Opinion
A116215
4-23-2008
In re SHAUN V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SHAUN V., Defendant and Appellant; BARBARA PERRY et al., Movants and Respondents.
Appellant, Shaun V., who was 17 years of age at the time of the original proceedings below and is now an adult and no longer a ward of the juvenile court, appeals from a restitution order and abstract of judgment which finally disposes of all issues. His court-appointed counsel originally filed a brief raising no issues and requesting that we independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. As we shall explain, we subsequently sought additional briefing on specified issues, all of which relate to the validity of the restitution ordered by the trial court in 2003 in connection with one of the offenses to which appellant entered a no contest plea. We shall find that, because the original restitution order was invalid, the ruling below—which granted the victims motion to order parental responsibility (Welf. & Inst. Code, § 730.7, subd. (a))—must be set aside. We shall remand the matter for further proceedings in the trial court.
FACTS AND PROCEEDINGS BELOW
By an amended petition filed on January 15, 2003, the Contra Costa District Attorney charged appellant with seven offenses, all but the fourth of which are felonies: first degree residential burglary on October 23, 2002 (Pen. Code, §§ 459/460, subd. (a) —count 1); receiving stolen property on October 23, 2002 (§ 496, subd. (a)—count 2); possession of a firearm by a minor (§ 12101, subd. (a)—count 3); escape from arrest (§ 836.6, subd. (b)—count 4); first degree residential burglary on October 28, 2002 (§§ 459/460, subd. (a)—count 5); attempted first degree residential burglary, also occurring on October 28, 2002 (Pen. Code, §§ 459/460, subd. (a), 1664—count 6); and receiving stolen property on October 29, 2002 (§ 496, subd. (a)—count 7).
All statutory references are to the Penal Code unless otherwise indicated.
On February 18, 2003, appellant entered no contest pleas to counts 1, 3, and 6 (residential burglary, possession of a firearm by a minor, and attempted residential burglary) and the district attorney dismissed the remaining counts with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
The Residential Burglary
The only offense we need to describe is the residential burglary on October 23, 2002, as that is the only one that relates to the restitution order at issue. The burglary was of a residence in Concord belonging to Mark and Barbara Perry. Mrs. Perry was a teacher at appellants school. The Perrys reported to the probation department that the property stolen consisted of or included a handgun, coins, and a ring, which they collectively valued at $44,759. Appellant claimed Stephen N. showed him Mrs. Perrys lunch box containing checks and the keys to an automobile; Stephen had stolen the lunch box. Appellant claimed Stephen came up with the idea of breaking into Mrs. Perrys house but he [appellant] did not take part in the burglary. When arrested, appellant was found in possession of a handgun, ammunition, two coins and a ring that matched descriptions of items taken in the burglary. Appellant told the police that he received the gun from Michael F. who took it during the burglary, in which he [Michael] also participated.
The 2003 Dispositional Hearing
At the dispositional hearing on March 5, 2003, the court ordered appellant placed in a county facility for 270 days, plus a conditional release period of 90 days. Appellant was ordered to pay the Perrys (through the probation department) restitution in the amount of $44,759; a restitution fine in the amount of $300 was also imposed. Appellant was also ordered not to associate with others involved in his offenses or to have any contact with his victims, and to send the Perrys a written letter of apology. The amount of victim restitution ordered to be paid the Perrys, $44,759, which was recommended in the probation report, was based solely on the Perrys estimate of the amount of their loss from the burglary. Mrs. Perry appeared at the hearing and made a statement, but it did not describe the items stolen by appellant and Michael F., nor relate to the amount of economic loss she and her husband assertedly suffered as a result of the burglary. The only basis for the amount of restitution appearing in the record is the recommendation in the probation department report that appellant "pay $44,759.00 in restitution to Mark and Barbara Perry," and the only explanation for this recommendation in the report is that the victims "are requesting $44,759 in restitution." Appellant did not object to the amount of victim restitution ordered.
The transcripts of the court proceedings in 2003 do not show appellant was informed by the court of his right to appeal from the restitution order, and he did not file notice of such an appeal.
Dismissal of the Case and Termination of Wardship in 2004
On April 14, 2004, nearly a year after the dispositional hearing, the court accepted the recommendation of the juvenile probation department and determined that appellant had successfully completed the terms of his parole. Accordingly, the court "vacated and dismissed the case" and terminated wardship. Although the probation department had recommended the termination of appellants parole as having been successfully completed, it noted that he "still owes $44,759 in restitution." Apparently, because full restitution had not been paid, the department recommended that the court "keep in effect the prior court order dated March 5, 2003, thus maintaining his wardship." As noted, the court did not accept that recommendation. The parties agree and the record shows that appellant has not been a ward of the court for four years.
