Filed 2/27/15 P. v. Torres CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142479
v.
GABRIEL RUBEN TORRES,                                                (Sonoma County
                                                                     Super. Ct. No. SCR-642073)
         Defendant and Appellant.


         Defendant was charged with two counts of second degree burglary. Following
defendant’s plea of no contest to one count of second degree burglary and admission of a
prior strike, the trial court sentenced him to state prison and ordered restitution. On
appeal, defendant challenges the restitution award of $5,125, asserting there was
insufficient evidence the claimed loss was the result of defendant’s commission of the
burglaries. Because substantial evidence links defendant to the loss, we find the trial
court did not abuse its discretion and affirm the order of restitution.
          I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
         The following factual summary is taken from a Sonoma County Sheriff’s Office
investigation report received into evidence at the restitution hearing.
         On November 4, 2013, at approximately 8:00 a.m., Jason Passalacqua arrived at
the residence owned by his father, Thomas Passalacqua,1 located on Mill Creek Road, to


         1
             To avoid confusion, we refer to Thomas and Jason Passalacqua by their first
names.
compile a list of repairs to be completed before renting the house. In addition to the
house, a garage and a large barn just south of the house were located on the property.
       When Jason arrived at the house, he entered through the front door which is
always left unlocked. Shortly thereafter, he heard the sound of a car door closing and an
engine starting up at the back of the house. Jason was concerned because the house had
been burglarized several weeks earlier. He left through the front door, placed his dog in
his truck, and grabbed his hunting shotgun. He then walked around the south side of the
residence to the back where he saw defendant standing next to the driver’s door of a grey
Chevrolet S-19 pickup and another individual, Jason Bulcke, sitting in the front passenger
seat. Jason asked both men what they were doing there. Both responded they had been
hired by someone in Fulton who told them to clean out the house and place the contents
in the garage. Defendant and Bulcke also admitted they had been inside the house.
Because Jason was unsure whether his father had hired a third party to clean out the
house, he called Thomas, who stated he had not hired anyone. Thomas arrived at the
house as Jason was calling the sheriff’s office.
       When Deputies Greg Quacchia and John Blenker arrived at the residence, Jason
and Thomas, as well as defendant and Bulcke, were present. Thomas showed Deputy
Quacchia several household items inside the garage which he said had been inside the
house, including a mirror, medicine cabinet, rolls of carpet, briefcase, black lamp, two
small wooden tables, and a wicker basket wrapped around a glass bottle. Next to the
household items were a Stihl chainsaw, an orange-colored wood router, and four flat
plastic boxes. Thomas indicated the tools did not belong to him and were possibly the
property of Richard Ehrenreich, who rented the large barn on the property for use as a
workshop.
       Quacchia, Thomas, and Jason entered the uninhabited house to check the interior.
Thomas was last inside the house two days earlier. With the exception of a few items of
miscellaneous furniture, the house was empty. Thomas and Quacchia found a dryer
sitting in the middle of the doorway leading out to the backyard; however, according to
Thomas, the dryer had been located against the wall near the door.


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       Deputy Blenker walked to the barn where he observed a lock securing the barn
door had been pried off the hasp. The barn had many valuable tools, and it appeared to
him as if “person(s) were piling items in bins to steal them.” He also saw tools piled near
the garage.
       Blenker knew defendant and Bulcke from previous contacts and arrests over the
past 15 years. At the time of this incident, defendant was on probation. Defendant told
Blenker he was hired by a man named Mike to clean up the property.
       Defendant provided Quacchia with further information about Mike. He stated he
had driven to Fulton in his father’s Chevrolet pickup to look for work. While parked
behind the “Egg Basket,” he was walking around with other day laborers when he was
contacted by a White male, named Mike, who hired him to clean out a house. After
defendant picked up Bulcke, they followed Mike to the house. Upon arriving at the
house, Mike instructed defendant and Bulcke to empty the house of its contents and move
them to the garage behind the house. Mike then left in his truck stating he would return
at noon. Defendant admitted he had carried a mirror out of the house to the garage and
had moved the dryer, but claimed the other items were already stacked outside the back
door when he had arrived that morning.
       Quacchia spoke separately with Bulcke who said he had received a telephone call
from defendant asking if he wanted to do some work. Contrary to defendant’s statement
that he picked up Bulcke, Bulcke told Quacchia he got a ride to the house from someone
named Alexis. Bulcke denied entering the house or barn, or moving any of the items in
the garage.
       After defendant and Bulcke were placed under arrest for burglary, Quacchia
requested a tow truck to remove defendant’s pickup truck from the property. During an
inventory search, he saw on the truck seat an unopened bottle of “1984 Alexander’s
Crown Vineyard, Cabernet Sauvignon.”
       Quacchia returned to the property at 11:30 a.m. and remained there until
12:20 p.m. to see if Mike would return. During this time period, neither Mike nor any
other persons arrived or left the property.


