California Court of Appeal Jun 28, 2016 No. E064363Unpublished
Filed 6/28/16 P. v. Harber CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E064363
v. (Super.Ct.No. FVI500826)
MARIE ONASSUS HARBER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight
III, Judge. Affirmed.
MaryBeth LippSmith, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Allison V.
Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court sentenced defendant and appellant Marie Onassus Harber to a
county prison term of sixteen months after she pled guilty to second degree burglary
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(Pen. Code, § 459).1 Defendant appeals from the restitution order in the amount of
$3,008.96, which the court imposed after a hearing pursuant to section 1202.4,
849.) Defendant’s citation to Gemelli for requiring a credibility determination to be
supported by substantial evidence is incorrect. The statement in that case to which
defendant refers is the following: “‘[d]eferential review is particularly necessary when,
as here, the factual determination depends in part on judging a witness’s credibility,’ and
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we must uphold such a determination if it is supported by substantial evidence [citation].”
(Gemelli, supra, 161 Cal.App.4th at p. 1545.) However, the determination that must be
supported by substantial evidence is not whether the witness is credible, but rather the
broader factual determination, which in turn can be supported by the witness testimony as
substantial evidence. To repeat, the trial court’s determination of the victim’s credibility
need not be supported by substantial evidence, and defendant has provided us with no
reason to overturn that determination.
The trial court did not improperly deny defense counsel the opportunity to
examine the victim on the valuation of the tools and tool box. “The court in its discretion
may exclude evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid.
Code, § 352.) Here, the court explained that the questions defense counsel continued to
ask about the witness’ knowledge of exactly what and how many tools were in the
toolbox were a “non-productive line of” questioning and that “I don’t need to hear what
her recollection is of every tool in the toolbox if she is not going to be able to do it.”
Defense counsel had already established by questioning the victim that she could not list
or name the many tools in the toolbox, and, as the trial court explained, additional
questions of that type would only elicit more answers of the same nature. Thus,
defendant was not improperly denied the opportunity to ask additional, similar questions
of the victim.
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Defendant cannot establish prejudice from any of the above argued instances of
error, even if we were to find error. Reversal is not required unless “it appears
reasonably probable that a result more favorable to the defendant would have been
reached absent the error.” (People v. Lee (1999) 20 Cal.4th 47, 62, citing People v.
Watson (1956) 46 Cal.2d 818, 836.) Defendant merely argues that the value of the tools
and toolbox would have been calculated at far less than $1,000 “[h]ad the trial court
determined the value of the toolbox based on specific, accurate and reliable testimony.”
However, defendant did not present any evidence to contradict the estimate of value
given by the victim, and defense counsel’s repetitive questioning of the victim that
showed she could not name or list each of the many tools in the large toolbox does not
undermine the trial court’s finding that the victim was credible, nor its determination
based on common knowledge that tools are expensive and that the $1,000 estimate was
not unreasonable. Further, defendant in this appeal does not provide any information to
support her claim that the value of the tools and toolbox would have been determined to
be less than $1,000.
DISPOSITION
The trial court’s restitution order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J. We concur: HOLLENHORST J. SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in ordering restitution, as the victim's testimony provided a prima facie showing of loss and the defense failed to rebut it. The court further held that the trial court properly exercised its discretion under Evidence Code section 352 to limit repetitive cross-examination.
Issues
Did the trial court abuse its discretion in determining the value of the stolen property for restitution purposes?
Did the trial court improperly limit defense counsel's cross-examination of the victim regarding the value of the stolen items?
Was the victim's testimony sufficient to establish a prima facie showing of economic loss?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim.”
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time”
“The standard of review of a restitution order is abuse of discretion.”