Filed 9/14/16 P. v. Perez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041838
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC942929)

         v.

ANGEL REYNAGA PEREZ,

         Defendant and Appellant.



         Defendant Angel Reynaga Perez was convicted by jury trial of multiple counts of
robbery (Pen. Code, §§ 211, 212.5, subd. (c))1 and other crimes, and numerous
enhancement allegations were found true, including that defendant had taken property
valued at more than $65,000 (§ 12022.6, subd. (a)(1)) in the commission of the robbery
counts. The court found true that defendant had suffered a prior conviction that was a
strike (§§ 667, subds. (b)-(i), 1170.12) and a serious felony (§ 667, subd. (a)) and that he
had served a prison term (§ 667.5, subd. (b)) for that conviction. Defendant was
sentenced to 47 years and eight months in prison, which included a one-year term for the
section 12022.6 enhancement, and ordered to pay restitution of $168,375. The court also
imposed a $5,000 restitution fine and a $5,000 parole revocation fine.


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         Subsequent statutory references are to the Penal Code.
       Defendant appealed from that judgment, and this court found that the trial court
had erred in imposing terms for both section 186.22 gang enhancements and section
12022.53 firearm enhancements as to the same counts and that the court’s restitution
order was not supported by substantial evidence. We reversed the judgment and
remanded solely for resentencing and a new restitution hearing.
       At the resentencing hearing, the court imposed a sentence of 38 years and four
months, which included a one-year term for the section 12022.6 enhancement. The court
imposed a $10,000 restitution fine and a $10,000 parole revocation fine. At the new
restitution hearing, the court ordered defendant to pay $63,830 in restitution.
       In this appeal, defendant contends that (1) the trial court’s restitution order is again
unsupported by substantial evidence, (2) the court’s imposition of a sentence for the
section 12022.6 enhancement was unauthorized, and (3) the restitution fine and parole
revocation fine must be reduced to $5,000 each. The Attorney General concedes that the
two fines must be reduced, and we accept the concession. We reject defendant’s other
contentions, modify and affirm the judgment, and affirm the restitution order.


                                      I. Background
       Defendant participated in a gang robbery of Joe Escobar Diamonds in May 2009.
The robbers smashed a display case and took 14 Rolex watches. At defendant’s trial,
there was testimony that the 14 watches had a retail value of $163,000 and had cost Joe
Escobar Diamonds $96,000.
       At the new restitution hearing, the prosecution submitted a one-page document it
had received from Joe Escobar Diamonds, which was entitled “Joe Escobar Restitution.”
This document contained a chart that listed 11 five-digit numbers under the heading
“Item” followed by figures under the headings “Cost,” “Retail,” and “Joe Escobar Loss.”
At the bottom of the chart, it said: “TOTAL LOSS” followed by “62,630.” Below the



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chart, the document stated: “Watch Loss = 62,630 [¶] Display Case Repair = 1,200 [¶]
TOTAL LOSS: 63,830.” The document contained no other information.
         The trial court understood this document to represent “the cost of each of the
stolen items, the . . . anticipated retail sales price of those items and the difference
between the two.” The court stated: “As I understand it, counsel, they have represented
that they were compelled to sell each of these watches simply at cost and forego any
revenue or profit therefrom because of the fact that they had been stolen and some of
them had in fact been damaged.” Both the prosecutor and the defense attorney agreed
that this was true. “[Prosecutor]: That’s correct.” “[Defense Attorney]: Your Honor, as
I mentioned in chambers, it appears that Joe Escobar purchased the watches for a certain
amount and then sold the watches for what -- the cost that they incurred in purchasing
them.”
         Although the defense attorney did not contest the fact that Escobar had sold the
watches at “cost,” she argued that it was speculative to conclude that Escobar would have
sold the watches for their retail price if they had not been stolen. She argued: “So in
terms of actual loss, it does not appear that we have anything other than speculation for
what they could have sold the watches for rather than an actual loss that they sustained.”
“[I]t would be my argument . . . that the difference is too speculative to be seen as an
actual loss.”
         The court disagreed: “I have a recollection of testimony that was elicited during
the trial to the effect that Rolex has control . . . over the precise amount that may be
charged for those watches. [¶] In that case, and in addition to the fact that there was
evidence as to the actual price that was marked on those watches that was introduced at
the time of trial, and there’s no indication that that is inconsistent with the retail price
listed here, the loss of revenue is easily determinable in this case . . . .” The court set
aside the previous restitution order and entered a new restitution order consistent with the
document: $63,830.

