California Court of Appeal Apr 13, 2023 No. E078864Unpublished
Filed 4/13/23 P. v. James 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E078864
v. (Super.Ct.No. FMB21000278)
DANIEL RYAN JAMES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,
Judge. Affirmed as modified.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorneys General, and Steve Oetting and
Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Daniel Ryan James pled guilty to burglary. On appeal,
he challenges the amount of the victim restitution order. We accept the People’s
concession that the restitution order must be reduced by $1,300, modify the restitution
“The appropriate amount of restitution is precisely the sort of factual determination that
can and should be brought to the trial court’s attention if the defendant believes the award
is excessive.” (Id. at p. 1218; see People v. Brasure (2008) 42 Cal.4th 1037, 1075 [“by
his failure to object, defendant forfeited any claim that the [restitution] order was merely
unwarranted by the evidence, as distinct from being unauthorized by statute”].)
The record here shows that the probation department’s restitution memo filed on
September 30, 2021, included Minh’s claim for two vending machines valued at $8,000
as well as a photo of the machines. Defense counsel thereafter was granted several
continuances of the restitution hearing to examine the victims’ claims, to consult with the
defendant, and to subpoena documents relevant to contesting the amounts claimed. At
the restitution hearing on March 25, 2022, Minh testified that the vending machines were
5
damaged during the burglary and had a value of $5,000 each. He did not have them
repaired and was unsure of the cost to repair them. On cross-examination, Minh
explained that the machines dispense soda or energy drinks in aluminum cans, they were
previously in use but were now damaged. He did not get an estimate of the cost to repair
them. Based on Minh’s testimony, the prosecution included $10,000 for the damaged
vending machines in its request for restitution, explaining that because the cost to repair
was unknown, the replacement cost was used. The defendant’s written opposition to the
request for restitution argued that the amounts sought were excessive for five specific
items in Minh’s claim, none of which was the vending machines. In addition, defendant
argued at the continued restitution hearing on April 15, 2022, that Minh’s claims for the
cost of cleanup that he performed himself and his claim for lost wages were duplicative.
He also challenged as excessive the valuations that Minh had assigned to other items that
had been purchased at a public auction for surplus government property. Defendant,
however, never objected to the $10,000 claim for the vending machines.
Even if we overlook defendant’s failure to raise the issue in the trial court,
defendant’s argument is meritless. Defendant acknowledges Minh’s testimony
established that the vending machines were damaged and their value was $5,000 each.
He nevertheless argues the award is unsupported by substantial evidence and “cannot
stand” because “[t]here was no evidence in what way and to what extent the vending
machines were damaged, nor how much the damage affected their value, if at all.”
Defendant is incorrect. The restitution memorandum, the attached photograph of the
6
vending machines, and Minh’s testimony are sufficient to establish a prima facie showing
of the amount of Minh’s loss. (Gemelli, supra, 161 Cal.App.4th at p. 1543; People v.
Prosser (2007) 157 Cal.App.4th 682, 690.) The burden then “shifts to the defendant to
demonstrate that the amount of the loss is other than that claimed by the victim.”
(Prosser, at p. 691.) Defendant failed to carry that burden here.
Not only does defendant cite no authority for the proposition that a crime victim
must, for each item of damaged property, produce evidence detailing the type or extent of
damage or the repair cost, the argument conflicts with the statutory language which
expressly provides for “[f]ull or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the replacement cost of like
property, or the actual cost of repairing the property when repair is possible.” (§ 1202.4,
subd. (f)(3)(A); see Stanley, supra, 54 Cal.4th at p. 737 [restitution for damaged property
is not limited to the lesser of the replacement cost or repair cost; the choice is “left to the
sound discretion of the trial court”].)
Relying on People v. Sharpe (2017) 10 Cal.App.5th 741, 747-748, defendant
contends that Minh is not entitled to the replacement value of the vending machines
because he still retained the vending machines, which he speculates must be of some
value, even in their damaged condition. Again, defendant failed to object on this basis in
the trial court. Moreover, to the extent he believed the vending machines had some
salvage value in their damaged condition, defendant had ample opportunity to elicit
testimony on cross-examination or introduce his own evidence to establish this value.
7
Having failed to do so, he cannot show the trial court abused its discretion in awarding
the unchallenged amount sought by the victim. (People v. Keichler (2005) 129
Cal.App.4th 1039, 1048.)
DISPOSITION
The restitution order is hereby modified to reflect that the defendant is ordered to
pay victim restitution in the amount of $148,861.67 to Minh D. (victim No. 1). As
modified, the judgment is affirmed. The Superior Court is directed to amend the court’s
minutes and the abstract of judgment to reflect this modification and to forward certified
copies of the amended abstract to the Department of Corrections. (§§ 1213, 1216.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J. We concur:
SLOUGH J.
RAPHAEL J.
8
AI Brief
AI-generated · verify before citing
Holding. The court reduced the victim restitution award by $1,300 due to a calculation error regarding the replacement cost of drills, but otherwise affirmed the trial court's order, holding that the defendant forfeited his challenge to the vending machine valuation by failing to object in the trial court.
Issues
Whether the trial court erred in calculating the restitution amount for three missing drills.
Whether the defendant forfeited his challenge to the restitution award for damaged vending machines by failing to object in the trial court.
Whether the victim's testimony and evidence provided a sufficient basis for the restitution award for damaged property.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“We accept the People’s concession that the restitution order must be reduced by $1,300, modify the restitution award accordingly, and affirm.”
“A defendant wishing to argue on appeal that there is no factual basis for a restitution order must object on that ground in the trial court to preserve the issue for appeal.”