Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C-153577-06
Dondero, J.
Defendant challenges the juvenile court’s imposition of an order for restitution of the victims pursuant to Welfare and Institutions Code section 730.6. We find that the restitution order was proper, and the amounts ordered to compensate the victims for damage to property and lost income are supported by the evidence. We therefore affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In light of defendant’s admission and the issues presented in this appeal that relate only to the restitution order, we need not recite the facts pertinent to the charged offenses.
On April 30, 2009, defendant admitted that she committed the offense of hit-and-run driving, causing injury (Veh. Code, § 20001, subd. (a)), as charged in a delinquency petition (§ 602). She was detained in secure custody at the Juvenile Justice Center, and the matter of restitution remained “open.” At a subsequent dispositional hearing the level of the admitted offense was set at a felony, defendant was adjudged a ward of the court, and released from confinement at the Juvenile Justice Center to the custody of a guardian, with specified terms and conditions of probation. A restitution hearing was set for October 20, 2009.
The probation report submitted for the determination of restitution indicated that “two victims” suffered damages in the case. Defendant struck a vehicle, a 2001 CL-55 Mercedes, occupied by Henry Gaar. The registered owner of the Mercedes was listed as Luvenia Gaar, Henry’s mother, The Mercedes suffered “major damage.” Following the accident, Henry was transported to the hospital for treatment of neck and back injuries.
For the sake of clarity and convenience, we will refer to Henry and Luvenia Gaar by their first names.
Henry returned a restitution packet in which he sought $31,079.17 for damages to the “totaled” vehicle, $6,500.00 for lost wages, and medical expenses of $3,969.77, for a total of $41,548.94. In support of the claim for damages to the Mercedes Henry submitted an insurance company repair estimate of $31,079.17. He also submitted a letter dated June 1, 2009, from his employer, Platinum Motorsports, in Richmond, that stated Henry was employed an average of 50 to 60 hours per week at a base hourly pay rate of $23.85 per hour, but had been “on disability” status due to an auto accident since April 29, 2009. Disability slips from Henry’s chiropractor declared that he was “totally incapacitated” from an “auto collision” on April 28, 2009, and could not return to work until June 11, 2009.
The probation report specified that the value of a 2001 Mercedes CL-55 is only $20,360, and noted that Henry failed to provide a “salary history” to support his claim for lost wages. A restitution hearing, with testimony from Henry, was recommended to determine “wage loss and property damage.” The documentation for Henry’s medical expenses was considered adequate, and was uncontested.
At the restitution hearing on October 20, 2009, Henry agreed that the insurance company adjuster’s estimate for the value of the Mercedes was $28,065, whereas the stated Kelly Blue Book value of the vehicle was $23,310. The estimate of $31,079 he previously submitted was for the repair of the Mercedes, which had some custom accessories. When the repair costs escalated beyond the “cap” set by the insurance company, the vehicle was declared “totaled.” Of the total of $28,065 the insurance company ultimately agreed to pay for the Mercedes, $1,065 was paid to a salvage company “for the scrap of the car, ” $17,784 was paid to Capital One Auto Finance to satisfy the remainder of the outstanding loan, and the balance of $9,215.09 was paid to Luvenia, the owner of the car.
Henry also explained at the hearing that the amount of $6,500 he requested for lost wages was “just an estimate” the insurance company agreed upon as reimbursement after receiving verification of his employment and wages from Platinum Motorsports. Henry testified that he is an independent contractor with Platinum Motorsports, and is typically paid a commission “based on how many cars” he sells.
Following the restitution hearing the trial court awarded the total amount of $38,365 to Henry “and his mother” as restitution for property damage, wage loss and medical expenses. In this appeal defendant challenges the restitution order on several grounds.
DISCUSSION
I. The Content of the Restitution Order.
First, defendant claims that the restitution order itself is “statutorily inadequate.” She complains that the trial court failed to “identify each victim and the amount of each victim’s loss to which it pertains, ” as required by section 730.6, subdivision (h). She asks us to remand the case to “have the current restitution order at the very least clarified to satisfy the requirements of the statute.”
