People v. Foster, s. E010244

Citation18 Cal.Rptr.2d 1,14 Cal.App.4th 939
Decision Date09 March 1993
Docket NumberNos. E010244,E011242,s. E010244
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Terry FOSTER, Defendant and Appellant. In re Terry FOSTER on Habeas Corpus.
OPINION

DABNEY, Associate Justice.

A jury found defendant Terry Foster guilty of residential burglary (Pen.Code, § 459) 1 and not guilty of arson (§ 451, subd. (b)). The court imposed five years' supervised probation on the conditions, among others, that Foster (1) pay a $4,000 restitution fine, to be stayed upon successful completion of probation; (2) serve 365 days in county jail; (3) pay $7,040 plus a 10 percent fee as restitution to Farmers Insurance Company; and (4) pay $8,000 plus a 10 percent fee as restitution to the victim.

On appeal, Foster claims that: (1) in ordering restitution to the victim, the court could not rely solely on the victim's uncorroborated statement as to the original cost of the stolen property; (2) the court could not order restitution to the insurance company because the insurance company was not a victim; and (3) he received ineffective assistance of counsel because of his trial counsel's failure to object to the valuation of the victim's loss and to the condition of restitution to the insurance company.

In a concurrent petition for writ of habeas corpus, Foster repeats his contention that he received ineffective assistance of counsel.

FACTS

Defendant burglarized a cabin in Crestline in summer 1988 and took food, beer, stereo equipment, Native American artifacts, camping equipment, a cow skin rug, an Indian rug, and a Persian rug. Other facts are set forth as necessary in the discussion.

DISCUSSION
E010244

1. Evidence Supporting Restitution Award. A condition of Foster's probation was that Foster pay restitution of $8,000 to the victim, representing the original cost of a Persian rug for which the victim received no payment from her insurance company. Foster contends the court could not rely on the victim's uncorroborated statement to establish the value of the rug, and moreover, the court was required to determine the replacement value of the rug (§ 1203.04, subd. (d)), 2 not its cost. He argues the order of restitution was therefore unsupported by the record.

Cases have established that the defendant is entitled, on request, to a hearing on the amount. (People v. Scroggins (1987) 191 Cal.App.3d 502, 508, 236 Cal.Rptr. 569 [error for sentencing court to deny defendant's request for a hearing to determine the victims' actual losses].)

However, the probation report informed Foster of the recommended amount of restitution. 3 Foster's attorney failed to object to the restitution condition in the trial court. Therefore, any error is deemed waived for purposes of appeal. (See People v. Walker (1991) 54 Cal.3d 1013, 1023, 1 Cal.Rptr.2d 902, 819 P.2d 861; People v. Rivera (1989) 212 Cal.App.3d 1153, 1160, 261 Cal.Rptr. 93.)

2. Ineffective Assistance of Counsel. Foster argues that his attorney's failure to object to the restitution condition constituted ineffective assistance of counsel. To prevail on the issue of ineffective assistance of counsel, Foster must show that: "(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings. [Citations.]" (People v. Lewis (1990) 50 Cal.3d 262, 288, 266 Cal.Rptr. 834, 786 P.2d 892.) He must also show that counsel had not informed tactical reason for the challenged act or omission. (Ibid.)

A. Valuation of Loss. In the probation report, the probation officer reported that the victim had told him the stolen property included a Persian rug that had cost her $8,000, for which she had received no reimbursement from the insurance company. Foster contends his trial counsel should have objected to the probation condition requiring Foster to pay $8,000 to the victim for her loss.

First, Foster argues that evidence of the original cost was not sufficient; rather, the court should have determined the replacement cost of the stolen item. (§ 1203.04, subd. (d).) Next, citing section 1203.1d, 4 Foster contends the Legislature intended that proof of replacement cost for purposes of restitution be made by documentary evidence. He argues that the victim's uncorroborated statement about the value of the property does not satisfy the legislative intent expressed in section 1203.1d.

