Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV32894
Duffy, J.
D.R. appeals from an order of the juvenile court requiring him and his parents to pay restitution in the amount of $33,165 to the victim of a residential burglary. He contends that the court failed to “identify the losses” for which restitution was being ordered as required by Welfare & Institutions Code section 730.6, subdivision (i). He further contends that the evidence is insufficient to support the award. We reject these contentions and affirm the order.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
STATEMENT OF THE CASE
I. General Factual and Procedural Background
We take the facts largely from periodic probation reports in the record and from testimony given at the contested restitution hearing.
Appellant, who was 14 years old at the time, and three younger friends broke in to the mobile home of Rosa Enciso several times over the course of a few days in June of 2006. They took various items but some of them, including a camera, many items of costume jewelry, and a silver coin, were immediately returned to Ms. Enciso.
The record as a whole is not more specific than this in terms of the number of times the juveniles entered the home and over just how many days.
Some items were returned by the offenders’ parents and some were returned after police recovered them.
On June 22, 2007, appellant admitted the allegations of a petition filed under section 602 alleging that on June 6 and 7, 2006, he had committed first degree residential burglary in violation of Penal Code section 459-460, subdivision (a). The court declared appellant a ward of the court and deferred entry of judgment under section 790, placing appellant on probation. The court later set a restitution hearing.
II. Facts Concerning Victim Restitution
Ms. Enciso initially told a police officer that she was missing approximately $25,000 worth of jewelry from Mexico and $10,000 in cash. Within two weeks of the burglary, and after the return of some items, she claimed $30,000 in restitution for various unspecified items of jewelry and cash that had not been returned. The probation department asked her to “itemize the loss” but she was “unable to do so” because “the majority of the jewelry stolen [had been] given to her and she had no receipts.” She did mention to probation that included in the loss were “six centenarios or Mexican centennial coins.”
By October 26, 2007, some 16 months after the burglary, Ms. Enciso had increased the value of her claim to $43,800 as evidenced by the “restitution and claim packet” that she returned to the probation department. This amount included some new and additional items in the total loss, including some items belonging to her children. By January 2008, according to the probation department, Ms. Enciso had reduced her claim to $36,600, which was composed of $15,000 in cash, $15,000 in jewelry, and $6,000 for the value of the six gold coins.
On December 8, 2008, two and a half years after the burglary, the court held a contested restitution hearing. Ms. Enciso testified that she did not initially realize just what had been stolen and that she had discovered more items missing over time. This, plus the return of some items, accounted for her evolving claim of loss from the time of the burglary. And, although more things had been stolen, by the time of the hearing, she was only claiming restitution for specific items, which were the “most important things.” These were $8,015 in cash, the value of three rings, and the value of the gold coins.
Ms. Enciso testified that the missing $8,015 in cash was the amount of her and her husband’s federal and state tax refunds for the year preceding the break-in, as evidenced by the returns. She knew that they had cashed their refund checks and that this documented, specific amount of money was missing. More cash had been stolen but she could not identify just how much and was therefore not claiming it.
The first ring for which Ms. Enciso claimed restitution was one that had been given to her for her Quinceanera some 16 or 17 years before. The ring was gold and had a diamond in it. Although Ms. Enciso did not have a receipt for it, she had printed a page from a website showing a similar ring with a value of $100,000 (presumably Mexican) pesos, which the parties stipulated was then the equivalent of $7,800.
The second ring for which Ms. Enciso claimed restitution was a man’s gold ring that she had purchased for her husband in 1992 or 1993 in Santa Rosa for $1,700 or $1,800.
The third ring for which she claimed restitution was a gold engagement ring purchased for her by her husband in San Jose in 1994 or 1995 for $7,000 or $8,000. Ms. Enciso also had a printed page from a website showing a ring similar to this one.
