Opinion
H030006
5-8-2007
IN RE PHILLIP O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. PHILLIP O., Defendant and Appellant.
NOT TO BE PUBLISHED
Phillip O. appeals from a restitution order requiring him to pay $97,100 to burglary victims following his admission that he committed burglary and other offenses alleged in a petition under Welfare and Institutions section 602. Minor contends that the restitution determination lacks substantial evidence. He alternatively argues that the restitution hearing was fundamentally unfair because the court prevented his counsel from fully questioning the victims regarding their claimed economic loss.
All further statutory references to Welfare and Institutions Code unless otherwise stated.
We affirm.
A. Procedural History
A section 602 petition was filed against minor on December 27, 2004. It alleged that minor had committed three separate residential burglaries (Pen. Code, §§ 459, 460, subd. (a)), he had unlawfully driven or taken a vehicle (Veh. Code, § 10851, subd. (a)), and he had committed petty theft (Pen. Code, § 484-488). On January 28, 2005, minor admitted all the alleged violations except one burglary. Mr. Zenad, one of the burglary victims, addressed the court briefly. He mentioned that minor had taken everything of value from his house and a list had been submitted to the insurance company.
The record also shows other proceedings in regard to separate petitions against the minor.
The court sustained the petition, finding minor came within the provisions of section 602. The court ordered a minimum 120-day ranch commitment and Pathways and substance abuse counseling. The court indicated a maximum confinement of 10 years, four months. (§ 726, subd. (c).) The proceedings were continued to March 15, 2005 for a restitution hearing.
The probation report, dated March 15, 2005, specified that the victim was requesting $97,100. It stated that "[t]he minor is not in agreement with Mr. Zenads request because he stated that he did not break into his house." The report recommended that the minor be directed to pay $97,100 in restitution to Zenad.
After a series of continuances, a contested restitution hearing commenced on August 2, 2005. The minors counsel called Zenad as a witness on behalf of minor. During questioning, Zenad testified that all jewelry in the home had been taken. He referred to the documentation he had provided to the district attorneys office.
The list of stolen items provided to the district attorneys office included electronics, tools, bikes and numerous bicycle parts, clothes, jewelry, cash, and other miscellaneous items. Where an economic loss was claimed, original cost and replacement cost were specified. Not all items were backed up with receipts but some were. The Zenads calculated the total replacement cost to be $97,100.
At the August 2, 2005 hearing, defense counsel questioned Zenad about some of the jewelry items. Zenad indicated that his wife had inherited a jewelry set of 18K Sapphire, circa 1920, but the set had not been appraised and there was no receipt. He acknowledged that there might be a photograph of it somewhere. Zenad indicated that his wife was an avid collector of gold and jewelry and she was the one who had estimated its value.
In regard to bicycle tools, minors counsel began with item number one, "a Chris King hub," for which the victim had claimed $ 25. The court asked, "You are going to question him about that?" Minors counsel replied, "Every item, your Honor." Counsel first asked whether Zenad had a receipt for that item. When the victim replied, "I am not sure," counsel questioned whether Zenad was basing his claim on memory. Zenad indicated that he knew "for sure" that his son had spent over $5,000 to build a custom bike "from scratch, piece by piece." He stated that there were a lot of receipts from the Sun Bike shop but there was not a receipt for every part.
Minors counsel turned to item number one in the car tool category and asked about a receipt. Zenad answered that he did not know and told counsel to look at the documentation because they had provided a lot of information.
An exchange ensued in which minors counsel complained of the difficulty matching receipts with claims. The victim responded that he had already provided a lot of information and devoted a lot of time to the matter. The deputy district attorney suggested that minors counsel provide a list of contested items. Minors counsel stated that there were only a few items for which he had no questions. He indicated that he planned to examine the victim item by item and explore whether the victim had a reliable basis for valuation, especially if there was no receipt or there was a discrepancy between a receipt and the cost claimed. The first question would be whether there was a receipt and, if there was no receipt, the next question would be "how does he remember the value."