                                              3
       Ehrenreich arrived at the property at approximately 1:15 p.m. in response to
Deputy Quacchia’s call. He observed damage to the frame around the sliding door to his
workshop located in the barn. This damage had not been there two days earlier on
November 2, 2013 at 10:00 a.m., the last time he stood outside his shop. However, he
had not been inside the workshop since October 27, 2013.
       Quacchia and Ehrenreich walked to the garage where Ehrenreich identified his
Stihl chainsaw, the wood router, and four plastic containers and their contents. All of the
items had been stored inside his workshop. After returning to the workshop, Ehrenreich
noted several welders and saws were missing. Inside his workshop, Ehrenreich pointed
out a bottle of wine covered with dust sitting on a work bench. He stated the wine did not
belong there and had been stored in another part of the shop. Quacchia noticed it was a
bottle of 1987 Rodney Strong cabernet sauvignon. In a back storage room, Ehrenreich
also pointed out a wood box and a cardboard box on the floor containing several bottles
of wine. The floor area had been clear of obstructions, and the bottles had been stored in
a third box on a nearby shelf. The label on one of the bottles matched the one Quacchia
saw in defendant’s truck, “ ‘Rodney Strong, 1984 Alexander’s Crown Vineyard,
Cabernet Sauvignon.’ ”
       Blenker conducted a probation search of defendant’s residence. He knew
numerous valuable welding tools were stolen from Ehrenreich’s workshop, but he found
none of the missing items described to him by Quacchia.
       Defendant was charged in an information with two counts of second degree
burglary. (Pen. Code,2 § 459.) The information alleged a prior strike (§ 1170.12) and
two prior prison terms (§ 667.5, subd. (b)). Defendant pleaded no contest to one count of
second degree burglary and admitted the prior strike.
       The trial court sentenced defendant to 32 months in state prison and ordered him
to pay Ehrenreich victim restitution in the amount of $5,125. Several months later,
defendant filed opposition to the restitution order. Prior to the contested restitution

       2
           All statutory references are to the Penal Code.


                                               4
hearing, Ehrenreich submitted a declaration requesting $7,943.12, the amount of the
replacement costs for various missing tools. He attached a list of the tools and their
replacement value along with supporting documentation. However, he estimated the
depreciated value of the items to be $5,125.3 Following a contested restitution hearing,
the trial court ordered defendant to pay victim restitution in the amount of $5,125.
                                    II. DISCUSSION
       Defendant challenges the restitution award. Before addressing his challenge, we
summarize the evidence presented at the restitution hearing and the law applicable to our
review.
A. Background
       At the restitution hearing Ehrenreich testified he maintained a workshop in a barn
100 yards up the hill from the Mill Creek Road residence. He kept power and simple
tools, equipment, and raw materials for his artwork. On November 4, 2013, after he
learned his workshop had been burglarized, he returned to the property around noon to
meet with a deputy sheriff. As soon as he pulled up to the workshop, “it was obvious”
the locks and hasps had been “ripped off” the door to his workshop. Additionally, the
wood around the locks and hasps was “splintered and broken.” The last time Ehrenreich
had been at the workshop prior to the burglary was two days before the burglary.
       Ehrenreich further testified he discovered tools missing from his workshop
including two welders, a set of torches, two chainsaws, two grinders, and “a bunch of
carving tools.” Inside the garage adjacent to the residence, he saw a few of his tools,
including a chainsaw. Those tools had been locked up in his workshop two days earlier.
       Ehrenreich also told the court he had been going to the property “every couple of
days, sometimes every other day,” and no one lived in the residence at the time of the
burglaries. Two weeks before this incident, there was a burglary or suspicious activity at
the main residence, but his workshop was not burglarized.