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                                        II. Discussion
                                    A. Restitution Order
       Defendant contends that the trial court abused its discretion in ordering restitution
for 11 watches because all of the watches were returned to Joe Escobar Diamonds and
only four of them were damaged. He claims that Joe Escobar Diamonds was not entitled
to any restitution for the watches that were returned to it undamaged. Defendant
concedes that section 1202.4, subdivision (f)(3)(E) authorizes restitution for lost
“profits,” but he contends that there was no proof that Joe Escobar Diamonds suffered
any lost profits.
       “[T]he restitution order . . . 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, including, but not limited to, all of the following:
[¶] . . . [¶] (E) Wages or profits lost by the victim . . . .” (§ 1202.4, subd. (f)(3)(E).)
       “[W]e review the trial court’s restitution order for abuse of discretion.” (People v.
Giordano (2007) 42 Cal.4th 644, 663). “No abuse of that discretion occurs as long as the
determination of economic loss is reasonable, producing a nonarbitrary result. Factors
relevant to that determination will necessarily depend on the particular circumstances
before the court.” (Id. at p. 665.) “The burden is on the party seeking restitution to
provide an adequate factual basis for the claim.” (Id. at p. 664.) A prima facie showing
may be made based on the victim’s statement of the amount of the loss. (People v.
Chappelone (2010) 183 Cal.App.4th 1159, 1172 (Chappelone).) “Once the victim has
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.” (People
v. Prosser (2007) 157 Cal.App.4th 682, 691.)
       Defendant claims that the court abused its discretion in awarding restitution for
watches that were returned to Joe Escobar Diamonds undamaged. The court awarded
restitution for the difference between the retail price and the cost of the watches that were

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returned to Joe Escobar Diamonds on the ground that, due to the taking of the watches,
the watches could no longer be sold at retail prices and had to be sold at cost. The trial
court concluded that Joe Escobar Diamonds was entitled to restitution for this differential
because this amount represented Joe Escobar Diamonds’s lost profits.
       Defendant claims that there was no evidence of lost profits because “it is not clear
that those watches were actually sold at cost.” Joe Escobar Diamonds’s written
statement implicitly claimed that it had sold the watches at cost. At the restitution
hearing, both the prosecutor and the defense attorney agreed with the trial court that Joe
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Escobar Diamonds claimed it had actually sold the watches at cost. This claim shifted
the burden to the defense to establish otherwise. The defense failed to produce any
evidence to the contrary and instead accepted this claim. Hence, we reject defendant’s
claim that Joe Escobar Diamonds was required to submit additional proof to support its
claim that it had sold the watches at cost.
       Defendant contends that Joe Escobar Diamonds was not entitled to recover its lost
profits. He bases this contention on Chappelone, a case cited by this court in its opinion
reversing the original restitution order and cited by the trial court when it imposed the
new restitution order. The defendants in Chappelone took a large quantity of
merchandise from Target. The stolen merchandise was “largely damaged and unsellable”
before defendants took it. (Chappelone, supra, 183 Cal.App.4th at p. 1176.) Much of the
stolen merchandise was returned to Target, but Target deemed it unsaleable and donated
it all to charity at a total loss. Instead of basing the restitution order on the value of the
merchandise at the time of the taking, the trial court based the restitution order on the
original retail price of the merchandise in an undamaged state. (Id. at pp. 1163-1170.)



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       Defendant contends that the defense attorney did contest this assertion, but the text
that he quotes is actually the defense attorney’s contention that Joe Escobar was required
to establish that “they could have sold the watches for” the retail price.

