Opinion
E081687
04-18-2024
In re A.A., a Person Coming Under the Juvenile Court Law. v. A.A., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. J293862 Charles J. Umeda, Judge. Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER J.
Defendant and appellant A.A. (minor) admitted an allegation that he had committed assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), count 1) and that in his commission of the offense, he had personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court ordered minor's maximum term of confinement as six years, of which minor was to serve 639 days in a juvenile institution with credit for 632 days. After a later hearing, the court ordered minor to pay the victim $62,781.95 in restitution as a term of his probation.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, minor contends the court abused its discretion in rendering the amount of restitution in "reliance on the victim's unreliable testimony ...." We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 21, 2022, in San Bernardino Superior Court, the People filed a petition to declare 16-year-old minor a ward of the juvenile court alleging minor had committed attempted murder (§§ 664, subd. (a), 187, subd. (a), count 1) and elder abuse (§ 368, subd. (b)(1), count 2). As to the count 1 offense, the People alleged minor had personally used a deadly weapon (§ 12022, subd. (b)(1)) and had inflicted great bodily injury upon the victim (§ 12022.7, subd. (c)). As to the count 2 offense, the People also alleged minor had inflicted great bodily injury on the victim. (§ 12022.7, subd. (c).) The People requested the matter be transferred to the criminal court. On June 15, 2022, the juvenile court denied the People's transfer request.
On July 20, 2022, the People amended the petition to allege that minor had committed assault with force likely to produce great bodily injury (§ 245, subd. (a)(4), count 1) and that in his commission of the count 1 offense, he had personally inflicted great bodily injury (§ 12022.7, subd. (a)).
That same day, as part of a plea agreement, minor admitted the allegations. Minor offered as the factual basis for his admissions that on October 27, 2020, "I did willfully and unlawfully commit an assault upon the person of [the victim] by means of force likely to produce great bodily injury, and I did personally inflict great bodily injury."
Minor agreed to a disposition in which he would be declared a ward of the court, would spend 639 days in a juvenile institution with credit for 632 days, and would thereafter be placed on supervised probation. As provided in the plea agreement, the court declared minor a ward of the court, ordered him to serve 639 days in a juvenile institution with credit for 632 days, ordered his maximum term of confinement as six years, and placed minor on supervised probation.
On July 27, 2022, the court released minor to be maintained in the home of his mother.
The victim filed a letter with the court reflecting that on the day of the incident, she was waiting for a bus when minor stabbed her repeatedly: "Due to this murderous attack, I have lost many hours, days, and months of work. I have lost my savings .... I have lost full use of my left hand ...." "I [have] lost a life insurance policy worth [$]100,000 that I had been paying on for over 30 years. I lost it due to not working and I was unable to pay the premiums." "I was unable to work for my[] support for over a year. [¶] I am requesting full financial compensation of all I have lost due to this unforeseen attack."
On October 5, 2022, probation filed a restitution memorandum in which they reported that the victim was requesting a total of $112,900 in victim restitution including: (1) $100,000 in compensation for the loss of her life insurance policy; (2) $10,100 in lost work wages; and (3) $2,800 in lost savings.
At a hearing on October 18, 2022, minor's counsel noted that in an off-the-record discussion, the court expressed concern regarding the victim's request for restitution for the $100,000 insurance policy. Minor's counsel also requested probation obtain documentation from the victim to support the amounts requested for restitution. The court continued the matter.
We exclude the victim's testimony post regarding the insurance policy, except where relevant to her lost income, because the court denied any amount of restitution in compensation for the victim's loss of the insurance policy. No party appeals from that portion of the restitution order or argues the court should have ruled otherwise.
After several continuances to permit the victim to obtain supporting documentation, the court held the restitution hearing on June 26, 2023. The victim testified she was a 76-year-old woman, whom the victim stabbed and threw against a metal bench. Due to the assault, she had screws and a metal plate placed in her fingers "and one of my fingers is dead because this finger broke, and some tendons tore. That's why I can't position my hand correctly. And my lower back hurts a lot, too, because there were some ribs that were broken. So I work with great difficulty and sacrifice because I even have to wear a belt around my waist to help support my weight."