       3
        Evidently, Ehrenreich sent a letter to the court on an unknown date estimating
the depreciated value of the missing tools as $5,125.


                                             5
       As noted above, in addition to Ehrenreich’s testimony, the police report of the
incident was received in evidence.
       At the conclusion of the hearing, the prosecutor argued the evidence raised the
reasonable inference defendant and Bulcke were making multiple trips to transport
property. There was a single point of entry into the workshop, Ehrenreich had been at the
workshop two days prior, wine from the workshop was found in defendant’s truck,
property had been moved from the workshop to the garage, and the workshop had never
before been burglarized. Defendant’s counsel argued defendant and Buckle were caught
at the scene in possession of all of the property taken from the buildings, and
Ehrenreich’s missing property must have been “taken at some other time from some other
burglary that wasn’t charged.” Bulcke’s counsel commented there was no evidence of
multiple trips.
       The trial court ordered victim restitution in the amount of $5,125, Ehrenreich’s
estimate of the depreciated value of the missing tools.
B. Applicable Law
       “The California Constitution gives crime victims a right to restitution, and
consequently, requires a court to order a convicted wrongdoer to pay restitution in every
case in which a crime victim suffers a loss. (Cal. Const., art. I, § 28, subd. (b)(13)(B).)
To implement this requirement, section 1202.4, subdivision (f), generally 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 order, based on the amount of loss claimed by
the victim or victims or any other showing to the court.’ ” (People v. Sy (2014)
223 Cal.App.4th 44, 62.)
       “The restitution amount ‘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.’ (§ 1202.4, subd. (f)(3).) ‘The defendant has the
right to a hearing before a judge to dispute the determination of the amount of
restitution.’ (§ 1202.4, subd. (f)(1).)


                                              6
       “ ‘At a victim restitution hearing, a prima facie case for restitution is made by the
People based in part on a victim’s testimony on, or other claim or statement of, the
amount of his or her economic loss. [Citations.] “Once the victim has [i.e., the People
have] made a prima facie showing of his or her loss, the burden shifts to the defendant to
demonstrate that the amount of the loss is other than that claimed by the victim.
[Citations.]” [Citation.]
       “ ‘ “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.] ‘ “Where
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.” ’ [Citations.]” [Citation.]
However, a restitution order “resting upon a ‘ “demonstrable error of law” ’ constitutes
an abuse of the court’s discretion. [Citation.]” [Citation.] “In reviewing the sufficiency
of the evidence [to support a factual finding], 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.’ [Citations.]
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. Sy, supra,
223 Cal.App.4th at p. 63.)
C. Analysis
       Defendant contends there was no substantial evidence Ehrenreich’s claimed loss
was the result of defendant’s commission of the burglary because it is unclear how the
missing tools disappeared. We disagree because the prosecution proved by a
preponderance of the evidence defendant was responsible for the loss of these tools.
       Defendant and Bulcke were apprehended on Thomas Passalacqua’s property
where Ehrenreich rented the barn to use as a workshop. Items had been moved both from


                                               7
the house and Ehrenreich’s workshop to the garage. Additionally, items within the
workshop had been moved from one place to another, and a bottle of wine had been
moved from the workshop to defendant’s truck. Only two days before the incident,
Ehrenreich had been at his workshop where he saw no signs of a forced entry or anything
amiss. Further, his workshop had never been previously burglarized.
       These circumstances raise the legitimate inference defendant took the missing
tools from the workshop which had already been transported away from the property by
the time of Jason’s arrival, and defendant was in fact preparing to transport other items.
The evidence also showed only one break-in; no evidence was introduced of an earlier
burglary of the workshop. That the missing tools were not discovered during a probation
search of defendant’s residence, does not necessarily undermine the reasonable inference
the tools were lost as a result of defendant’s criminal conduct.
       Because substantial evidence supports the trial court’s finding by a preponderance
of the evidence defendant was responsible for the theft of Ehrenreich’s tools, the trial
court did not abuse its discretion in awarding restitution in the amount of $5,125.4
                                   III. DISPOSITION
       The restitution order is affirmed.




       4
       Because defendant does not contest the amount of restitution awarded, it is
unnecessary to address this issue.


                                             8
                                _________________________
                                Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.




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