Opinion
E074089
10-08-2020
In re T.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.R., Defendant and Appellant.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J278020) OPINION APPEAL from the Superior Court of San Bernardino County. Winston S. Keh, Judge. Affirmed in part; reversed in part with directions. Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant T.R. (minor) was ordered to pay restitution after being adjudged a person described in section 602 of the Welfare and Institutions Code. On appeal, he contends there was insufficient evidence to support the juvenile court's victim restitution order. We agree and remand for further proceedings to allow the victim to provide an adequate factual basis for the losses identified in his restitution claim.
All further statutory references are to the Welfare and Institutions Code unless noted otherwise.
FACTUAL AND PROCEDURAL HISTORY
Minor, who was a teenager, took his six-year-old female cousin and seven-year-old male cousin into the bathroom of their parents' home. Minor made his female cousin touch his penis. He also pulled down her pants and touched her genitals and buttocks. Minor made his male cousin touch and put his mouth on minor's penis.
Minor admitted two counts of sexual battery. (Pen. Code, § 243.4, subd. (a).) The juvenile court declared him a ward of the court under Welfare and Institutions Code section 602 and placed him on probation. As a condition of probation, the probation officer recommended minor pay $2,000 in restitution to F.P., the father of the two minor victims. The $2,000 amount was based on statements F.P. made to the probation officer and in a victim impact letter to the juvenile court. F.P. requested the restitution to reimburse him for money he spent on copayments, counseling, missed work, transportation to and from the counseling appointments, and tutoring for his children who missed school to attend the counseling sessions. F.P., his wife, and all six of their children required counseling as a result of defendant's conduct. The probation officer asked F.P. to provide documentation to support the amount requested, but as of the disposition hearing the probation officer had not received the documentation.
The disposition hearing was held in August 2019. At the hearing, minor's trial counsel asked the juvenile court to temporarily stay imposition of the restitution order to allow more time for the probation officer to obtain the documentation from F.P. The juvenile court granted the request and ordered the probation officer to submit a memorandum with the supporting documentation, if any, before the next hearing.
The probation officer contacted F.P. again and filed a memorandum stating F.P. "[had] not put together the requested documents at this time," but was still requesting restitution in the amount of $2,000.
At the next hearing in September 2019, minor's trial counsel requested a three-week continuance to give F.P. more time to provide the documentation. The juvenile court granted the continuance, but indicated it was inclined to grant F.P.'s restitution request because there was no legal requirement that a victim provide documentation to support a requested restitution amount.
Following the hearing, the probation officer contacted F.P. again and filed another memorandum that stated F.P. "did not have documentation to substantiate his restitution claim. He did not know he had to save any documentation and would like the matter to be 'let go.' " The probation officer confirmed that F.P. still wanted to seek restitution, "but [he] did not have [the] documentation to substantiate his claim."
At the next hearing in October 2019, minor's trial counsel asked the juvenile court to set a contested restitution hearing. She said she was aware a victim does not need to provide receipts, but F.P. claimed he spent $2,000 on counseling and did not provide any documentation to substantiate his claim. The prosecutor argued F.P.'s claim was also to reimburse him for copayments, missed work, and the cost of transportation to and from the counseling appointments, and there was no requirement that he provide receipts for his expenses. The juvenile court noted this had been going on for a while and that F.P. had expressed frustration over the situation. The juvenile court stated it would not compel F.P. to provide documentation that he was not legally required to provide. Out of "fundamental fairness," it ordered minor to pay F.P. $2,000 in victim restitution.
Minor timely appealed.
DISCUSSION
On appeal, minor contends the restitution order was not supported by substantial evidence because there was no documentation, sworn statement, or testimony from F.P. regarding the claimed amounts, nor was there an accounting for how the losses were apportioned or how the $2,000 amount was determined, and that a general request for $2,000 to cover multiple categories of expenses lacks the specificity required to constitute an adequate factual basis for the claim.
For reasons we explained in People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543, we reject minor's argument that there must be documentation or a sworn statement beyond the victim's statement to the probation officer about his or her losses, but we agree that on the current record the description F.P. provided of his losses did not provide an adequate factual basis for the juvenile court's order.