2006 Order Amending the 2003 Restitution Order
On August 23, 2006, more than three years after appellants commitment and probation had ended and his wardship terminated, the Perrys moved to amend the restitution order by including an order that appellants mother, Ann Fitzpatrick, be ordered jointly and severally liable for $32,000 of the $44,759 restitution ordered by the court on March 5, 2003, and requested an income deduction order against appellant, also for the purpose of insuring payment. (§§ 1202.4, 1214; Welf. & Inst. Code, §§ 729.5, 730.6, 730.7; Civ. Code, § 1714.1.) The motion alleged that no portion of the restitution ordered by the court to be paid the Perrys had ever been paid by appellant, who at the time of the motion was an adult.
This figure was apparently calculated in accordance with Civil Code section 1714.1. Subdivision (a) of that statute provides that the joint and severable liability of the parent or guardian for injury resulting from the willful misconduct of their minor child shall not exceed $25,000, and subdivision (c) states that that amount shall be adjusted every two years by the Judicial Council to reflect any increases in the cost of living in California.
The motion sought and apparently obtained the same relief against appellants accomplice, Michael F., who was previously subjected to a restitution order in the same amount as that imposed on appellant. Michael F. filed a separate appeal in which he challenged the jurisdiction of the superior court to amend the restitution order. On August 21, 2007, Division Three of this court issued an unpublished opinion rejecting that claim and affirming the judgment. (In re Michael F. (Aug. 21, 2007, A116548) [nonpub. opn.].) In reaching that result, the court stated in its four-page unpublished opinion that Michael F. "has provided nothing to show that the original restitution order was not pursuant to a hearing in which he was informed of his right to have the amount judicially determined, or that he did not otherwise waive such a hearing or stipulate to the amount of restitution ordered." (Id. at p. 4.) We do not know whether the record in In re Michael F. is in this respect different from that in the present appeal, and in any case the ruling in that case does not bind us.
The hearing on the motion took place on November 29, 2006. Appellant and his mother were both present, but only appellant was represented by counsel. The Perrys, who did not personally appear, were represented by Julise Johansen, an attorney affiliated with the Crime Victims Legal Clinic located in Sacramento. Resting heavily on the written motion, the Perrys attorney stated little more than that the order they sought was authorized by Welfare and Institution Code sections 729.5 and 730.6 and Penal Code section 1214. The balance of the hearing, which could not have taken more than five or ten minutes, consisted of the arguments of defense counsel that the court lacked the jurisdiction necessary to issue the requested order because wardship had previously terminated. Counsel for appellant adopted the objection of counsel for Michael F. that because "the wardship and the petitions were vacated, I believe, a couple [of] years ago, . . . this court lacks the jurisdiction to make or impose any further orders on the minor." Counsel added that the commissioner who presided at the dispositional hearing issued the restitution order only as a condition of probation and made no provision for it to have the effect of a civil judgment. He also noted that at the 2004 parole review hearing, nearly a year after the disposition order, the probation department recommended that appellants parole "be vacated and terminate successfully but that probation wardship be continued. And the reason Probation recommended the continuation of the wardship was so that the restitution issue would still be on the table." Counsel emphasized, however, that the commissioner did not follow the recommendation of the probation department. It not only terminated appellants parole but "vacated and dismissed" the wardship. Given the vacation and dismissal of wardship in 2004, counsel argued, "I dont think theres any jurisdiction left. This is not just an amendment of an order in some kind of mechanical way; its something that takes the restitution issue to a whole different level as something the court could have done—and probably should have done in 2004—but I dont believe the court has any jurisdiction to do it now. [¶] I would ask the court to not do it."
Asked by the court whether she had any comment, appellants mother stated that she agreed with what appellants counsel had said, adding it "has been—what?—four years ago, and I havent heard anything about it. At the juvenile hearing, that restitution and amount was thrown up in the air and there was nothing to back it up, so I dont even know what I am being sued over, or anything." As at the dispositional hearing, the court made no inquiry into appellants or his mothers ability to pay and appellant and his mother raised no objection to the amount of the restitution order (other than the mothers comment just quoted).
