The trial court erred when it calculated restitution for damaged goods based on the retail value of the items rather than their devalued worth. Appellant was employed by Target and was responsible for dealing with damaged items. Damaged items were categorized and would either be returned to the manufacturer for credit, donated to charity for 30 cents on the dollar of the last retail price, or donated free of cost. Appellant and her husband began stealing some of this damaged merchandise and reselling it through a third party. Much of the property was recovered before it was sold. At the restitution hearing, the court ordered, inter alia, that appellant pay $234,185 for the stolen merchandise based on the last scanned retail price. Appellant argued this was an abuse of discretion because most of the items were to be donated for free or for 30 cents on the dollar. Respondent argued it would be “virtually impossible” to accurately calculate the value. The Court of Appeal noted that complexity of calculation does not absolve the trial court from awarding restitution in a rational manner. It found the restitution amount an abuse of discretion because Target was entitled only to the value of the stolen property, which was less than the last retail value. The last retail value was a good starting point, but the value should have then been discounted to reflect the true nature of the goods. Moreover, much of the merchandise was returned to Target, so they were doubly compensated and this resulted in a windfall.
The restitution order did not violate appellant’s Sixth Amendment right to a jury trial. Relying on a footnote in People v. Giordano (2007) 42 Cal.4th 644, which stated that the cases holding restitution hearings require fewer due process protections than criminal hearings were all decided prior to Cunningham, appellant argued the restitution order in this case constitutes punishment above and beyond that authorized by the elements of the crime, and such punishment cannot be imposed without a jury finding. The argument was rejected because the court disagreed with the premise that restitution increases punishment for a crime. Rather, the primary purpose is to compensate the victim. And to the extent that it also serves the purpose of rehabilitation and deterrence, it is not increased punishment. (People v. Wilen (2008) 165 Cal.App.4th 270; People v. Millard (2009) 175 Cal.App.4th 7.)