Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Jessica Perrin Silvers, Judge, Los Angeles County Super. Ct. No. LA054848.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Pursuant to a plea bargain, appellant Alejandro Matildes pleaded no contest to one count of residential burglary; another count for residential burglary was dismissed. Appellant was sentenced to the low term of two years, was awarded custody credits, and the court imposed four minor fines totaling $430. The sole issue on appeal is the imposition of a victim restitution fine in the amount of $5,015. We affirm.
Because appellant’s plea operates as an admission of guilt, we do not summarize the circumstances of the residential burglary on November 16, 2006, where appellant gained entry by prying open a bedroom window.
The case was called for a hearing regarding the entry of appellant’s plea on March 6, 2007. Before appellant entered his plea, the court stated that, as part of the plea agreement, restitution would be ordered on the count that was going to be dismissed. When the court inquired whether that had been explained to appellant, the following exchange took place:
“MS. BRIEF [defense counsel]: Yes, but we would be wanting a restitution hearing. [¶] THE COURT: We will get a probation report and if there’s amounts in that that the People -- that the defense disagrees with then the defendant will have the burden to show there is something wrong with those amounts. There’s case law on that. We should have a probation report and we’ll see at that time whether we get the amounts or not. [¶] MS. BRIEF: I already can inform you there is a dispute of [sic] the property. That’s the issue with the two coin collections. [¶] THE COURT: We’ll get a probation report and see what happens. [¶] Mr. Matildes, do you understand that even though count 2, a second residential burglary crime alleged, it is going to be dismissed, if there is loss shown attributable to you, you will be responsible for paying that as well as any amounts that you caused, loss for count 1? Do you understand and agree to that? [¶] THE DEFENDANT: Yes, Ma’am.”
This was the end of the matter until the sentencing hearing on March 29, 2007. When it came to the amount of victim restitution, the trial court stated that that amount would be $5,015. Defense counsel responded that “[t]he defendant is contesting the amount with respect to the coin collection.” The trial court pointed out that it was the defendant’s burden to show that the amount was incorrect; simply claiming that the amount was not correct was not enough. Defense counsel again stated that there were “no coin collections.” The court responded: “Where does it say coin collection? It [the probation report] says 2,000 in cash. Maybe I’m missing something. I’m looking at page 3 [of the probation report]. . . . One doesn’t always notice when one is coming home what exactly is missing. [¶] MS. BRIEF: In the police report it indicates there was a coin collection missing in the amount of $5,000. [¶] THE COURT: That’s not what is being -- that’s not what it says in the probation report. . . . [¶] . . . [¶] . . . I am going to go along with the probation report. It’s broken down into various items and cost to repair.”
Defense counsel stated that the amounts given in the probation report varied greatly from what was contained in the police report. That report listed cash missing as $500, while the probation report stated cash missing as $2,000. In addition, the value of the watch taken was given as $150 in the police report and $2,000 in the probation report; the watch, according to defense counsel, was not a Versace but a Guess watch. Counsel closed by saying that she thought that her client was being unfairly gouged.
The trial court responded that “[i]f you think that there’s something wrong with it you can have your attorney go through legal remedys [sic].” Citing People v. Collins (2003) 111 Cal.App.4th 726 (Collins), the court went on to state that it could rely on the probation report and that “[i]f defendant contests that amount defendant must come forward with contrary information to challenge that amount. [¶] And I don’t think that the initial police report is contrary evidence. It’s just what one notices when one first comes in and then after having time to go through one’s home finding different things to go on.” This concluded the matter, and the court imposed a restitution fine of $5,015.
The probation report lists a $2,000 Versace watch, a camcorder worth $700, $2,000 in cash, a makeup bag containing $300 worth of makeup, and $15 to repair the glass in a window broken while entering the residence. These items total $5,015.
DISCUSSION
Initially, we reject respondent’s contention that appellant waived a hearing regarding the imposition of a restitutionary fine. While there is some ambiguity about the reason for the request for a hearing that for all practical purposes defense counsel made clear that a hearing was requested. Defense counsel requested a hearing on March 6, 2007; and on March 29, 2007, contended that the court should follow the police and not the probation report. There was no waiver.
