Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J06-01573
Ruvolo, P.J.
I. Introduction
Appellant S.O., a juvenile, appeals from an order of restitution imposed as part of a negotiated plea. He contends the court’s victim restitution award in the amount of $3,821.35 was an abuse of discretion. Finding no abuse of discretion, we affirm the judgment.
II. Facts and Procedural History
A dependency petition (Welf. & Inst. Code, § 602, subd. (a)) was filed on August 25, 2006, alleging appellant unlawfully took a motor vehicle, a misdemeanor (Veh. Code, § 10851, subd. (a)) (count one), and committed vandalism resulting in damage over $400, a misdemeanor (Pen. Code, § 594, subd. (b)(1) (count two). The facts underlying count two are pertinent to this appeal because they comprise the crime underlying the challenged restitution order. On July 6, 2006, Dr. John Shields saw appellant and another minor, R.F., throw rocks at beehives in his backyard, damaging the hives. Officers detained both minors later that day.
On November 13, 2006, appellant admitted count one, unlawfully taking a motor vehicle. Count two was dismissed with restitution reserved. The court emphasized when it took appellant’s plea: “[Y]ou’ll be responsible for paying whatever losses have been caused to the victim, even as to the dismissed count.” Appellant answered, “Yes.” On December 12, 2006, the court placed appellant on probation.
On July 3, 2007, appellant was again before the court on an amended subsequent delinquency petition which alleged he committed forcible oral copulation. (Pen. Code, § 288a, subd. (c)(2).) On August 2, 2007, appellant pleaded no contest to misdemeanor nonforcible oral copulation of a minor. (Pen. Code, § 288a, subd. (b)(1)). On December 4, 2007, the court continued appellant’s wardship and placed appellant at a residential treatment facility.
On February 14, 2008, a contested restitution hearing was held regarding the 2006 vandalism charge. Dr. Shields, a self-employed forensic psychologist, sought restitution for the time he spent making emergency repairs to the damaged hives and for the time he spent going to court and assisting juvenile court personnel in prosecuting this case. He requested compensation for this time at his normal professional rate of $250 an hour, asserting that he was required to take time away from his practice as a result of appellant’s act of vandalism.
In a written order filed February 19, 2008, the court ordered restitution in the amount of $3,821.35, said amount being a joint and several obligation of appellant together with his co-participant. The court explained its method of computing the restitution award as follows: The court awarded restitution for 14 hours at Dr. Shield’s professional rate of $250 an hour computed as follows: six hours for emergency repairs to the bee hives and eight hours for court time. It was noted in the court’s written order that Dr. Shields had testified that he had to cancel appointments to make the emergency repairs and to appear in court. An additional amount of $321.35 was awarded for the cost of materials to repair the hives.
The court did not award restitution for the time requested by Dr. Shields for telephone calls and letters to the police, the probation officer, the prosecutor, and the court. Nor did the court award restitution for the estimated time to paint the hives and move the bees into the repaired hives.
This appeal followed.
III. Discussion
A Restitution Orders
The only issues raised in this appeal concern the court’s restitution order awarding the victim $3,821.35 on the vandalism charge. In summarizing his arguments on appeal, appellant claims that “[t]he juvenile court abused its discretion when it ordered that [appellant] pay restitution to repair the hives in an amount that exceeds the cost of purchasing new hives. It also abused its discretion in applying the victim’s professional billing rate for time spent reassembling the hives. And the court denied [appellant] due process by preventing him from effectively questioning the victim about his claim for lost wages.” Appellant goes on to argue that this court should “reduce the amount of the restitution award related to the repairs, and remand for a new restitution hearing on the victim’s other claims.”
Where a minor is adjudicated to be within the provisions of Welfare and Institutions Code section 602, restitution is governed by Welfare and Institutions Code section 730.6. Section 730.6, subdivision (a), provides in relevant part: “(1) 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 minor’s conduct shall receive restitution directly from that minor. [¶] (2) . . . [T]he court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, . . . [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (h).”
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
Section 730.6, subdivision (h), provides in relevant part: “A restitution order . . . shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor’s conduct for which the minor was found to be a person described in Section 602 . . . .”
Restitution orders are reviewed for abuse of discretion. (In re Dina V. (2007) 151 Cal.App.4th 486, 490 (Dina V.); see In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132 (Johnny M.).) Once the victim makes a prima facie showing of economic losses incurred as a result of the minor’s criminal acts, the burden shifts to the minor to discredit the amount of losses claimed by the victim. (See People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543; People v. Fulton (2003) 109 Cal.App.4th 876, 886-887.) No abuse of discretion will be found in determining the dollar amount if the court uses “any 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 (Brittany L.).)
