Filed 6/27/16 P. v. Smith CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C080394

                   Plaintiff and Respondent,                                    (Super. Ct. No. MC RD CRF
                                                                                        140002803)
         v.

JEFFREY MONTGOMERY SMITH,

                   Defendant and Appellant.




         Defendant pleaded no contest to unlawfully causing a fire to burn a structure or
forest land (Pen. Code, § 452, subd. (c)),1 obstructing a peace officer (§ 148, subd.
(a)(1)), and unlawfully discharging a firearm in violation of Shasta County Code
section 9.10.030; the trial court placed him on informal probation for three years. The
court also awarded victim restitution in the amount of $2,274,816.80.




1   Further undesignated statutory references are to the Penal Code.

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       On appeal, defendant contends the trial court’s restitution order was inadequate
and conclusory, such that it was an abuse of discretion. He challenges the five percent
reduction in the award for the victims’ comparative negligence, and concludes that the
restitution order is not supported by substantial evidence. We disagree and affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In August 2013, defendant discharged a firearm causing a fire to burn forest land
located in Redding. The burned land included property owned by Gary and Erica Buxa.
The fire burned most of the Buxas’ seven-acre property and some of their personal
property but not their house.
       The trial court considered extensive written briefing from the parties on the issue
of restitution and also held an evidentiary hearing. At the hearing, multiple witnesses
testified and the parties submitted evidence. The People submitted photographs of the
fire damage as well as a detailed list of the Buxas’ property that was damaged by the fire
and the replacement value of that property. Gary Buxa testified that 90 to 95 percent of
his property was affected by the fire. He specifically testified that “as a result of the fire”
there was “extensive” damage and destruction to his property, and presented a detailed
list of items--including many different kinds of plants and trees--which were damaged in
the fire. This list was moved into evidence and accepted by the trial court with no
objection by the defense. The list included a total of 758 oak trees, listed separately by
location--147 in the backyard, 26 in the front yard, and a total of 585 oaks from five
separate areas (“sectors” A through E) from the property outside the deer fence. The list
of items included their valuation; Erica Buxa testified that the value of the damaged
property was determined based on receipts and Internet research.
       At issue here is the numerical estimate as well as the replacement value of the 758
oak trees. The Buxas valued the replacement of these trees at $3,000 per tree for a tree
15 to 20 feet tall. Gary Buxa testified that oak trees in the 15 to 20 foot range were the
largest locally available oak trees. He explained that it would have cost $20,000 or

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$30,000 per tree to replace the large full size oak trees damaged by the fire, and it was
unclear whether such trees were locally available. He testified that an arborist, Kevin
Baldwin, had helped him count the trees and determine how many would survive. Buxa
also testified that the property was firescaped (creating non-burn zones around a home).
       Baldwin prepared a declaration, which was submitted to the trial court as an
attachment to the People’s “brief regarding restitution issues,” attesting that he is the
owner and operator of a tree trimming and tree removal business in Shasta County, and
that one of his specialties is identifying unhealthy or dead trees. Baldwin assisted Buxa
in counting the trees, and specifically declared that he had counted oak trees in sectors A,
B, C, and D. His count of the trees in these four sectors matched the numbers for those
four sectors submitted by the Buxas on their list--547. According to Baldwin, fewer than
five percent of the trees on the Buxas’ property would remain alive and healthy after the
fire. Buxta testified at the hearing as to Baldwin’s representations, on both direct and
cross examination, without any objection.
       Defendant presented the testimony of James Wilson, a retired forester for the
Department of Forestry and Fire Protection. Wilson testified that a nursery in Southern
California sold smaller (10 to 12 foot) blue oak trees for $89.99 each. Wilson offered no
evidence regarding how much it would cost to replace the damaged trees with the trees
from Southern California. Wilson described firescaping but did not give an opinion as to
the adequacy of the firescaping on the Buxtas’ property. Defendant testified broadly that
the Buxas’ property was not adequately firescaped.
       The trial court issued a written order awarding the Buxas $2,274,816.80,
representing the $2,394,544 in restitution they requested, minus a five percent offset for
their comparative negligence. The trial court wrote that the evidence submitted by the
People supported the restitution requested by the Buxas.
       Defendant filed a timely notice of appeal.