The trial judge granted the motion to amend the restitution order, insofar as it sought to make appellants mother jointly and severally liable, and signed a civilly enforceable form Order for Restitution and Abstract of Judgment. Before granting this relief, the court stated: "In looking back through the file, I see that restitution was ordered on March 5th, 2003, in the amount of $44,759. That was just the restitution to the victims. And that was ordered by Commissioner Katz, and [appellant] was present, the mother was present. And I am looking at the minute order that was ordered on that day. [¶] Im also looking back at the minute order on—looks like February 27th, 2003—for Michael [F.], and the minor was present and the mother was present. And the order—there also was restitution in the amount of $44,759. [¶] That amount remains a restitution order [sic], and the court finds that notice has been given to the parents. [¶] Theres nothing new to be done. That order will remain in effect. It does not extinguish with the fact that they [i.e., appellant and Michael F.] have successfully completed other parts of their probation. That restitution order remains in effect. [¶] And, you know, its no sense waiting out until you get to be an adult and then hope you dont owe anybody anything anymore for what you did. Thats simply not what the [L]egislature intended. They intended that the restitution should be paid, and it will follow you for the rest of your life until it is paid, and is jointly and severally liable with your parents on this."
The court did not issue an income deduction order against appellant, as the motion also requested, so that issue is not before us.
Because appellants wardship had been terminated and no juvenile correctional official "has authority or jurisdiction to collect [restitution]," the victims asked the court to amend the 2003 restitution order "as an Order for Restitution and Abstract of Judgment to facilitate their collection of restitution," and submitted a Judicial Council form order for that purpose.
The order was signed by the court and filed on November 29, 2006. The order states that (1) appellant "was found to be a person described in Welfare and Institutions Code section 602, which entitles the victim to restitution"; (2) his wardship was terminated; (3) his mother Ann Fitzpatrick is jointly and severally liable for restitution; (4) Barbara and Mark Perry suffered losses as a result of appellants conduct; and (5) appellant "was informed of his right to a judicial determination of the amount of restitution and a hearing was conducted." The order directs that appellant pay Barbara and Mark Perry $44,759, which represents the value of property stolen from them or damaged by appellant.
The notice of appeal, filed in behalf of appellant on December 14, 2006, states that the finding and order appealed from is the "November 29, 2006 . . . Order for Restitution and Abstract of Judgment, although the case has been vacated in 2004."
Subsequent to the filing of counsels Wende brief, we issued the following orders:
First, on April 20, 2007 (all of our orders were issued during that year), we directed counsel for appellant to address two questions: "1. Are the 2003 restitution order and/or the 2006 order defective because the trial court did not at any time inquire and independently determine whether $ 44,759 accurately represented the amount of the victims economic loss and improperly delegated that determination to the victim? (See In re Brittany L. (2002) 99 Cal.App.4th 1381, 1390.) [¶] 2. If the trial court did not independently determine the amount of restitution, did appellant waive the right to such a determination by failing to object and, if so, was the failure to object attributable to the ineffective assistance of counsel? (Counsel should also consider whether appellants mother may be deemed to have made the necessary objection by her statement at the 2006 hearing that `[a]t the [2003] juvenile hearing that restitution and amount was thrown up in the air and there was nothing to back it up, so I dont even know what I am being sued over or anything. (RT 11-29-06 at p. 9.)"
Appellants supplemental brief was filed in this court on May 23. However, because that brief inexplicably responded only to the first question, we issued a second order on June 22 requesting a second supplemental brief addressed to the second issue. That letter brief was filed on June 27, and the Attorney Generals supplemental brief in response was filed on July 2.
On May 18, we denied appellants counsels request to appoint separate counsel to represent appellants mother, noting that his mother "is not a party to this case and appellant is not required to assert her rights, if any."
On May 7, we denied appellants request that we order the record augmented to include exhibits or other materials relevant to the determination of restitution, after the Clerk of the Contra Costa Superior Court informed the clerk of this court that the trial court had no materials not already included in this courts file. However, on August 6, on our own motion, we ordered the record on appeal augmented to include "the reporters transcript of the February 18, 2003 pretrial conference, at which the minor admitted three counts of the amended petition. (See Clerks Transcript, pp. 27-28.)"
