Metropolitan News-Enterprise


Monday, April 21, 2008


Page 1


Court Upholds Restitution Based on Handwritten Statement


By STEVEN M. ELLIS, Staff Writer


The Fourth District Court of Appeal ruled Friday that a burglary victim’s unverified statement of losses was sufficient to support an order of restitution against a woman who allegedly committed the crime in order to steal records that would have documented her previous embezzlement.

Affirming San Bernardino Superior Court Judge Joseph R. Brisco’s award of restitution against Brenda Marie Gemelli for damages caused when she broke into a restaurant where she previously worked, Div. Two held that the restaurant’s handwritten statement listing $7,703 in losses incurred and explaining how each was calculated—but which did not include any further documentation—provided substantial evidence supporting the order.

Gemelli had worked as a bookkeeper at the restaurant, but was terminated by the restaurant owners after they began to suspect she was embezzling money.

Shortly thereafter, the restaurant was burglarized, but paperwork referred to as “daily reports” were the only items determined to be missing following the burglary. The owners believed the missing paperwork would have shown whether Gemelli had embezzled money, and police arrested her after they found prints at the scene matching her shoes.

Gemelli pled guilty to second degree commercial burglary in a plea agreement, and the matter was referred to a probation officer for preparation of a written report.

The officer requested a statement of damages and receipts from the restaurant for inclusion in the report, and the owners provided a list outlining a total of $7,073 in losses they had incurred as a result of the burglary. The list was submitted to the court as an attachment to the probation officer’s report, but no receipts were attached to support the amounts claimed in the statement.

Gemelli was then sentenced to 36 months of probation, and requested a hearing as to restitution.

At the outset, the trial court indicated that a prima facie showing of damages in the amount of $7,073 had been established based on the probation officer’s report. However, when Gemelli’s counsel called the probation officer as a witness, he testified that he had not attempted to verify any of the claimed amounts.

Gemelli then testified in order to challenge some of the amounts, but Brisco found that “the only credible evidence presented at this hearing was that provided by the probation officer” and ordered restitution in the full amount.

On appeal, Gemelli argued that the handwritten statement was insufficient to prove the amount of losses, and that Brisco’s rejection of her testimony had been arbitrary.

But in an opinion by Justice Manuel A. Ramirez, the Court of Appeal disagreed.

Writing that “[t]he list is detailed and facially credible in that it explains how each of the claimed losses is related to the burglary,” and that “each of the repair items shows an amount spent on materials, an hourly rate for labor or professional services, and the amount of time it took to complete the necessary work,” Ramirez rejected Gemelli’s arguments disputing labor charges for repairs, amounts spent to reconstruct the stolen paperwork, and the replacement cost of certain items.

Gemelli had testified that the owner—not an outside firm—typically made repairs at the restaurant, but Ramirez said this was insufficient to rebut the claimed labor costs.

“Even if the owner did all of the repairs himself rather than hire someone else to do them, his time had value,” he said. “There was nothing in defendant’s testimony to even suggest the hourly rate or the time spent for each repair was in any way excessive and could therefore not be the actual cost of repairing the property.”

Ramirez also rejected Gemelli’s argument that the $5,100 cost of hiring an expert to replace the paperwork—which Gemelli had originally prepared—should be calculated based on the minimum wage Gemelli had been paid at the time. He also rejected her argument that it was too difficult to contest the amount without supporting documentation.

“Under the circumstances,” he wrote, “there is nothing to suggest it was unreasonable for the owner of the restaurant to obtain professional assistance at a higher rate of pay in order to reconstruct the paperwork stolen during the burglary.”

Concluding that the detailed information provided in the restaurant owner’s written statement was “more than adequate to advise” Gemelli of the cost, Ramirez wrote that if Gemelli “believed supporting documentation or additional information was necessary to effectively rebut the amount claimed, it was up to her to obtain it.”

Ramirez then rejected Gemelli’s claim that she had been with the restaurant manager when a filed cabinet and a security camera and monitor were purchased, and that the purchase prices were lower than the replacement costs alleged in the statement.

Gemelli, he said, “would have us overturn the trial court’s credibility determination as to these items by giving her testimony more weight than that afforded by the trial court to the probation report and the victim’s written statement of losses.”

Explaining that “[d]eferential review is particularly necessary when, as here, the factual determination depends in part on judging a witness’s credibility,” and that the court was required to “uphold such a determination if it is supported by substantial evidence,” he upheld the trial court’s determination, concluding that “the probation report and the victim’s attached statement of losses were not only credible but substantial.”

Justices Barton C. Gaut and Thomas E. Hollenhorst joined Ramirez in his opinion.

The case is People v. Gemelli, E043682.


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