The victim was 73 years old on the day of the incident.
The court observed that the victim's "ring finger looks like [it has] a permanent bend."
At the time of the incident, the victim was employed cleaning five homes weekly for about $80 each. This amounted to approximately $1,600 in monthly income.
However, the victim also testified that due to COVID-19, the number of homes she cleaned monthly was reduced from 20 to eight beginning in March 2020, which came to about $640 monthly. In a letter dated August 4, 2020, the victim wrote her life insurance company: "'We are in a pandemic crisis, and I'm not working as much, and I only have a few hours of work in the last past five months.'"
Due to the injuries she sustained, she was unable to work for about a year. When she returned to work, she was only able to work three days a week, or about half the amount she was previously working. She subsequently earned about $800 a month, approximately half what she previously earned. During the period she could not work, she drew down all her savings of around $2,200 to pay bills.
On February 24, 2020, in a document prepared by a Spanish speaking tax preparer for the 2019 tax year, the victim reported annual earnings of $4,600. She reported all her income on her taxes. However, it is possible her tax preparer did not have all the relevant information about her actual income that year. She trusted her tax preparer to provide accurate information to the government. The victim did not have receipts to provide her tax preparer because she was paid primarily in cash.
Minor's counsel objected to the claim for reimbursement of the $2,200 in savings because the victim had not provided any documentation to substantiate the claim. Minor's counsel argued the amount the victim should be entitled to recuperate should be based on the $4,600 a year income she reported to the Internal Revenue Service in 2019; moreover, the amount claimed should be reduced by the amount the victim's business declined due to the COVID-19 pandemic. The court took the matter under submission.
On July 6, 2023, the court noted the victim testified that during the pandemic, she only had eight homes that she cleaned monthly: "And so the Court calculated the eight homes, that she charged $80 per house. I multiplied that by four and, then, multiplied it by 12 to show one-year loss of wages. So the total the Court came up with was $7,680 in lost wages for the period when she returned to work in 2020 to 2021."
The court continued its exposition of its order: the victim "also, testified that when she returned to work, that she was able to only work [] three days a week, but . . . after the assault, she was only able to charge $60 a day." "So the Court looked at the difference between what she was able to do before the injuries and after the injuries for the period from 2021 to 2022. The difference according to her testimony was that she was having on average wages of $1600. And by calculating how much she was able to do after her injury, it came out to $720 of the difference." "So the difference between before and after the injuries came out to $880. Multiply that by one year and that totals $10,560. Then, from the time of two months in 2022 to seven months of the year, which would be nine months, that is $7,920. So I have a total of $26,160 for lost wages. [¶] I, also, believe she stated that she had a use of her savings in the amount of $2,200. So add that to the total lost wages, to be $28,360 for total restitution."
The court reasoned, "I had to weigh what [the victim] testified to in terms of the questioning regarding the type of work she did and the number of homes that she serviced and how much she was receiving by month. [¶] I, also, looked at the tax forms. I believe she may have been underreporting her taxes for tax purposes. But, I believe, that when she testified[,] she was credible in terms of . . . how much she was making ...." "I understand there are discrepancies of what she testified to and her income statement, but the Court believes her testimony is probably more credible on that issue."
The court modified minor's terms of probation to include victim restitution in the amount of $28,360. The court then calculated the victim's future lost earnings as an additional $34,421.95 based on four years of additional work. Thus, the court awarded the victim a total of $62,781.95.
II. DISCUSSION
Minor contends the "juvenile court's reliance on the victim's unreliable testimony to calculate the amount of wages lost between October 2020 and October 2021 falls outside the bounds of reason and, thus, produced an arbitrary result." Minor maintains, "because . . . the victim must have lied either on her taxes or at the restitution hearing and failed to maintain any work-related records, the trial court's reliance on her testimony to establish the amount of lost wages is an abuse of discretion." We disagree.
