Filed 3/5/14 P. v. Arias CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                         H038888
                                                                   (Santa Clara County
         Plaintiff and Respondent,                                  Super. Ct. No. CC952349)

         v.

MARIO MARTINEZ ARIAS,

         Defendant and Appellant.



         In this appeal Mario Arias (appellant) challenges a victim restitution order in the
amount of $5,580 that was entered on August 10, 2012, following a formal restitution
hearing. After two trials, appellant was convicted of vehicle theft (Veh. Code, § 10851,
subd. (a), count one), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count
two), driving a vehicle in the direction opposite to that of lawful traffic flow while fleeing
a pursuing peace officer's motor vehicle (Veh. Code, § 2800.4, count three) and reckless
driving while fleeing a pursuing peace officer's motor vehicle (Veh. Code, § 2800.2,
subd. (a), count four).
         This is appellant's second appeal in this case. In H038532, appellant appealed his
convictions. On this court's own motion we have taken judicial notice of the record in
that case. In his first trial, the jury found appellant guilty of counts one, three and four,
but hung 11-1 for guilty on the assault with a deadly weapon charge (count two).
Accordingly, the court declared a mistrial as to that count. At the retrial on the assault
with a deadly weapon charge, the jury found appellant guilty.
       Subsequently, the court sentenced appellant to state prison for 14 years four
months—eight years on count two (assault with a deadly weapon—the upper term of four
years doubled because of appellant's prior strike conviction), a consecutive 16 month
term for count one (the vehicle theft), a concurrent upper term of six years for count three
(driving the wrong direction while fleeing from police), a concurrent upper term of six
years for count four (reckless driving while fleeing a police officer) and a consecutive
five year term for the prior conviction. The court imposed a victim restitution order in
the amount of $6,207.20. However, appellant objected to the amount and requested a
formal restitution hearing.
       At the formal restitution hearing, the victim of the vehicle theft, John Van,
testified about the losses he incurred as the result of the theft of his 1997 Honda Accord.1
Mr. Van said that before the Honda was damaged in a crash, it was in excellent
mechanical condition, was not in need of body work, and had no damage to the interior.
Every year his mechanic examined the car; and if repairs were needed he had work done
in order to keep the car in excellent condition. Further, he stated that the car had the oil
changed every three months and although there were a few scratches, there were no
dents. There was no rust on the car, no fluid leaks in the engine compartment and all the
upholstery was intact and in excellent condition. The car had never had a "paint job."
Moreover, all the tires matched and the car had periodic smog inspections. Based on the
condition of the car and information he got from a friend he valued the car at $4,000.2
The car had been driven over 90,000 miles. Mr. Van estimated that it was somewhere
between 97,000 and 98,000 miles. In addition to the losses incurred related to the Honda,

1
       The Honda was involved in a crash with a CHP patrol vehicle after a high speed
pursuit.
2
       Mr. Van said that a friend had offered to buy the Honda for $4,000.
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Mr. Van estimated that he had missed 25 to 30 hours of work to testify as a witness in the
case. His English-speaking son took time off from work for 12 hours to get him to court
and negotiate about the car.3 His son personally missed additional hours of work to deal
with the destroyed Honda; and there were costs associated with recovering the Honda
from the tow yard. Mr. Van testified to the value of shoes, four chef's jackets, CDs, a
sound system, and a jade charm that were missing from the Honda when he recovered it.
       Defense counsel moved into evidence two exhibits showing the Kelly Blue Book
value of a 1997 Honda Accord with mileage in the 90,000 to 100,000 range. Cars in
"Excellent" condition ranged from $4,010 to $4,235. Cars in "Very Good" condition
ranged from $3,760 to $3,985.
       In calculating the amount of restitution the court totaled the claim as follows:
1997 Honda Accord—$4,000, stereo and CDs—$310, tow yard costs— $492.50, Jade
ornament—$50, two pairs of shoes—$160, chef's coats—$100, missed work-Mr. Van—
$428.40, missed work-Mr. Van's son—$40 for a total of $5,580.90. The court noted that
it was reducing the amount sought for the CDs by $90.00 because the court thought the
fair market value of the CDs was $10 each rather than the $25 that appellant claimed.
       Based on the Kelly Blue Book values, defense counsel argued that $4,000 was too
much for the Honda and "perhaps there should be a slight adjustment upwards from the
3,760 [the value of a Honda with 100,000 miles in 'Very Good' condition], but I don't
think we get to $4,000."
       Appellant filed a timely notice of appeal from the restitution hearing.
                                         Discussion
       Appellant contends that the trial court abused its discretion by failing to utilize the
blue book value of the Honda in setting the amount of restitution. Respectfully, we
disagree.

