Opinion
A130022
10-20-2011
In re Kevin P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KEVIN P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. No. JV080264)
The court adjudged defendant a ward of the court under Welfare and Institutions Code section 602, subdivision (a). It ordered defendant to pay $45,178 in restitution to the victim. Defendant contends the lower court abused its discretion in issuing the restitution order because insufficient evidence in the record supports it. We affirm the lower court's order.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
On September 16, 2008, an amended petition under section 602, subdivision (a), was filed, charging defendant in count one with arson (Pen. Code, § 451, subd. (c)), counts two and five with commercial burglary (Pen. Code, § 459/460, subd. (b)), count three with felony vandalism (Pen. Code, § 594, subd. (b)(1)), and count four with animal cruelty (Pen. Code, § 597, subd. (a)). A little less than two weeks later, on September 29, defendant admitted counts two, three, and five. The other charges were dismissed.
The declaration by the juvenile probation officer attached to the original petition filed on September 9, 2008, stated that officers responded to an alarm at a coffee shop on September 6, 2008. They found a window had been pried open, discovered two cans of whipped cream in the parking lot, and observed shoe and handprints.
That same day, officers responded to an alarm at a middle school. The officers spotted defendant and others fleeing the school grounds from the library exit. The officers discovered that the library had been extensively damaged and that a fish tank containing two fish had been filled with office supplies and what appeared to be lighter fluid. Despite the officers' attempts to save the fish, they died.
The police detained defendant and, after reading him his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant admitted he broke into the school with his two friends. They took turns burning the plastic windows and then used the fire extinguisher to control the fire. Defendant denied any involvement with the damage to the fish tank; he also denied any involvement in the burglary at the coffee shop.
The probation report for the disposition hearing filed on October 15, 2008, had attached to it a description of the loss and damage done to the middle school as a result of the vandalism committed by defendant and his friends. This report stated that the damage included the destruction of one plexiglass window. It also stated that 35 percent of the books had been moved to the floor; 15 computers, keyboards, and monitors were damaged by being moved to the floor; three monitors and three keyboards were physically destroyed; one copier was damaged; one laser printer was damaged; solid human waste was deposited on the rug and ground into the rug by a book; and one book was destroyed by human waste. In addition to other extensive damage, the report noted that two fish were killed and there was graffiti damage throughout the building.
A subsequent juvenile probation officer report filed on October 15, 2008, added that when defendant was detained, it appeared that he was wearing shoes with a tread pattern consistent with the latent shoe prints collected at the coffee shop. The report stated that the estimate for the cleanup and replacement of the damaged items at the middle school exceeded $100,000.
On October 15, 2008, the court found defendant to be a ward of the court, placed him on probation in the home of his mother, ordered him to serve 85 days in juvenile hall, and ordered restitution to the victim in an amount to be determined.
On February 20, 2009, the probation department received a statement of damages from the middle school, which indicated the total dollar amount of damage it suffered from the incident on September 6, 2008, was $67,102. The school's insurance deductible was $1,000. The probation report attached "the statement received" from Superintendent Timothy J. Parisi, which described the loss and damages, and insurance claim costs. The attached report set forth the following costs and damage from the actions of defendant and his friends: "a plexiglass window; fifteen (15) computers, keyboards, and peripherals; a copier; a laser printer; a book checkout scanner; video cameras; digital cameras; a video projector; and other various items, plus labor involved in repairs. Volunteers logged 165 hours of volunteer clean up, estimated at over $6,000, which was not included in the total restitution."
The court held a restitution hearing on November 19, 2009. The People explained that Superintendent Parisi was talking to the insurance company to determine what would be acceptable restitution. The court set a later date for a contested hearing.
On December 31, 2009, a new petition was filed alleging that defendant violated his probation by drinking alcohol. Defendant admitted the violation.
On March 16, 2010, another probation officer's report was filed. The court held another restitution hearing on March 24, 2010. Defense counsel alleged a $10,000 mathematical error in the calculations regarding damages submitted by the school district and requested another restitution hearing.