The court ultimately requested legal briefing on the authority for such attempted impeachment. It also asked minors counsel for a list of uncontested items. The court set a briefing schedule.
The minors brief, which was subsequently filed, argued that fundamental fairness required an opportunity to cross-examine and indicated that counsel intended to call and examine Mr. Zenad, his wife, and his son to challenge the accuracy of the restitution claim. It was argued: "In the restitution hearing now before the court, counsel for the defense proposes to continue with the testimony of a defense witness, Mr. Zenod [sic ]; he is a percipient witness. He saw some of the items in his house before the burglary and he noticed them missing after the burglary. . . . The only meaningful way the defense can examine this witness is to ask detailed questions concerning the items stolen from the residence. If the witness[s] memory is solid and reliable then so be it. If the witnesss memory of whether an item was in fact ever in his home is shaky and perhaps not so reliable than the defense has a Due Process right to use this to contest the restitution amount." The Peoples brief maintained that the minor had no right to cross-examine the victims under the Sixth Amendments confrontation clause and no due process right to call or confront the victims.
On September 16, 2005, the court ordered issuance of a bench warrant for the minors arrest because his whereabouts were unknown. On September 20, 2005, the restitution hearing was continued until January 3, 2006.
On January 3, 2006, minors counsel informed the court that he wished to have a contested hearing because there was so much money at stake but indicated there were "no allegations of fraud or anything like that." Counsels "intention [was] to go over every single item." The court expressed its intention to restrict counsel "from calling the victim for any reasons that the court believes are not appropriate" and it was not going to allow counsel to question the victim if the court found the claimed loss to be reasonable. It would permit counsel to call experts to testify that stolen jewelry was less valuable than the victims claimed or to bring in other family members to testify that the victims never owed a particular piece of jewelry.
On January 11, 2006, the court announced: "From my reading of the law its inappropriate to bring a victim to court to cross-examine the victim on their memory of where items were purchased. But if counsel wants to bring, for example, in this case jewelry specialists, bike specialists, computer specialists, that kind of thing, or even show the court valid evidentiary documentation from Frys or some sort of jeweler or something like that, to persuade the court that the amount in fact is not reasonable, then it is free to do so. I would allow limited questioning of the victim as to objects that the court felt were not reasonably asserted or that there is some prima facia [sic] showing that somehow the victim was the only one that could shed light on the issue. . . . [Y]ou would need to show me that at the contested hearing before I would allow the kind of intense in depth questioning that was occurring in this case . . . ."
The court proceeded to tentatively set restitution at $97,100 based upon the victims "very detailed attachment." It stated that it "found the items to be reasonably estimated for cost and replacement cost . . . ." It scheduled the contested hearing regarding that amount on February 27, 2006. Minors counsel responded that it was his position that the minor had a right to "cross-examine the witness concerning the memory of each and every item, each and every nickel valued." The court reiterated: "My ruling is that you may not put the victim on the stand and go over each and every item with the victim. You may bring experts in for computer purposes or jewelry purposes or bicycle purposes, to persuade the court . . . for example that the shocks on a bike arent really worth—[the] front shock is not really worth $699." The court warned minors counsel that it would not allow counsel to subpoena the victim absent a prima facie showing that the victims testimony was necessary.
On February 23, 2006, the court granted the Peoples motion to quash subpoenas for the February 27, 2006 restitution hearing. The court indicated that the victims claims appeared reasonable and it had "no reason to believe at this point that anything ha[d] been exaggerated or falsified." It ordered "the insurance company paperwork be turned over to the Court and to the Defendant for further examination."
On February 27, 2006, the court asked whether the insurance documents had been given to the minor. The deputy district attorney representing the People indicated they had been given to minors counsel. Minors counsel stated that they were not prepared to move forward because the court had granted the motion to quash the subpoenas of their witnesses. Counsel informed the court that he would not be putting the minor on the stand because the minor was a suspect in several other burglaries. He indicated that he was not calling jewelry experts, for instance, because he lacked a picture or sufficient description of the jewelry.