B. Repair or Replacement
Appellant does not dispute the victim in this case is entitled to restitution, but argues the $3,821.35 award is excessive to the extent it is predicated on the amount of restitution ordered for repairing the beehives. In its restitution award, the court ordered appellant to pay $1,500 for Dr. Shields’s labor in repairing the hives (6 hours @ $250 an hour), plus $321.35 for parts, for a total of $1,821.35.
At the restitution hearing, the victim, Dr. Shields testified that shortly after appellant’s act of vandalism, he spent six hours repairing the damaged hives. He testified that tending bees was his hobby, and he typically worked on the hives on weekends or during off hours. However, because bees cannot “live or function adequately” in a damaged hive, appellant’s act of vandalism created “an emergency situation” that he had to take care of “as quickly as possible.” Consequently, on July 7, 2006, instead of working at his usual rate of $250 an hour, he was making repairs to the hives. Dr. Shields also testified that the cost of replacing the damaged hives with brand new hives would have been less than $1,000 and the cost of replacing the bees would be a couple of hundred dollars “[a]t the most.”
Appellant argues on appeal that “the court ordered [appellant] to pay almost twice as much to place the hives back in their predamaged condition as it would cost to purchase new hives.” He claims that “ordering payment of restitution for repair costs that exceeds the cost of purchasing the item new is excessive, and the court abused its discretion when it ordered payment of more than the cost to purchase new hives.” (Fn. omitted.)
As appellant acknowledges, there is recent authority decided by this division holding that a court has the discretion to order the higher repair cost rather than the lower cost of replacement. In Dina V., supra, 151 Cal.App.4th 486, this court found that the juvenile court did not abuse its discretion in ordering the juvenile, who admitted to taking a vehicle without the owner’s permission, to pay the victim restitution in the amount of $4,419.72, which represented the cost of repairing the vehicle, even though the replacement value of the vehicle was only $3,000.
In affirming the restitution award representing the higher repair cost, we stated: “To limit the amount of restitution to the replacement cost, because that would be the manner of determining damages in a civil case, is neither required nor logical. As respondent points out, putting such a limit on restitution requires that the victim find a similar vehicle, in a similar precrime condition, for sale for the replacement value determined by the court, at the victim’s time and expense. Such an onus should not be placed upon the victim. Limiting the amount of restitution to the replacement cost would not make the victim whole.” (Dina V., supra, 151 Cal.App.4th at p. 489, fn. omitted.)
Appellant claims that the Dina V. decision was “improvident and should be reconsidered.” We disagree. While replacement value remains one of the measures of restitution, there are situations where repair costs will be a better measure of damage to make a victim whole. This is such a case. There is nothing to suggest that it was unreasonable for Dr. Shields to make emergency repairs in order to save the colonies of bees currently existing in the hives.
As Dina V. recognized, given the wide spectrum of factual situations, a reasonable restitution award should not be consigned to any one formulation. Given that a trial court may use “any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole,” we refrain from constraining a trial judge’s discretion with any universal pronouncement on how to properly arrive at reasonable restitution. (In re Brian S. (1982) 130 Cal.App.3d 523, 531.)
C. Lost Wages
It is statutorily acknowledged that victim restitution shall include amounts for “[w]ages or profits lost due to injury incurred by the victim.” (§ 730.6, subd. (h)(3).) As already noted, the court awarded Dr. Shields lost wages at his professional rate of $250 an hour for the six hours he spent in making emergency repairs to the hives. Appellant claims “the use of Shields’s professional rate of $250/hour for any time he [Shields] incurred in connection with damage to the hives is . . . irrational and results in an excessive amount of restitution.”
We find the court’s calculation of the cost of repair to be both rational and factually supported. As indicated above, Dr. Shields testified that appellant’s act of vandalism required him to make repairs “as quickly as possible” in order to save the beehives during time he would normally be working as a psychologist. Because time was of the essence, there was no requirement that Dr. Shields pursue the most cost-effective approach.
