Opinion
F073890
04-26-2017
In re C.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.S., Defendant and Appellant.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
MODIFICATION OF OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
Pursuant to California Rules of Court, Rule 8.264(c), the court makes the following modifications to the April 26, 2017, opinion issued in the above captioned case:
1. Footnote No. 3 on page 6 is deleted and in its place is substituted the following:
On appeal, the People allege the trial court abused its discretion by offsetting the replacement value of the phone by the $100 received by victim upon its sale. We note the People conceded this offset in the original proceedings and did not file a separate notice on appeal, likely binding them to this position on remand. Regardless, we see no error in ensuring the victim does not receive a windfall by applying an offset in the unique circumstances of this case. (People v. Thygesen (1999) 69 Cal.App.4th 988, 995 ["As to a victim, the purpose of the restitution statute is to make that victim whole, not to give a windfall."].) It would
indeed constitute a windfall for victim to be paid for the replacement cost of the phone and to receive the phone itself at the conclusion of the proceedings.
This modification does not affect a change in the judgment. (Cal. Rules of Court, rule 8.264(c)(2).)
/s/_________
FRANSON, A.P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
MEEHAN, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JW135556-00)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. William D. Palmer, Judge. Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Appellant C.S., a minor, appeals from the juvenile court's order setting the amount of restitution owed under Welfare and Institutions Code section 730.6. Appellant contends the juvenile court abused its discretion in determining the proper amount of restitution. For the reasons set forth below, we reverse the juvenile court's restitution order and remand for further proceedings.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Following the filing and amendment of a juvenile wardship petition under section 602, appellant admitted to committing a petty theft in Bakersfield, California. The petition alleged appellant stole an iPhone 6. As part of the disposition, the court ordered appellant to pay restitution for the phone in an amount to be determined by the probation department.
In the course of determining restitution, the probation department received a receipt from the victim's mother purporting to show a replacement cost for the phone through Verizon Wireless of $596.74. The cost of the phone, exclusive of taxes, was $549.99. Based on this receipt and conversations with the victim's mother, the probation department set the amount of restitution at $549.99. Appellant contested this amount and requested a hearing pursuant to People v. Cervantes (1984) 154 Cal.App.3d 353 (Cervantes).
The juvenile court held the contested Cervantes hearing on April 14, 2016. At that hearing, the victim's mother testified regarding the losses suffered due to the theft of the phone. The victim's mother explained that after the theft, she bought her son "a new phone because he didn't have a phone. And I needed a way to get a hold of him." This purchase occurred, "[i]mmediately after" the theft, because the victim's mother wanted him "to have a phone at all times."
The victim also testified. He stated the phone was in "very good condition" when it was stolen, with "very few scratches on the back of it, but nothing major." He did not recall stating that the phone had a noticeable scratch in the middle of the screen, but conceded he might have been incorrect. The victim stated he had probably had the phone, which appellant stole in September 2015, since the beginning of that year.
The police recovered the victim's phone when arresting appellant and returned the phone to the victim. The victim then sold the phone for $100. The People conceded any restitution order would need to credit appellant for the $100 obtained in the sale of the returned phone.
After taking testimony and hearing argument on the value of the phone, the court asked a question and, receiving no answer, entered its ruling as follows:
"THE COURT: Anybody have any idea what the depreciated life of the phone is? [¶] No. [¶] The phone is clearly in its depreciated damaged state[,] whether it was as a result of some of the way it is being held or otherwise[,] it was worth $100 at that point. It was not a new phone. And I don't think, when I last ventured into the civil arena doing small claims appeals, last month, that you are entitled to the replacement value. You are entitled to the actual value of the phone. [¶] Arbitrarily, I will place that at $450.00, less $100. I'm going to order restitution in the amount of $350."
This appeal timely followed.
DISCUSSION
Standard of Review and Applicable Law
Under section 730.6, the Legislature has enacted its desire "that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs an economic loss as a result of the minor's conduct shall receive restitution directly from that minor." (§ 730.6, subd. (a)(1).) As such, upon "being found to be a person described in Section 602, the court ... shall order the minor to pay ... [r]estitution to the victim or victims, if any, in accordance with subdivision (h)." (§ 730.6, subd. (a)(2)(B).) Relevant here, the amount of restitution shall include "[f]ull or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (§ 730.6, subd. (h)(1)(A).)