The court remembered that Mr. Zenad had been "flustered and noticeably disturbed at having to be called and grilled about his memory on items that were stolen from his family home, in the presence of the young man who was determined to have stolen his familys items" and that minors counsel had questioned the victim about the worth of each item, "even inquiring about the cost of a bicycle seat valued by the victim at $25." The court recalled ending the examination of the victim "about 45 minutes into the ordeal because of how absurd it seemed that such a hearing could be the best use of court time and, in fact, comport with the administration of justice in the first place."
The court concluded that judges had "wide latitude" to impose reasonable limits on cross-examination of victims to prevent, among other things, harassment of victims and repetitive or marginally relevant cross-examination, "[f]or example, in the case of a bike seat that costs $25 in a $100,000 victim restitution claim." It concluded that a minor did not have an unlimited right to test a victims memory on each item claimed. It indicated that if an experts testimony indicated that a victim had exaggerated the costs of stolen items, the court might then allow some limited examination of that victim. The court ruled that the restitution order was final because the minor had failed to show any claim was unreasonable.
The minor appealed from the February 27, 2006 restitution order.
B. Applicable Law
"On June 8, 1982, the voters of California adopted Proposition 8, an initiative amending our Constitution (Cal. Const., art. I, § 28, subd. (b)) to grant `victims of crime a constitutional right to receive restitution from defendants convicted of crimes that caused the victims economic loss. [Citations.] In response, the Legislature enacted an array of statutes covering restitution or recovery of expenses by crime victims." (People v. Martinez (2005) 36 Cal.4th 384, 388.)
Article I, section 28, subdivision (b), provides: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section."
Section 730.6 provides in part: "It is the intent of the Legislature that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs any economic loss as a result of the minors conduct shall receive restitution directly from that minor." (§ 730.6, subd. (a)(1).) A court must order a minor "found to be a person described in Section 602" "to pay, in addition to any other penalty provided or imposed under the law," "[r]estitution to the victim or victims, if any, in accordance with subdivision (h)" of section 730.6. (§ 730.6, subd. (a)(2).)
Subdivision (h) of section 730.6 requires such restitution to "be imposed in the amount of the losses, as determined." The court must "order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." (§ 730.6, subd. (h).) "A minors inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of the restitution order." (Ibid.) A restitution order must "be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minors conduct for which the minor was found to be a person described in Section 602 . . . ." (Ibid.) Section 730.6, subdivision (h)(1), provides that "[t]he 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." (Italics added.) A minor has "the right to a hearing before a judge to dispute the determination of the amount of restitution." (§ 730.6, subd. (h).)
C. No Abuse of Discretion Based Upon Insufficient Evidence
It is argued on appeal that the "weight of authority" requires some evidentiary proof of a victims claimed economic loss beyond a victims unsworn itemized statement. Three cases are cited: People v. Vournazos (1988) 198 Cal.App.3d 948, People v. Harvest (2000) 84 Cal.App.4th 641, and People v. Thygesen (1999) 69 Cal.App.4th 988. Minor maintains that the trial court could not properly order restitution based merely upon a victims statement of replacement cost.
In People v. Vournazos, supra, 198 Cal.App.3d 948, the trial court ordered a defendant to pay $2,180 in restitution as a condition of probation based upon the recommendation of the probation officer who had determined the amount from discussions with the victim and the victims statement of loss. (Id. at pp. 953, 958.) Defendant Vournazos had entered a "negotiated plea of nolo contendere to the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) and to receiving stolen property (Pen. Code, § 496)." (Id. at p. 951.) The probation officer had listed each stolen or damaged item with a corresponding dollar amount (id. at p. 952, fn. 2) but apparently did not specify what that amount represented. The appellate court concluded without discussion that the order of restitution was unsupported by substantial evidence because "[n]either the statement nor the testimony of the probation officer established that the sum claimed . . . for loss of property was based on the replacement cost of the property" (People v. Vournazos, supra, 198 Cal.App.3d at p. 958) or "that the sum of $300 claimed for repair of damage to the Mercedes represented the actual cost of the repair" (ibid.) as statutorily required (former Pen.Code, § 1203.04, subd. (d) [Stats. 1984, ch. 1340, § 4, p. 4726] ["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"]).