On September 26, in an order noting that the victims of appellants offenses, "upon whose motion the trial court issued the challenged ruling (see Clerks Transcript, pp. 61-73), were not served with any of the appellate briefing in this matter and have not otherwise been afforded an opportunity to present their views to this court," we directed the clerk of this court to provide said briefs to the attorney at the Crime Victims Legal Clinic who represented the Perrys in the trial court, and gave her 30 days to respond to the following issues: "(1) The challenged ruling expressly found that appellant `was informed of his or her right to a judicial determination of the amount of restitution (Clerks Transcript, p. 88), a statutory prerequisite to the issuance of the ruling. (See Pen. Code, § 1214, subd. (b).) Please identify the evidence in the appellate record, if any, supporting this finding. [¶] (2) Assuming the requisite admonition was not given, can the challenged ruling stand? [¶] (3) Assuming the challenged ruling cannot stand and given that appellants wardship was terminated on April 14, 2004, does the trial court now have jurisdiction to redetermine the appropriate amount of restitution and, after doing so, to issue a new Order for Restitution and Abstract of Judgment?" Counsel for the parties were granted leave to file responsive briefs.
In an order filed on November 16, which noted that the victims had declined our invitation to file a brief, we ordered counsel for the parties to serve and file briefs addressing the issues enumerated in our September 26 order. Also on November 16, we issued an order noting our receipt of a letter dated November 12 from Kathleen Benton, a supervising attorney at the Crime Victims Legal Clinic, and filed with this court on November 14, 2007, stating that the Clinic no longer represents the Perrys. However, in order to keep the Perrys informed of the appellate proceedings and protect the privacy of their present address, attorney Benton requested that copies of documents filed by the parties be served on the victims through her. Accordingly, we directed the clerk of this court "to serve all future documents in this matter on Kathleen Benton, Esq.," and directed attorney Benton to forward the documents on to the Perrys.
Appellants second supplemental brief was filed on December 6, and that of the Attorney General was filed on December 3.
DISCUSSION
Welfare and Institutions Code section 730.6 provides in subdivision (l) that "[a]ny portion of a restitution order that remains unsatisfied after a minor is no longer on probation shall continue to be enforceable by a victim pursuant to subdivision (r) until the obligation is satisfied in full." Subdivision (r) provides that such an unsatisfied restitution order "may be enforced in the manner provided in Section 1214 of the Penal Code."
As material, subdivision (b) of section 1214 states that "[i]n any case in which a defendant is ordered to pay restitution, the order to pay restitution (1) is deemed a money judgment if the defendant was informed of his or her right to have a judicial determination of the amount and was provided with a hearing, waived a hearing, or stipulated to the amount of the restitution ordered, and (2) shall be fully enforceable by a victim as if the restitution order were a civil judgment, and enforceable in the same manner as is provided for the enforcement of any other money judgment." (Pen. Code, § 1214, subd. (b), italics added.)
The boxes to be checked on the form order used by the trial court if appellant had "stipulated to the amount of restitution ordered" or "waived a [restitution] hearing" were not checked, and nothing in the record suggests, and it is not claimed by the People, that appellant made such a stipulation or waiver. Thus, the threshold question is whether, as found by the court below in 2006 when it amended the 2003 order and made it civilly enforceable, appellant was informed of his right to have a judicial determination of the amount of restitution and a hearing on the issue in 2003. If that finding was erroneous, the order appealed from would not comply with section 1214 and Welfare and Institutions Code section 730.6, subdivision (r), and would have to be set aside.
I.
As earlier noted, in issuing the form "Order for Restitution and Abstract of Judgment" (Jud. Council Form CR-110/JV-790 [Rev. January 1, 2008]), the court below checked a box stating that appellant had been "informed of his . . . right to a judicial determination of the amount of restitution and [that] a hearing was conducted." This statement is simply unsupported. The trial court had before it, as we do, the transcripts of the 2003 hearings, including the transcript of the dispositional hearing on March 5, 2003, but none of them or anything else in the record show appellant was ever advised, by the court or counsel, of his right to a judicial determination of the amount of restitution to be ordered, or that a hearing on the issue was ever held. Nor did the People or the victims provide the court any other evidence bearing on that issue. So far as the record shows, the only information appellant received about restitution prior to its imposition was the statement in the probation report that the Perrys "are requesting $44,759 in restitution," and the recommendation of the probation department that restitution be imposed in that amount. The 15-page transcript of the dispositional hearing conducted on March 5, 2003, contains no reference to victim restitution whatsoever save the statement of the presiding commissioner at the end of the hearing that "[r]estitution is fixed in the amount of $44,759, and that restitution is to be paid through Probation to the victims, Mark and Barbara Perry."
The form used by the court below, which was the version revised on January 1, 2005, is identical in material part to the present version.
