People v. Smith CA3

Filed 6/27/16 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

1

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