In People v. Thygesen, supra, 69 Cal.App.4th 988, the defendant pled guilty to theft of a cement mixer, which he had rented but not returned. (Id. at pp. 990-991.) The trial court ordered the defendant to pay the victim, an equipment rental business, $3,822 in restitution for 13 months lost rental of the mixer. (Ibid.) The probation report had estimated the mixers value to be "$1,400 (new) or $500-$700 (used)" and the estimated total monetary loss, including compensation for "loss of use," to be $3,235.60. (Id. at p. 991.) A witness had testified at the restitution hearing regarding the monthly rental value of the mixer and its replacement cost. (Id. at p. 991.) But the witness did not testify to, or bring records showing, the mixers rental history (ibid.) and he "had no idea of the age of the mixer" (id. at p. 995). The trial courts restitution order for lost use of the mixer exceeded the total loss stated in the probation report (id. at p. 991), did not include the replacement cost of the mixer (id. at p. 991), and was based upon the courts speculation that "that the mixer would have been rented out every week for 13 months" (id. at p. 995).
The appellate court in Thygesen determined that the victim was entitled under statute (Pen. Code, § 1202.4) to both the replacement cost of the mixer and compensation for lost use but "there was absolutely no evidence presented to the trial court from which a rational determination as to either type of loss could have been made." (People v. Thygesen, supra, 69 Cal.App.4th at p. 995.) The appellate court indicated that the trial court lacked critical evidence regarding the cement mixers age, its rental history, and the time at which the victim should have reasonably replaced it. (Ibid.) The appellate court believed that the victims failure to replace the mixer led "to the suspicion that the mixer was not all that profitable or essential to the business." (Ibid.) It reversed the restitution order and remanded the matter to the trial court for a new hearing. (Id. at p. 996.) The appellate court specified: "Any award therefrom shall be based on the reasonable replacement value of a cement mixer of like style and age, as well as loss of rental value from the date of loss to the date the mixer should have reasonably been replaced." (Ibid.)
In People v. Harvest, supra, 84 Cal.App.4th 641, the trial court ordered a defendant convicted of voluntary manslaughter to pay $5,500 to the victims mother for funeral and burial expenses. (Id. at p. 645.) The appellate court found it significant that, although the mothers claim was mentioned in the probation report, it was not supported with documentation and no witness "stood ready to testify." (Id. at p. 653.) Citing People v. Thygesen, supra, 69 Cal.App.4th 988, the appellate court concluded that the probation report "cannot take the place of evidence." (Ibid.)
Neither People v. Vournazos, supra, 198 Cal.App.3d 948 nor People v. Thygesen, supra, 69 Cal.App.4th 988 directly held that a sentencing court may not rely on information contained in a probation report. Rather, both decisions concerned the incompleteness of the information relied upon by a sentencing judge in determining the amount of the loss as prescribed by statute. In Vournazos, a dollar amount was assigned to each item in the probation report without any indication that the amount was either the replacement cost of stolen property or the actual cost of repairing damaged property. In Thygesen, the probation report offered a range of possible values for the cement mixer, the witness on behalf of the victim testified to a much higher replacement cost based upon a catalogue of similar models but the witness had no idea of the mixers age, and the courts restitution order for only lost use exceeded the probation reports estimate of total monetary loss (including replacement cost) and rested upon speculation regarding its rental without regard to the reasonable time for replacement. Harvest miscited Thygesen for the proposition that information contained in a probation report is insufficient evidence for ordering victim restitution.