As noted, the People concede appellant never expressly waived his right to be informed of the right to a judicial determination of the amount of restitution and a hearing. However, pointing out that the parties agreed "that restitution would be reserved on the dismissed counts," and that the probation report recommended appellant be ordered to pay restitution to the victims in the amount of $44,759, which was imposed, the Attorney General argues that appellant should be deemed to have waived, or impliedly waived, his right to be informed of his right to a judicial determination of the amount by his failure to object to the amount imposed at the dispositional hearing. We disagree. The restitution with which we are concerned does not relate to the dismissed counts and the recommendation of restitution in the probation report did not embody any advisement that appellant had any right to contest the amount of restitution to be ordered by the court or a right to a hearing on the issue.
In re S.S. (1995) 37 Cal.App.4th 543, which the Attorney General relies upon, is inapposite. The minor in that case, apparently made aware of his right to a separate restitution hearing, requested such a hearing and one was held; the different issue presented in In re S.S. was the adequacy of the evidence the victim provided.
The Attorney General cites People v. Phillips (1994) 25 Cal.App.4th 62 and People v. Foster (1993) 14 Cal.App.4th 939, apparently for the proposition that the trial court had no duty to inform appellant of the right to a hearing at which he could contest the amount of restitution sought to be ordered.
In Phillips (which involved a no contest plea to the victimless crime of possession of methamphetamine, and did not involve restitution at all), the defendant challenged an order requiring him to reimburse the state for the cost of court-appointed counsel (Pen. Code, § 987.8) on the ground, among others, that the trial court never provided him notice of the time and place of the hearing. Acknowledging that the courts failure was "not the better practice," the Court of Appeal was nevertheless satisfied "that the probation officers reference to attorney fees constituted notice reasonably calculated, under all of the circumstances, to apprise the defendant that the matter would be taken up in the context of the sentencing hearing." (People v. Phillips, supra, 25 Cal.App.4th at p. 74.) In reaching that conclusion, the court rested primarily on the fact that the relevant provision of the Penal Code (§ 987.8) did not require a separate hearing. (People v. Phillips, at pp. 75-76.) However, the court also adverted to "the analogous context of restitution and restitution fines," and stated that " `[a] defendants due process rights are protected when the probation report gives notice of the amount of restitution claimed and expected to be ordered . . ., and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing. " (Id. at p. 74, quoting People v. Blankenship (1989) 213 Cal.App.3d 992, 997.) The Phillips court also cited People v. Foster, supra, 14 Cal.App.4th 939.
In Foster, the probation report informed the defendant of the recommended amount of restitution, based on the victims statement of the original cost of a stolen Persian rug, but the defendants counsel did not object to the amount. The court concluded that the defendant was given a reasonable opportunity to be heard on the issue of restitution and simply failed to come forward with contrary information to challenge that amount. Counsels failure to object to the recommended restitution did not constitute ineffective assistance, the court concluded, because there was no reasonable probability the court would have ordered a lesser amount or no restitution if he had objected, and "counsel could well have had a rational tactical reason for failing to object . . . [because] [h]e could easily have concluded that the replacement cost of the rug exceeded the victims original cost, and for that reason, it would be detrimental to his client to challenge the figure in the probation report." (People v. Foster, supra, 14 Cal.App.4th at pp. 947-948.) The defendant in Foster did not claim he was deprived of a statutory right to be informed by the court of his right to a judicial determination of the amount of restitution to be ordered or a hearing on that issue, and the court did not address that issue in Foster, confining its discussion to the issue of ineffective assistance of counsel.
Neither Phillips nor Foster are dispositive. Juveniles convicted of offenses in which a victim suffered economic loss are required by law to receive a probation report setting forth the amount of any restitution sought by the victim or recommended by the probation department; and all such juveniles must be sentenced at a dispositional hearing at which they are advised of their right to contest a request or recommendation that a specified amount of restitution be ordered. Thus, what was said in Foster—that the amount of restitution recommended was disclosed in the probation report, and the defendant "was given a reasonable opportunity to be heard on the issue of restitution" (People v. Foster, supra, 14 Cal.App.4th at p. 947)—can be said in every case. The need for a court to specifically determine and state, as did the court below, that the minor "was informed of his or her right to a judicial determination of the amount of restitution and a hearing was conducted" would be pointless unless it is intended to require that the advisement be provided by the court (or at least that the court must inquire whether the juvenile was informed of his or her right by counsel) in order to impress upon the juvenile that it is not the victim or the probation department that "determines" the amount of restitution ordered, but the court, and that the juvenile has a right to a hearing at which he or she may contest the amount sought or recommended. Furthermore, the statutory grant of a right to a restitution hearing suggests that the juvenile may request a separate hearing on that issue, as is often provided in appropriate circumstances. (See, e.g., People v. Akins (2005) 128 Cal.App.4th 1376, 1380-1381.)