“Restitution is constitutionally and statutorily mandated in California.” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045; see also People v. O’Neal (2004) 122 Cal.App.4th 817, 820.) “Section 730.6 governs restitution in cases where a minor is adjudicated a ward of the court pursuant to section 602. [Citation.] Section 730.6 parallels Penal Code section 1202.4, which governs adult restitution.” (In re M.W. (2008) 169 Cal.App.4th 1, 4.)
“ ‘[T]he Legislature is under an express constitutional mandate (Cal. Const., art. I, § 28, subd. (b)) to enact laws requiring trial courts to order restitution “in every case... in which a crime victim suffers a loss....” ’ [Citation.]” (People v. Giordano (2007) 42 Cal.4th 644, 655.)
Therefore, to interpret the scope of Welfare & Institutions Code section 730.6 we will refer to cases that have interpreted Penal Code section 1202.4. (See People v. Bergin (2008) 167 Cal.App.4th 1166, 1172.)
Subdivision (h) of section 730.6 provides, in part, that, “A restitution order pursuant to subparagraph (B) of paragraph (2) of subdivision (a), 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, and shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor’s conduct for which the minor was found to be a person described in Section 602, ” including the value of stolen or damaged property, wages or profits lost due to injury incurred by the victim, and medical expenses. (Italics added.) The court need not make formal or express findings on the record that specify the reasons in support of the imposition of a mandatory restitution order. (See People v. Urbano (2005) 128 Cal.App.4th 396, 405; People v. Gray (1986) 187 Cal.App.3d 213, 221; People v. Romero (1985) 167 Cal.App.3d 1148, 1156.) The record before us reflects that the court specified the amount of the restitution order, $38,365, and identified the victims as Henry “and his mother.” As we read the statute, nothing further was required.
II. The Award of Restitution to Luvenia Gaar.
Defendant also argues that restitution for damage to the Mercedes was erroneously awarded to someone “who did not own the property.” She asserts that section 730.6 authorizes restitution only “to the victim or victims” of crimes. She also points out that although Henry submitted the claim for restitution, the vehicle belonged to his mother Luvenia. Defendant adds that Luvenia “never made a claim, and Henry was not the owner of the vehicle.” Defendant therefore maintains that the “order for restitution as to the damaged vehicle should be overturned.”
“When a minor is adjudged a ward of the court, the juvenile court must order restitution to reimburse a victim for ‘any economic loss’ resulting from the minor’s conduct bringing [her] within the court’s jurisdiction. (§ 730.6, subds. (a)(1) & (h).)” (In re Brian N. (2004) 120 Cal.App.4th 591, 593.) For purposes of section 730.6, “the term ‘victim’ [is] defined expansively” to include not only the actual victim of a crime, but also “ ‘the immediate surviving family of the actual victim.’ [Citation.]” (People v. Torres (1997) 59 Cal.App.4th 1, 4; see also People v. Hamilton (2003) 114 Cal.App.4th 932, 939.) “A ‘derivative victim’ is ‘an individual who sustains pecuniary loss as a result of injury or death to a victim.’ [Citation.] A pecuniary loss is ‘an economic loss or expense....’ [Citation.]” (People v. O’Neal, supra, 122 Cal.App.4th 817, 821.) The intent of the constitutional and statutory provisions “ ‘is plain: every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss.’ [Citation.]” (People v. Mearns (2002) 97 Cal.App.4th 493, 501.) “The purpose of an order for victim restitution is threefold, to rehabilitate the defendant, deter future delinquent behavior, and make the victim whole by compensating him for his economic losses.” (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017.) “In view of the strongly expressed concern for persons who have suffered loss as the result of criminal conduct, our Supreme Court has given the term ‘victim’ a broad and flexible meaning. (People v. Crow [(1993)] 6 Cal.4th [952, ] 959–960 [26 Cal.Rptr.2d 1, 864 P.2d 80] [‘victim’ includes government agencies and nonresidents]; People v. Broussard (1993) 5 Cal.4th 1067, 1075 [22 Cal.Rptr. 278, 856 P.2d 1134] [‘victim’ includes anyone suffering an economic loss, not merely physical injury].)” (People v. Ortiz (1997) 53 Cal.App.4th 791, 796–797, italics added; see also In re Johnny M. (2002)100 Cal.App.4th 1128, 1132; People v. Lyon (1996) 49 Cal.App.4th 1521, 1525.)
