Filed 1/20/15 P. v. Rosales CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066020

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. JCF31506)

CARLOS ROSALES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks

Anderholt, Judge. Affirmed.

         Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland, Scott Taylor and Donald W. Ostertag, Deputy Attorneys General, for

Plaintiff and Respondent.
         Carlos Rosales entered a guilty plea to one count of grand theft (Pen Code.,1

§ 487, subd. (a)). Thereafter Rosales was granted probation and ordered to make

restitution to the victim in the amount of $7,216.16.

         Rosales appeals challenging only the restitution order. He contends the trial court

lacked sufficient evidence to support the calculation of the amount due and that the court

abused its discretion in imposing the amount due the victim.

         We are satisfied the trial court used a rational methodology in calculating the

amount of restitution and that there is sufficient evidence in the record to support the

order.

                                  STATEMENT OF FACTS

         Rosales was the lead receiver for Kmart in El Centro. On May 29, 2013, Kmart

discovered Rosales was stealing merchandise that was delivered to the store. When

Rosales was interviewed by the loss prevention officer Rosales admitted stealing two

digital cameras worth $500. He also admitted stealing merchandise for 18 to 24 months

prior to being discovered. He said he had taken a variety of items which he identified as

including:

         1. 500 drinks such as Pepsi and Gatorade valued at $945.

         2. Over 200 various food items valued at $600.

         3. Over 200 packs of gum valued at $318.

         4. Jewelry.



1        All further statutory references are to the Penal Code unless otherwise specified.
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       5. Five or six digital cameras.

       6. A laptop cooling pad.

       7. Five televisions.

       8. Al least two DVD players.

       9. Three Xbox gaming systems.

       10. Miscellaneous clothing items.

       11. Batteries.

       12. Tools.

       In all, Rosales estimated the value of the items taken at $10,000.

       Most of the items taken had been sold in Mexico, or in some cases returned for

gift card credit, but Rosales still had possession of a number of items. Although some of

the items were no longer "saleable" he was given full credit for them. The items returned

were valued at $2,783.84. Therefore the total loss to Kmart was set at $7,216.16.

                                         DISCUSSION

       The amount of restitution ordered in this case was based on two sets of facts.

First, the probation officer and the court accepted Rosales's admission that the total loss

to his employer was $10,000. The court also accepted the concept of giving Rosales full

credit for the value of the items he returned after his crime was discovered. Through that

process the court arrived at the net amount.

       Rosales contends the trial court abused its discretion because using Rosales's

estimated amount of loss as the base number was speculative. We find the process



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entirely rational, and, since Rosales did not present any alternative evidence there is no

reason for us to overturn the restitution order.

                                     A. Legal Principles

       California has clearly declared the importance of providing direct victims of crime

with full restitution wherever possible. California Constitution, article I, section 28,

subdivision (a)(13)(A) provides: "It is the unequivocal intention of the People of the

State of California 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." (See § 1202.4, subd. (f) [requiring "full" restitution].)

       Restitution orders made by the trial courts are reviewed under the abuse of

discretion standard. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) Decisions

of the trial courts providing restitution will not be set aside where there is a rational basis

for the court's calculation. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)

       The question for a reviewing court is whether the trial court's decision was beyond

the bounds of reason under the circumstances. (People v. Carbajal (1995) 10 Cal.4th

1114, 1121.) The manner of calculation does not have to be the same as would be used in

a civil action. (People v. Millard (2009) 175 Cal.App.4th 7, 26-27.)

       Where the victim presents an adequate factual basis for the claimed restitution, the

burden shifts to the defendant to disprove the amount of the claimed loss. (People v.

Gemelli, supra, 161 Cal.App.4th at p. 1543; People v. Fulton (2003) 109 Cal.App.4th

876, 886.)



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                                        B. Analysis

       The person most knowledgeable of the extent and value of the losses in this case

was Rosales. He was the lead receiving person for Kmart and was responsible for

accepting deliveries of merchandise to the store. He had been systematically stealing

from Kmart for 18 to 24 months. Rosales gave the employer and the probation officer a

detailed list of the types of items and in many instances their value. It was Rosales who

estimated the total loss to Kmart at $10,000. There is no reason to find his recollection,

and admission, to be speculative.

       We note, for example, that although Rosales had been stealing for some time and

regularly selling the merchandise or returning it for credit, he still had over $2,700 worth

of property in his possession. Rosales was in a far better position than the victim to

calculate the loss. Given the extensive and continuous theft, about which Rosales had

excellent recall, the trial judge was well within his discretion to use the amount of the

loss admitted by Rosales as the basis for the restitution calculation. As we have noted,

Rosales was given the benefit of full value deduction for the returned items, even though

some were not saleable.

       In short, the method used to calculate restitution was reasonable and reliable.

Rosales presented nothing to the trial court that would support a different restitution

amount.




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                                 DISPOSITION

    The judgment is affirmed.




                                               HUFFMAN, J.

WE CONCUR:


          McCONNELL, P. J.


                     IRION, J.




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