The apparent failure of the court to inform appellant in 2003 of his right to a hearing and judicial determination of the amount of restitution before ordering appellant to pay restitution to his victims in the amount of $44,759 is not the only problem in this case. Putting aside the question whether appellant was informed of his right to contest the amount of restitution to be ordered, the record shows that the original restitution order was not made upon the basis of the requisite judicial "determination." A 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 re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392.) However, while sentencing judges have considerable discretion as to the kind of information they may consider, testimonial and/or documentary evidence of some sort is necessary. (People v. Harvest (2000) 84 Cal.App.4th 641, 653 [requiring documentary or testimonial evidence] and People v. Thygesen (1999) 69 Cal.App.4th 988, 995 [victim presented no evidence from which trial court could make a rational determination of economic loss].) Most importantly, the trial court is required to make an independent evaluation of the evidence bearing upon the amount of restitution necessary to fully reimburse the victim, and the "determination" the statute requires to be made cannot be delegated to the victim or others. (In re Brittany L., at p. 1390.) As previously noted, neither the Perrys nor the People ever provided evidentiary support for the amount of restitution sought and ordered, and the only basis for the amount ordered is the recommendation in the probation department report that appellant "pay $44,759.00 in restitution to Mark and Barbara Perry," and the only explanation for this recommendation in the report is that the victims "are requesting $44,759 in restitution."
It is elemental that the determination of loss essential to the ascertainment of restitution "necessarily involves evidence." (People v. Thygesen, supra, 69 Cal.App.4th at p. 995.) In Thygesen, the court reversed a restitution order awarding the victimized rental company 13 months of rental payments for a cement mixer the defendant rented and then stole. At a separate restitution hearing held to determine the value of the mixer, the sole witness was the victims manager, Flores, who "did not know the age of the mixer, nor did he testify as to its original cost. Further, he did not bring any records to show how often the mixer had been rented out prior to its loss, nor did he testify to that effect. (Id. at p. 991.) The court reversed the amount of restitution ordered because it was unsupported by any evidence warranting the victims "failure to replace the mixer for 13 months, nor was there substantial evidence to support an award for 13 full months of rent." (Id. at p. 995.) Sparse as the evidence in Thygesen was, it far exceeds that presented here.
As we have explained, the 2003 probation report indicates only that appellant was found in possession of a . 45 caliber "handgun," three boxes of .45 caliber ammunition, and "two coins and a mans wedding-type ring," all of which matched the description of items taken in the burglary of the Perrys house. Although the Perrys were present at the disposition hearing at which victim restitution was ordered, the Perrys did not say, and the court never inquired, whether the foregoing items were all that was stolen from their residence. The Perrys were also never ever asked nor did they ever disclose why they valued the handgun, ammunition, two coins and ring, or any other items that may have been taken from them, at $44,759; and the probation report does not supply such information, nor does anything else in the record. Furthermore, during the March 2003 hearing at which restitution was ordered, Mr. Perry stated that the firearm taken from his house by appellant had been returned to him by the police.
Nor did the victims describe the items stolen from them or the basis of their valuation of such items when they moved to amend the restitution order in 2006. Their motion did no more than describe the stolen goods as "various items of personal property."
There is some doubt about the standard of review applicable to restitution orders. In People v. Vournazos (1988) 198 Cal.App.3d 948, 958-959, the court applied the substantial evidence test in concluding that a hearsay probation report was insufficient evidence upon which to base a restitution award. Other courts have held that appellate review is guided by the abuse of discretion standard. (See, e.g., People v. Ortiz (1997) 53 Cal.App.4th 791, 800; People v. Tucker (1995) 37 Cal.App.4th 1, 6.) However, even under the less rigorous abuse of discretion standard, discretion in making a restitution award "is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must 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. [Citations.]" (People v. Thygesen, supra, 69 Cal.App.4th at p. 992.) Given that the Perrys have never been judicially required to identify exactly what appellant stole from them, and to justify their evaluation of the stolen items, the restitution order awarding them $44,759 is clearly arbitrary and capricious. In effect, the court delegated the decision to the Perrys and abdicated the responsibility to make a judicial "determination." As we have said, "[the] statutory language makes clear the sentencing court is itself required to evaluate the evidence and resolve the issue of the proper amount of restitution which will fully reimburse the victims." (In re Brittany L., supra, 99 Cal.App.4th at p. 1390.)