3
      We note that in both trials Mr. Van testified and was assisted by a Cantonese
speaking interpreter.
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       The trial court is required to award restitution to a victim who has suffered
economic loss as a result of the defendant's conduct. (Pen. Code, § 1202.4, subd. (f).)
The restitution order shall be "sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's criminal conduct . . . ."
(Pen. Code, § 1202.4, subd. (f)(3).) The restitution amount should be "based on the
amount of loss claimed by the victim or victims or any other showing to the court." (Pen.
Code, § 1202.4, subd. (f).) To comport with basic due process, a defendant must be
given notice and the opportunity to be heard. (Koshak v. Malek (2011) 200 Cal.App.4th
1540, 1547.) Consistent with this dictate, the victim restitution statutory scheme provides
that the defendant has the right to a restitution hearing "to dispute the determination of
the amount of restitution." (Pen. Code, § 1202.4, subd. (f)(1).) The statute contemplates
that the restitution amount will be determined at sentencing, unless the amount cannot be
ascertained at that time. (Pen. Code, § 1202.4, subd. (f); see People v. Holmberg (2011)
195 Cal.App.4th 1310, 1319.) The defendant's right to notice and a hearing is protected
if the amount claimed by the victim is set forth in the probation report, and the defendant
has an opportunity to challenge the figures in the probation report at the sentencing
hearing. (People v. Cain (2000) 82 Cal.App.4th 81, 86; see People v. Gonzalez (2003) 31
Cal.4th 745, 754–755.)
       Case law indicates that losses for purposes of victim restitution are not limited to
those enumerated in Penal Code section 1202.4 and must be construed broadly and
liberally to compensate a victim for any economic loss which is proved to be the direct
result of the defendant's criminal behavior. (People v. Moore (2009) 177 Cal.App.4th
1229, 1232 [victim's lost wages]; People v. Crisler (2008) 165 Cal.App.4th 1503, 1508
[expenses incurred by murder victim's parents in attending trial.].)
       "A restitution order is reviewed for abuse of discretion and will not be reversed
unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found
where there is a rational and factual basis for the amount of restitution ordered." (People
                                              4
v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 (Gemelli).) The trial court may consider
almost any kind of information in calculating restitution. (People v. Phu (2009) 179
Cal.App.4th 280, 283–284.) " 'Further, the standard of proof at a restitution hearing is by
a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]'
[Citation.]" (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) " 'If the
circumstances reasonably justify the [trial court's] findings,' the judgment may not be
overturned when the circumstances might also reasonably support a contrary finding."
(People v. Baker (2005) 126 Cal.App.4th 463, 469 (Baker); see also Gemelli, supra, 161
Cal.App.4th at p. 1542.) In reviewing the evidence, we do not reweigh or reinterpret it;
we determine only whether there is sufficient evidence to support the inference drawn by
the trier of fact. (Baker, supra, 126 Cal.App.4th at p. 469.)
       In essence, appellant argues that once he produced the Kelly Blue Book value for
the Honda, which was $3,760, it was not rational for the court to award the speculative
value that Mr. Van placed on the vehicle, which was based on what a coworker had
offered him to buy the Honda.
       Appellant's argument is based on his assumption that the car should have been
categorized as in "Very Good" condition rather than "Excellent" condition. The evidence
established that the car's condition was somewhere between "Very Good" and
"Excellent." As noted, Mr. Van testified that the car was in excellent mechanical
condition, was not in need of body work, and had no damage to the interior. Every year
his mechanic examined the car; and if repairs were needed he had work done in order to
keep the car in excellent condition. Further, he stated that the car had the oil changed
every three months and although there were a few scratches, there were no dents. There
was no rust on the car, no fluid leaks in the engine compartment and all the upholstery
was intact and in excellent condition. The car had never had a "paint job." Moreover, all
the tires matched and the car had periodic smog inspections. Appellant's own evidence
established that a car that "is in excellent mechanical condition"; that "has never had paint
                                             5
or bodywork and has an interior and body free of wear and visible defects"; that "is rust
free"; that has a "clean engine compartment . . . free of fluid leaks"; and will pass "smog
inspection[s]" is a car that is in "Excellent" condition.4 Further, appellant's evidence
established that cars in "Excellent" condition ranged from $4,010 to $4,235. Cars in
"Very Good" condition ranged from $3,760 to $3,985. In short, the evidence established
that a 1997 Honda Accord with somewhere less than 100,000 miles and in the condition
that Mr. Van testified the Honda was in, had a value of anywhere between $3,760 and
$4,235. We cannot say that it was arbitrary or capricious to set the value at $4,000.
Since there is a rational and factual basis for the amount of restitution ordered for the
Honda, we must affirm the restitution order.




4
        Since Mr. Van testified that there were some scratches on the Honda, the only
criteria for a car in "Excellent" condition that the Honda did not meet is "looks new,"
which is why the evidence shows that the Honda fell between "Excellent" and "Very
Good."
                                               6
                                      Disposition
     The trial court's restitution order that was entered on August 10, 2012, is affirmed.




                                        ______________________________
                                        ELIA, Acting P. J.


WE CONCUR:




_______________________________
MIHARA, J.




_______________________________
GROVER, J.




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