B. Evidence of Replacement Cost. Foster argues that the original cost of the stolen property is not an acceptable basis for a restitution award. Rather, Foster argues, the record must contain evidence of In People v. Hartley (1984) 163 Cal.App.3d 126, 209 Cal.Rptr. 131, the probation officer stated that the amount of restitution should be $2,768, based on the victim's loss statement. Most of that amount was the victim's valuation of three gold rings containing gems. Responding to the defendant's challenge to restitution in that amount, the court stated, "Given the well known fluctuations to which the markets in gold and gems are subject, and since defendant's obligation to make restitution is statutorily limited to replacement cost, a hearing to determine the replacement cost is clearly warranted." (Id., at p. 130 & fn. 3, 209 Cal.Rptr. 131.)

the replacement cost of the property. (§ 1203.04, subd. (d).)

In People v. Vournazos (1988) 198 Cal.App.3d 948, 244 Cal.Rptr. 82, the court stated, "In ordering defendant to pay $2,180 in restitution, the trial court relied entirely on the recommendation of defendant's probation officer who, in turn, derived the figure solely from [the victim's] statement of loss and his discussions with [the victim]. Neither the statement nor the testimony of the probation officer established that the sum claimed by [the victim] for loss of property was based on the replacement cost of the property.... While a defendant bears the burden of proving that the amount of restitution claimed by the victim exceeds repair or replacement cost of lost or damaged property [citation], defendant here was not required to meet that burden inasmuch as the replacement ... cost of [the victim's] property was not established." (Id., at pp. 958-959, 244 Cal.Rptr. 82.)

Foster argues that Hartley and Vournazos require the condition of restitution to the victim to be stricken, in that the record contains no evidence of the replacement cost of the rug. We disagree.

As noted above, the probation report gives notice to the defendant of the recommended amount of restitution, and the hearing offers him the opportunity to rebut the amount before the court determines the amount. (Hartley, supra, 163 Cal.App.3d at p. 130, 209 Cal.Rptr. 131.) At the hearing, "[t]he defendant bears the burden of proving the victim's restitution estimate exceeds the replacement cost of the stolen property. [Citation.]" (People v. Goulart (1990) 224 Cal.App.3d 71, 83-84, 273 Cal.Rptr. 477.)

In Hartley, the defendant requested a hearing, and the court refused the request. This was found to be error. (Hartley, supra, 163 Cal.App.3d at p. 130, 209 Cal.Rptr. 131.) However, nothing in Hartley suggests that absent a request for a hearing, the court may not rely on the victim's statement of value, even when based on the original cost rather than the replacement cost. Rather, the Hartley court stated that a hearing was warranted on the facts presented when the defendant requested a hearing. (Ibid.) We do not read Hartley as holding that the victim's estimate did not constitute evidence supporting restitution. Rather, the Hartley court indicated that the court could even rely on a loss report filed with the police when the victim was unavailable to make a direct statement. (Ibid.)

In addition, we find the reasoning of the Vournazos court unpersuasive. First, it is at odds with the principle that an evidentiary objection must be raised in the trial court before it can be considered on appeal. (Evid.Code, § 353, subd. (a).) Second, it imposes an unwarranted burden on the trial court, the prosecutor, and the victim. 5 For most types of stolen property, the original cost will be a fair approximation of the replacement cost. Third, it is also at odds with the statement in Hartley that valuation may be based on a loss report filed with the police. We conclude that absent unusual circumstances, or a In reaching this conclusion, we note that the trial court is entitled to consider the probation report when determining the amount of restitution. A property owner's statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution. (Cf. Evid.Code, § 810 et seq. [providing "special rules of evidence applicable to any action in which the value of property is to be ascertained."] ) " 'Due process does not require a judge to draw sentencing information through the narrow net of courtroom evidence rules ... [. S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.' [Citation.]" (People v. Baumann (1985) 176 Cal.App.3d 67, 81, 222 Cal.Rptr. 32.)

showing by the defendant to the contrary, the original cost of a stolen item may be treated as evidence of replacement cost for purposes of restitution. We therefore reject the Vournazos opinion on this point.

This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. (People v....

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