We reject the Attorney Generals contention that appellant cannot now challenge the amount of restitution because he did not raise that issue at the 2003 dispositional hearing. Appellant cannot reasonably be deemed to waive a right he was never told of and does not appear to have known he possessed.
For the foregoing reasons, we conclude that the trial courts finding that appellant was in 2003 informed of his right to a judicial determination of the amount of restitution and a hearing on that issue was factually unjustified. The order appealed from, which amended the 2003 order (by making appellants mother jointly and severably liable to the Perrys for the amount of restitution originally ordered and making the restitution order civilly enforceable), must therefore be set aside. However, if appellant was not in 2003 informed of his right to a judicial determination of the amount of restitution and a restitution hearing, the underlying restitution order is presumably also invalid and, in any case, the Perrys would effectively be barred from compelling appellant and his mother to comply with that order, and there would be no purpose to remand this case to the trial court. The remaining question is whether that invalidity can still be remedied.
II.
In People v. Rowland (1997) 51 Cal.App.4th 1745, we pointed out that victim restitution is mandated by both the California Constitution (Cal. Const., art. I, § 28, subd. (b)) and section 1202.4, noting that "[t]he only discretion retained by the trial court in this regard is in fixing the amount of the award." (People v. Rowland, at p. 1751.) As we also stated, "victim restitution is mandatory and a sentence without such an award is invalid." (Ibid; accord, People v. Moreno (2003) 108 Cal.App.4th 1, 10; People v. Bernal (2002) 101 Cal.App.4th 155, 165; People v. Thygesen, supra, 69 Cal.App.4th 988, 992-993.) Although Rowland and the other cases cited are not juvenile cases, the Attorney General argues that the rationale of Rowland and like cases necessarily applies to juvenile cases, because (1) the mandatory language of Penal Code section 1202.4 that they rely upon is virtually identical to language in Welfare and Institutions Code section 730.6, subdivisions (a)(2)(B) and (h); (2) under subdivision (i) of section 730.6, a restitution order in a juvenile proceeding "shall be enforceable as a civil judgment pursuant to subdivision (r)" of that statute; and (3) subdivision (r) provides that a restitution order made in a juvenile proceeding "may be enforced in the manner provided in Section 1214 of the Penal Code." For these reasons, the Attorney General takes the position that, "assuming the restitution order [in this case] is invalid and the issue was not waived for failure to object at the dispositional hearing or failure to appeal from the order imposing restitution, the matter should be remanded to the juvenile court to issue a new restitution order after affording appellant an opportunity to challenge the amount claimed by the victims."
Appellant disagrees. In the last supplemental brief we ordered, appellant argues that because the restitution order in effect at the time wardship was terminated was invalid, the order of 2006 converting that order into a judgment was "unauthorized." That conclusion, with which we agree, begs the question as to whether the 2003 order can be corrected on remand, as the Attorney General maintains. However, People v. Bufford (2007) 146 Cal.App.4th 966, which appellant relies upon, does shed light on the issue.
The adult defendant in Bufford and several codefendants were in 1997 charged with multiple offenses involving elderly victims. After the trial court dismissed three of the counts, the People appealed. While the appeal was pending, Bufford pled guilty to one count of elder theft from Richard Nelson. When it took her plea, the trial court made clear that a restitution order would be specific to Mr. Nelson and Buffords counsel replied that his client understood that and also that she was entitled to a hearing on restitution and would then present argument. At the time Bufford was sentenced to prison, the court stated that she "is also to make restitution to the family of Richard Nelson, which under Penal Code section 1202.4(f) I find cannot be ascertained today and therefore shall be subject to further court order . . . . [¶] . . . If youre unable to [agree on the amount of restitution] then the matter is set for hearing on May 12, 2000 at nine oclock in this department . . . ." (People v. Bufford, at p. 968.) No restitution hearing was conducted in 2000, apparently because, due to the pending Peoples appeal from the dismissal of other charges, Bufford declared her intention to assert her privilege against self-incrimination at any restitution hearing. In 2001, after the appeal was resolved in favor of the People, the trial court reinstated the previously dismissed charges against Bufford and she continued to assert an intention to assert her privilege against self-incrimination at any restitution hearing. Three years later, in 2004, the prosecution moved to dismiss the additional charges, but specifically reserved the right to "recalendar" the restitution hearing. The parties next appeared, on August 19, 2004, when the prosecution again sought to determine the amount of restitution. Bufford objected on the grounds that the trial court no longer had jurisdiction over her to order restitution because her sentence was fully served. The court ordered briefing and put the matter over until September. In September 2004, when the court heard the Peoples motion to set and impose restitution, Bufford argued that the court had lost jurisdiction "as a result of the passage of time and defendants completion of her sentence." (Id. at p. 969.) The trial court agreed and denied the prosecution motion to set restitution.