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       The Court of Appeal found that the trial court had abused its discretion in three
respects. First, the trial court had abused its discretion in basing restitution on the
original retail price of the merchandise because “the retail price of these goods was not
reflective of their value to Target” due to the damaged nature of the merchandise.
(Chappelone, supra, 183 Cal.App.4th at p. 1173.) Indeed, most of the stolen
merchandise had little or no value to Target when it was stolen. (Id. at pp. 1173-1174.)
“Target was entitled only to restitution equal to the value of the stolen property, and by
all accounts at the hearing, the value was substantially less than the last retail price for
most goods. By failing to account for the fact that a majority of the 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.)
       Second, Target was not entitled to recover lost profits since there had been no
proof of any. Most of the stolen merchandise was unsaleable before it was stolen. There
was no evidence that Target actually lost any profits due to the taking of the small
amount of new and saleable items because those items were “mass-produced consumer
goods that Target sold in abundance,” and there was no evidence that the taking of the
merchandise affected Target’s stock of them. (Chappelone, supra, 183 Cal.App.4th at
p. 1179.) Third, Target was not entitled to both recover restitution for the “ ‘full retail
value’ ” of the stolen merchandise and retain possession of the recovered merchandise
“except to the extent there is some loss of value to the property.” (Id. at pp. 1180, 1181.)
       The facts of this case are dramatically different from those in Chappelone. Unlike
the damaged and broken merchandise in Chappelone, all of the watches in this case were
undamaged and for sale at full retail prices when they were taken. Thus, Joe Escobar
Diamonds stood to make a profit on these watches in the absence of the robbery.
Furthermore, the trial court could have readily inferred that, unlike the easily replaceable
“mass-produced consumer goods” taken from Target in Chappelone, which the Court of

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Appeal found were never out-of-stock, the Rolex watches taken from Joe Escobar
Diamonds were not mass-produced and could not be easily restocked. By stealing a large
number of Joe Escobar Diamonds’s Rolex watches, the robbers deprived Joe Escobar
Diamonds of the profits that it would have made had it been able to sell those Rolex
watches without them being stolen. Nor is this a case in which Joe Escobar Diamonds
was awarded restitution for the full retail value of the items and was permitted to retain
them. The court awarded restitution only for the difference between the full retail value
of the watches and the price at which Joe Escobar Diamonds was able to sell the watches.
No windfall resulted from this award. The restitution award was limited to the lost
profits, not the full retail value.
       The trial court did not abuse its discretion in awarding Joe Escobar Diamonds
restitution for its lost profits on the watches taken by the robbers.


                              B. Section 12022.6 Enhancement
       Defendant asserts that the trial court’s imposition of a one-year term for the
section 12022.6 enhancement was an unauthorized sentence. His theory is that the new
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restitution order establishes that the amount of the loss was less than $65,000.
       “When any person takes, damages, or destroys any property in the commission or
attempted commission of a felony, with the intent to cause that taking, damage, or
destruction, the court shall impose an additional term as follows: [¶] (1) If the loss
exceeds sixty-five thousand dollars ($65,000), the court, in addition and consecutive to
the punishment prescribed for the felony or attempted felony of which the defendant has




3
      His other theories are dependent on his challenge to the restitution award, which
we have already rejected.

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been convicted, shall impose an additional term of one year.” (Former § 12022.6,
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subd. (a); Stats. 2007, ch. 420, § 1.)
       Defendant’s contention is based on a misunderstanding of the statute. He
contends that “economic loss” for restitution purposes is the same as “loss” under section
12022.6. It is not. His reliance on the California Supreme Court’s decision in People v.
Crow (1993) 6 Cal.4th 952 (Crow) is misplaced. In Crow, the defendant had aided and
abetted Acosta, the mother of his children, in her fraudulent taking of welfare benefits
from the county. He was convicted of aiding and abetting the taking, and a section
12022.6 enhancement was found true based on a loss exceeding $25,000. He challenged
the sufficiency of the evidence to support the enhancement on the ground that the
prosecution was required to prove (and had not proved) that, had there been no fraud,
Acosta would have received more than $25,000 less in welfare benefits, since, he
claimed, she still would have been entitled to some welfare benefits. “According to
defendant, the net amount that he and Acosta gained as a result of their fraudulent acts
was less than $25,000.” (Crow, at p. 961.)
       The California Supreme Court rejected his contention but accepted its premise.
“Any money that the government would have been obligated to pay had the fraud not
occurred is not attributable to the fraud, and thus is not a ‘loss’ arising out of the criminal
offense.” (Crow, supra, 6 Cal.4th at p. 962.) Nevertheless, the evidence was sufficient to
support the enhancement. “By proving that, [due to the fraud], the county paid out more
than $25,000 in food stamps and welfare benefits, the prosecution met its burden of
showing that the victim’s loss exceeded $25,000 within the meaning of Penal Code
section 12022.6, subdivision (a). If . . . some of that money would have been paid



4
       Section 12022.6 has been repealed and reenacted since defendant’s 2009 offenses.
The relevant text is unchanged in the current version. (Stats. 2010, ch. 711, § 5, § 10
[new statute operative on January 1, 2012].)