As for the gold coins, Ms. Enciso had brought 24 of them to the United States with her, presumably from Mexico. Her grandmother had given them to her just before her grandmother’s death 23 or 24 years before. Ms. Enciso had lost six of the 24 coins some years before during a move, leaving her with 18, all of which she thought had been stolen in the burglary soon after it happened. But at first she claimed that only six were missing. Then, at the hearing, she claimed restitution for all 18. She attributed her confusion about how many coins were missing to the fact that she had “a lot of antique coins in [her] house” and she “hadn’t realized which of the coins [she] was missing.” Also, her husband had not wanted her to include the coins in her loss claim so she initially didn’t report them missing. At the hearing, she had a printed page from a website showing the value of coins, which were just like those stolen, at $1,350 a piece, a value that was higher than she thought it would be and that she had previously claimed.
Appellant contended at the hearing that Ms. Enciso’s claim, in its constant evolution, was inaccurate and that the court should award less than the $36,600 finally requested just prior to the hearing and recommended in the most recent probation report preceding that date. He offered no countervailing evidence as to the items alleged to have been stolen or their values.
The court found by a preponderance of the evidence that the total amount of Ms. Enciso’s loss for purposes of victim restitution was $33,165 and it ordered that this amount be paid to her by appellant and his parents, sharing joint and several liability. Appellant raised no objection to the court not having itemized the total award by indicating the respective values assigned to each item.
Although the court did not expressly break down this total, it is not difficult to do so based on the evidence ($8,015 cash; plus $7,800 for the Quinceanera ring; plus $1,750, the difference between $1,700 and $1,800 as the evidenced range in value, for the men’s ring; plus $7,500, the difference between $7,000 and $8,000 as the evidenced range in value, for the engagement ring; plus $1,350 each for six gold coins).
DISCUSSION
I. Applicable Law and Standard of Review
A minor may be ordered to pay restitution as a condition of probation following a deferred entry of judgment. (§ 794.) Section 730.6 governs restitution in cases in which a minor is adjudicated a ward of the court under section 602. Section 730.6, subdivision (a)(1) provides that it “is the intent of the Legislature that a victim... who incurs any economic loss as a result of the minor’s conduct shall receive restitution directly from that minor.” Subdivision (h) provides in relevant part that “[r]estitution... shall be imposed in the amount of the losses, as determined.... The court shall order full restitution.... A restitution order... shall identify each victim... and the amount of each victim’s loss to which it pertains, and shall be of a dollar amount sufficient to fully reimburse the victim... for all determined economic losses incurred as the result of the minor’s conduct... including.... [¶] (1) Full or partial payment of the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property,...” Section 730.6, subdivision (i) provides that a “restitution order... shall identify the losses to which it pertains, and shall be enforceable as a civil judgment....”
Juvenile court judges have broad discretion in fixing the amount of restitution, particularly when restitution is imposed as a condition of probation. (In re Christopher M. (2005) 127 Cal.App.4th 684, 692 [court’s discretion to establish conditions of probation in juvenile cases “ ‘even broader than that of a criminal court’ ”.) “[T]he court may use any rational method of fixing the amount..., provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation.” (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392 (Brittany L.).) “The purpose of an order for victim restitution is three-fold, to rehabilitate the defendant, deter future delinquent behavior, and make the victim whole by compensating him [or her] for his [or her] economic losses.” (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017.) And “ ‘[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 may be recoverable in a civil action....” ’ ” (Brittany L., supra, 99 Cal.App.4th at p. 1391.) Moreover, a victim’s right to restitution is to be “ ‘broadly and liberally construed.’ ” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132 (Johnny M.).)
In calculating restitution, the trial court is “ ‘ “ ‘given virtually unlimited discretion as to the kind of information [it] can consider and the source from whence it comes’ ” ’ ” (Brittany L., supra, 99 Cal.App.4th at p. 1392.) “[T]he trial court is entitled to consider the probation report when determining the amount of restitution.... [¶]... When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the [minor] must come forward with contrary information to challenge that amount.” (People v. Foster (1993) 14 Cal.App.4th 939, 946-947; People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) And “[w]hen an owner of stolen personal property testifies as to its value at a restitution hearing, his or her testimony constitutes prima facie evidence of value. [Citation.] The burden then shifts to the [minor] to demonstrate that the proffered value is erroneous.” (People v. Prosser (2007) 157 Cal.App.4th 682, 684-685.)
