
         The prosecutor argued that the appraiser’s testimony was irrelevant because the
victim was entitled to what she paid for the jewelry regardless of its worth at the present
time. The prosecutor asserted that restitution was designed to make the victims whole
and not allow defendants to benefit from either a rise or fall in prices.
         Garcia’s counsel argued that the purpose of a restitution hearing was to give the
defendant the opportunity to cross-examine the victim regarding how he or she arrived at
a particular value. He pointed out that because Rose was deceased, that was not possible.
Ferrel’s counsel explained that the purpose of Neale’s testimony was to demonstrate that
there was insufficient evidence for the defense to respond to the restitution claims. He
conceded that the fair market value and the replacement value were different. However,
he argued that it was impossible to set a value because there was no ability to have a
meaningful hearing and present evidence as to the values given for the 11 rings, the two
bracelets, the necklace and pendant, and the silver bars.
         The trial court agreed that it was impossible to effectively cross-examine the
officer who was merely relaying statements. The court went on to say, “However, we
have a deceased victim here. We do know that the—each defendant admitted to taking
items.” The court set restitution as follows—$17,100 for the 11 rings, $1,657 for an

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emerald and diamond ring, $1,500 for two bracelets, $1,100 for the necklace and pendant,
$6,000 for the silver bars, $600 for the laptop, and $1,200 for the missing cash. The total
restitution order was $29,157 for which Ferrel and Garcia were jointly and severally
liable.
                                           Discussion
Due Process
          Ferrel argues that she was denied due process because the trial court’s restitution
award included unverifiable values and she had no opportunity to challenge the figures.
Similarly, Garcia argues that she was denied due process under the state and federal
Constitutions because she was not afforded a meaningful opportunity to cross-examine
on the subject of the value of the missing property.
          “The scope of a criminal defendant’s due process rights at a hearing to determine
the amount of restitution is very limited: ‘ “A defendant’s due process rights are
protected when the probation report gives notice of the amount of restitution claimed . . . ,
and the defendant has an opportunity to challenge the figures in the probation report at
the sentencing hearing.” ’ [Citations.]” (People v. Cain (2000) 82 Cal.App.4th 81, 86
(Cain).)
          Repeatedly, California courts have held that a defendant does not have a Sixth
Amendment right of confrontation at the sentencing stage of a criminal prosecution.
(People v. Arbuckle (1978) 22 Cal.3d 749, 754 (Arbuckle); People v. Birmingham (1990)
217 Cal.App.3d 180, 184.) In Arbuckle, the California Supreme Court concluded that a
criminal defendant does not have a constitutional right at a sentencing hearing to confront
and cross-examine an employee of the Department of Corrections who prepares the
probation report prior to sentencing. (Arbuckle, supra, at p. 754.)
          In essence, Ferrel and Garcia argue that the restitution hearing was fundamentally
unfair because there was no way to cross-examine Rose about the value she placed on the
stolen items.

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          Certainly, the trial court violates a defendant’s due process right at a hearing to
determine the amount of restitution only when the hearing procedures are fundamentally
unfair. (Arbuckle, supra, 22 Cal.3d at p. 754; Cain, supra, 82 Cal.App.4th at p. 87.) In
this case, defendants had a full and fair opportunity to present affirmative evidence by an
appraiser that it was impossible to place a value on the jewelry that was stolen without
knowing far more details about the pieces that were stolen. Furthermore, defendants
were fully aware of the pieces they stole and where they pawned them. They had the
ability to contact the pawnshop owners and obtain an estimate of the value of the stolen
pieces. Defendants have failed to prove that the hearing procedures were fundamentally
unfair.
          We note that the trial court is entitled to consider the probation report when
determining the amount of restitution. Rose’s estimates in the probation report about the
value of her property must be accepted as prima facie evidence of value for purposes of
restitution. (Cf. Evid. Code, § 810 et seq. [providing special rules of evidence applicable
to any action in which the value of property is to be ascertained].) “ ‘Due process does
not require a judge to draw sentencing information through the narrow net of courtroom
evidence rules . . . sentencing judges are given virtually unlimited discretion as to the
kind of information they can consider and the source from whence it comes.’ [Citation.]”
(People v. Baumann (1985) 176 Cal.App.3d 67, 81.) This is so because a hearing to
establish the amount of restitution does not require the formalities of other phases of a
criminal prosecution. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1160.) When the
probation report includes information on the amount of the victim’s loss and a
recommendation as to the amount of restitution, the defendant must come forward with
contrary information to challenge that amount. “[A] defendant’s due process rights are
protected if he [or she] is given notice of the amount of restitution sought and an
opportunity to contest that amount; the rigorous procedural safeguards required during
the guilt phase . . . are not required.” (Id. at p. 1161.)

