Filed 11/14/14 P. v. Roemer CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B254820

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. NA094176)
         v.

COLLIN ROEMER,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Tomson T.
Ong, Judge. Affirmed.
         Jolene Larimore, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, and James William Bilderback II, Supervising Deputy Attorney General,
Brendan Sullivan, Deputy Attorney General, for Plaintiff and Respondent.


                                     _____________________________
       Defendant and appellant Collin Roemer entered into a case settlement with the
prosecution which resulted in a commitment to county jail for five years eight months
following his no contest to plea to two counts of second degree burglary (Pen. Code, §
459),1 along with an admission as to one count that he damaged or destroyed property
with a value exceeding $50,000 (§ 12022.6, subd. (a)(2)) and that he served a prior prison
term (§ 667.5, subd. (b)). Defendant agreed to pay restitution as determined at a later
hearing as a condition of the settlement. Following a formal restitution hearing, the trial
court ordered restitution to the two victims in the amounts of $1,823,541 and $370,980.
       Defendant raises one issue on appeal. He contends the trial court abused its
discretion in awarding restitution to the victims for 16 months of lost rent on the
burglarized properties. We affirm.


                                           FACTS2


The Offense


       A Long Beach police officer responding to a call on November 13, 2012, found
the door to the commercial property at 4343 Atlantic (4343) broken open, providing free
access inside. The property shares a wall with 4363 Atlantic (4363). The dry wall inside
4343 was ripped open, and all the wiring including electrical sockets and outlets, as well
as some plumbing, had been torn out. Defendant was taken into custody by the officer,
who saw defendant crawling out of a hole in the electrical room from 4363 to 4343.




       1   All statutory references are to the Penal Code, unless otherwise stated.

       2   The facts relating to commission of the burglary are taken from the preliminary
hearing.


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Defendant was advised of his Miranda 3 rights, which he waived, and admitted to “taking
the wire.”
       The officer observed major damage to 4363—dry wall was torn out of the walls,
and conduit and plumbing were missing. Four vehicles were in the garage below—a
Mitsubishi Montero belonging to defendant, as well as a Ferrari, a Mercedes and a
Toyota Land Cruiser. The Ferrari was totally stripped, and parts from the Ferrari were in
defendant’s Montero. The tires and batteries of the Mercedes and Land Cruiser were
missing.
       Defendant was interviewed by a detective the day after his arrest. After waiving
his Miranda rights, defendant admitted driving by the building two days before his arrest
to check the location, and then returning the day before his arrest to take copper wire,
which he sold at a recycling center. Other individuals also took wire from the location.
Defendant admitted stripping the Ferrari and removing the tires from the other cars.


Dr. John Young—owner of 4363


       Preliminary hearing testimony


       Dr. Young, the owner of 4363, described the “horrifying” extent of destruction of
his property. The walls and ceilings had “been ripped up,” wires were “pulled out
everywhere,” and expensive medical and photography equipment was damaged, as were
his Ferrari, Mercedes, and Land Cruiser. Heating and air conditioning units on the top
level of the building were “completely destroyed.” All of the property had been in
working condition prior to the burglary.




       3   Miranda v. Arizona (1966) 384 U.S. 436.

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       Restitution hearing testimony


       Dr. Young, an immigrant, had his dreams destroyed by the damage from the
burglary. He has been a doctor in Long Beach for 30 years, and was “trying to build this
building for my children,” including a daughter in medical school and two children “in
pre-med.” After 16 months he does not have the money to make the repairs. His
insurance company denied his claim and sent a retired police officer to investigate him.
He sought $10,000 per month for lost rent. The building was going to be rented to a
hospital, but the rental was put on hold because of an investigation regarding the hospital
and a politician. The previous tenant paid $10,000 per month in rent.


Paul David Foreman—owner of 4343


       Preliminary hearing testimony


       Foreman, the owner of 4343, saw his building on November 14, 2012. The
building had no lighting because all the wiring had been pulled out. All the copper
leading to the bathroom, a distance of 150 feet, had been removed. Everything was
stripped to the fixtures in the bathroom. There were holes in the walls. Based on his
experience in commercial real estate, the electrical damage was at least $75,000, but
could be as high as $200,000 if the building’s transformer needed to be replaced. The
remaining damage was at least another $100,000. He also lost rent, as he had an elder
care facility lined up as a tenant for $13,000 per month.


       Restitution hearing testimony


       Foreman had a long term care facility that was ready to occupy the building at the
time of the burglary. He was waiting for the prospective tenant’s improvement
requirements, “which we were starting to do,” when defendant “caused this huge loss to

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us.” He has not been able to repair the building because of the expense, and he will
“have to borrow the money to do it.” He expects it to take close to a year to repair,
caused in part by the need for permits from multiple agencies. The loss of rents is
substantial and he was “ready to enjoy that rent,” but was unable to do so due to
defendant. The rents are what he depends on for income. He submitted a lease he had
with a previous tenant to verify the rental value, which was $12,500 at the end of the
lease. He sought lost rents based on the time from the burglary to the restitution hearing,
describing that as “my best estimate of what I have lost to date.”