As appellant recognizes, People v. Foster (1993) 14 Cal.App.4th 939 concluded that a victim restitution order may be based upon information supplied by a probation report. (Id. at p. 946.) The probation officer in Foster had stated in the probation report that the burglary victim had informed him that "the stolen property included a Persian rug that had cost her $8,000, for which she had received no reimbursement from the insurance company." (Id. at p. 944.) Pursuant to former Section 1203.04, subdivision (a), which required a court to order restitution as a condition of probation, the trial court ordered Foster, who had been convicted of residential burglary and granted probation, to pay "restitution of $8,000 to the victim, representing the original cost of a Persian rug for which the victim received no payment from her insurance company." (Id. at pp. 943, 949.) Under subdivision (d) of former section 1203.04, restitution for the stolen rug was required to be "the replacement cost of like property." (Id. at p. 944, fn. 2.)
On appeal in Foster, supra, 14 Cal.App.4th 939, the defendant argued that the trial court "could not rely solely on the victims uncorroborated statement as to the original cost of the stolen property" in ordering restitution. (Id. at p. 943.) The appellate court stated: "[T]he trial court is entitled to consider the probation report when determining the amount of restitution. A property owners statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution. (Cf. Evid.Code, § 810 et seq. [providing `special rules of evidence applicable to any action in which the value of property is to be ascertained].) "Due process does not require a judge to draw sentencing information through the narrow net of courtroom evidence rules . . . .[S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes." [Citation.] (People v. Baumann (1985) 176 Cal.App.3d 67, 81 . . . .) [¶] This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1160 . . . .) When the probation report includes information on the amount of the victims loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount. `[A] defendants due process rights are protected if he is given notice of the amount of restitution sought and an opportunity to contest that amount; the rigorous procedural safeguards required during the guilt phase . . . are not required. (Id., at p. 1161.)" (People v. Foster, supra, 14 Cal.App.4th at pp. 946-947.)
Foster has been cited by other appellate courts, which have indicted that a court may properly consider and rely upon a victims unsworn itemization of losses presented in a probation offers report or memorandum. (See People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 [Pen. Code, § 1202.4, subd. (f)(3)]; In re S. S. (1995) 37 Cal.App.4th 543, 546-548 [juvenile wardship proceedings prior to addition of § 730.6]; cf. People v. Hove (1999) 76 Cal.App.4th 1266, 1274-1275 [former Pen. Code, § 1202.4 (Stats.1995, ch. 313, § 5, pp. 1536-1537)] [probation officers memorandum and attached computer-generated Medi-Cal report of amounts billed to Medi-Cal sufficient to support restitution order].) Minor has not cited any authority convincing us that a court is bound by strict trial rules of evidence at a restitution hearing in juvenile wardship proceedings.
Section 706 provides: "After finding that a minor is a person described in Section . . . 602, the court shall hear evidence on the question of the proper disposition to be made of the minor. The court shall receive in evidence the social study of the minor made by the probation officer and any other relevant and material evidence that may be offered, including any written or oral statement offered by the victim . . . ."
Minor attempts to distinguish Foster on the basis that the victim in this case was not a jewelry expert and was claiming a replacement cost exceeding the original cost and "there were innumerable reasons to be suspicious" of claimed losses that were absent in Foster. We are not persuaded.
First, contrary to minors assertion, the court in Foster did not identify the victim as "an expert in the field of Persian rugs." Rather, the court, in accepting the victims statement regarding the original cost of the rug as an acceptable estimate of replacement cost in absence of other evidence, stated: "For most types of stolen property, the original cost will be a fair approximation of the replacement cost." (Foster, supra, 14 Cal.App.4th at p. 946.) It explained: "Here, the stolen item was a Persian rug. The only information about its value easily available to the victim, unless she happened to be an expert in the field, was the cost of the item to her. Otherwise, she would have had to consult an expert appraiser, probably incurring a fee, to determine the replacement cost of the rug. Even an appraisers opinion would necessarily be speculative because the appraiser would not be able to examine the age, quality, or condition of the stolen rug." (Id. at p. 946, fn. 5.)
