Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County No. J0854, Thomas S. Burr, Commissioner.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.
The court found that appellant, R.M. was a person described in Welfare and Institutions Code section 602 after it sustained allegations charging him with possession of stolen property and violating probation. On appeal, R.M. contends the court erred by ordering him to pay $484.85 in restitution without allowing him to dispute the amount at a hearing. We agree and reverse the court’s restitution order. In all other respects, we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
Around March 27, 2007, someone stole bicycles belonging to Sergio G. and his brother from the front porch of their house in Los Banos. A few weeks later, Sergio’s bicycle was recovered from R.M. after Sergio’s friend saw R.M. riding it. The bicycle was missing the brake pads, brake cables, and “graphics” and the seat was torn.
On May 24, 2007, at R.M.’s disposition hearing, the court re adjudged R.M. a ward of the court, placed him in the custody of his father, and committed him to the Home Commitment Program for 30 days. The court also ordered R.M. to pay restitution, which was to be determined at a hearing, and set an ex parte pretrial restitution hearing for July 17, 2007.
On June 14, 2007, the court committed R.M. to the Bear Creek Academy Short Term Program after he admitted allegations charging him with violating his probation by not completing the Home Commitment Program.
On July 12, 2007, the probation department filed a memo informing the court that the victim had submitted a receipt showing that his father paid $484.85, with taxes, for the bicycle that was stolen and that the victim stated the bicycle was missing its brakes, stickers, and pegs when it was returned. The memo had attached to it receipts that verified the amount paid for the bicycle.
On July 17, 2007, the court continued the hearing to August 9, 2007, after defense counsel argued that the victim was entitled to the cost of damages, or to the full value of the bicycle if he gave the bicycle to R.M.
On August 9, 2007, the court continued the pretrial restitution hearing to August 30, 2007, to allow the probation officer to get a statement from the victim, under oath, with respect to the damage to his bike.
On August 23, 2007 the district attorney filed two petitions charging R.M. with felony escape from the Home Commitment Program (Pen. Code, § 4532, subd. (b)(1)) and various probation violations.
On August 28, 2007, the court set the jurisdiction hearing for the two new petitions for September 6, 2007, and trailed the pretrial restitution hearing to that date.
On September 6, 2007, after finding the escape charge true and that R.M. violated his probation, the court set R.M.’s disposition hearing for September 20, 2007, and continued the pretrial restitution hearing to that date.
On September 20, 2007, the court continued the pretrial restitution hearing to October 23, 2007.
On October 23, 2007, the court informed the parties that the probation department spoke with the victim who informed the department that the bicycle was beyond repair. After the court stated it was ordering $484.85 in restitution based on the victim’s statement, defense counsel objected and requested a restitution hearing. The court denied the request citing judicial efficiency and the need to prevent further victimization of the victim as reasons for its decision.
DISCUSSION
R.M. contends the court’s denial of his request for a restitution hearing denied him his right to a hearing pursuant to section 730.6, subdivision (h)(4) and to due process under the 5th and 14th Amendments. He further contends he did not have sufficient notice of the probation department’s determination of damages prior to the October 23, 2007, hearing. We need not resolve this latter issue because we will conclude that the trial court erred in ordering him to pay restitution without affording him a hearing where he could contest the amount claimed by the victim.
We review restitution orders for abuse of discretion. The trial court is vested with broad discretion in setting the amount of restitution. (In re Brittany L. (2002) 99 Cal.App.4th 1381.) “‘“‘When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.’”’ [Citation.]” (In re Brian N. (2004) 120 Cal.App.4th 591, 593-594 (disapproved on another ground in People v. Martinez (2005) 36 Cal.4th 384, 394, fn. 2.) “Moreover, section 730.6, subdivision (h)(4) specifies ‘ a minor shall have the right to a hearing before a judge to dispute the determination of the amount of restitution.’ This statutory directive is meant to afford the minor a reasonable opportunity to challenge the accuracy or validity of the victims’ claimed losses. It is a crucial part of the overall statutory scheme, necessary to satisfy due process, and ensure fundamental fairness in the determination of the restitution ultimately ordered.” (In re Brittany L., supra, (2002) 99 Cal.App.4th at pp. 1390-1391, fn. omitted.)
Here, although the court continued the ex parte pretrial restitution hearing several times, it never provided R.M. notice that he could present evidence on the amount of restitution at any of these hearings; nor did it ever conduct a restitution hearing.
Respondent does not address R.M.’s primary contention that he was denied due process by the court’s failure to conduct a restitution hearing at which he could provide evidence disputing the victim’s claim that the bicycle was totaled. Instead, respondent’s arguments are all directed at showing R.M. had ample notice that the victim was claiming $484.85 in restitution, an issue which earlier we noted need not be resolved. Thus, we conclude the court erred in ordering R.M. to pay restitution of $484.85 to the victim without providing him a restitution hearing.
DISPOSITION
The court’s restitution order is reversed and the matter remanded to the juvenile court for a restitution hearing. In all other respects, the judgment is affirmed.