       Ruling of the trial court on restitution


       The court fixed restitution in favor of Dr. Young at $1,823,541. Foreman was
awarded restitution of $370,980. The restitution amounts include damage to property and
16 months of lost rent to each victim. Only the amount of lost rent awarded is in issue on
appeal.


                                      DISCUSSION


       Defendant argues the trial court abused its discretion in ordering restitution to the
victims for 16 months of lost rental income. Defendant relies on People v. Thygesen
(1999) 69 Cal.App.4th 988 (Thygesen) to support his contention that the trial court should
have determined the reasonable period of time to repair the premises, rather than
awarding the 16 months of rental value sought by the victims for the period between the
time of the burglaries in November 2012, and the restitution hearing in March 2014.


Standard of Review


       “Restitution orders are reviewed for abuse of discretion. (People v. Mearns
[(2002)] 97 Cal.App.4th [493,] 498.) When there is a factual and rational basis for the

                                              5
amount of restitution ordered, no abuse of discretion will be found. (Id. at p. 499.)”
(People v. Phu (2009) 179 Cal.App.4th 280, 284.)




Principle Applicable to Restitution


        “In 1982, California voters enacted Proposition 8, an initiative measure also
known as the ‘Victims’ Bill of Rights,’ which added to the California Constitution a
provision that ‘all persons who suffer losses’ resulting from a crime are entitled to
‘restitution from the persons convicted of the crimes causing the losses.’ (Cal. Const.,
art. 1, § 28, subd. (b)(13)(A).) The Legislature was directed to enact implementing
legislation. (Id., art. 1, § 28, subd. (a)(8); see People v. Giordano (2007) 42 Cal.4th 644,
655.) The Legislature did so. In 1983, it enacted section 1202.4, which is at issue here.
(Stats. 1983, ch. 1092, § 320.1, p. 4058.)” (People v. Stanley (2012) 54 Cal.4th 734, 736
(Stanley).)
        Under the pertinent language of section 1202.4, subdivision (f), “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 . . . . The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing so and states them on
the record.” Section 1202.4 and other restitution states are liberally construed to
effectuate the constitutional and legislative mandates. (Stanley, supra, 54 Cal.4th at p.
737.)
        Lost rental value may be an element of an award of restitution section 1202.4,
subdivision (f). (Thygesen, supra, 69 Cal.App.4th at p. 995.) In determining rental
value, the court should receive evidence regarding the reasonable period of time the
victim was deprived of the use of the damaged or stolen property. (Ibid.)



                                              6
Analysis


       The trial court did not abuse its discretion in determining that Dr. Young and
Foreman were entitled to the rental value of their respective properties for a period of 16
months. Both victims testified in detail to the devastating damages caused by defendant.
The victims detailed why, even at the time of the restitution hearing, they were unable to
return their properties to the rental market due to the destruction of the premises. Neither
victim had the financial resources to repair the extensive damage to his property. This
situation was singularly attributable to defendant. Although a court has discretion to
award an amount less than that claimed by a victim as lost rent if it determines the
victims unreasonably delayed the repairs, there is no evidence to support such a finding
in this case. To the contrary, the court lamented in its ruling how defendant’s crimes
against property had a devastating impact upon the victims in this case.
       Defendant’s reliance on Thygesen, supra, 69 Cal.App.4th 988, is misplaced. In
Thygesen, the defendant rented a cement mixer, which he did not return. The defendant
eventually pled guilty to theft of the mixer, and the trial court gave the victim the choice
of accepting either the lost rental value of $3,822 or the replacement cost of the mixer of
$2,098.98. The victim chose the larger sum. (Id. at p. 991.) The Court of Appeal
reversed because the record contained no evidence “as to how often the mixer was used”
or “why the mixer had not been replaced in over 13 months.” As a result, “the trial court
made an award based on the speculative proposition that the mixer would have been
rented out every week for 13 months.” (Id. at p. 995.)
       Unlike the situation in Thygesen, the trial court here did not base its determination
on speculation. The victims testified to the specific extent of the damage and explained
exactly why they had been unable to repair and rent the properties during the 16 months
between the burglaries and restitution hearing. The decision of the trial court was
entirely consistent with the constitutional and statutory mandates that crime victims be
fully compensated. The fault for the large award of restitution here lies with defendant,
not the conduct of Dr. Young and Foreman.

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                                     DISPOSITION


      The restitution order is affirmed.




             KRIEGLER, J.


We concur:




             MOSK, Acting P. J.




             GOODMAN, J. *




      * Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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