While Henry submitted the claim for reimbursement, the documentation attached to his claim and his testimony at the hearing established that Luvenia was both the owner of the car and the insured party to whom the insurance proceeds for the value of the car were paid. Luvenia was under any definition a victim who suffered economic loss of a vehicle owned by her as a result of defendant’s crime. (See People v. O’Neal, supra, 122 Cal.App.4th 817, 820–821.) We can easily discern, as did the trial court, that Henry made the restitution claim on Luvenia’s behalf, and no double restitution was awarded. The court’s restitution order properly included both Henry and his mother as victims in the case. Any other result would neither fully compensate the victims of the crime nor serve the intended deterrent purpose of the restitution statute.
III. The Amount of Restitution Awarded.
The remainder of defendant’s contentions focus on the amounts of restitution awarded. She claims that the evidence does not support the compensation awarded for either the loss of the Mercedes or for Henry’s lost wages. We examine the amount of restitution awarded to the victims in accordance with established principles.
To carry out the three-fold purpose of restitution, “the restitution order must be in an amount sufficient to fully reimburse the victim for economic losses incurred as a result of the juvenile’s criminal conduct without regard to potential reimbursement from a third party insurer.” (In re Anthony M., supra, 156 Cal.App.4th 1010, 1017.) “The Legislature intends that crime victims receive full restitution for their ‘economic loss[es].’ (Welf. & Inst. Code, § 730.6, subd. (a) [juvenile offenders]; Pen. Code, § 1202.4 [adult criminals].)” (In re Imran Q. (2008) 158 Cal.App.4th 1316, 1319–1320.) “[T]he 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.)
“The order is not however, intended to provide the victim with a windfall. [Citations.] Indeed, the statutory language makes clear that the Legislature intended to limit restitution to the victim’s economic losses and to mitigate those losses to the extent possible.” (In re Anthony M., supra, 156 Cal.App.4th 1010, 1017.) “ ‘Restitution orders may not be based merely upon the trial court’s subjective belief regarding the appropriate compensation; there must be a factual and rational basis for the amount ordered and the defendant must be permitted to dispute the amount or manner in which restitution is to be made. [Citations.]’ [Citation.]” (People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1082.)
Our review of the evidence is limited. “ ‘The juvenile court is vested with discretion to order restitution in a manner that will further the legislative objectives of making the victim whole, rehabilitating the minor, and deterring future delinquent behavior. [Citations.]’ [Citation.]” (In re Tommy A. (2005) 131 Cal.App.4th 1580, 1587–1588.) “ ‘ “The standard of review of a restitution order is abuse of discretion....” [Citation.]’ [Citation.]” (People v. Keichler, supra, 129 Cal.App.4th 1039, 1045.) “ ‘ “A victim’s restitution right is to be broadly and liberally construed.” [Citation.] “ ‘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.] [¶] The juvenile court is vested with discretion to order restitution in a manner that will further the legislative objectives of making the victim whole, rehabilitating the minor, and deterring future delinquent behavior.” (In re Brian N., supra, 120 Cal.App.4th 591, 593–594.) “The court abuses its discretion when it acts contrary to law [citation] or fails 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’ [citation].” (In re Anthony M., supra, 156 Cal.App.4th 1010, 1016.)
Further, in reviewing the sufficiency of the evidence to support the amount of restitution awarded, the “ ‘ “ ‘power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, ’ to support the trial court’s findings.” [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] “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. [Citation.]’ [Citation.]” (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
A. The damaged vehicle.
Looking first at the award for the loss of the Mercedes, defendant asserts that the trial court employed an incorrect standard for assessing value: the amount “the insurance company had paid” for the vehicle, rather than the “replacement value of [the] property” as specified in section 730.6, subdivision (h)(1). She further argues that “no evidence of the replacement cost” of the vehicle was presented, so “the amount ordered was an abuse of the court’s discretion and the order for restitution should be vacated.”
