Filed 1/20/15 P. v. Rosales CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066020
Plaintiff and Respondent,
v. (Super. Ct. No. JCF31506)
CARLOS ROSALES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, L. Brooks
Anderholt, Judge. Affirmed.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland, Scott Taylor and Donald W. Ostertag, Deputy Attorneys General, for
Plaintiff and Respondent.
Carlos Rosales entered a guilty plea to one count of grand theft (Pen Code.,1
§ 487, subd. (a)). Thereafter Rosales was granted probation and ordered to make
restitution to the victim in the amount of $7,216.16.
Rosales appeals challenging only the restitution order. He contends the trial court
lacked sufficient evidence to support the calculation of the amount due and that the court
abused its discretion in imposing the amount due the victim.
We are satisfied the trial court used a rational methodology in calculating the
amount of restitution and that there is sufficient evidence in the record to support the
order.
STATEMENT OF FACTS
Rosales was the lead receiver for Kmart in El Centro. On May 29, 2013, Kmart
discovered Rosales was stealing merchandise that was delivered to the store. When
Rosales was interviewed by the loss prevention officer Rosales admitted stealing two
digital cameras worth $500. He also admitted stealing merchandise for 18 to 24 months
prior to being discovered. He said he had taken a variety of items which he identified as
including:
1. 500 drinks such as Pepsi and Gatorade valued at $945.
2. Over 200 various food items valued at $600.
3. Over 200 packs of gum valued at $318.
4. Jewelry.
1 All further statutory references are to the Penal Code unless otherwise specified.
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5. Five or six digital cameras.
6. A laptop cooling pad.
7. Five televisions.
8. Al least two DVD players.
9. Three Xbox gaming systems.
10. Miscellaneous clothing items.
11. Batteries.
12. Tools.
In all, Rosales estimated the value of the items taken at $10,000.
Most of the items taken had been sold in Mexico, or in some cases returned for
gift card credit, but Rosales still had possession of a number of items. Although some of
the items were no longer "saleable" he was given full credit for them. The items returned
were valued at $2,783.84. Therefore the total loss to Kmart was set at $7,216.16.
DISCUSSION
The amount of restitution ordered in this case was based on two sets of facts.
First, the probation officer and the court accepted Rosales's admission that the total loss
to his employer was $10,000. The court also accepted the concept of giving Rosales full
credit for the value of the items he returned after his crime was discovered. Through that
process the court arrived at the net amount.
Rosales contends the trial court abused its discretion because using Rosales's
estimated amount of loss as the base number was speculative. We find the process
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entirely rational, and, since Rosales did not present any alternative evidence there is no
reason for us to overturn the restitution order.
A. Legal Principles
California has clearly declared the importance of providing direct victims of crime
with full restitution wherever possible. California Constitution, article I, section 28,
subdivision (a)(13)(A) provides: "It is the unequivocal intention of the People of the
State of California that all persons who suffer losses as a result of criminal activity shall
have the right to seek and secure restitution from the persons convicted of the crimes
causing the losses they suffer." (See § 1202.4, subd. (f) [requiring "full" restitution].)
Restitution orders made by the trial courts are reviewed under the abuse of
discretion standard. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) Decisions
of the trial courts providing restitution will not be set aside where there is a rational basis
for the court's calculation. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
The question for a reviewing court is whether the trial court's decision was beyond
the bounds of reason under the circumstances. (People v. Carbajal (1995) 10 Cal.4th
1114, 1121.) The manner of calculation does not have to be the same as would be used in
a civil action. (People v. Millard (2009) 175 Cal.App.4th 7, 26-27.)
Where the victim presents an adequate factual basis for the claimed restitution, the
burden shifts to the defendant to disprove the amount of the claimed loss. (People v.
Gemelli, supra, 161 Cal.App.4th at p. 1543; People v. Fulton (2003) 109 Cal.App.4th
876, 886.)
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B. Analysis
The person most knowledgeable of the extent and value of the losses in this case
was Rosales. He was the lead receiving person for Kmart and was responsible for
accepting deliveries of merchandise to the store. He had been systematically stealing
from Kmart for 18 to 24 months. Rosales gave the employer and the probation officer a
detailed list of the types of items and in many instances their value. It was Rosales who
estimated the total loss to Kmart at $10,000. There is no reason to find his recollection,
and admission, to be speculative.
We note, for example, that although Rosales had been stealing for some time and
regularly selling the merchandise or returning it for credit, he still had over $2,700 worth
of property in his possession. Rosales was in a far better position than the victim to
calculate the loss. Given the extensive and continuous theft, about which Rosales had
excellent recall, the trial judge was well within his discretion to use the amount of the
loss admitted by Rosales as the basis for the restitution calculation. As we have noted,
Rosales was given the benefit of full value deduction for the returned items, even though
some were not saleable.
In short, the method used to calculate restitution was reasonable and reliable.
Rosales presented nothing to the trial court that would support a different restitution
amount.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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