"Generally speaking, restitution awards are vested in the trial court's discretion and will be disturbed on appeal only where an abuse of discretion appears. [Citation.] Like most generalizations, however, this one can lead to errors if not applied with circumspection. No court has discretion to make an order not authorized by law, or to find facts for which there is not substantial evidence. A reviewing court will generally examine an issue of law independently of a lower tribunal's ruling. [Citation.] Its determination on an issue of fact is reviewed under the substantial evidence standard. [Citation.] The standard of review therefore depends on the nature of the question presented." (In re K.F. (2009) 173 Cal.App.4th 655, 661.) " 'If the circumstances reasonably justify the [trial court's] findings,' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." (People v. Baker (2005) 126 Cal.App.4th 463, 469.) The Juvenile Court Abused Its Discretion
In this instance, both sides agree the trial court abused its discretion in entering its restitution order. Appellant argues the evidence could only support one conclusion, that the phone was only worth $100 when taken, meaning any greater restitution award results in a windfall to the victim. The People argue the evidence supported a restitution award of $596.74 and that the juvenile court abused its discretion because it arbitrarily selected a value for the phone. We agree an abuse of discretion occurred.
While it is true that the juvenile court had wide discretion in setting the restitution amount, that discretion was not unlimited. The evidence admitted in this matter showed two potential values for the court to apply in determining the value of the stolen phone. If the court agreed that it was reasonable to replace the phone immediately, to ensure the victim and his family could communicate as needed, the potential need for compatibility with the victim's cell phone plan and the stated need for immediate replacement could support a finding the replacement value was $549.99. While appellant argues the actual value of the phone was no longer this high due to alleged damage, the statute clearly contemplates an award of "replacement cost" which can account for factors in excess of the actual market value of the property. (See People v. Tabb (2009) 170 Cal.App.4th 1142, 1154 [noting victim's statement as to original cost was sufficient evidence of replacement cost for purposes of restitution award].) Here, that value could include the family's stated need to have constant telephone access to the victim and its resulting effect on the cost to replace the phone immediately, as demonstrated in the receipt offered and related testimony. Alternatively, if the court rejected these reasons for immediate replacement, the demonstrated value of the phone when resold on the open market was $100, a figure the court could reasonably adopt because the sale price of the item in the open market is a reasonable, although imperfect, approximation of its actual replacement cost.
Although the receipt introduced showed a higher number, the probation department only requested restitution in the amount of $549.99 and the victim's mother agreed, "that is okay if that is the number that they came up with."
The court's mid-range selection of $450, however, lacked support. Although the court received evidence showing a decreased value of the phone due to potential damage and depreciation, there was no credible evidence upon which the court could determine the proper value of those offsets. While the court's use of the word "arbitrarily" when selecting its figure is no talisman demonstrating error, the lack of any connection between the final restitution order entered and the evidence presented to the court does demonstrate an abuse of discretion. Absent additional evidence regarding replacement value, or an indication the award served a purpose greater than just replacing the phone, the juvenile court could not simply adopt the $450 figure and, thus, its award of $350 constituted an abuse of its discretion. (See Luis M. v Superior Court (2014) 59 Cal.4th 300, 305 ["An order of direct victim restitution acts to make the victim whole, rehabilitate the minor, and deter future delinquent behavior ...."].)
On appeal, the People allege the trial court abused its discretion by offsetting the replacement value of the phone by the $100 received by appellant upon its sale. We note the People conceded this offset in the original proceedings and did not file a separate notice on appeal, likely binding them to this position on remand. Regardless, we see no error in ensuring the victim does not receive a windfall by applying an offset in the unique circumstances of this case. (People v. Thygesen (1999) 69 Cal.App.4th 988, 995 ["As to a victim, the purpose of the restitution statute is to make that victim whole, not to give a windfall."].) It would indeed constitute a windfall for appellant to be paid for the replacement cost of the phone and to receive the phone itself at the conclusion of the proceedings. --------
DISPOSITION
The order is reversed and the matter remanded for further proceedings consistent with this opinion.