The court held another restitution hearing on April 29, 2010. The People submitted on the documents. Defense counsel pointed out that much of the documentation by the middle school was in the form of requests for purchase rather than actual receipts. Counsel also argued that the calculations were incorrect, that some orders were duplicative, that the sales tax was handwritten on the documents, and that information counsel obtained on the telephone from a computer manufacturer cast doubt on some of the numbers. The court continued the hearing to give the prosecution time to contact the superintendent and have him testify at the hearing.
On August 6, 2010, defendant filed a brief arguing that the restitution amount set forth by the victim was incorrect. Defendant did not provide contrary evidence, but argued the following: "According to the Disposition Report submitted to the [c]ourt on or about October 9, 2008, fifteen computers were destroyed. However, in the documents submitted to the [c]ourt on behalf of the minor on or about April 26, 2010 request at least 26 computers as included in the Apple Computer Request for Purchase. [Sic] As evidence[d] in the document entitled 'Nylex.Net[,]' 'not all of the computers were destroyed. There was an entire rack of laptops that were not harmed or touched.' [¶] The [c]ourt has yet to receive any information regarding what equipment was damaged or destroyed in terms of makes and models. The [c]ourt has only been provided with information regarding what equipment was purchased. It is possible—and appears to be likely—that in addition to purchasing almost twice as many computers to replace the destroyed computers the replacements were of a much better quality."
The prosecution filed a response on August 18, 2010. The prosecution requested restitution in the amount of $45,178.00. The prosecution's 38-page attachment described the damage resulting from the actions of defendant and his friends. Superintendent Parisi signed the first page and declared that "all statements made hereon are true and correct to the best of my knowledge[.]" The first page also stated, "Please see the attached." The five pages following the first page with Superintendent Parisi's signature, dated March 13, 2009, listed and described the damaged and lost items. Following this five-page list and description of items replaced, was a four-page summary of the damaged equipment entitled, "District Technology Advisors Report Library Media Center: Asset Summary." These pages listed the type of equipment damaged and explained the damage. Thus, for example, "copier" was itemized and the model specified was Lanier 7213. Under "Condition," the following was provided: "impact damage, liquid and powder contamination, broken into multiple pieces: not functioning." The other attached pages included, among other things, requests for purchase orders and costs for cleaning services.
On September 13, 2010, the court held the continued contested restitution hearing. There were no witnesses. The court stated that it was "satisfied with the further detailing that is contained in the rather extensive documentation that the school district put together here" even though there were no receipts. The court stated that purchase orders were sufficient. It ordered restitution in the amount of $45,178.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant's sole issue on appeal is that the lower court abused its discretion in ordering restitution to the victim in the amount of $45,178. Defendant contends that the evidence the court considered was unreliable and did not establish the value of the damaged property.
When a minor is adjudged a ward of the court, the juvenile court must order restitution to reimburse a victim for "any economic loss" resulting from the minor's conduct bringing him within the court's jurisdiction. (§ 730.6, subds. (a)(1) & (j).) The juvenile court may order restitution to any legal or commercial entity that is a "direct victim" of an offense. (§ 730.6, subd. (k).) A victim is entitled to "[f]ull or partial payment for the value of stolen or damaged property. 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." (§ 730.6, subd. (h)(1).)
Courts have broad power to impose conditions to foster rehabilitation and to protect public safety. (In re I.M. (2005) 125 Cal.App.4th 1195, 1208-1209.) In a juvenile case, the purposes of ordering victim restitution are to rehabilitate the defendant, deter future delinquent behavior, and make the victim whole through compensation for his or her economic losses. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017.)
"[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." (People v. Baker (2005) 126 Cal.App.4th 463, 469.) A restitution order will not be overturned in the absence of an abuse of discretion. (In re T.C. (2009) 173 Cal.App.4th 837, 843.) When there is a factual and rational basis for the restitution ordered, no abuse of discretion will be found by the reviewing court. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
"[T]he 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 doing so ' " '[s]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.' . . ." . . . [¶] This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.' " (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392, fns. omitted.)
