In Re SS

37 Cal. App. 4th 543, 43 Cal. Rptr. 768, 43 Cal. Rptr. 2d 768
CourtCalifornia Court of Appeal
DecidedAugust 3, 1995
DocketA067298
StatusPublished
Cited by18 cases

This text of 37 Cal. App. 4th 543 (In Re SS) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re SS, 37 Cal. App. 4th 543, 43 Cal. Rptr. 768, 43 Cal. Rptr. 2d 768 (Cal. Ct. App. 1995).

Opinion

37 Cal.App.4th 543 (1995)
43 Cal. Rptr. 768

In re S.S., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
S.S., Defendant and Appellant.

Docket No. A067298.

Court of Appeals of California, First District, Division Two.

August 3, 1995.

*544 COUNSEL

Douglas I. Horngrad, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Laurence K. Sullivan and Rene A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PHELAN, J.

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 *545 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 *546 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.

(1) 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.) 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.)

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, 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, 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.) 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 *547 Foster was ordered to pay $8,000 for a stolen Persian rug. (Foster, supra, at p. 943.) The probation officer had reported the victim's statement that she paid $8,000 for the rug. (Id. at p. 944.) 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, citing People v. Hartley, supra, 163 Cal. App.3d at p. 130.) The court found Vournazos "unpersuasive," partly because it "imposes an unwarranted burden on the trial court, the prosecutor, and the victim." (14 Cal. App.4th at p. 946, 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, 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.

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Bluebook (online)
37 Cal. App. 4th 543, 43 Cal. Rptr. 768, 43 Cal. Rptr. 2d 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ss-calctapp-1995.