The juvenile court is obligated "to impose restitution in an 'amount sufficient to fully reimburse the victim . . . for all determined economic losses incurred as the result of the minor's conduct for which the minor was found to be'" a ward of the court. (In re S.O. (2018) 24 Cal.App.5th 1094, 1099-1100.) "In doing so, the court must use a 'rational method' of calculation and must rely on facts found by a preponderance of the evidence. [Citations.] Because a restitution hearing is informal, the amount need not be fixed with the precision required of a civil judgment. [Citations.]" (Id. at p. 1102.)
"[C]ourts have held that a [juvenile] court may accept the victim's testimony as prima facie evidence of the amount owed and place the onus on the minor to rebut that evidence. [Citations.]" (In re S.O., supra, 24 Cal.App.5th at p. 1102.) "'The testimony of a single witness may be sufficient-even if there is significant countervailing evidence, and the testimony is subject to justifiable suspicion.' [Citation.]" (People v. Madrigal (2023) 93 Cal.App.5th 219, 243.)
"As a general matter, we review restitution orders for an abuse of discretion. [Citation.]" (In re S.O., supra, 24 Cal.App.5th at p. 1098.) "[W]here the specific issue is whether the court's factual findings support restitution, we review those findings for substantial evidence. [Citations.]" (Ibid.) "'[W]e will not lightly substitute our decision for that rendered by the juvenile court. Rather, we must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings where there is substantial evidence to support them. [Citation.]' [Citations.]" (In re Aaron J. (2018) 22 Cal.App.5th 1038, 1053-1054.) "The juvenile court [is] in the best position to determine the credibility of the witnesses, including any express or implied claims that their memories were not accurate." (In re A.R. (2022) 78 Cal.App.5th 184, 190.)
Here, the court acted within its discretion in crediting the victim's testimony regarding her wages in computing the amount of restitution it awarded her. The court considered the restitution memoranda filed by probation, letters filed by the victim, the People's brief in support of the victim's request for restitution, and several exhibits regarding the amount of restitution. Probation recommended restitution in the amount of $112,900. After a relatively lengthy hearing at which the victim testified and minor's counsel cross-examined her, the court took the matter under submission. The court thereafter awarded the victim $62,781.95, including both past and future damages, significantly less than the amount the victim requested, and probation recommended. Thus, the court did not merely rubber stamp the request and recommendation.
The court acknowledged that the victim may have been underreporting her wages for tax purposes. It also noted there were discrepancies in the victim's testimony regarding her income. Nonetheless, the court credited the victim's testimony. (People v. Madrigal, supra, 93 Cal.App.5th at p. 243 ["'The testimony of a single witness may be sufficient-even if there is significant countervailing evidence, and the testimony is subject to justifiable suspicion.' [Citation.]"].)
In its award of damages for the first year in which the victim did not work, the court disregarded the victim's testimony that she was making $1,600 monthly immediately prior to the incident. Instead, it credited only the victim's testimony that she was making $640 a month prior to the incident due to reduced work because of the COVID-19 pandemic. Thus, its award of $7,680 amounted to $640 a month over the 12-month period between October 2020, and October 2021, which reflects the lower amount to which the victim testified, rather than the greater amount of $1,600 a month. Therefore, again, the court did not simply agree to award the maximum amount requested.
The court did credit the victim's testimony that prior to the COVID-19 pandemic, she earned $1,600 a month and that once she began working again, she earned only $720 monthly. The court further believed the victim exhausted her $2,200 in savings during the period she either did not work or was unable to earn as much as before the incident. The court's credibility determinations were well within its discretion.
Minor contends that because there were discrepancies in the victim's testimony and attestations to others, the court was required to disregard her testimony that she was making the greater amount of income to which she testified. Although this may have affected the credibility of her testimony, the juvenile court, empowered with the task of determining witness credibility, concluded that regardless of these discrepancies, the witness's testimony was credible. "'The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration.'" (In re White (2018) 21 Cal.App.5th 18, 29.) "The trial court is better positioned to assess the weight and credibility of the evidence. Our deference is therefore appropriate." (Ibid., fn. omitted.) Thus, the court's restitution award was within its discretion.
III. DISPOSITION
The court's restitution award is affirmed.
We concur: RAMIREZ, P. J. CODRINGTON J.