“[T]he economic loss of stolen or damaged property is to be valued at ‘the replacement cost of like property, or the actual cost of repairing the property when repair is possible.’ (§ 730.6, subd. (h)(1).)” (In re Anthony M., supra, 156 Cal.App.4th 1010, 1017.) “ ‘ “[W]hile the amount of restitution cannot be arbitrary or capricious, ‘there is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action....’ [Citation.]” ’ ” (In re Dina V. (2007) 151 Cal.App.4th 486, 489–490, quoting from In re Brittany L., supra, 99 Cal.App.4th 1381, 1391.) Defendant protests that the court erred by computing the value of the Mercedes based on the insurance company’s repair estimate of $28,065, rather the lower “Kelly Blue Book value of about $23,310.” However, the court complied with section 730.6, subdivision (h)(1), by using replacement cost as a standard of value. The court did not order defendant to pay victim restitution in an amount necessary to repair the vehicle, which apparently would have been a greater amount. The replacement value of the vehicle, $28,065, was based on the appraisal of the insurance adjuster, and was a rational method of determining the amount of restitution, reasonably calculated to make the victim whole. An insurance company settlement and payment is an appropriate method of calculating value. (See People v. Bergin, supra, 167 Cal.App.4th 1166, 1172; In re Anthony M., supra, 156 Cal.App.4th 1010, 1013–1014.) The fact that conflicting evidence of the Kelly Blue Book value of the vehicle was presented does not negate the substantial evidence in support of the court’s finding or establish an abuse of discretion. (See People v. Hinton (2006) 37 Cal.4th 839, 891; People v. Martinez (2000) 22 Cal.4th 106, 134.) At most, the record shows a basis for differing opinions on the calculation of the value of the Mercedes, which is “not sufficient to establish a reversible abuse of discretion.” (In re Kenneth J. (2008) 158 Cal.App.4th 973, 981.) “ ‘ “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.” ’ [Citations.]” (In re Johnny M., supra, 100 Cal.App.4th 1128, 1132.)
Defendant acknowledges the established rule that “trial courts are not to consider whether the victim has been, or will be, reimbursed from third parties in ordering victim restitution.” (In re Brittany L., supra, 99 Cal.App.4th 1381, 1388; see also People v. Bergin, supra, 167 Cal.App.4th 1166, 1172.)
B. The victim’s lost wages.
Defendant also contests the award of $6,500 to Henry for lost wages. She contends that the evidence Henry offered “was statutorily insufficient to support a wage loss consisting of commissions.” She complains that Henry failed to produce copies of checks for wage payments from his employer, “or anything else, as evidence of what he earned in commissions in the relevant 12-month period.”
Section 730.6, subdivision (h)(4), provides for payment of “[w]ages or profits lost” due to injury incurred by the victim, and specifies: “Lost wages shall include any commission income as well as any base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.” The evidence of the victim’s wage loss consisted of the following: letters from his doctor that certified his disability and incapacity to work due to injuries sustained in the accident; a letter from his employer Platinum Motorsports that Henry worked an average of 50 to 60 hours a week at an hourly pay rate of $23.85, but had been “on disability” due to an auto accident and “off work” since April 29, 2009; and, Henry’s testimony that before estimating his lost income and reaching a settlement for payment to him of $6,500, an insurance company adjuster verified his employment status, the number of hours he worked with Platinum Motorsports before he was injured, and how much he was paid. Again, we find that the insurance company settlement figure, along with the evidence of disability letters that verified Henry’s disability, employment, and average wages, constitutes at least credible and substantial evidence of loss. While the precise amount of lost income may not have been established with certainty, the court relied on a rational method of estimation that was not arbitrary and capricious. (In re K.F. (2009) 173 Cal.App.4th 655, 666.) The court did not abuse its discretion by awarding the victim restitution in the amount of $6,500 for lost wages. (People v. Millard, supra, 175 Cal.App.4th 7, 30.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.