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[regardless of the fraud], and as a result the amount of the county’s loss did not exceed
$25,000, it was defendant’s burden to show this.” (Crow, at pp. 962-963.)
       While Crow, like this case, concerned the determination of the amount of the
“loss” under section 12022.6, Crow, unlike the case before us, concerned the possibility
that not all of the total amount of welfare benefits received by Acosta had been
fraudulently taken, since Acosta might have been entitled to a portion of that amount in
the absence of the fraud. Here, on the other hand, it is undisputed that watches worth at
least $96,000 were taken. Crow simply does not speak to this issue, so it provides no
support for defendant’s contention.
       Defendant also relies on People v. Beaver (2010) 186 Cal.App.4th 107 (Beaver).
In Beaver, the defendant, who worked at a ski resort, staged an accident in order to
receive medical treatment for a preexisting injury and a cash settlement from the resort.
(Id. at p. 110.) The resort paid over $44,000 for his medical bills and over $39,000 in
legal fees associated with the defendant’s civil action against it. (Id. at p. 113.) The
defendant was convicted of theft, and a section 12022.6 allegation, which at that time was
triggered by a loss over $50,000, was found true. (Beaver, at pp. 113, 116.) On appeal,
he claimed that the enhancement allegation was not supported by substantial evidence
because he had not taken the legal fees. (Id. at pp. 115-116.) The Court of Appeal
rejected his contention. It concluded that section 12022.6 applies to “what the victim
lost, not what the defendant gained.” (Beaver, at p. 118.) Since the resort had lost the
legal fees as a result of defendant’s crimes, those fees combined with the medical
expenses supported the enhancement allegation.
       Beaver has nothing to do with the case before us. The 14 watches were all taken
from Joe Escobar Diamonds. Their value plainly exceeded $65,000. Although they were
recovered by the police, a victim’s recovery of stolen property has no impact on the
validity of a section 12022.6 enhancement based on the value of the recovered property.
In People v. Bates (1980) 113 Cal.App.3d 481, 484 (Bates), the burglars were

                                              9
immediately apprehended, and all of the loot was returned to the victim. (Bates, at
p. 483.) The court held that the burglars’ taking of the property nevertheless constituted a
“ ‘loss’ ” within the meaning of section 12022.6. (Bates, at pp. 483-484.) “The word
‘loss,’ as used in section 12022.6 in the context of the taking of property, therefore
includes any dispossession which constitutes theft of the victim’s property.” (Bates, at
p. 484, second italics added.) Similarly, in People v. Ramirez (1980) 109 Cal.App.3d 529
(Ramirez), the court rejected the defendants’ argument that section 12022.6 applied “only
if the victim’s ultimate out-of-pocket loss exceeds” the statutory amount. (Ramirez, at
p. 539, italics added.) “To interpret the statute in the manner suggested by appellants
would be to attribute to the Legislature an intent to depart radically from well-established
law that the recovery of stolen property by the victim is no defense to crime and is only
relevant in mitigation of punishment when the defendant voluntarily returns it prior to
being charged.” (Ramirez, at p. 539.)
       In Bates and Ramirez, very temporary dispossessions of funds followed by
complete recoveries of those funds were found sufficient to support section 12022.6
enhancements. Section 12022.6 applies to the amount of what was taken, not the amount
of the victim’s ultimate net loss. There was substantial evidence at trial that the watches
taken in the robbery had cost Joe Escobar Diamonds $96,000, which obviously exceeds
the $65,000 threshold set forth in section 12022.6, subdivision (a)(1). The trial court did
not err in imposing the one-year section 12022.6 enhancement term.


                                         C. Fines
       Defendant contends, and the Attorney General concedes, that the restitution fine
and the parole revocation fine must be reduced to $5,000 each. “[A] defendant should
not be required to risk being given greater punishment on a retrial for the privilege of
exercising his right to appeal.” (People v. Ali (1967) 66 Cal.2d 277, 281; see also People
v. Hanson (2000) 23 Cal.4th 355.) We will modify the judgment accordingly.

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                                     III. Disposition
      The judgment is modified to reduce the restitution fine and the parole revocation
fine to $5,000 each. As modified, the judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment and to forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation. The restitution order is
affirmed.




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                                _______________________________
                                Mihara, J.



WE CONCUR:




_____________________________
Elia, Acting P. J.




_____________________________
Bamattre-Manoukian, J.




People v. Perez
H041838


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