Crime victims in California have a constitutional right to receive restitution for losses they incur as a result of criminal activity. (Cal. Const., art. I, § 28, subd. (b); In re Brittany L. (2002) 99 Cal.App.4th 1381, 1386.) In a juvenile delinquency case, restitution is governed by section 730.6, which provides in relevant part, that it "is the intent of the Legislature that a victim . . . who incurs an economic loss as a result of the minor's conduct shall receive restitution directly from that minor." (§ 730.6, subd. (a).) A victim for purposes of restitution includes the parents and siblings of the named victim. (§ 730.6, subd. (j)(4)(A).)
The juvenile court must order "full restitution unless it finds compelling and extraordinary reasons for not doing so" and states those reasons on the record. (§ 730.6, subd. (h)(1).) The restitution order must "be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct for which the minor was found to be a person described in Section 602, . . ." (Ibid.) Section 730.6, subdivision (h), identifies multiple categories of recoverable expenses, including the value of stolen or damaged property and medical expenses and lost wages, although these categories are not intended to be exhaustive. (In re M.W. (2008) 169 Cal.App.4th 1, 5.) The juvenile court has broad discretion to order restitution for all types of economic loss. (Id. at pp. 5-6)
A party seeking restitution initiates the process by identifying the type of loss he or she has sustained and its monetary value. (People v. Superior Court (Lauren M.) (2011) 196 Cal.App.4th 1221, 1226.) "The burden is on the party seeking restitution to provide an adequate factual basis for the claim." (People v. Giordano (2007) 42 Cal.4th 644, 664.) This is because a restitution order is intended to compensate the victim for his or her actual losses. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017-1018.) Once a prima facie showing of loss has been made, the burden shifts to the defendant to disprove the losses claimed. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.) However, a burden of refutation may not be imposed on the defendant "merely by asserting that a stated amount is sought as restitution." (In re K.F. (2009) 173 Cal.App.4th 655, 665.) Evidence must be presented, "prima facie or otherwise" that the victim incurred the loss. (Ibid.)
A trial court may accept a victim's statement of loss to a probation officer as prima facie evidence of the loss. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.) "[W]here the items, amounts, and sources are adequately identified in or with the probation report, the defendant has the burden of refuting them." (In re S.S. (1995) 37 Cal.App.4th 543, 546, citing People v. Hartley (1984) 163 Cal.App.3d 126, 130.) "The question is whether [the defendant] received sufficient notice in advance of the hearing to investigate and oppose the probation officer's recommendation." (In re S.S., at p. 548.)
"[T]he court need not order restitution in the precise amount of [the] loss, [but] it '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. Chappelone, supra, 183 Cal.App.4th at p. 1172.) The court must also ensure that the record is sufficient to permit meaningful review. (People v. Giordano, supra, 42 Cal.4th at p. 664.)
"Generally speaking, restitution awards are vested in the trial court's discretion and will be disturbed on appeal only where an abuse of discretion appears. [Citation.] Like most generalizations, however, this one can lead to errors if not applied with circumspection. No court has discretion to make an order not authorized by law, or to find facts for which there is not substantial evidence." (In re K.F., supra, 173 Cal.App.4th at p. 661.) "When, as here, the gist of the appellant's argument is that the evidence before the trial court was insufficient to establish the amount awarded, we review for substantial evidence." (In re Travis J. (2013) 222 Cal.App.4th 187, 203.) "The [substantial evidence] standard is deferential: 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .' [Citation.]" (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, italics omitted.) "We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." (People v. Baker (2005) 126 Cal.App.4th 463, 469.)
Here, the juvenile court ordered defendant to pay $2,000 in restitution to F.P. to reimburse him for money spent on counseling, transportation to and from the counseling appointments, missed work, and tutoring for his children who missed school to attend counseling. While these are all proper categories of economic losses for which F.P. is entitled to restitution, on the record before us, we are not able to determine if the court's award of $2,000 to cover F.P.'s losses was proper because there are no facts in the record from which we can meaningfully assess the court's order. For example, there was no information about the cost or number of counseling sessions F.P.'s family members attended, the amount of work he missed, the distances he traveled, or the cost and frequency of the tutoring sessions for his children. Nor was there any information to account for what portion of the claim went to each category of loss identified. Without this kind of basic factual information, it cannot be said that the record contains substantial evidence to support a $2,000 restitution award.
