In re Danielle R.

Filed 8/28/06 In re Danielle R. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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In August 2005, Danielle R. (the minor) admitted that she committed misdemeanor vandalism in violation of Penal Code section 594, subdivision (b)(1). She was adjudicated a ward of the juvenile court (Welf. & Inst. Code, § 602),^[1] was placed on probation, and was ordered to perform 60 hours of community service. In a separate hearing, the minor was ordered to make restitution to the victim in the amount of $534.95. (§ 730.6.)

On appeal, the minor contends the juvenile court abused its discretion in ordering the $534.95 victim restitution because there was insufficient evidence to establish the amount of the loss. We shall affirm the order.

BACKGROUND

On May 4, 2005, the minor and two other individuals wrote gang graffiti on the walls of two schools in the Galt Unified School District. Galt Unified School District submitted a claim to the probation department requesting victim restitution in the amount of $534.95, consisting of $34.95 for repair materials and $500 for labor and clean-up services. The probation officer’s report recommended victim restitution be awarded in that amount.

The minor’s counsel objected to the amount on the ground there was no documentation in the form of receipts or cancelled checks to verify the amount. The court asked counsel if he wanted a contested hearing on the issue and counsel chose to proceed without a contested hearing. The court considered the fact that there were no receipts but found the amount stated by the school district to be reasonable in light of the vandalism done.

The juvenile court ordered the minor pay $534.95 in victim restitution to compensate the school district for its loss. The minor’s mother was held jointly and severally liable for the amount, together with any other individual found responsible for the vandalism.

DISCUSSION

The minor contends the trial court abused its discretion in awarding victim restitution in the amount of $534.95 “without any evidence supporting the victim’s claim.” We disagree.

The restitution order here was imposed pursuant to section 730.6. Section 730.6, subdivision (a)(1) specifies that “[i]t 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.” Therefore, “[u]pon a minor being found to be a person described in Section 602, . . . the court shall order the minor to pay . . . [r]estitution to the victim or victims, if any, in accordance with subdivision (h).” (§ 730.6, subd. (a)(2)(B).) Subdivision (h) provides that the court’s restitution order “shall be imposed in the amount of the losses, as determined” and “to the extent possible, shall . . . be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as a result of the minor’s conduct for which the minor was found to be a person described in Section 602, including all of the following:

(1) Full 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.”^[2]

“The standard of review of a restitution order is abuse of discretion. ‘A victim’s restitution right is to be broadly and liberally construed.’ [Citation.] ‘”When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.”’ [Citations.]” (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.’”’” (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392, fn. omitted.) “‘[W]hile the amount of restitution cannot be arbitrary or capricious, “there is no requirement the restitution order be limited to the exact amount of the loss in which the [minor] is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. . . .” [Citation.]’” (Id. at p. 1391, quoting People v. Ortiz (1997) 53 Cal.App.4th 791, 800, fn. omitted.)

Here, the court based its restitution order on the recommendation included in the probation report. According to the report, the school district submitted a claim in the amount of $534.95, consisting of $34.95 for repair materials and $500 for labor and clean-up services. The probation report recommended victim restitution be awarded in that amount and the court found the amount reasonable.

Numerous cases have found the court’s reliance upon probation and similar reports proper. (See, e.g., People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 [when probation report includes information on amount of victim’s loss and a recommendation, burden shifts to defendant to challenge the amount]; 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. Hove (1999) 76 Cal.App.4th 1266, 1274-1275 [memorandum prepared by victim for probation officer listing items and costs is sufficient evidence of loss]; 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]; People v. Foster (1993) 14 Cal.App.4th 939, 946 [statements by victims of value of property constitute prima facie evidence and burden shifts to defendant to challenge the amount]; People v. Baumann (1985) 176 Cal.App.3d 67, 81 [probation reports are permissible sentencing data for restitution]; People v. Hartley (1984) 163 Cal.App.3d 126, 130 [same].)

“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. [Citation.]” (People v. Pinedo, supra, 60 Cal.App.4th at p. 1406.) Here, the items and amounts ($34.95 for repair materials and $500 for labor and clean-up services) were identified and defendant presented no contrary information. Accordingly, the trial court did not abuse its discretion by following the probation report’s recommendation. (Id. at pp. 1406-1407; see also In re S.S., supra, 37 Cal.App.4th at pp. 546-548; People v. Hove, supra, 76 Cal.App.4th at pp. 1274-1275.)

Although the juvenile court specifically stated that it was relying on People v. Pinedo, supra, 60 Cal.App.4th at pp. 1406-1407 and People v. Hove, supra, 76 Cal.App.4th at p. 1275, and provided these citations, the minor inexplicably and unethically (Bus. & Prof. Code, § 6068, subd. (d)) ignores these cases and the plethora of other cases which directly support the juvenile court’s order.

Instead, she relies exclusively on People v. Thygesen (1999) 69 Cal.App.4th 988 and People v. Vournazos (1988) 198 Cal.App.3d 948. We do not find these cases persuasive.

In Thygesen, the defendant rented a cement mixer from an equipment rental business and did not return it. He pled guilty to the theft of the mixer and was ordered to pay victim restitution. After a hearing, the court ordered the defendant to pay restitution in the amount of the rental charges from the date of loss to the date of the hearing -- an amount that was higher than the replacement cost of the mixer. (People v. Thygesen, supra, 69 Cal.App.4th at p. 991.) The appellate court reversed because it would have been cheaper to replace the mixer and there was no evidence that the mixer would have been rented every week for 13 months. (Id. at p. 995.) Because there was no evidence of the age of the mixer or how often it was rented, there was insufficient evidence to support the award, which may have amounted to a windfall for the victim. The court remanded for a rehearing to consider the reasonable replacement value of the mixer, as well as loss of rental value from the date of loss to the date the mixer should have reasonably been replaced. (Id. at pp. 994-996.)

Thygesen is distinguishable from this case. Here, there was uncontradicted evidence from the school district that the loss amounted to $34.95 for repair materials and $500 for labor and clean-up services. There is no suggestion here that a “replacement value” or other means of determining loss would have been appropriate or less expensive, nor did the juvenile court base the amount of restitution on incomplete information.

Nor do we find People v. Vournazos, supra, 198 Cal.App.3d 948, persuasive. Vournazos held that the hearsay statements in the probation report itemizing stolen or damaged items and their asserted values and repair costs were an insufficient basis upon which to order restitution. (Id. at pp. 958-959.) Vournazos has been harshly criticized and not followed by more recent, subsequent cases. (See In re S.S., supra, 37 Cal.App.4th at pp. 546-548; People v. Foster, supra, 14 Cal.App.4th at pp. 946-947.) Indeed, as set forth above, both previous and subsequent cases have consistently held that a victim’s statement as set forth in a probation report regarding the amount of loss constitutes prima facie evidence for the determination of restitution. We disagree with Vournazos to the extent it deviates from this well-established rule.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

DAVIS , Acting P.J.

HULL , J.

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^[1] Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

^[2] Subdivision (h) further provides that “[w]hen feasible, the court shall also identify on the court order, any cooffenders who are jointly and severally liable for victim restitution.” (§ 730.6, subd. (h)(4), 2d par.)