The Court of Appeal reversed, resting primarily on the ground that affirmance of the trial court ruling would frustrate of article I, section 28, subdivision b), of our Constitution, which provides that "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 court disagreed with Buffords argument that if the court lost jurisdiction to award restitution, her victim could pursue a civil remedy. (People v. Bufford, supra, 146 Cal.App.4th at p. 971.) The court noted that where the criminal court had not fixed the amount of restitution, a victim would have no incentive to commence civil litigation, and that a victim should not "be put to the trouble and expense of seeking redress through civil litigation with the accompanying uncertainty of recovery in light of possible defenses such as expiration of the statute of limitations." (Ibid.)
The Bufford court was also unpersuaded by the argument, similar to that made by appellant here, that Buffords right to due process precluded restitution proceedings because she had completed her sentence. The Court of Appeal emphasized that "[t]he trial court ordered victim restitution at the time of sentencing, and followed the statutory procedure that permits determination of the amount of loss at a later hearing. [Citations.] The People properly moved to determine the amount of restitution payable pursuant to the mandatory statutory framework, as soon as possible following dismissal of related charges, in light of defendants demand for a hearing and her refusal to testify, and there has been no finding of compelling and extraordinary reasons to depart from the statutory framework." (People v. Bufford, supra, 146 Cal.App.4th at pp. 71-972.) In making this statement, the court cited Penal Code section 1202.46, which pertains to the retention of jurisdiction for purposes of imposing restitution, and states as follows: "[W]hen the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined. Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to section 1202.4."
The present case differs from Bufford in several significant particulars. First, unlike the trial court in Bufford, the court here did not at any time order a restitution hearing (or even inform appellant of his right to such a hearing). Second, the prosecution in this case did not at the 2003 disposition hearing or thereafter call attention to the need to advise appellant of his right to a restitution hearing to contest the $44,759. Third, unlike the defendant in Bufford, appellant cannot be held responsible for the courts failure to accurately ascertain the amount of loss sustained by the Perrys at the time of sentencing. Fourth, the trial court terminated appellants wardship, over the objection of the probation department, with knowledge that appellant had not then paid any of the restitution previously ordered. Finally, unlike Bufford, this is a juvenile proceeding, arguably not subject to Penal Code section 1202.46.
Amicus First District Appellate Project takes the position that section 1202.46 does not apply to juvenile proceedings because, by its own terms, it only applies to "sentencing" and "sentences," and appellate courts have routinely found the use of criminal terminology indicative that a criminal provision does not apply to juvenile delinquency proceedings. (See In re Mitchell P. (1978) 22 Cal.3d 946, 949; In re Robert S. (1992) 9 Cal.App.4th 1417, 1420-1421; In re Leonard R. (1977) 76 Cal.App.3d 100, 103-104.) We find it unnecessary to address this issue because, even if it does not, Welfare and Institutions Code section 730.6 applies, and like section 1202.46, it also permits the court to retain jurisdiction over a person (minor) subject to a restitution order for the purpose of imposing restitution if the amount of loss cannot be ascertained at the time of sentencing. (Welf. & Inst. Code, § 730.6, subd. (h).)
Because of the deficiencies of the record and briefing, we are unwilling to go beyond the narrow question presented, which is the propriety of the 2006 order amending the restitution order. Due to the invalidity of the 2003 restitution order, we are compelled to set aside the 2006 order amending it. We shall remand this case to the trial court to permit the People and/or the Perrys, or the trial court on its own motion, to move to correct the 2003 restitution order we invalidate. At that time, the trial court can address the question whether, in the circumstances, the superior court may now correct the original restitution order. This will require the trial court to make the factual determination, never heretofore made, of whether the amount of loss sustained by the Perrys could have been ascertained at the time of sentencing and, if so, to also determine whether a restitution order may nevertheless now be lawfully imposed under section 730.6 of the Welfare and Institutions Code.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court for further proceedings consistent with this opinion.
We concur:
HAERLE, J.
LAMBDEN, J.