An appellate court reviews the court’s findings imposing direct victim restitution for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) “ ‘ “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.” ’ ” (Johnny M., supra, 100 Cal.App.4th at p. 1132; accord, People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409 [reviewing court “will not disturb the trial court’s determination [of restitution] unless it is arbitrary, capricious and exceeds the bounds of reason”].) “In reviewing the sufficiency of the evidence [supporting a restitution award], the ‘ “power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the trial court’s findings.’ [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] ‘If the circumstances reasonably justify the [trial court’s] findings,’ the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] 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, 468-469.)
II. The Losses for Which Restitution Was to be Paid Were Sufficiently Identified
Relying on People v. Frey (1989) 209 Cal.App.3d 139, 142 (Frey), appellant contends that in violation of section 730.6, subdivision (i), the court’s order failed to “identify the losses to which it pertain[ed].” Respondent counters that this claim, not having been raised below, has been waived and, further, that the claim is meritless.
We agree with respondent that the claim of error that the court’s order failed to identify the losses to which it pertained was forfeited or waived because appellant interposed no objection on this ground below.
In People v. Zito (1992) 8 Cal.App.4th 736, 742 (Zito), the court of appeal held that in a challenge to a restitution fine, where, as here, the issue “ ‘concerns the identity and specificity of the losses involved,’ it is a ‘purely factual issue’ that ‘is susceptible of waiver,’ ” and, consequently, the failure to object below results in a waiver on appeal. (See also People v. Kwolek (1995) 40 Cal.App.4th 1521, 1536.) Although Zito (and Kwolek) involved a different statute (former Gov. Code, § 13967, subd. (c)), as pointed out by D.R. here, the language requiring the specification of losses to which the order pertains is the same. We therefore conclude that this issue, not having been raised below, is waived.
Appellant contends that the issue was preserved by his counsel’s comments in argument that the court must “hear testimony and determine whether the amounts requested are accurate and how to learn [(sic)] the amount based on the testimony provided.” Even liberally construed, this statement, which was made before the court issued its order, does not raise objection to the court’s order for its having failed to identify the losses to which it pertained.
Appellant further contends that differences between this case and Zito make that case distinguishable and therefore inapplicable concerning the question of waiver. But the cases are the same to the extent that in neither did the appellant object below to the form of the trial court’s direct restitution order or raise the issue that the order did not sufficiently identify the losses to which it pertained as required by statute.
Despite appellant’s contentions, we remain of the view that his claim of error that the court’s order failed to identify the losses to which it pertained has been waived or forfeited on appeal.
Even were this claim to have been preserved, we would reject it on the merits. For one thing, Frey dealt with an order under former Government Code section 13967, subdivision (c) (repealed, Stats 2003, ch. 230, § 2), not section 730.6. Although former Government Code section 13967, subdivision (c) contained language similar to section 730.6, subdivision (i) concerning the requirement for the identification of losses, in substance, Government Code section 13967, subdivision (c) concerned orders for victim restitution in lieu of a restitution fine. The purpose of the section, unlike section 730.6, was “not to make the victim whole but to serve as an additional means of punishing the defendant.” (Frey, supra, 209 Cal.App.3d at p. 143.) Further, the crime in Frey involved the theft of three vehicles from three different victims. The trial court had ordered victim restitution in lieu of a restitution fine “ ‘in each count in an amount not to exceed ten thousand dollars’ ” but the abstract of judgment reflected restitution “ ‘not to exceed $10,000 as to each xxxx/victim [sic].’ ” (Id. at p. 141.) The appellate court noted the discrepancy between the court’s order and the abstract of judgment and concluded as a result that the order was “wholly ambiguous,” in that it was not clear whether the order was per count or per victim. (Id. at p. 142.) The order thus failed to “specify the exact amount of the fine or identify the victim’s losses” as required by statute. (Ibid.)
Not only are the applicable statutory purposes for restitution different in Frey than in the instant case, the circumstances of Frey are entirely distinct. Here, the order is in no way ambiguous. There was only one criminal count and only one victim. Accordingly, it is clear just what amount in victim restitution is to be paid to whom.
