S. S., In re

• Decision Date: 03 August 1995
• Docket Number: No. A067298,A067298
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 6192, 95 Daily Journal D.A.R. 10,512 In re S.S., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. S.S., Defendant and Appellant.

Page 768

43 Cal.Rptr.2d 768

37 Cal.App.4th 543, 95 Cal. Daily Op. Serv. 6192,

95 Daily Journal D.A.R. 10,512

In re S.S., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. S.S., Defendant and Appellant.

No. A067298.

Court of Appeal, First District, Division 2, California.

Aug. 3, 1995.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Rene A. Chacon, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Douglas I. Horngrad by appointment of the First Dist. Appellate Project Assisted Case System, San Francisco, for defendant and appellant.

PHELAN, Associate Justice.

S.S. (appellant) was adjudged a ward of the court based on his participation in the theft of an automobile. On appeal he challenges an order requiring him to make restitution to the victim. He contends that the amount of the victim's losses was not adequately proven at the restitution hearing and that the court erred by declaring his obligation "joint and several" with that of another juvenile. We find no error.

BACKGROUND

The court found appellant to be a person described in Welfare and Institutions Code section 602 upon his admission that on or about April 17, 1994, he committed misdemeanor auto theft and resisting arrest. According to the probation report, appellant was a passenger in the stolen vehicle when officers spotted it and tried to stop it. After a chase, the car crashed into a fence post and was significantly damaged. Appellant and the driver, Frazier W., were arrested.

The probation report recommended in-home placement, participation in appropriate programs, and restitution to the victim. It stated that the victim's documented out-of-pocket expenses up to that point were $1,067.17. At the dispositional hearing counsel for appellant requested that "some type of restitution hearing be reserved in this matter, and that some adequate documentation be provided so that we can determine what's going on here." The court granted the request and set a separate restitution hearing.

Prior to the hearing the probation officer submitted a supplemental report stating that the victim had provided a written itemization of losses amounting to $1,467.17. ¹ At the hearing, counsel for appellant argued that the victim's itemization was insufficient to support a finding that the amounts claimed had in fact been incurred. Counsel objected to the probation officer's failure to "verify any of this evidence," suggesting that "some type of affidavit or declaration" should have been presented. The court suggested that appellant and his counsel could themselves have contacted the victim with any disagreements or questions about the claims. Ultimately the court disallowed a $100 entry entitled "Misc[ellaneous] items," and a $400 entry entitled "Difference between Blue Book Value & the amount to be paid by insurance co., approximately." With respect to the latter the court said, "I have to assume that the insurance company paid the owner of the car what the car was worth." Accordingly, the court ordered restitution in the amount of $967.17, the obligation to be "joint and several" with any such obligation imposed on the driver, Frazier W.

Defendant filed a timely notice of appeal.

ANALYSIS

A.

Appellant renews in this court his contention that the victim's losses were insufficiently proven by her itemized statement. He relies on People v. Vournazos (1988) 198 Cal.App.3d 948, 244 Cal.Rptr. 82, where the court held insufficient a statement from the victim itemizing stolen or damaged items with asserted values and repair costs. (Id. at p. 952, fn. 2, 244 Cal.Rptr. 82.) The court held that this document failed to show that the claimed values represented replacement costs, or that the claimed repair costs reflected "the actual cost of the repair." (Id. at p. 958, 244 Cal.Rptr. 82.)

The Vournazos court professed to acknowledge the rule, adopted in an earlier case, that the defendant "bears the burden of proving that the amount of restitution claimed by the victim exceeds repair or replacement cost of lost or damaged property." (198 Cal.App.3d at p. 959, 244 Cal.Rptr. 82, citing People v. Hartley (1984) 163 Cal.App.3d 126, 130, 209 Cal.Rptr. 131.) In fact the Hartley decision stated an even broader rule: "Since a defendant will learn of the amount of restitution recommended when he reviews the probation report prior to sentencing, the defendant bears the burden at the hearing of proving that amount exceeds the replacement or repair cost." (163 Cal.App.3d at p. 130, 209 Cal.Rptr. 131, italics added, fn. omitted.) The court went on to offer guidelines for the probation officer's "inquiry or investigation" into the victim's losses. (Id. at p. 130, fn. 3, 209 Cal.Rptr. 131.) However the decision appears to mean that, at least where the items, amounts, and sources are adequately identified in or with the probation report, the defendant has the burden of refuting them.