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                                       DISCUSSION
       The California Constitution provides that crime victims have a right to restitution
when they suffer losses as a result of criminal activity. (Cal. Const., art. I, § 28, subd.
(b); see People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) This constitutional
mandate is implemented by section 1202.4. (See Giordano, at p. 656.)
       Section 1202.4 provides, in relevant part: “[I]n 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. If the amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be determined at the
direction of 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. . . .” (§ 1202.4,
subd. (f).) “To the extent possible, the restitution order shall be prepared by the
sentencing court, shall identify each victim and each loss to which it pertains, and 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 value of . . . damaged property shall be the replacement
cost of like property, or the actual cost of repairing the property when repair is possible.”
(§ 1202.4, subd. (f)(3)(A).)
       “[W]e review the trial court’s restitution order for abuse of discretion. [Citation.]
The abuse of discretion standard is ‘deferential,’ but it ‘is not empty.’ [Citation.] ‘[I]t
asks in substance whether the ruling in question “falls outside the bounds of reason”
under the applicable law and the relevant facts [citations].’ [Citation.] Under this
standard, while a trial court has broad discretion to choose a method for calculating the
amount of restitution, it must employ a method that is rationally designed to determine
the . . . victim’s economic loss. To facilitate appellate review of the trial court’s

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restitution order, the trial court must take care to make a record of the restitution hearing,
analyze the evidence presented, and make a clear statement of the calculation method
used and how that method justifies the amount ordered.” (Giordano, supra, 42 Cal.4th at
pp. 663-664.)
       The standard of proof at a restitution hearing is preponderance of the evidence.
(See People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) The trial court may accept,
as prima facie evidence of loss, a property owner’s statement about the value of damaged
property. (Id. at p. 1543.) “Once the victim makes a prima facie showing of economic
losses incurred as a result of the defendant’s criminal acts, the burden shifts to the
defendant to disprove the amount of losses claimed by the victim.” (Ibid.)
       “In reviewing the sufficiency of the evidence, 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.’ [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.
[Citation.]” (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.)
       On appeal, defendant contends the trial court’s restitution order was an abuse of
discretion, lacking specificity and detail for the award itself as well as for the five percent
reduction in the award. He concludes that the restitution order is not supported by
substantial evidence.2




2 To the extent that the reply brief raises issues not headed and argued in the opening
brief, we decline to consider them. (See Utz v. Aureguy (1952) 109 Cal.App.2d 803,
808.)

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       We first conclude the trial court did not abuse its discretion. On this record, the
trial court’s determination of economic loss was reasonable and produced a rational
result. (See Giordano, supra, 42 Cal.4th at p. 665; see also People v. Baker, supra,
126 Cal.App.4th at p. 467 [no abuse of discretion where there is a “factual and rational
basis for the amount of restitution ordered by the trial court”].) The evidence--set forth in
detail ante--was more than sufficient to make a prima facie showing of the economic
losses suffered by the Buxas as a result of the fire, and defendant’s largely irrelevant
offering in response failed to adequately challenge, let alone disprove, the amount of the
losses claimed by the Buxas.3
       We next reject defendant’s contention that the trial court failed to adequately
explain how it calculated the restitution award as well as the reduction. The court’s
written order clearly states that the evidence submitted by the People supported the
amounts of restitution requested, and it did. The evidence presented at the hearing
regarding loss amounts and replacement values was specific and detailed. The expert
declaration regarding the count of the oak trees in specified areas as well as the cause of
their damage and death was consistent with the Buxtas’ claims of damage and loss. The
court’s implicit rejection of the evidence of the purchase price only of non-comparable
trees offered by defendant did not constitute an abuse of discretion. No alternative
method of calculating loss--such as the appraised value of a comparable property--was
offered by defendant. The witnesses for each side merely disagreed as to the value of the



3  To the extent that defendant argues on appeal that the expert’s conclusions were
flawed, the time to raise this challenge was in the trial court. (See People v. Weaver
(2001) 26 Cal.4th 876, 904 [“To the extent defendant attempts to impugn the validity of
the appointed experts’ conclusions . . . , the time to raise such a challenge has long since
passed. . . . [D]efendant may not now relitigate that question with arguments he did not
make below”]; People v. Bolin (1998) 18 Cal.4th 297, 321 [defendant’s contention that
evidence was inadmissible “because the witness was not qualified to render an expert
opinion” was forfeited for lack of objection in the trial court].)

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damaged trees and the extent of the firescaping. The trial court was entitled to select the
Buxtas’ more complete assessment of price per replacement oak tree over the fragmented
version offered by defendant.
       Although defendant claims the five percent reduction was unsupported as well, he
does not claim that he was entitled to a greater reduction, much less point to any
evidence in the record that would support that claim. He concludes without citation to
the record that “the resulting damage could have been far less ha[d] the victims
maintained at least 100 feet of defensible space.” No evidence supports this claim. The
only evidence at the hearing relevant to firescaping was Gary Buxa’s testimony that the
property was properly firescaped and defendant’s testimony that it was not. The trial
court was permitted to credit one witness’s testimony over another if it so chose, and it
did not need to do so explicitly.
       In any event, to the extent that the reduction as given was not specifically
supported by the evidence presented at the hearing, any error was in defendant’s favor as
it resulted in his owing less restitution than the amounts presented by the People,
supported by the victims’ calculations and submissions, and largely unchallenged (much
less disproved) by defendant.




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                                     DISPOSITION
      The restitution order is affirmed.




                                                     /s/
                                               Duarte, J.



We concur:



     /s/
Robie, Acting P. J.




     /s/
Mauro, J.




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