Opinion
NOT TO BE PUBLISHED
The minor (David A.) appeals from the juvenile court’s order denying his motion to modify a prior restitution order. The unusual circumstances of this case compel us to reverse the order so that the court can be provided a reasoned basis for assessing the value of a missing ring that a burglary victim claimed to be worth $12,000. Santa Clara County Super.Ct.No. JV28882
Duffy, J.
FACTS AND PROCEDURAL BACKGROUND
The underlying facts, i.e., the conduct that the juvenile court adjudicated the minor to have committed, are not germane to our resolution of this appeal and we need not set them forth in detail. In essence, on June 22, 2007, the court adjudicated the minor to have committed conduct that if committed by an adult would constitute residential burglary. (Welf. & Inst. Code, § 602; Pen. Code, §§ 459, 460, subd. (a).)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On October 17, 2007, following that adjudication, the juvenile court oversaw a contested restitution hearing. After hearing the minor’s testimony—he was the sole witness for either side, and he testified that neither he nor his cohort stole any jewelry from the house in question—the court ordered the minor to pay $24,000 in restitution to the victim of one of the minor’s two burglaries.
One item in particular, a ring that one of the victims told police that he estimated to be worth $12,000, gave the juvenile court pause during the restitution hearing. The ring is described in the record as an engagement ring with “one solitaire diamond, ” “a ‘true’ diamond” weighing 1.5 carats.
The ring had been a gift and the victim had only stated to the probation department his estimate of the ring’s value. The probation officer had explained this in a memorandum: the victim “stated he did not have receipts or appraisals for the items. He indicated most of the jewelry [items] were gifts and in his culture they do not ask for receipts or confirm the value.”
At the hearing, the court was aware that the victim had provided no documentary evidence that might better establish its value, such as an appraisal or an insurance claim. The court expressed unease about ordering restitution on a foundation limited to the victim’s belief about the ring’s value, i.e., “the values that are set by the victim” “in the police report, ” but said “I don’t think I have any choice” except to order the minor to pay $24,000 because “the law requires me to believe the victim” in the absence of a contrary showing by the minor, a showing that the court found the minor had not made with his simple denial of taking any jewelry. The court noted that the minor did not subpoena the victim to inquire of him about the ring’s value in court.
The juvenile court stated: “I’m really struggling with this because of the value of some of the jewelry taken and the lack of information really validating any of that value.” “I’m troubled with the large amounts for jewelry which we don’t have anything other than this one list of jewelry.” “I do have questions about a $12,000 engagement ring that nobody even has any photographs of.” “Nobody has produced anything other than a handwritten statement that says the ring is worth $12,000.” “I am in serious doubt about a $12,000 engagement ring. One would think that an engagement ring was purchased by this gentleman or given to this gentleman as a—I don’t know. It just is a very strange request.” “I don’t care that he doesn’t have a receipt. One would think he would have some information if he purchased a $12,000 engagement ring for somebody. An appraisal, an insurance claim or something that would verify the values.” “I’m just telling you that it’s not an easy—it’s not something I’m real comfortable with, but then the law on the state of restitution is not exactly easy. So I’m going to make an order for $24,000....”
The People state that the minor did not appeal the adjudication and sustaining of the wardship petition that contained that restitution award, and the minor does not dispute this assertion, but tacitly concedes it in his reply brief. The minor states that he retained new counsel in 2009. In 2010, he moved to modify the award under Welfare and Institutions Code section 730.6, which permits such motions under conditions we will describe below. Although the prosecution argued in its opposition papers that the minor had failed to appeal and was improperly attempting to compensate for his failure to do so in 2007, when the juvenile court heard argument on the motion, it decided that it was procedurally proper. The court stated, “the minor does have the right to... request modification of his restitution pursuant to... [s]ection 730.6[, subdivision] (h).”
The juvenile court then denied the motion on the merits because the burglary victims had made a legally sufficient showing, even if it was unsupported by documentary evidence and rested on the victims’ belief about the ring’s value. Thus, “the [2007] court[] order was neither arbitrary nor capricious” and “there was no abuse of discretion.”
On appeal, the minor argues that the juvenile court abused its discretion in 2007, contrary to the 2010 ruling by that same court. The People respond that there was no abuse of discretion and that in any event the minor’s appeal is pretermitted because he failed to appeal from the 2007 ruling.
DISCUSSION
Relying on the authority of section 730.6, subdivision (h), the minor sought in 2010 to modify the 2007 order imposing $12,000 for the ring.
