Filed 10/23/13 P. v. Shute CA1/2

                 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                  FIRST APPELLATE DISTRICT
                                             DIVISION TWO



THE PEOPLE,
         Plaintiff and Respondent,
v.                                                                   A138259
WILLIAM CARROLL SHUTE,                                               (Napa County Super. Ct.
         Defendant and Appellant.                                    No. CR162624)



         Defendant William Carroll Shute pleaded no contest to misdemeanor
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and to
misdemeanor petty theft (Pen. Code, § 484, subd. (a)).1 The trial court ordered
defendant to pay $43.86 in restitution to Wal-Mart and, on appeal, defendant
challenges the amount of restitution imposed. We affirm the restitution order.
                                            BACKGROUND
         On August 7, 2012, a criminal complaint was filed charging defendant in
count one with felony possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)), and in count three with misdemeanor petty theft (§ 484, subd.
(a)).2

         1   All further unspecified code sections refer to the Penal Code.
         2
         A codefendant was charged in count one with felony possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a)), and in count two

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       The facts, as set forth in the probation report, stated that on July 13, 2012, an
Asset Protection Agent (the agent) at Wal-Mart detained defendant and his companion.
The agent advised the police that defendant “had opened $43.86 worth of baseball
cards and placed them in his pocket.” The officer who arrived spoke to defendant and
his companion and “recognized objective signs of drug use.” The police found on
defendant’s companion a plastic Ziploc bag containing seven pills she claimed were
“Xanax” and three small Ziploc bags containing suspected methamphetamine. The
officer asked defendant if he had methamphetamine, and defendant provided a small
Ziploc bag of methamphetamine, which was in his wallet, and two plastic bags of
methamphetamine from his cigarette pack.
       The officer read defendant his rights pursuant to Miranda v. Arizona (1966) 384
U.S. 436. Defendant then told the officer that “he got bored and started to open
baseball card packs, [and] put the cards in his pocket[;] he had no intention of paying
for them.” He also admitted that he bought three grams of methamphetamine for $300.
Defendant and his companion were arrested.
       At a hearing in the trial court on January 30, 2013, counsel advised the
court that the prosecutor and defendant had “come to a resolution in this matter.”
After count 1 was reduced to a misdemeanor pursuant to section 17, subdivision
(b), defendant pleaded no contest to misdemeanor possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor petty theft
(§ 484, subd. (a)).
       The probation officer filed the presentence report on March 1, 2013. The
probation report indicated that a letter had been sent to Wal-Mart on February 8,
2013, advising Wal-Mart of its right to restitution. As of the date of this report,
Wal-Mart had not responded. With regard to the value of the items defendant
removed from Wal-Mart, the report stated: “The police report indicates the



with misdemeanor possession of a controlled substance (Health & Saf. Code,
§ 11375, subd. (b)(2)).

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merchandise the defendant tampered with and attempted to steal was worth
$43.86. Therefore, restitution will be determined in that amount.”
       The probation report recommended that imposition of sentence be
suspended and that defendant be granted formal probation for three years with
various terms and conditions. Condition number 27 provided that defendant was
to pay $43.86 in restitution to Wal-Mart. Condition number 28 specified that
defendant was to pay restitution to Wal-Mart “in an amount to be determined by
the probation officer and the court . . . .”
       The trial court held the sentencing hearing on March 1, 2013. Defense
counsel cited probation condition number 27 in the probation report, and argued
that $43.86 was “the correct amount of the property that was found on” defendant.
Defense counsel argued that it was not clear whether Wal-Mart was “actually
requesting that amount in restitution, because” Wal-Mart recovered the property at
the scene. Counsel added that condition number 28 “allows for probation to
contact Wal-Mart to find out if Wal-Mart is going to be requesting restitution,
because the property was damaged or destroyed in some way that made it
impossible to put it back on the shelf.”
       The court responded that the baseball cards had been opened. Defense
counsel maintained that it might have been possible for Wal-Mart to repackage the
cards and put them back on the shelf. Counsel stated that she did not believe that
Wal-Mart actually wanted this amount of restitution and she asserted that she
believed “the victim has to actually request restitution in order for it to be
imposed.”
       The district attorney disagreed and asserted that “restitution can be placed
on any rational basis.” The prosecutor maintained that there was not any
requirement that the victim had to make a specific request for restitution. The
prosecutor declared, “If [Wal-Mart has] provided the information of what the
damages are to the probation department, that’s sufficient.”