The present case is similar to In re Travis J., supra, 222 Cal.App.4th at p. 204, where the appellate court reversed a juvenile court's restitution order because it was based "on nothing more than speculation." In Travis J., the victim submitted a restitution claim for $2,900 to repair damage to her car. The request was based on $1,500 to repair bullet hole damage, $1,000 for new rims and tires, and $400 in lost wages. (Id. at p. 203.) Noting that only one of the victim's tires had been shot by the minor, the juvenile court questioned the victim's credibility and reduced the restitution award to $850, "based on its own 'reasonable estimate' " of $800 to repair the tire and $50 in lost wages. (Ibid.) This was improper because a restitution order cannot be based on speculation. (Id. at p. 204.) It must be based on the actual economic losses the victim incurred. (Ibid.; accord People v. Chappelone, supra, 183 Cal.App.4th at p. 1172 [a restitution order is intended to compensate the victim for his or her actual losses].)
To the extent that In re Travis J., supra, 222 Cal.App.4th at p. 204, also held the value of the victim's losses cannot be established by a victim's statements to the probation officer, we disagree for the reasons we stated in People v. Gemelli, supra, 161 Cal.App.4th at p. 1543, and People v. Foster (1993) 14 Cal.App.4th 939, 945-946, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245. --------
Respondent argues Travis J. can be distinguished because the juvenile court below did not dispute F.P.'s credibility or the reasonableness of his restitution request. Nor do we; the problem here is not that F.P. was not credible or that the losses for which he requested restitution were not reasonable, the problem is that he did not provide "an adequate factual basis" for his claim. (People v. Giordano, supra, 42 Cal.4th at p. 664.) As a result, the juvenile court's restitution order was necessarily based on speculation about what the court thought would be reasonable expenditures under the circumstances. But a court cannot base a restitution order "on its own 'reasonable estimate' of the damages." (Travis J., supra, 222 Cal.App.4th at pp. 203-204.) It must base the order on the victim's actual losses, and to do so, the victim must provide the court with an adequate factual basis from which the court can assess the losses.
Respondent cites our decision in People v. Gemelli, supra, 161 Cal.App.4th 1539, and argues the juvenile court's restitution order was proper because F.P.'s statements in the probation officer's report identifying the incurred expenses constituted prima facie evidence of his loss. However, a key difference between Gemelli and the present case is the victim in Gemelli met his initial burden of providing an adequate factual basis for the restitution claim, and F.P. did not. The victim in Gemelli provided the probation officer with a "detailed and facially credible" list explaining that the $7,073 requested in restitution was based on eight items, including: "$18 in materials and two hours of labor at $25 per hour to install a new latch, which was broken by the burglar to enter the restaurant . . . $1,150 to purchase a new security camera and monitor to replace those destroyed by the burglar . . . [and] $5,100 to reconstruct paperwork taken from the file cabinet during the burglary." (Id. at p. 1544.) In contrast, F.P. requested a general amount of $2,000 to cover expenses in a variety of categories—counseling, tutoring, travel, lost wages—but he did not provide any factual detail, nor does the record contain any, to account for the losses he incurred in each of these categories. Respondent cites no case, and we are aware of none that held the bare mentioning of several categories of expenses without any accounting for the value of those expenses is sufficient to establish prima facie evidence of loss for purposes of a restitution claim.
Again, we emphasize that F.P. is entitled to full reimbursement for all of the economic losses he incurred as a result of defendant's crimes. (Cal. Const., art. I, § 28, subd. (b); § 730.6, subd. (h).) But for us to uphold the current restitution order, there must be substantial evidence in the record to support the juvenile court's order, and on this record, there simply are not facts from which we can assess the propriety of a $2,000 restitution order. We, therefore, reverse the juvenile court's restitution order and remand the case for further proceedings to allow F.P. to provide the probation officer with an adequate factual basis to account for the losses identified in his restitution claim.
DISPOSITION
We reverse the juvenile court's restitution order and remand the case for further proceedings consistent with this opinion. In all other respects we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. SLOUGH
J.