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Filed 4/13/11 In re J.B. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE In re J.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, A129392 Plaintiff and Respondent, (Solano County Super. Ct. No. J38983) v. J.B., Defendant and Appellant. Appellant J.B., a minor, admitted having received stolen property in connection with a vehicle theft. He disputes the juvenile court s award of restitution for the economic losses of the car s owner. We affirm, although we remand for entry of an amended order of restitution in compliance with the governing statute. I. BACKGROUND On August 3, 2009, the Solano County District Attorney filed a wardship petition under Welfare and Institutions Code section 602, subdivision (a), alleging appellant, then age 15, had committed auto theft (Veh. Code, § 10851, subd. (a)) and received stolen property (Pen. Code, § 496d, subd. (a)). Appellant and two others had taken a parked car, eventually crashing it. After appellant admitted receiving stolen property, the auto theft allegation was dismissed. The probation report stated that the car s owner claimed to have lost a laptop computer, valued at $499, a digital camera, and a portable video game unit that were in the car, and spent $500 to replace his keys. In a restitution claim form filed with the court on April 15, 2010, the same victim submitted invoices supporting $6,965.32 in car repair bills, which had been paid by his insurer, and $271.17 in rental car charges. The victim also listed several lost items, including the computer, several music system components, the video game unit, and clothing. On a line entitled, Amount Paid By You (insurance deductible or other) (attach proof), he wrote, $771.71. At the request of appellant, the juvenile court scheduled a restitution hearing to determine the factual basis supporting the $500 claim. Appellant s counsel suggested he wanted to examine the probation officer at the hearing, but he did not mention any other potential witnesses. When asked by the prosecutor whether the hearing would require the presence of the victim, the court declined, instead noting, [A]t this juncture [the issue of restitution] is submitted on the probation report, period. Apparently examining the restitution claim form, the court noted, [I]t looks like what was paid by the insurance is $5000 to repair the car, less [$]500 deductible, plus the out of pocket. At the restitution hearing on July 15, 2010, prior to any testimony or argument, the court noted it had considered the probation report and ordered restitution of $771.71, the amount claimed by the victim. Appellant s counsel objected that [t]here is no proof that he paid the deductible, but otherwise submit[ted] the matter. Counsel made no attempt to introduce documentary evidence or testimony. The deputy district attorney responded that he had discussed the issue with the victim, who had explained that the $500 on the claim form represented the replacement cost of the lost music system components. The victim had offered to bring in a receipt for their purchase. The court declined to require the receipt, noting, I can rely on [the] probation report. The issue was how did it add up and we have that now. So the amount is $771.71. II. DISCUSSION Appellant contends the juvenile court denied him due process in its conduct of the restitution hearing and abused its discretion in setting the amount of restitution at $771.71. 2 A. Due Process We agree with the Attorney General that appellant forfeited his due process arguments when he failed to raise them with the juvenile court. Each of his concerns could have been readily cured had it been raised in a timely manner. By not providing the juvenile court an opportunity to address the issues, he forfeited them. (See, e.g., People v. Simon (2001) 25 Cal.4th 1082, 1103.) Even if appellant had not forfeited these arguments, we would find them to be without merit. A minor s due process rights in the determination of restitution are very limited. (People v. Prosser (2007) 157 Cal.App.4th 682, 692.) The juvenile court is not bound by the ordinary rules of evidence and is said to have virtually unlimited discretion as to the type and source of information it may consider in setting the amount of restitution. (Ibid.) Often, information from the victim regarding the nature and amount of his or her losses is included in the probation report. If this information is sufficiently detailed, it establishes prima facie the amount of the victim s losses. The burden is thereafter on the minor to refute this amount. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) Consistent with this approach, the juvenile court s duty at the restitution hearing is to afford the minor a reasonable opportunity to challenge the accuracy or validity of the victims claimed losses. (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1390 1391.) Appellant first contends the correct procedure was to hold a hearing at which the victim testified and was cross-examined. There is no legal foundation for such an argument. As discussed above, there is no requirement that a restitution hearing involve the taking of testimony, whether from the victim or otherwise. The amount of the victim s losses can be established by hearsay information in the probation report.1 (In re K.F. (2009) 173 Cal.App.4th 655, 665; People v. Keichler, supra, 129 Cal.App.4th at 1 The cases cited by appellant do not contradict this principle. They merely hold that the information in the probation report must be specific as to the type and amount of the victim s losses. (E.g., People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; People v. Harvest (2000) 84 Cal.App.4th 641, 653.) 