Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County Ct. No. JW114846, Peter A. Warmerdam, Juvenile Court Referee.
Julia L. Bancroft, 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, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Hill, J.
The court found that appellant, A.M., was a person described in Welfare and Institutions Code section 602 after A.M. admitted 7 counts of felony vandalism (counts 1, 7-9, & 23-25/Pen. Code, § 594, subd. (b)(1)), 18 counts of misdemeanor vandalism (counts 2-6, 10, 12-22, & 26/Pen. Code, § 594, subd. (b)(2)(A)), and one count of petty theft (count 11/Pen. Code, § 488).
On August 9, 2007, the court placed A.M. in the deferred entry of judgment program on probation and released him to the custody of his father.
On appeal, A.M. contends the court abused its discretion in ordering restitution for one victim. We agree and will reverse the juvenile court’s restitution order as to that victim. In all other respects, we will affirm the judgment.
FACTS
On March 3, 2007, at approximately 9:00 p.m., 16-year-old A.M. and two friends drove around their neighborhood and tipped over three vehicles, knocked several mail boxes off their posts, and threw rocks at several vehicles, including a Toyota minivan belonging to Man Yi.
On August 9, 2007, at A.M.’s disposition hearing, the court calendared a restitution/Cervantes hearing for September 20, 2007, for A.M. and his codefendants. At this hearing, Probation Officer Sarah Ortiz testified that she sent a letter to Yi and received back an invoice in the amount of $9,180.14 from Sam’s Paint and Glass in Ridgecrest, which Ortiz included in her report. Ortiz did not have any verbal contact with Yi except when she advised him of the restitution hearing. During cross examination by the minors’ attorneys, Ortiz testified that, according to the police report in this matter, Yi reported only that his front windshield had been shattered and the left sliding door and front quarter panel had dents on them. The van was examined by the police officer who wrote the report and pictures were taken of the van. The officer confirmed that the damages to the van were consistent with the vehicle having been struck by rocks. No damage was noted on the right side of the vehicle.
People v. Cervantes (1984) 154 Cal.App.3d 353.
Yi’s written estimate included the cost of repair for damages that were not identified in the police report, including damages to the right side of the van. Ortiz never received any confirmation that the work on the invoice had been performed. The Kelly Blue Book value for a similar van in good condition ranged from $5,775 to $6,930. Ortiz did not have any pictures of the minivan and had not seen it. Yi was subpoenaed, but did not appear at the hearing.
At the conclusion of the hearing the court stated:
“As far as the restitution in [Cervantes] hearings, particularly when it comes to juveniles, the law is very, very generous toward victims. As a matter of fact, the law even allows me to make -- order restitution when someone is not at fault if I think it will help rehabilitate the juvenile involved.
“To dispute items requires an affirmative showing; to support items requires, in effect, a very minimal showing.”
The court then ordered A.M. and his friends to pay certain amounts of restitution to the victims, including $5,209.67 to victim Yi. The court, however, did not explain how or why it reduced this amount from the $9,180.14 Yi requested.
DISCUSSION
A.M. contends the court abused its discretion in awarding victim Yi restitution in the amount of $5,209.67 because the evidence does not support an award in this amount. We agree and will remand the matter for further proceedings.
“A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. ‘[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.’ [Citation.] ... [T]he trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property. [Citation.] Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. [Citation.] The defendant has the burden of rebutting the victim’s statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.)
Even though victim Yi did not testify at the restitution hearing, his written estimate and the invoice from Sam’s Glass and Paint provided prima facie evidence that $9,180.14 was the cost to repair the damages to his van caused by A.M. and his friends. However, the defense rebutted this prima facie showing by presenting evidence that the estimate included the cost of repair for damages that were not caused by the three juveniles’ conduct. Additionally, the court implicitly found the estimate included repairs for damages not caused by the juveniles when it ordered them to pay a substantially reduced amount.
In determining the amount of restitution, the court is required to “‘“use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.”’” (People v. Prosser (2007) 157 Cal.App.4th 682, 690.) Here, the court’s failure to explain how it arrived at the $5,209.67 restitution amount makes it impossible to determine whether the court used a rational method to arrive at this amount or whether this method could reasonably be said to make Yi whole.
Respondent cites In re Kenneth J. (2008) 158 Cal.App.4th 973 (Kenneth J.), to contend that the court’s failure to explain how it arrived at its restitution amount does not invalidate its order. In Kenneth J. the juvenile committed two felonies and a misdemeanor and was order by the court to pay $341. During the disposition hearing the court erroneously believing the juvenile had committed three felonies, initially stated that it was imposing fines of $110 per felony and $30 “for the DNA.” (Kenneth J., supra, 158 Cal.App.4th at p. 981.) The court then realized one of the offenses was a misdemeanor and ordered the juvenile to pay $341. The minutes of the hearing stated that the juvenile was ordered to pay $310 in restitution fines and $31 for an administrative fee whereas the order of probation, which the court signed, stated the juvenile was ordered to pay $310 in restitution fines and a $31 fine to the City and County of San Francisco.
On appeal, the juvenile argued that “‘The only reasonable interpretation of the juvenile court’s oral pronouncement is that the juvenile court imposed a $300 restitution fine ... with a 10 percent administrative fee of $30 ... for a total of $330.’ ‘[T]he record clearly shows the juvenile court intended to impose $331 in fines, rather than the $341 reflected in the minute order.’” (Kenneth J., supra, 158 Cal.App.4th at p. 981.)
In rejecting this contention the Kenneth J. court stated:
“This is not ‘[t]he only reasonable interpretation.’ Granted, the court was apparently thinking out loud, and recalculating as it went along. The court (and the clerk) initially thought Kenneth had been found to have committed three felonies. The court apparently decided to impose a fine of $110 per offense, so the total of ‘[t]hat is 330,’ together with $30 ‘for the DNA,’ for a total of $360. The court then apparently realized ‘[t]here is a misdemeanor,’ and reduced the final figure to ‘341.’ As $341 is the bottom-line figure that appears in both the minutes and the probation that the court itself signed, it appears to correlate to the court's imperfectly articulated reasoning.”
“Beyond the statutory minimums, [Welfare and Institutions Code] section 730.6 leaves computation of the final figures to the court’s discretion. At best, the record shows a basis for differing opinions of how the court calculated the $341. That is not sufficient to establish a reversible abuse of discretion. [Citations.]” (Kenneth J., supra, 158 Cal.App.4th at p. 981, fn. omitted, italics added.)
Kenneth J. is inapposite because it involved a challenge by the appellant to a trial court calculation the appellate court found reasonable. Here, it cannot be determined whether the court’s calculation of restitution was reasonable or rational because, unlike the trial court in Kenneth J., the trial court here did not provide any explanation of how it arrived at its restitution amount.
Respondent also contends A.M. did not contest the amounts submitted by Yi. Respondent is wrong. A.M. and the other juveniles contested the restitution amount claimed by victim Yi by cross-examining the probation officer and establishing that his estimate included repairs for damages they did not cause. Consequently, since the record does not disclose any rational method by which the court arrived at the restitution figure of $5,209.67, we conclude the court abused its discretion in ordering A.M. to pay this amount as restitution to victim Yi.
DISPOSITION
The restitution order to victim Yi is reversed and the matter is remanded to the juvenile court for a new hearing on the amount of restitution owed to Yi. In all other respects, the judgment is affirmed.