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       More importantly, Garcia and Ferrel cannot benefit from their own misconduct.
(Civ. Code, § 3517 [no one can take advantage of his or her own wrong].) Their claim
that they could not effectively cross-examine Rose’s estimates of the value of the stolen
property is due to the fact that the evidence was no longer available, as the pawnshop
owners had sold it. Such a situation was the result of their actions. Defendants have not
convinced us that there is a reason why thieves, who have, or last had, possession of the
property, should not bear the burden of rebutting the victim’s estimate of value. “If the
[thieves have] disposed of the property and [are], like the victim, ill-poised to provide a
detailed description or an appraisal, it is indeed awkward. But the situation is one of the
[thieves’] own making, and as between the victim and the [thieves], the equities favor the
victim.” (People v. Prosser (2007) 157 Cal.App.4th 682, 691 (Prosser).) We find no
due process violation.
Sufficiency of the Evidence
       Consistent with article I, section 28, of the California Constitution,2
section 1202.4, subdivision (f), requires the trial court to award restitution to a victim
who has suffered economic loss as a result of a defendant’s conduct. The restitution
amount should be “based on the amount of loss claimed by the victim or victims or any
other showing to the court.” (§ 1202.4, subd. (f).) “The burden is on the party seeking
restitution to provide an adequate factual basis for the claim.” (Giordano, supra, 42
Cal.4th at p. 664.) However, 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.” (Prosser, supra, 157 Cal.App.4th at p.
       2
         This constitutional provision states that “all persons who suffer losses as a result
of criminal activity shall have the right to seek and secure restitution from the persons
convicted of the crimes causing the losses they suffer. [¶] (B) Restitution shall be
ordered from the convicted wrongdoer in every case, regardless of the sentence or
disposition imposed, in which a crime victim suffers a loss.” (Cal. Const. art. I, § 28,
subd. (b)(13)(A), (B); see also People v. Giordano (2007) 42 Cal.4th 644, 655
(Giordano) [examining intended scope of losses].)

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691.) The restitution order shall be “sufficient to fully reimburse the victim or victims for
every determined economic loss incurred as the result of the defendant’s criminal
conduct . . . .” (§ 1202.4, subd. (f)(3); see People v. Moore (2009) 177 Cal.App.4th 1229,
1232 [section 1202.4 must be construed broadly and liberally to compensate a victim for
any economic loss that is proved to be the direct result of the defendant’s criminal
behavior].)
          “[W]e review the trial court’s restitution order for abuse of discretion.”
(Giordano, supra, 42 Cal.4th at p. 663.) The trial court does not abuse its discretion “as
long as the determination of economic loss is reasonable, producing a nonarbitrary result.
Factors relevant to that determination will necessarily depend on the particular
circumstances before the court.” (Id. at p. 665.) Accordingly, the order “will not be
reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be
found where there is a rational and factual basis for the amount of restitution ordered.”
(People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 (Gemelli).)
          The trial court may consider almost any kind of information in calculating
restitution. (People v. Phu (2009) 179 Cal.App.4th 280, 283-284.) “ ‘Further, the
standard of proof at a restitution hearing is by a preponderance of the evidence, not proof
beyond a reasonable doubt. [Citation.]’ ” (People v. Keichler (2005) 129 Cal.App.4th
1039, 1045, (Keichler).) “ ‘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.” (People v. Baker (2005) 126 Cal.App.4th 463,
469.) In reviewing the evidence, we do not reweigh or reinterpret it; we determine only
whether there is sufficient evidence to support the inference drawn by the trier of fact.
(Ibid.)
          Garcia argues that in this case there was virtually no evidence of the value of the
jewelry and other valuables taken from Rose. In essence, Ferrel makes the same



                                                 7
argument. Their argument is based on the premise that the evidence presented lacked
sufficient detail for anyone to determine or challenge the value of the stolen pieces.
       “[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.]’ ” (Prosser, supra, 157 Cal.App.4th at pp. 690-691; see also Gemelli, supra,
161 Cal.App.4th at p. 1543 [court may accept, as prima facie evidence of loss, a property
owner’s statement about the value of stolen or damaged property].)
       Garcia acknowledges the holding in Prosser, but argues that in Prosser the victims
testified and gave descriptions of the jewelry stolen and their estimates of value. Garcia’s
attempt to distinguish Prosser is unavailing. Although the burden of providing an
adequate factual basis for the claim remains on the restitution claimant (Giordano, supra,
42 Cal.4th at p. 664), the evidentiary threshold is not rigorous; the uncorroborated
assertions of the crime victim and the recommendations of the governmental officer
charged with documenting the claim constitute prima facie evidence of a restitution
value. (Prosser, supra, 157 Cal.App.4th at pp. 684-685.) A victim’s right to restitution
for economic losses resulting from the defendant’s criminal acts is to be construed
broadly and liberally (id. at p. 686), and a victim restitution order should be reversed
“ ‘only if the appellant demonstrates a clear abuse of discretion. [Citation.]’ ” (Id. at
p. 690.) The court here employed a rational method to calculate Rose’s economic
losses—Rose’s thoughtful and considered estimate of the value of the stolen items. In
short, the trial court based its restitution order on the amount of loss Rose claimed she
had suffered. Defendants did not submit any evidence contradicting the restitution
amounts they now challenge on appeal. Rather, they presented evidence that an appraiser
could not determine the value without more information. That does not mean, however,
that Rose could not. The court made a factual finding as to the amount of restitution
based on Rose’s statements to Officer Swinscoe. Given that Rose’s statements were



                                              8
uncontradicted evidence of loss, the court’s determination was based on a preponderance
of the evidence.
       As an intermediate appellate court, we are limited to a determination of whether
“ ‘ “ ‘there is any substantial evidence, contradicted or uncontradicted,’ to support the
trial court’s findings.” [Citations.]’ ” (Keichler, supra, 129 Cal.App.4th at p. 1045.)
Defendants could have,3 but did not, come forward with any contrary information as to
the value of the property stolen. Thus, we find that there was substantial evidence to
support the trial court’s restitution order. Since there was “a factual and rational basis for
the amount of restitution ordered by the trial court” (People v. Dalvito (1997) 56
Cal.App.4th 557, 562), the order must be affirmed.
                                         Disposition
       The restitution order is affirmed.




       3
        Defendants were fully aware of the pieces they had stolen, to the pawnshops to
which they were taken and the amount of money they received at the pawnshops. If
some of the pieces were not as Rose described them, it was within the defendants’
knowledge and ability to bring forth contrary evidence. This they failed to do.

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                                  _________________________________
                                  ELIA, ACTING P.J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.




The People v. Ferrel, et al.
H040689