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          The court asked defense counsel: “Let me ask you, [counsel], if probation
knows the amount, wouldn’t that be basically an indication that that’s what they
would be requesting.” Counsel answered: “Probation knows the amount of the
property that was stolen. Wal-Mart has not contacted probation and said we are
seeking this amount of restitution . . . .” Defense counsel explained: “Probation
got this number by looking through the police report, which had [the] receipt for
the amount of the property that was stolen, which is attached to every burglary
case. But it doesn’t necessarily mean it’s the appropriate amount of restitution.”
          The probation officer interjected: “Probation doesn’t get all the
information exactly from Wal-Mart, but we have the amount. The cards were
opened, and, generally, our understanding is that they can’t be put back on the
shelf.”
          The court stated that it was going to order restitution in the amount of
$43.86 because it was a reasonable amount and “common sense” supported a
finding that the items stolen could not be resold. Defense counsel stated that she
objected, and the court noted the objection. The court proceeded to suspend
imposition of sentence, and placed defendant on formal probation for three years
with the conditions, among others, that he serve 30 days in county jail and pay
$43.86 in restitution to Wal-Mart.
          Defendant filed a timely notice of appeal
                                     DISCUSSION
          The sole issue on appeal is the order of restitution requiring defendant to
pay Wal-Mart $43.86. With limited exceptions not applicable here, victim
restitution shall be ordered “in every case in which a victim has suffered economic
loss as a result of the defendant’s conduct . . . .” (§ 1202.4, subd. (f).) The
amount shall 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 value of stolen
property shall be the replacement cost of like property. (§ 1202.4, subd.
(f)(3)(A).) A trial judge is given wide discretion in making a restitution award,


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and we will affirm if there is a factual and rational basis for the amount of the
award. (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
       Defendant argues that the record does not establish that $43.86 was the
correct value for the baseball cards removed from Wal-Mart. The probation report
did not specify whether this amount was the retail or wholesale price of the stolen
merchandise and restitution, according to defendant, must be based on the
wholesale cost. If $43.86 represents the retail price, defendant asserts that Wal-
Mart received a windfall comprised of the difference between the wholesale and
retail price. (See People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 [“A
restitution order is intended to compensate the victim for its actual loss and is not
intended to provide the victim with a windfall”].)
       The People contend that defendant has forfeited this argument because
defendant did not claim in the trial court that $43.86 was the retail value of the
baseball cards. Defendant responds that he did not have to object because the
award was “unauthorized by the [Penal] Code.” (See People v. Benton (1979) 100
Cal.App.3d 92, 102 [trial court’s sentence was not authorized under sections 667.5
and 1170.1 and appellate court concluded that it had a duty to remand for proper
sentence once the mistake was brought to the court’s attention].) Defendant also
asserts that he objected to the restitution order on the basis that Wal-Mart might
have suffered no loss and might have repackaged the cards, and this objection
sufficiently preserved this issue for appeal.
       Generally, to preserve a restitution issue for appellate review, the defendant
must raise the objection in the trial court. (People v. Gonzalez (2003) 31 Cal.4th
745, 755.) Our Supreme Court has “created a narrow exception to the [forfeiture]
rule for ‘ “unauthorized sentences” or sentences entered in “excess of
jurisdiction.” ’ [Citation.] Because these sentences ‘could not lawfully be
imposed under any circumstance in the particular case’ [citation] they are
reviewable ‘regardless of whether an objection or argument was raised in the trial
and/or reviewing court.’ [Citation.]” (People v. Smith (2001) 24 Cal.4th 849,


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852.) No objection is necessary when “the errors present[] ‘pure questions of law’
[citation], and [are] ‘ “clear and correctable” independent of any factual issues
presented by the record at sentencing.’ ” (Ibid.)
       Defendant’s attempts to characterize his argument as an issue of law by
claiming that the trial court had no discretion under the statute to order a
restitution amount above the wholesale value lacks merit. Here, the court clearly
had the authority under section 1202.4––indeed, was required under the statute––
to order restitution. The question posed by this appeal is whether the sum of
$43.86 reasonably reflects the “economic loss” suffered by Wal-Mart.
       “The appropriate amount of restitution is precisely the sort of factual
determination that can and should be brought to the trial court’s attention if the
defendant believes the award is excessive.” (People v. Garcia (2010) 185
Cal.App.4th 1203, 1218.) Defendant thus had to object to the amount of
restitution at the sentencing hearing; his failure to object on this basis forfeits any
consideration of the issue on appeal. (See ibid.)
       Defendant argues that he objected to the amount of the restitution fine and
therefore preserved the issue on appeal. At the sentencing hearing, defendant
objected to the sum of $43.86 on the basis that Wal-Mart might have repackaged
the baseball cards and therefore might not have suffered any loss. Defense
counsel did not argue that $43.86 did not accurately reflect the value of the
baseball cards. To the contrary, at the sentencing hearing, defense counsel
expressly stated that defendant was not challenging the determination that $43.86
represented the “correct amount of the property that was found” on defendant;
defense counsel agreed that probation “knows the amount of the property that was
stolen.” Since defendant did not object to the value placed on the baseball cards,
the trial court properly accepted the amount recited in the probation report, and the
prosecution did not have a reason to provide further evidence. Accordingly,
defendant has forfeited a claim that the fine might reflect the retail rather than the
wholesale price of the cards. (See In re Sheena K. (2007) 40 Cal.4th 875, 882.)