In pertinent part, subdivision (h) of section 730.6 provides:
“Restitution... shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation.... [¶]... [¶] A minor shall have the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount on its own motion or on the motion of the district attorney, the victim or victims, or the minor. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the hearing on the motion. When the amount of victim restitution is not known at the time of disposition, the court order shall identify the victim or victims, unless the court finds for good cause that the order should not identify a victim or victims, and state that the amount of restitution for each victim is to be determined.”
Sections 775 and 778 also bear on the procedural question. Section 775 provides: “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.” Section 778, which is in the same article as section 775, provides in pertinent part: “[T]he child... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a ward of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and... set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.”
The People argue that there is no change in circumstances and that the minor failed to challenge the 2007 ruling by appealing it then. They call our attention to our recent decision In re Shaun R. (2010) 188 Cal.App.4th 1129. That decision stated: “The Attorney General argues that the conditions imposed in the 2008 Orders are not properly challenged in this appeal, since the minor could have, but did not appeal those orders in 2008. The minor responds that there has been no waiver. [¶] We conclude that the 2008 Orders are not appealable for two reasons. First, the minor’s appeal from the 2008 Orders is not timely.” (Id. at p. 1137.)
We find that the statutory scheme is unclear about the entertainability of a challenge to a restitution determination after an initial adverse determination and a failure to appeal from that determination. One plausible view of subdivision (h) of section 730.6 is that as long as the juvenile court retains jurisdiction, the determination may be reopened. The language of section 775 supports this view. On the other hand, section 778, which qualifies section 775 (as provided in section 775 itself), provides that “the child... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made....”
On balance, we think that the statutory scheme favors the juvenile court’s ruling that the minor was entitled to reopen the question of the ring’s value. Sections 730.6 and 775 support that view, and although section 778 provides that “the child... may, upon grounds of change of circumstance or new evidence, ” seek a modification, it does not specify that a ward may do so only if the case has taken on a new aspect since the original determination. Case law emphasizes a juvenile court’s plenary power to reconsider matters as long as the minor remains a ward of the court: “At any time during the period of continued jurisdiction over a minor the court may change, modify or set aside any order it has previously made with respect to him. ([] § 775.) The statutory law is silent on the issue of the nature of a hearing based on a supplementary petition. ([] §§ 775-778.) However, the courts have inherent power to adopt any suitable method of practice if the procedure is not specified by statute or by rules of court [citation]....” (In re Francis W. (1974) 42 Cal.App.3d 892, 897; see also In re Stein (1927) 86 Cal.App. 226, 230 [decision predating the current statutory scheme; “if error has been made by the lower court in its estimate of the testimony upon which it acted, it is an error which is within the province of the juvenile court, upon proper application, to correct at any time”].)
Thus, although the matter is not free from doubt, in light of the “policy preference for resolving controversies on their merits” (Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1524), especially when, as here, the threshold procedural question is “close and difficult” (e.g., People v. Jablonski (2006) 37 Cal.4th 774, 813), we agree with the court below that the minor could ask for a reassessment of the case and the court could “proceed to the merits” (ibid.).
Turning to the merits ourselves, we conclude that the juvenile court erred by ruling that the victim’s surmise about the ring’s value sufficed to impose $12,000 in restitution on a minor who denied that either he or his cohort took any jewelry.
“A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall.” (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172.) The question before us is whether the juvenile court’s order ran an unnecessary risk of giving the victim an impermissible windfall.
People v. Foster (1993) 14 Cal.App.4th 939, 944-947, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238, 244, held: “A property owner’s statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution.” (Foster, supra, at p. 946.) The court that decided Foster reaffirmed its view in People v. Gemelli (2008) 161 Cal.App.4th 1539, stating that “the 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.” (Id. at p. 1543.)
We agree with the foregoing basic principles regarding the burden of production. Gemelli and Foster are, however, distinguishable on their facts, as we shall explain.
In People v. Gemelli, supra, 161 Cal.App.4th 1539, the defendant had embezzled from the restaurant where she once worked. She burglarized the premises to obtain the business’s books so that her embezzlement could not be discovered, causing considerable damage in the effort. She was convicted of commercial burglary. Prior to the restitution hearing, the restaurateur gave the probation officer no receipts for repairs needed following the burglary, but did provide an itemized statement of the cost of fixing the damage the defendant caused in breaking in. (Id. at pp. 1541-1542.) As Gemelli describes, the statement set forth laboriously the cost of repairing or replacing items that the defendant had damaged or destroyed. (Id. at p. 1544.) That detailed accounting, of expenses associated with the burglary, makes the case distinguishable.