Our holding is within the spectrum of approaches taken by other courts when confronted with calculating the reasonable cost of repairs. In Johnny M., supra, 100 Cal.App.4th at page 1134, the court held that the victim of school vandalism (a school district) was entitled to recover the reasonable value of employee time expended to repair the minor’s damage, notwithstanding the fact that the employees were salaried workers. The court reasoned in part that “restitution statutes are to be interpreted broadly and liberally” (id. at p. 1132, fn. omitted), and that “courts must remain mindful of real world business considerations in calculating loss.” (Id. at p. 1133.)
In view of the testimony presented at the restitution hearing, the trial court did not abuse its discretion in determining that Dr. Shields should be reimbursed for his lost income while he was making emergency repairs. In Gemelli, supra, 161 Cal.App.4th 1539, the trial court was found to have acted within its discretion in including an amount in the restitution award representing the victim’s time in making repairs. The court noted, “Even if the owner [of a burglarized restaurant] did all of the repairs himself rather than hire someone else to do them, his time had value.” (Id. at p. 1544.)
D. Due Process
Appellant goes on to argue that the court denied him due process by preventing his attorney from effectively cross-examining Dr. Shields regarding his wage loss claim. He claims that curtailment of his cross-examination regarding the details of Dr. Shields’s claimed loss rendered the restitution hearing fundamentally unfair: “While the court allowed counsel to question Shields generally about his work schedule, and to establish that he does not work set hours, it precluded him from asking more specific questions about matters such as the number of hours Shields actually works during a year or a week, or the amount of money he makes.” Appellant claims that by precluding his counsel from questioning Dr. Shields about these matters, the court effectively prevented him from rebutting Dr. Shields’s wage loss claims, thereby denying appellant due process.
Assuming without deciding that this argument is not waived for failure to raise it below, we conclude the contention fails on its merits. “[A] hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.]” (People v. Foster (1993) 14 Cal.App.4th 939, 947, superseded by statute on other grounds as noted in People v. Sexton (1995) 33 Cal.App.4th 64, 70 (Foster); People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) The court need not “conduct a lengthy, formal hearing to explore all aspects of the victims’ claimed losses and appellant’s defenses. In other words, in the restitution context it is not necessary to determine the damages which might be recoverable in a civil action.” (Brittany L., supra, 99 Cal.App.4th at p. 1391.)
Appellant has not cited any authority specifically holding that there is a constitutional due process right to cross-examine the victim during a restitution hearing in an attempt to discredit the victim’s statement of economic loss. The law appears to be otherwise. The key case addressing a criminal defendant’s right of confrontation at a restitution hearing is People v. Cain (2000) 82 Cal.App.4th 81 (Cain). The court explained: “The scope of a criminal defendant’s due process rights at a hearing to determine the amount of restitution is very limited . . . . [¶] While we have not been able to find any cases dealing specifically with the defendant’s right of confrontation at a hearing to determine the amount of restitution, California courts have repeatedly held that the defendant does not have a Sixth Amendment right of confrontation at the sentencing stage of a criminal prosecution. [Citations.] . . . [¶] In our view, a hearing on an amount of restitution to be made to the victim . . . is part and parcel of the sentencing process. We find no persuasive justification for granting the defendant more due process protection at this hearing than at a sentencing hearing.” (Id. at pp. 86-87.) In a footnote, Cain observes that “Naturally, the trial courts retain discretion to permit such cross-examination on a case-by-case basis.” (Id. at p. 87, fn. 4.)
In summary, “ ‘[A] defendant’s 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.’ [Citation.]” (Foster, supra, 14 Cal.App.4th at p. 947 ; see also Brittany L., supra, 99 Cal.App.4th at p. 1391, fn. 21; People v. Thygesen (1999) 69 Cal.App.4th 988, 993; Cain, supra, 82 Cal.App.4th at p. 86.) In this case, due process was satisfied because the hearing procedures were fundamentally fair. Appellant was given adequate notice of the extent of the restitution claimed by Dr. Shields. Although case law establishes that appellant had no right of confrontation at the restitution hearing, the court nevertheless permitted his counsel to fully cross-examine Shields about his claimed losses. Appellant’s restitution hearing was not rendered fundamentally unfair because the court, in the exercise of its discretion, struck a balance, restricting the scope of defense counsel’s cross-examination of the victim once counsel attempted to probe into more tangential financial information. Moreover, appellant was given a full and fair opportunity to present evidence on the disputed issues although he did not avail himself of this opportunity. Appellant “was entitled to no more.” (In re I. M. (2005) 125 Cal.App.4th 1195, 1211.)
IV. Disposition
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.