Appellant contends that the trial court’s determination of the restitution fine was arbitrary, capricious, and beyond the bounds of reason. More specifically, appellant contends that the trial court erred when it “refused to conduct the requested restitution hearing because appellant did not come forward with ‘evidence’ refuting an undisclosed amount of loss.” The amount is allegedly “undisclosed” because the probation report simply listed the claimed losses without recommending that the court adopt the specific figures listed in the report. Appellant also contends that due process required that appellant receive notice of the amount of the fine that was to be imposed and that he received no such notice since the probation report only listed the reported losses without actually recommending a fine in the listed amount.
Victim restitution fines are comprehensively covered in Penal Code section 1202.4 (§ 1202.4). Restitution fines imposed under section 1202.4 are mandatory and a sentence without such a fine is invalid. (People v. Hudson (2003) 113 Cal.App.4th 924, 929.) The trial court has discretion as to the amount of the fine, which may range from $200 to $10,000 for a felony. (§ 1202.4, subd. (b)(1).) The statute lists a number of factors to be considered in imposing a restitution fine; the pecuniary loss sustained by the victim is one such factor. (§ 1202.4, subd. (d).) The statute provides that express findings as to the factors bearing on the amount are not required, nor is a separate hearing required to determine the fine. (Ibid.)
On appeal, the trial court’s determination of the amount of the fine is reversible only if there has been a clear abuse of discretion. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) In determining the amount, all that is required is that the trial court use a rational method that could reasonably be said to make the victim whole. (Ibid.) “The order must be affirmed if there is a factual and rational basis for the amount.” (Ibid.) If there is some evidence to support the trial court’s order, disputed or not, the trial court’s order will be affirmed. (People v. Rubics (2006) 136 Cal.App.4th 452, 462.) The trial court may consider the probation report when determining the amount of the restitution fine (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048), and the defendant must come forward with contrary information to challenge the amount set forth in the probation report. (Collins, supra, 111 Cal.App.4th at p. 734.)
We begin with the foundational fact that the restitution fine was based on the losses set forth in the probation report. This is both a factual and a rational basis for the fine that was imposed. That the amounts set forth in the probation report were subject to dispute, and were actually disputed by defense counsel, is at this stage of the proceedings not material.
We do not find appellant’s argument persuasive that he did not receive notice of the amount of the fine that was to be imposed and was therefore unable to produce evidence or, if not evidence, then at least “information” that challenged the fine that was imposed. On March 6, 2007, in response to appellant’s request for a restitution hearing, the trial court informed defense counsel that the court would refer to the probation report and that if appellant disagreed with the report, he should “show there is something wrong with those amounts.” That defense counsel was listening to the trial court is shown by her argument on March 29, 2007, that the police report listed the losses as considerably less than the probation report; as we have seen, counsel was quite specific in pointing out the discrepancies between the police and the probation reports. Thus, it cannot be said that appellant was not on notice that the court would refer to the probation report, nor can it be said that appellant produced no evidence or “information” that challenged the probation report: the record reflects that defense counsel relied on the police report to challenge the figures set forth in the probation report. That the trial court was not persuaded by this argument is not grounds for reversal.
It is also true that the defense’s initial quarrel was with the fact that the police report listed a coin collection as a $5,000 loss. As it turned out, the trial court did not base the restitution fine on the coin collection. The court based the restitution fine on losses sustained by the victim. The court stated that it had no information regarding losses under the dismissed count that involved a different victim.
Appellant questions the reliability of the report of $2,000 cash missing since it is not likely that such a loss would be first reported to the police as $500; appellant also points to the wide discrepancy between the watch listed in the police report ($150) and the probation report ($2,000). These arguments are addressed to the weight and credibility of the evidence, which are matters consigned to the trial, and not the appellate court. While appellant’s observations are not implausible, they did not prove to be persuasive. In any event, they are not germane in this court.
We find that there is a factual and rational basis for the imposition of the restitution fine of $5,015.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J. RUBIN, J.