Second, as in Foster, the only information regarding monetary loss was the victims unsworn itemized claim, upon which the probation officer relied in making a recommendation to the court. Unlike Foster, the victims itemization in this case specified replacement cost as well as original cost.
Third, the existence of reasons to question the validity of claimed victim losses, including the lack of corroborating documentation, does not necessarily mean that those itemized statements are inherently unbelievable or without evidentiary value. A reviewing court does not ordinarily reject evidentiary statements relied upon by a lower court unless they are physically impossible or their falsity is apparent without resorting to inferences or deductions. (See People v. Thornton (1974) 11 Cal.3d 738, 754; see People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) In addition, hearsay "". . . if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding." [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 476.) Minor does not point us to, or claim to have interposed, any valid hearsay objection to the victims unsworn itemized statement of loss.
We review a restitution order imposed pursuant to section 730.6 for abuse of discretion. (See In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) No abuse of discretion in determining the dollar amount will be found if the court uses "a rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole . . . ." (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392.) Here, the trial courts restitution order was supported by the information before it, specifically the victims itemization of stolen items and their original and replacement costs provided to the probation officer and the court and some receipts.
D. Due Process
In the restitution hearing below, minor did not object or argue that any particular itemized claim was false or excessive. Rather, the minors counsel sought to generally test the victims credibility. On appeal, minor asserts that the judges refusal to allow examination of the victims regarding the details of their claimed loss rendered the restitution hearing fundamentally unfair.
There is no dispute that a restitution hearing and a restitution order pursuant to section 730.6 must satisfy the demands of due process. Minor argues that, even if he had no absolute right to confrontation, fundamental fairness required the opportunity to examine the victims under the circumstances of this case where many of the listed stolen items were not described with particularity and where corroborating documentary evidence of cost was largely lacking. Minor does not question the discretion of the court to limit questioning of a victim in a restitution hearing but argues that principles of due process required an opportunity for examination of the victims in this case.
It is not asserted that, at the restitution hearing, minor had a due process right to cross-examine the victims analogous to the Sixth Amendments guarantee that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (See Application of Gault (1967) 387 U.S. 1, 56-57 ["Absent a valid confession . . . , confrontation and sworn testimony by witnesses available for cross-examination were essential for a finding of `delinquency . . ."].) The Sixth Amendment right to confrontation is thought to be a trial right. (See Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52-53 , plur. opn.) Neither is it asserted that the People were required to prove the amount of the victims economic loss beyond a reasonable doubt. (Cf. Apprendi v. New Jersey (2000) 530 U.S. 466 ; In re Winship (1970) 397 U.S. 358, 368 .)
Although minor cites People v. Arbuckle (1978) 22 Cal.3d 749, the decision is not particularly helpful to his argument. In Arbuckle, the defendant contended that "his right to a probation and sentencing hearing pursuant to Penal Code section 1204 was effectively denied because he was not permitted to cross-examine the Department of Corrections personnel who prepared the report or to introduce expert testimony challenging the methodology used by the staff." (Id. at p. 753.) The "defendant did not offer or produce his own evidence; rather he sought only to discredit the report submitted to the court under Penal Code section 1203.03." (Ibid.) The California Supreme Court acknowledged that a defendant is entitled to due process protection in probation and sentencing hearings (id. at pp. 754-755) and "[r]eliability of the information considered by the court is the key issue in determining fundamental fairness" (id. at pp. 754-755). It nevertheless concluded that "defendant could have challenged factual statements contained in the report by presenting his own evidence; but fundamental fairness does not require that he be allowed to challenge such statements by cross-examining the personnel who prepared the report, nor does it require that he be permitted to challenge the professional methods they employed." (Id. at p. 755.) The court declared: "Absent a contrary legislative command, it should be within the sound discretion of the trial court to determine those instances when in-court testimony is required to provide a fundamentally fair proceeding." (Id. at pp. 755-756.)