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       Furthermore, even if the forfeiture rule did not apply, defendant’s argument
fails on its merits. Defendant relies on People v. Vournazos (1988) 198
Cal.App.3d 948 when claiming that the probation report’s assessment of the
economic loss to Wal-Mart was insufficient. In Vournazos, the trial court ordered
restitution based on the recommendation of the probation officer, which was based
on the victim’s statement of loss. (Id. at pp. 952-953.) The Court of Appeal
recognized that ordinarily “a defendant bears the burden of proving that the
amount of restitution claimed by the victim exceeds repair or replacement cost of
lost or damaged property.” (Id. at pp. 958-959.) It concluded, however, that the
burden never shifted to defendant and the restitution order should be reversed
because “[n]either the [property owner’s] statement nor the testimony of the
probation officer established that the sum claimed by [the victim] for loss of
property was based on the replacement cost of the property.” (Ibid.)
       Subsequently, numerous courts have declined to follow People v.
Vournazos, supra, 198 Cal.App.3d 948, and have concluded that the Vournazos
court placed too high a burden on the prosecution, the court, and the victim. (See
People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other
grounds [property owner’s statement in probation report about value of stolen
property is prima facie evidence of value for restitution purposes]; see also People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [victim made prima facie showing
for restitution when probation officer’s report and handwritten statement from
victim listing economic losses was detailed and facially credible in explaining the
costs of materials and labor for repair].) Courts have held that the trial court may
rely on the information in the probation report to establish the victim’s prima facie
showing of economic losses, and the defendant has the burden of establishing that
this amount was inaccurate. (See, e.g., e.g., People v. Keichler (2005) 129
Cal.App.4th 1039, 1048 [the trial court is entitled to consider the probation report
as well as factual evidence as to cost in the form of expert testimony at hearing;
absent a challenge by the defendant, imposing the amount specified in the


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probation report is not an abuse of discretion]; People v. Collins (2003) 111
Cal.App.4th 726, 634 [when the probation report includes a discussion of the
victim’s loss and a recommendation on the amount of restitution, the defendant
must come forward with contrary information to challenge that amount]; People v.
Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407 [probation report’s discussion of
victim’s loss and recommendation constitutes prima facie evidence of loss]; In re
S.S. (1995) 37 Cal.App.4th 543, 546-548 [when items, amounts, and sources of
losses are identified in the probation report, defendant has burden of refuting
them] People v. Sexton (1995) 33 Cal.App.4th 64, 70-71 [when 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]; People v. Hartley (1984) 163 Cal.App.3d
126, 130, fn. 3, superseded by statute on another issue [since a defendant will learn
of the amount of restitution recommended when he or she reviews the probation
report prior to sentencing, the defendant bears the burden at the hearing of proving
that amount exceeds the replacement or repair cost].)
       We agree with the foregoing authority and conclude that the probation
officer’s report based on the police report provided prima facie evidence of the
value of the baseball cards defendant removed from Wal-Mart.
       Defendant also cites extensively our opinion People v. Chappelone, supra,
183 Cal.App.4th 1159, but this opinion does not help him. In Chappelone, the
defendant stole a number of items from Target and the evidence showed that the
bulk of the goods stolen “were unsellable because they were either damaged
merchandise or clearance items withdrawn from the sales floor, [and] the retail
price of these goods was not reflective of their value to Target.” (Id. at p. 1173.)
The defendants challenged, among other things, the trial court’s restitution order
based on the retail price of these items because Target had planned to donate this
merchandise or take a tax write-off. (Id. at p. 1171.) We reversed the restitution
order and concluded: “By failing to account for the fact that a majority of the


                                          8
stolen merchandise was already damaged at the time of the theft––and thus
destined for donation––the trial court awarded Target restitution for property that
was of greater quality than that which defendants stole.” (Id. at pp. 1176-1177.)
We stressed that the products sold by Target were not unique and there was no
evidence that Target lost any profit due to the defendants’ theft. (Id. at p. 1180.)
       People v. Chappelone, supra, 183 Cal.App.4th 1159 does not address the
issue presented here. In the present case, defendant submitted no evidence that the
baseball cards were damaged prior to defendant’s removing them from their
packaging. Defendant argued in the trial court that the baseball cards could be
repackaged and sold but presented no evidence to support this assertion.
Defendant also submitted no evidence to rebut the prima facie showing that
$43.86 was the “economic loss” suffered by Wal-Mart.
       Here, the probation report stated the value of the baseball cards was $43.86
and this was based on the police report that stated the value of Wal-Mart’s
merchandise stolen by defendant was $43.86. Since defendant did not present any
evidence to rebut this prima facie showing, “an award of the amount specified in
the probation report is not an abuse of discretion. [Citation.]” (People v. Keichler,
supra, 129 Cal.App.4th at p. 1048.)




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                                 DISPOSITION
      The restitution order is affirmed.




                                                _________________________
                                                Brick, J.*


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




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




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