Perhaps the most controversial restitution demand in People v. Gemelli, supra, 161 Cal.App.4th 1539, was for $5,100 to reconstitute the business’s books. The restaurateur provided no documentary evidence that the business had incurred this expense, instead merely stating that professionals had been engaged to do the work. (Id. at p. 1545.) Gemelli upheld the trial court’s award that allowed the restitution based solely on the restaurateur’s word, because the defendant had not been able to counter the estimate. (Ibid.) It upheld this item notwithstanding the defendant’s testimony that the bookkeeping had not been difficult: “the paperwork she prepared while on the job was not complicated, and she had only been paid minimum wage to create it.” (Ibid.) Nevertheless, we glean from Gemelli that the restaurateur had a reasoned basis for his claim to recover expenses incurred in reconstituting the business books. Gemelli observed, “According to the owner, 51 days of paperwork had to be reconstructed, and it took two hours to reconstruct each day at $50 per hour for a total of $5,100.” (Id. at p. 1544.) The Gemelli court found that sufficient to withstand the defendant’s challenge, because “detailed information provided in the restaurant owner’s written statement was more than adequate to advise defendant of this cost.” (Id. at p. 1545.) We assume that the Gemelli court, in reviewing the record, saw a sufficient detailed accounting for the $5,100 loss to justify the award.
People v. Foster, supra, 14 Cal.App.4th 939, considered a challenge to a victim’s restitution claim that the Persian rug the defendant had stolen from her was worth $8,000. (Id. at p. 943.) Although the victim provided no documentary evidence to support her claim, she told a probation officer that she had paid $8,000 for the rug, and the probation officer included that information in the probation report. (Id. at pp. 943, 944, 945.) Foster stated that just as “valuation may be based on a loss report filed with the police” (id. at p. 946), so the “property owner’s statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution.” (Ibid.) More generally, Foster concluded that “an owner’s opinion of the value of his or her property is sufficient evidence to establish value.” (Id. at p. 948.) Foster agreed that replacement cost was the benchmark for restitution (id. at pp. 945-946, 947-948), although “[f]or most types of stolen property, the original cost will be a fair approximation of the replacement cost” (id. at p. 946) and “absent unusual circumstances... the original cost... may be treated as evidence of replacement cost...” (ibid.).
Because the rug owner had bought the rug and knew what it cost, People v. Foster, supra, 14 Cal.App.4th 939, also is distinguishable from the case before us.
Thus, we do not read Gemelli and Foster as holding that in all cases, no matter their factual posture, “a burden of refutation may be imposed on the defendant merely by asserting that a stated amount is sought as restitution.” (In re K. F. (2009) 173 Cal.App.4th 655, 665.) In In re K. F., supra, 173 Cal.App.4th 655, we rejected the view that caselaw should be read so absolutely. “Respondent quotes a passage from People v. Keichler (2005) 129 Cal.App.4th 1039, 1048, which, read in isolation, seems to suggest that the state can carry its burden of proof on the amount of restitution merely by submitting a probation report that ‘ “includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, ” ’ whereupon ‘ “the defendant must come forward with contrary information to challenge that amount.” ’ But respondent has lifted this statement out of context. The court in that case found that the amount of restitution was adequately established by evidence including unobjected-to statements in the probation report from the victims, an itemization of amounts sought, ‘a recitation of their medical bills’ and certain expenses incurred by them, receipts for certain items claimed, and expert testimony establishing the reasonableness of certain amounts. (Ibid., italics added.)” (Id. at p. 665.)
In In re K. F., supra, 173 Cal.App.4th 655, we intimated that restitution is intended to make the victim whole but not to give him an unjustifiable premium. “[T]he statute has been construed to permit reimbursement only for demonstrated ‘actual loss’ to the victim.” (Id. at p. 662.) It bears repeating that “[a] restitution order is... not intended to provide the victim with a windfall.” (People v. Chappelone, supra, 183 Cal.App.4th at p. 1172.)
The notion that a minor can be told to pay $12,000 to a victim in the absence of any basis for the victim’s surmise that the ring was worth that amount is untenable and is not compelled by Gemelli or Foster. The only concrete information in the record is that the diamond in the ring, according to the victim, weighed 1.5 carats and was “a ‘true’ diamond.”
