People v. Ngo CA6

Filed 5/2/16 P. v. Ngo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041981 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1473226)

v.

VY CHI NGO,

Defendant and Appellant.

Defendant Vy Chi Ngo challenges a victim restitution order in the amount of $2,534. Defendant pleaded no contest to one count of grand theft (Pen. Code, §§ 484– 487, subd. (a)1) based on taking merchandise from a retail store. He asserts that one of the stolen items, a jacket, was recovered at the time of his arrest, and that the restitution amount must therefore be reduced by the value of the jacket ($160). We conclude that the trial court did not abuse its discretion in setting the restitution order amount, and we will affirm the judgment. I. FACTUAL BACKGROUND AND TRIAL COURT PROCEEDINGS On December 22, 2013, Loss Prevention Officer Norm Bryan A. Cruz observed defendant conceal four bottles of cologne in his shirt while he was inside the Abercrombie & Fitch store at the Valley Fair Mall. Cruz saw defendant walk past all the cashiers and leave the store without paying for the cologne. Cruz approached defendant outside the store, and San Jose Police Officer Jonathan D. Shaheen joined them shortly

1 Unspecified statutory references are to the Penal Code.

thereafter. Officer Shaheen placed defendant in handcuffs and escorted him to the Abercrombie & Fitch security office. Officer Shaheen recovered four bottles of cologne that were hidden inside defendant’s shirt. Defendant was then arrested and transported to jail. Cruz reviewed store security footage, which revealed that defendant had also stolen a blue and green jacket on December 22, as well as other items on December 14, 18, and 20. The security footage showed that on each of those four days, defendant entered the store without a jacket, concealed various items in his clothes, and then left the store wearing a stolen jacket and concealing merchandise in his clothes. Defendant was charged with one count of grand theft of personal property valued over $950 (§§ 484–487, subd. (a)) taking place “[o]n or about and between” December 14 and December 22, 2013. After defendant pleaded no contest, the trial court suspended imposition of sentence for three years and placed defendant on formal probation. Among other conditions of probation, the trial court ordered defendant to serve 90 days in jail and to pay restitution. The trial court held a formal restitution hearing. A probation report recommended that defendant be ordered to pay Abercrombie & Fitch $2,534 in victim restitution. A statement of loss submitted by Abercrombie & Fitch provided a detailed accounting of property lost in the four thefts. The statement of loss included a description of the stolen items, the quantity of the items taken, the date of theft, and the value of the items. The statement reported 35 bottles of cologne and four outerwear jackets stolen, for a total value of $3,006. The statement of loss also noted that four bottles of cologne, valued at $472, were recovered. The victim claimed the remaining amount of $2,534 as the total economic loss. The trial court also reviewed security footage of the four thefts, the police report, and a report prepared by defendant’s investigator. Defendant argued that no restitution was owed. Defendant pointed out that on December 22, he was caught with four bottles of stolen cologne on his person, and “the 2