In People v. Sandoval (1989) 206 Cal.App.3d 1544, also cited by the minor, the defendant argued that he had been denied a meaningful opportunity to contest the amount of restitution. (Id. at p. 1550.) The appellate court agreed and reversed the order because the trial court had ordered him to pay $4000 in direct victim restitution in addition to a $1000 restitution fine even though the probation report had recommended only the restitution fine, the trial court had given defendant no indication that it was considering ordering direct victim restitution, and the restitution order came as surprise after the restitution hearing. (Ibid.) The appellate court determined that defendant was entitled to "an opportunity to be heard on [this] issue." (Ibid.) Minor in this case did not lack notice of the recommended restitution order or an opportunity to be heard.
In People v. Cain (2000) 82 Cal.App.4th 81, cited by respondent, the defendant objected to a restitution order for the cost of counseling because there was no showing that the counseling was related to the crime he committed but the court refused to allow the defendant to call and cross-examine the psychotherapist. (Id. at p. 85.) The appellate court held that the defendant did not have a state or a federal constitutional right of cross-examination, although the court, if it wished, could have allowed such examination as a matter of discretion. (Id. at p. 87.) The appellate court agreed that a "trial court violates the defendants due process right at a hearing to determine the amount of restitution if the hearing procedures are fundamentally unfair," but concluded that the defendant in that case "had full and fair opportunity to present affirmative evidence that counseling received by the victim was not directly related to the crime" such as by evidence of preexisting psychological problems or treatment. (Ibid.)
In adult criminal proceedings, the fact that due process applies to a sentencing hearing does not "implicate the entire panoply of criminal trial procedural rights." (Gardner v. Florida (1977) 430 U.S. 349, 358, fn. 9 , plur. opn. Stevens, J.; cf. Williams v. People of State of N.Y. (1949) 337 U.S. 241 [judges have broad discretion, consistent with due process, to consider all relevant sentencing information, including information contained in presentence reports not tested by cross-examination], cf. also Blakely v. Washington (2004) 542 U.S. 296, 305 [Williams v. People of State of N.Y. did not involve "a sentence greater than what state law authorized on the basis of the verdict alone"].) Although the United States Supreme Court extended a due process right of cross-examination to minors in the adjudicative stage of juvenile delinquency proceedings, it did not extend that requirement to the disposition stage. (Application of Gault, supra, 387 U.S. 1, 27, 56-57.) Minor has not cited any authority specifically holding that there is a constitutional due process right to attempt to discredit a crime victims statement of economic loss by examination of the victim during a restitution hearing in criminal or in juvenile wardship proceedings.
We conclude that the right of due process does not necessarily entitle a minor in a restitution hearing to cross-examine a victim whose statement of economic loss is received by the court, for the general purpose of testing the victims credibility merely because of the magnitude of the loss or the lack of receipts. In a restitution hearing, due process is ordinarily satisfied where the minor has the opportunity to present relevant affirmative evidence, to contest the information on which the award is based, and to be heard.
Here, the court indicated its willingness to allow examination of the victims if there was a prima facie showing of necessity. The restitution hearing was not rendered fundamentally unfair because the court, in the exercise of its discretion, struck a balance, restricting the minors examination of the victims unless and until there was some affirmative showing that a particular item was not stolen or a particular item possibly could be replaced at a lower cost. Minor was free to testify or introduce other evidence that any particular item was not stolen. Even if an item was only generally described, minor could have presented evidence indicating that the stated replacement cost was probably out of the reasonable range and likely to be less than claimed by the victim. Minor was afforded the opportunity to make an affirmative showing but did not avail himself of it.
The restitution order is affirmed.
We concur:
RUSHING, P. J.
PREMO, J.