Defendant maintains that the court's order of restitution is not supported by substantial evidence because the court relied on hearsay statements attached to the probation report that were unreliable. He acknowledges that the court may rely on hearsay information in the probation report, but claims that the court should not consider documents when there is no foundation provided. (See, e.g., People v. Cain (2000) 82 Cal.App.4th 81, 87.) Defendant contends that, here, the court did not rely on a statement contained in a probation report or any other report that was inherently reliable because it was prepared by a government entity. Instead, according to defendant, the only evidence before the court was a document attached to the probation report that contained no verifying information. Furthermore, the initial documents submitted were inconsistent with the latter documents provided to the court in the respect that different numbers of equipment were listed as damaged and the total cost of damage changed from the first report to the second.
In urging us to reverse, defendant relies on People v. Cain, supra, 82 Cal.App.4th 81. In Cain, the lower court ordered restitution based on memoranda that stated the State Board of Control (the Board) had already paid a specific amount for counseling for the victim and her son. (Id. at pp. 84-85.) The appellate court determined that the lower court properly considered the memoranda because they were prepared as part of the probation officer's duties and were as inherently reliable as the probation report itself. (Id. at pp. 87-88.) The court also concluded that "[t]he same analysis applies to the trial court's consideration of the Board's statement of claims paid on the victim's behalf. The Board is one of the agencies within California state government. . . . Judging by its contents, the statement was made a part of the Board's official business. Such a document is inherently reliable." (Id. at p. 88.)
Here, the initial documents submitted to the trial court, were attached to the probation report that was dated March 4, 2009. Defendant argues that these documents were unreliable, but he completely ignores that Superintendent Parisi signed the first page and declared that "all statements made hereon are true and correct to the best of my knowledge[.]" The first page also stated, "Please see the attached." Thus, contrary to defendant's contention, these documents were prepared by a state agency in the course of its official business and are therefore inherently reliable.
Furthermore, defendant did not argue in the lower court that the school district did not prepare the documents attached to the claim form signed by Superintendent Parisi. Rather, in his papers, he focused on the disparity in the numbers between the initial report of damage and later report of damage and questioned the condition of the equipment at the time it was damaged. At the hearing, defendant argued that the calculations were incorrect, that some orders were duplicative, that the sales tax was handwritten on the documents, and that information counsel obtained on the telephone from a computer manufacturer cast doubt on some of the numbers. Defendant cannot raise for the first time on appeal an argument that the school district did not prepare these documents. (See, e.g., People v. Welch (1993) 5 Cal.4th 228, 234.)
As already noted, " ' "[s]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes." ' " (People v. Foster (1993) 14 Cal.App.4th 939, 947, superseded by statute on another point.) When the probation report includes a discussion of the victim's loss and a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1160-1161.) A property owner's statements in the probation report about the value of the property are prima facie evidence of value for purposes of restitution. (People v. Foster, supra, at p. 946.)
The documents provided by the probation officer provided prima facie evidence of the amount of loss and defendant had the burden of establishing that this amount was inaccurate. When the probation report includes information on the amount of the victim's loss and sets forth a recommendation, the burden shifts to the defendant to challenge the amount. (See, e.g., People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; In re S.S. (1995) 37 Cal.App.4th 543, 546-548 [when items, amounts and sources of losses are identified in the probation report, defendant has burden of refuting them]; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407 [probation report's discussion of victim's loss and recommendation constitutes prima facie evidence of loss].) At the hearing, defendant did not provide reliable evidence to rebut the school district's documents. Defendant stated that in a telephone conversation he obtained information from a computer manufacturer, which cast doubt on some of the numbers. This information was neither specific nor reliable and the lower court properly disregarded it.
Defendant argues that the record did not support the lower court's order because the school district submitted two sets of documents and the first set was inconsistent with the second set. Defendant complains that the school district first claimed 15 computers, keyboards, and monitors were damaged, and one laptop, but five months later there was no mention of a laptop. Moreover, subsequently, the school claimed 28 computers were damaged.
The school district made some corrections to its initial documents but that does not establish that the documents were inaccurate or unreliable. The changes were few considering the amount of damage reported. Defendant has failed to meet his burden of establishing that the changes made to the initial report do not reflect corrections to mistakes contained in the earlier report.
