People v. Adams CA4/3

FACTS

In light of the narrow scope of the appeal, we set forth only those facts relevant to the narrow issue. On the morning of November 21, 2011, defendant robbed a Wienerschnitzel restaurant at gunpoint with three employees present. The store manager testified defendant took “around $55.” Defendant confessed to an officer that he took approximately $30. The probation report stated defendant took $75. The court ultimately awarded a $75 victim restitution award.

DISCUSSION

Defendant’s claim that the $75 award is an abuse of discretion boils down to whether the court can look to the probation report in setting the amount of restitution. Defendant did not address the issue in his opening brief, respondent claims the court can, and defendant did not file a reply brief. We agree with respondent.

2 “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. ‘“[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.”’…