We find it difficult to reconcile the holding in Vournazos with the rule just cited. We are not alone in that difficulty. In People v. Foster (1993) 14 Cal.App.4th 939, 18 Cal.Rptr.2d 1, review denied, the only court to squarely consider the holding of Vournazos refused to follow it. The defendant in Foster was ordered to pay $8,000 for a stolen Persian rug. (Foster, supra, at p. 943, 18 Cal.Rptr.2d 1.) The probation officer had reported the victim's statement that she paid $8,000 for the rug. (Id. at p. 944, 18 Cal.Rptr.2d 1.) The defendant asserted that the court's reliance on this statement was error under both Vournazos and Hartley. The court refused to read Hartley as barring reliance on the victim's estimate of value. (Foster, supra, at p. 946, 18 Cal.Rptr.2d 1, citing People v. Hartley, supra, 163 Cal.App.3d at p. 130, 209 Cal.Rptr. 131.) The court found Vournazos "unpersuasive," partly because it "imposes an unwarranted burden on the trial court, the prosecutor, and the victim." (Ibid., fn. omitted.) Instead, the court concluded, an item's original cost can generally be treated as evidence of replacement cost for purposes of restitution. (Ibid.) Moreover, a property owner's statements of value, recapitulated in the probation report, "should be accepted as prima facie evidence of value." (Ibid.) "When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount. '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....' " (Id. at p. 947, 244 Cal.Rptr. 82, quoting People v. Rivera (1989) 212 Cal.App.3d 1153, 1161, 261 Cal.Rptr. 93.)

Appellant attempts to distinguish Foster by shifting the thrust of his argument. He contends not that the amounts of the claimed losses were insufficiently shown, but that the victim's itemization was too ambiguous with respect to the nature of the claimed items. Thus, he asserts, "the victim failed not only to establish the actual replacement cost ..., but she failed to clearly explain what exactly she lost. For example, the items 'martial arts weapons and spears' are not easily identified."

These objections were not raised below. Counsel's main objection was general--that the victim's statement failed to make a prima facie showing of loss because it was not verified or substantiated by a sworn statement, testimony, or documentation such as receipts. ² The only specific objections raised were that certain amounts were overstated or poorly documented--the number and value of tapes, the amount of the deductible, the "miscellaneous" items, and the difference between Blue Book value and the victim's reimbursement from her insurer. The court disallowed the last two items. The other objections have not been pursued on appeal. Had the objections now raised here been presented to the trial court, it could have exercised its discretion and perhaps obviated them.

We see no reason to permit such objections to be raised for the first time on appeal. In any event, we find no merit in the objection that the items of loss are not described with sufficient specificity. The question is whether appellant received sufficient notice in advance of the hearing to investigate and oppose the probation officer's recommendation. At least under the circumstances of this case, all of the items allowed were more than adequately described. Appellant contends that he was entitled to more information concerning the precise nature of the items claimed, but there is no basis for a conclusion that he lacked the information sought, or could not by reasonable efforts obtain it. For example, the trial court was entitled to infer that the "martial arts weapons and spears" referred to by the victim were in the car when appellant stole it. If they were not, appellant was competent to so testify. If further details were needed, appellant could attempt to procure them, either by contacting the victim or by requesting that the probation officer do so. Having done none of these things, appellant cannot complain about the lack of detail in the statement.

In sum, the court disallowed two items as ambiguous or inexplicable. The remaining items were identified, and their values asserted, with sufficient specificity to permit a defense to the claims. Having presented no meritorious objections, appellant cannot contend that it was petitioner's (or the probation officer's) burden to further embellish the showing made.

B.

Appellant next contends that the court erred by ordering that his liability for restitution be "joint and several" with that of Frazier W. Instead, he asserts, the court should have ordered him to make restitution for half the total losses incurred by the victim. In support...