People v. Ngo CA6

Filed 5/27/16 P. v. Ngo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ORDER MODIFYING OPINION AND DENYING REHEARING VY CHI NGO, [NO CHANGE IN JUDGMENT]

Defendants and Appellants.

THE COURT: It is ordered that the opinion filed herein on May 2, 2016, be modified as follows: 1. On page 4, the last paragraph is deleted and the following paragraph is inserted in its place: Defendant contends on appeal that the jacket stolen on December 22 was recovered, since he was taken to the security office immediately after the theft and he must have been wearing the jacket at the time of his arrest. However, defendant did not present any evidence to support that contention at the restitution hearing. Once the prosecution established a prima facie case that the victim was entitled to the restitution amount claimed, the burden shifted to defendant to disprove the claimed loss. (Gemelli, supra, 161 Cal.App.4th at p. 1543.) Because defendant failed to present any evidence at the restitution hearing regarding the recovery of the jacket, he did not satisfy his burden

to refute that claimed loss. Accordingly, we find no abuse of discretion in ordering defendant to pay $2,534 in restitution to Abercrombie & Fitch. There is no change in the judgment. The petition for rehearing is denied.

______________________________________ RUSHING, P.J.

______________________________________ MÁRQUEZ, J.

______________________________________ GROVER, J.

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Filed 5/2/16 P. v. Ngo CA6 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.