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In Re C.W., A Person Coming Under the Juvenile Court Law. v. C.W

December 9, 2010


(Contra Costa County Super. Ct. No. J08-01459)

The opinion of the court was delivered by: Pollak, J.

In re C.W. CA1/3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

C.W. appeals from a victim restitution order of the juvenile court. He contends the court erred in awarding restitution based solely on the amounts of the losses reported to the police as reflected in the police officer reports. Although several victims failed to respond to multiple requests from the probation department for confirmation of their losses, the court did not abuse its discretion in basing its order on the amounts reflected in the police reports.


In a juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a), appellant was alleged to have committed 27 counts of first degree and attempted first degree residential burglary. (Pen. Code, §§ 459, 460, subd. (a), 664.) Appellant admitted three counts of residential burglary and the court dismissed the other counts with a Harvey*fn1 waiver. Appellant was ordered to complete a six-month program at a residential facility and subsequently his parole was successfully terminated, with wardship retained.

At the request of the probation department, a hearing was scheduled to determine the amount of victim restitution. The department submitted a restitution report recommending the amounts of restitution appellant should be ordered to pay to the various burglary victims. The report noted that seven of the 23 victims were not seeking restitution, that several had submitted claim statements, and that six victims (counting dual members of a household as a single victim) who had reported losses to the police had failed to respond to numerous requests from the department for confirmation of their losses. As to those six victims, the department recommended that restitution be awarded in the amounts that the victims had reported to the police shortly after the incidents, as reflected in the police reports that were submitted to the court. At the contested restitution hearing the parties submitted a stipulation as to restitution amounts for 10 of the victims. The court considered objections to the amounts requested by two of the victims who had completed victim claim statements, sustaining and overruling certain of those objections, and those determinations are not challenged on appeal. The court awarded the six victims who had not responded the amounts itemized in the police reports, overruling appellants' objection to reliance on those unsubstantiated reports.*fn2 The court considered the police reports to provide "a sufficient basis for a prima facie setting of restitution. And there being no contrary evidence produced and the burden being on the minor to produce it, I will find that by a preponderance then that there is a sufficient basis to order [restitution] in those six cases."Appellant's timely appeal challenges the order as to those six victims.


Appellant contends that the trial court abused its discretion when it awarded restitution to the six victims who failed to respond to probation department requests for information regarding their losses. However, "the court may use any rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation. In doing so, ' " '[s]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.' . . ." . . . [¶] This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.' " (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392, fns. omitted.) "A property owner's statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution." (People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) "When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount." (Id. at p. 947.)*fn3

In People v. Hartley (1984) 163 Cal.App.3d 126, the court expressly disapproved "of exclusive reliance upon a loss report filed with the police" in fixing restitution. (Id. at p. 130, fn. 3.) Nonetheless, the court went on to state: "Of course, when a victim's direct statement cannot be obtained, the probation report should so indicate, and existing evidence of the value of the property, such as a police report, may then be utilized so long as the source of the information is clearly identified." (Ibid.) In In re S.S. (1995) 37 Cal.App.4th 543, 546, the court stated that the decision in Hartley "appears to mean that, at least where the items, amounts, and sources are adequately identified in or with the probation report, the defendant has the burden of refuting them." In a footnote, after observing that "[n]one of the cases hold that the victim must supply a sworn proof of loss or detailed documentation of costs and expenses," the court stated, "Of course a trial court would act well within its discretion to decide, as trier of fact, that unverified and unsubstantiated statements were insufficient proof of loss in a particular case. Even more telling might be a victim's failure to verify or document claims after being asked to do so." (Id. at p. 547, fn. 2) The latter is the situation here, but the court in In re S.S. did not hold that in such a situation the trial court is compelled to disregard the information reported to the police that forms the basis of the probation department's recommendation. Indeed, in that case the court overruled a generalized objection to awarding restitution for "15 music tapes, $10 each" made on the ground that the number and value of tapes reported by the victim to the probation officer was overstated and poorly documented. (Id. at pp. 545, 547.) The court held that these and other items for which restitution was ordered, including "martial art weapons & spears," "mugs," and "shoes," "were more than adequately described." (Id. at pp. 545, 548.) The court also relied on the fact that in the trial court the minor had made only a general objection to the absence of verification and had not directed the court's attention to the specific items he felt were insufficiently verified. (Id. at pp. 547-548.) Both the nature of the descriptions provided by the victims and the generality of the objection made in the trial court are very much the same in the present case.

The owner's report of items lost or damaged and estimates of their value are sufficient to support a restitution award. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543; People v. Prosser (2007) 157 Cal.App.4th 682, 690.) This is true when the information has merely been reported to a probation officer and incorporated in a recommendation from the probation department. (In re S.S., supra, 37 Cal.App.4th at p. 547; People v. Foster, supra, 14 Cal.App.4th at p. 948; People v. Hartley, supra, 163 Cal.App.3d 126.)*fn4 We see no reason why, as a matter of law, information reported to the police and incorporated in a probation department recommendation should be treated differently.

As noted above, the trial court exercises broad discretion in determining the sufficiency of such evidence to support a restitution order and its judgment will be disturbed only if clearly irrational. (People v. Phu (2009) 179 Cal.App.4th 280, 283-284; People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) The information contained in the six police reports in this case admittedly leaves room for many questions, including the basis for the victims' statements as to particular property taken (such as the amount of cash) and the replacement value of other items (such as the current value of computers). Nonetheless, it is the minor's burden to come forward with evidence disputing the prima facie evidence of value provided by the owner (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543), and appellant presented no such evidence here. Placing the burden on the minor is neither unrealistic nor inequitable since the minor presumably knows or should know what he (or she) has or has not stolen, and is put on notice by the probation report of the items and values for which restitution is being requested and is given the opportunity to refute the basis for the requested restitution amount. Moreover, the trial court is expected to use its good judgment to evaluate the reasonableness of the information reported to the police and whether there is sufficient basis for doubt to reject that information as unreliable. The court will consider, among other factors, the degree of specificity or generality in the description of the items for which restitution is sought, and whether the reported values are within a range of common sense and reasonableness. In reviewing the transcript of the restitution hearing in this case, we see no indication that the trial court failed to make such an evaluation here. Although the court accepted the full values reported by each of the six victims, it reduced the amount of restitution awarded to other victims based on its assessment of these factors. There is no basis to assume ...

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