Another troubling circumstance is lack of effort by the minor’s counsel in 2007 to challenge the victim’s claim. During the 2010 hearing, the question whether the minor’s counsel rendered ineffective assistance of counsel came up. Eventually the juvenile court concluded that prior counsel had not been ineffective. The court commented that “when asked why he did not subpoena or if he subpoenaed the victim, ... [prior counsel] responded by saying, quote, ‘I would assume that he would simply say the same thing that he said, ’ end of quote. This implicitly or explicitly indicates that [counsel] thought about it and didn’t, for whatever reason, have the victim subpoenaed, perhaps finding that statements in the probation report were sufficient. Furthermore, the Court finds that the minor had failed to provide any evidence that subpoenaing the victims would have changed the result of the proceedings.” As a matter of the federal and California constitutional right to the effective assistance of counsel (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Waidla (2000) 22 Cal.4th 690, 718), the court’s assessment may have been correct. That does not, however, leave this court with the feeling that counsel did what he ought to have attempted to do in these circumstances. As noted, counsel did not even subpoena the victim who was claiming that the ring was worth $12,000.
At the 2007 hearing, the juvenile court and counsel discussed this problem. The prosecutor said, “I would point out that the defense has the power to subpoena the victim.” The minor’s counsel said, “If he could get off work he was going to come. He couldn’t get off work.” The prosecutor asked the minor’s counsel directly, “was he subpoenaed?” Counsel answered, “I would assume he would simply say the same thing that he said, ” and later acknowledged explicitly that he had not subpoenaed the victim. The court said, “Well, that’s why he didn’t come. Perhaps if he had come, I could do something else.”
Courts may occasionally lose perspective about what such sums mean outside the courthouse walls. U.S. v. Unser (10th Cir. 1999) 165 F.3d 755, is an example. The Unser court ruled that a federal offense carrying a potential fine of $5,000 may be categorized as a strict liability offense with no culpable mental state because the potential fine is a relative pittance.
The defendant in that case was the renowned racecar driver Robert W. “Bobby” Unser. (Bobby Unser, Race car champion as scofflaw (Jun. 6, 1997) Salon, available online at http://www.salon.com/news/feature/1997/06/06/news/index.html [as of Jun. 23, 2011].) Unser, a three-time Indianapolis 500 winner, became stranded in the South San Juan Wilderness in far southern Colorado on a snowmobile and nearly perished. (See ibid.; U.S. v. Unser, supra, 165 F.3d at pp. 757-758, 764.) Operating the snowmobile in the wilderness area violated a federal administrative regulation, now promulgated as section 261.18, subdivision (a), of title 36 of the Code of Federal Regulations. (See Unser, supra, at p. 757 [citing former 36 C.F.R. § 261.16, subd. (a)].) Unser claimed ignorance of the South San Juan Wilderness boundary, an assertion that a Forest Service investigator doubted. (Unser, supra, at pp. 759, 760.) A presumably neutral third party, a rescuer, reported that he “was uncertain just where the wilderness boundary was and said that he had never seen signs in this area marking the boundary.” (Id. at p. 759, fn. 2.)
Unser held that the snowmobiler’s mental state did not matter in any event because no culpable mental state was required under the regulation. The court held that a $5,000 potential “ ‘penalty is relatively small’ ” (U.S. v. Unser, supra, at p. 763), an example of “ ‘light penalties’ ” (ibid., italics deleted) and not an example of “heavier sentences of imprisonment and fines.” (Ibid.)
In 1997, when Unser was decided, the per capita income in the United States was $25,598, presumably before taxes. (Per Capita Income, Encyclopedia of Business, available online at http://www.enotes.com/biz-encyclopedia/per-capita-income [as of Jun. 23, 2011].) The court’s view of the seriousness of the potential fine was skewed. Fortuitously, Unser had been fined only $75 following a two-day bench trial. (U.S. v. Unser, supra, 165 F.3d at p. 757.)
We return to the case at hand. The equities favor a prove-up hearing at which the victim must do more to establish a prima facie case for the ring’s value. The burden, we note, rests on the minor to counter the victim’s evidence once the victim has made a satisfactory prima facie case. “At the hearing, ‘the defendant bears the burden of proving [that] the victim’s restitution estimate exceeds the replacement cost of the stolen property. [Citation.]’ ” (People v. Foster, supra, 14 Cal.App.4th at p. 946.) Specifically, “[o]nce 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.” (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.)
To be sure, if in any new proceeding the juvenile court determines that the ring has appreciated above $12,000, the minor may run the risk that the court will impose a higher restitution obligation. (See People v. Foster, supra, 14 Cal.App.4th at pp. 947-948.) We express, however, no opinion on the question whether a court may impose a higher award than it originally did in such circumstances.
CONCLUSION
The juvenile court’s order of July 23, 2010, denying the minor’s motion to modify the restitution award determined on October 17, 2007, is reversed. The case is remanded to the juvenile court with directions to conduct another hearing or additional hearings on the motion at which the victim and the minor may introduce any further available and admissible evidence regarding the ring’s value.
WE CONCUR: Rushing, P. J.Premo, J.