Defendant also contends that the school was not entitled to replacement cost for the computers and electronic equipment absent any evidence of the age of the equipment or the value of the equipment and he relies on People v. Thygesen (1999) 69 Cal.App.4th 988. In People v. Thygesen, the defendant stole a used cement mixer from an equipment rental company. (Id. at pp. 990-991.) The probation report estimated the mixer's replacement value at $1,400 for a new one and $500 to $700 for a used one. (Id. at p. 991.) At a restitution hearing, the manager of the rental company testified that he did not know the age of the mixer, its original cost, or how often the mixer had been rented prior to its loss. He presented a catalog that included list and discounted prices for mixers that were similar, but not identical, to the stolen mixer. He testified that the replacement cost of the mixer was $3,331 and that the company had lost $3,822 in rental income. (Ibid.) Without any explanation or any evidence in the record to support this figure, the trial court determined that the replacement cost was $2,098.08 and it told the victim to choose between receiving $2,098.97 for the mixer's replacement or $3,822 for the loss of use. (Ibid.) The victim, not surprisingly, selected the larger amount. (Ibid.)
In People v. Thygesen, supra, 69 Cal.App.4th 988, the parties failed to provide the trial court with any documentation and "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." (Id. at p. 995, italics added.) The appellate court noted that an award for the replacement value of the mixer "should have been predicated on the 'replacement cost of like property,' " which meant "what it would cost to replace it with a mixer of like type and age." (Id. at pp. 994-995, italics added.) In contrast, here, the People presented evidence to the trial court from which it could rationally determine that the school district suffered economic loss in the amount of $45,178 as a result of defendant's destruction of computers and other equipment. Here, the court's figure was exactly the amount of damage claimed by the school district and supported by 38 pages of documentation prepared by the school district.
To the extent defendant is arguing that a court may never use the value of a new item as the basis for restitution for a damaged item of the same kind, we disagree under the reasoning of People v. Foster, supra, 14 Cal.App.4th 939. In Foster, the defendant stole, among other items, a Persian rug. As a condition of probation, the trial court ordered the defendant to pay restitution of $8,000 based on the victim's statement to the probation officer that she had paid that amount for the rug. The appellate court concluded "that absent unusual circumstances, or a showing by the defendant to the contrary, the original cost of a stolen item may be treated as evidence of replacement cost for purposes of restitution." (Id. at p. 946.) The court indicated that to require the victim to produce evidence of the cost of an item of comparable age and condition would "impose[] an unwarranted burden on the trial court, the prosecutor, and the victim." (Ibid., fn. omitted.) For the same reasons a court may use the original cost of the item, it may use the purchase price to show the replacement cost.
Defendant also cites People v. Vournazos (1988) 198 Cal.App.3d 948. In Vournazos, the probation officer set forth a value based on a conversation with the victim and the trial court ordered restitution in this amount. (Id. at p. 958.) The appellate court held that the amount of restitution derived from the probation officer's conversation with the victim was insufficient to establish a prima facie claim. (Id. at pp. 958-959.) The present case is distinguishable from Vournazos, as the People presented the documents prepared by the school district that listed the damaged items and the cost to purchase or repair each item. Furthermore, we agree with subsequent case law that "to the extent Vournazos might be read to require more than a victim's statement of loss and a probation officer's recommendation as prima facie evidence of value to determine an appropriate amount of restitution, we decline to follow it for the policy reasons set forth in [People v.] Foster, supra, 14 Cal.App.4th 939." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.)
The question is whether the lower court used a rational method in arriving at its restitution order, and we conclude it did. The court reviewed the extensive documentation the school district provided to the probation officer. Defendant had a fair opportunity to rebut the evidence and to demonstrate that the actual replacement cost for the computers and other equipment would be less than what the school district sought. He failed to rebut the People's evidence of the purchase price. On the record before us, given the absence of any evidence that used computers or other equipment comparable to the equipment damaged were available for sale and the fact that defendant had a fair opportunity to present such evidence, we conclude that the court's decision to base its restitution award on the costs reported by the school district to replace new ones was not arbitrary or irrational.
DISPOSITION
The juvenile court's order is affirmed.
Lambden, J. We concur: Kline, P.J. Haerle, J.