3 p. 1048.) If the minor offers no evidence to refute the accuracy of this information, there is no need for an evidentiary hearing. Appellant did not offer any evidence regarding the amount of the victim s losses, nor did his attorney suggest appellant had any such evidence to offer. Accordingly, the juvenile court committed no error in failing to hold a formal evidentiary hearing. (Compare In re Brittany L., supra, 99 Cal.App.4th at p. 1391 [error to refuse minor s proffered evidence regarding restitution].) Appellant next contends he was never provided with a document which set forth, in comprehensible fashion, the dollar amount of restitution sought and the basis for the calculation. The argument is not supported by the record. Two months before the restitution hearing was held the probation department filed the victim s restitution claim form, accompanied by a cover letter stating, The victim has submitted a restitution claim seeking $771.17 in restitution. The claim form describes the claimed losses and attaches documentary support for some of the losses. This provided adequate advance notice of the nature and amount of the losses claimed. Any ambiguity in this information constituted an issue to be raised at the hearing, not a violation of due process. Appellant also contends the juvenile court did not allow him to subpoena the victim. Again, the argument is not supported by the record. There is no court order precluding subpoena of the victim. The court merely declined to require the victim s appearance on its own, since it was entitled to rely on the probation report. Appellant raised no objection to this decision. Further, there is no indication in the record appellant even sought the victim s presence at the hearing, let alone that he was precluded from subpoenaing the victim.2 2 In his reply brief, appellant goes further, contending in advance of the hearing, the trial judge informed defense counsel that he could not . . . introduce any evidence outside of the probation report. The statement is a mischaracterization of the court s comments at the hearing. Contrary to appellant s claim, the juvenile court specifically told appellant s counsel, [I]f it s going to be longer than a ten-minute hearing, i.e., you are going to call witnesses, it is incumbent upon you to notify the Court. The court then told defense counsel he would be allowed to examine the probation officer if he served an appropriate subpoena. Plainly, the juvenile court offered defense counsel the opportunity for a full evidentiary hearing. 4 Finally, appellant argues the juvenile court did not provide him an opportunity at the restitution hearing to refute the victim s statement, since the juvenile court announced its decision prior to any argument or evidence and stated, That is the order of [the] Court. If the court had immediately closed the hearing, the argument might have some force. However, the court permitted appellant s counsel to assert an objection, after which counsel spontaneously submit[ted] the matter without offering evidence. The court then allowed the prosecutor to respond. In so doing, the court provided appellant the required opportunity to refute the victim s claim. B. Abuse of Discretion Appellant also argues there was insufficient evidence to support the restitution award. We review the award for abuse of discretion (People v. Duong (2010) 180 Cal.App.4th 1533, 1537), which would be present if the amount of the award was not supported by substantial evidence (People v. Prosser, supra, 157 Cal.App.4th at p. 692). As discussed above, a hearsay statement from the victim is sufficient to support an award. (In re K.F., supra, 173 Cal.App.4th at p. 665; People v. Keichler, supra, 129 Cal.App.4th at p. 1048.) Here, the juvenile court was able to rely on the victim s statement of his losses in the claim form, which attached a rental car bill, detailed the items lost, and provided an estimate of their value. This constituted substantial evidence to support the award. (See, e.g., People v. Tabb (2009) 170 Cal.App.4th 1142, 1154 [trial court can rely on victim s estimate of value of stolen or damaged items].) Appellant argues the probation report, which merely itemized the lost items, was insufficient to support the award. As noted above, however, the juvenile court could also rely on the victim s claim form, which was submitted separately from the probation report. The juvenile court was not restricted to consideration of the probation report. (E.g., People v. Prosser, supra, 157 Cal.App.4th at p. 692). Appellant also contends it was reversible misconduct for the prosecutor to recount his conversation with the victim regarding the basis for the $500 claim. While it would, of course, have been improper for the prosecutor to offer hearsay testimony at a trial of guilt, it is widely recognized that restitution hearings are less formal proceedings and are 5 not subject to the same evidentiary rules. (E.g., People v. Keichler, supra, 129 Cal.App.4th at p. 1048; In re Brittany L., supra, 99 Cal.App.4th at p. 1392.) The juvenile court has wide discretion as to the type and source of information it may consider. (People v. Prosser, supra, 157 Cal.App.4th at p. 692.) Accordingly, appropriate hearsay statements by the prosecutor may be considered by the court in setting restitution. (See People v. Cain (2000) 82 Cal.App.4th 81, 88 89 [affirming trial court s consideration of hearsay statements by prosecutor in determining restitution].) C. Form of the Order Appellant correctly notes that the order entered by the juvenile court after the restitution hearing, which is the only order of restitution in the appellate record, does not comply with Welfare and Institutions Code section 730.6, subdivisions (h) and (i). Pursuant to subdivision (h), [a] restitution order . . . to the extent possible, shall identify each victim, unless the court for good cause finds that the order should not identify a victim or victims, and the amount of each victim s loss to which it pertains. Subdivision (i) adds that the order shall identify the losses to which it pertains. The juvenile court s order merely states the amount of restitution, without specifying the victim or the losses to which the order pertains. Further, although appellant does not make note of it, the order improperly recorded the amount of the victim s claimed losses by transposing the final digits. The victim s records clearly show the amount of claimed losses was $771.17, not $771.71. The matter must be remanded for the entry of an amended order of restitution stating an amount of $771.17 and otherwise complying with the requirements of Welfare and Institutions Code section 730.6. We note that Judicial Council Forms, form JV-790 is a model form of order designed for this purpose. III. DISPOSITION The matter is remanded to the juvenile court for entry of an amended order of restitution consistent with this decision and compliant with Welfare and Institutions Code section 730.6, subdivisions (h) and (i). The judgment of the juvenile court is otherwise affirmed. 6 _________________________ Margulies, J. We concur: _________________________ Marchiano, P.J. _________________________ Dondero, J. A129392 In re J.B. 7
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