Moreover, section 730.6, subdivision (i)’s provision that the order “identify the losses to which it pertains” does not require that the order separately itemize and assign a value to all distinct components of a single victim’s total loss. Here, the order specifies an exact amount to be paid to a specific victim. The victim claimed restitution for particular items—cash, three rings, and some gold coins—and the record, when viewed as a whole, makes perfectly clear just what losses the order covers and the value assigned by the court to each. This is so notwithstanding the evolving nature of the victim’s total claim and the fact that her testimony regarding the number of stolen gold coins may have been inconsistent or confusing. And, in this case, even if the order falls short of identifying the specific losses to which it pertains, because the record makes clear just what items it covers and the value of each, there is no harm or prejudice.
In sum, we conclude that appellant’s claim that the order fails to identify the losses to which it pertains as required by section 730.6, subdivision (i) has been forfeited or waived. We reject the claim on the merits in any event.
II. The Order is Supported by Substantial Evidence
Appellant next contends that the evidence was “insufficient to prove the losses claimed by the victim and that the losses were caused by the minor.” He cites that there were multiple burglaries and that the victim’s claim of loss had several iterations over time, i.e., that she provided to probation “at least three different versions of what she lost, and she added items to her claim in her court testimony.”
First, with respect to the claim that there was insufficient evidence that appellant caused the victim’s losses, appellant principally cites In re Maxwell C. (1984) 159 Cal.App.3d 263, 266. In that case, the minor admitted allegations that he had received stolen property under Penal Code section 496—a car stereo—but he denied having committed the burglary of the vehicle from which the stereo had been taken. (Id. at p. 265.) Over the minor’s objection, the juvenile court ordered him to pay all losses associated with the burglary as a condition of probation. The court of appeal reversed the order, concluding that the minor could not be found to have committed an offense—burglary—that was neither alleged nor could be considered a lesser-included offense to a charge of receiving stolen property, and, further, that the court did not have discretion to order restitution for losses stemming from criminal conduct that was not alleged and not found to have been true or admitted. (Id. at pp. 265-266.)
Appellant also relies on People v. Richards (1976) 17 Cal.3d 614 and People v. Scroggins (1987) 191 Cal.App.3d 502 (Scroggins). In Richards, the California Supreme Court held that, absent extraordinary circumstances, a probationer could not be ordered to pay restitution for losses in connection with a crime of which he had been acquitted. (Richards, supra, 17 Cal.3d at p. 616.) The trial court had ordered the restitution as a condition of probation and did so to resolve the defendant’s civil liability for an alleged debt. The high court concluded that rehabilitative purposes of criminal restitution could not be served by such an order where there had been no proof of defendant’s civil liability and where he had been adjudged guilty of a crime that required a different state of mind than would compel civil liability. (Id. at pp. 619-624.) The court observed that “[i]f a restitution order is to redirect a defendant to acceptance of responsibility for the crime he has committed, the order must be directly related to that crime.” (Id. at p. 622.)
Scroggins likewise presented a scenario in which the defendant bore criminal responsibility for receiving stolen property but was ordered to pay victim restitution for losses related to burglaries for which he had not been charged or convicted. (Scroggins, supra, 191 Cal.App.3d at p. 504.) In reversing the order, the court of appeal, relying on Richards and Maxwell C., concluded that for a restitution order that exceeds the losses of the defendant’s offense to be valid, the order must serve rehabilitative purposes and that such purposes are not served unless the act for which restitution is ordered was committed with the same state of mind as the offense for which the defendant was convicted. (Scroggins, at pp. 505-506.) The subject order directed restitution for losses that were not proximately caused by the conviction offense and it therefore could not be upheld. (Id. at pp. 506-507.)
In contrast to these three cases on which appellant relies, appellant here admitted the burglary charge, which was alleged to have been committed over two days, and the losses for which victim restitution was ordered were products of that crime. Indeed, there was testimony from appellant’s own mother that she had found jewelry belonging to Rosa Enciso in his bedroom. And appellant offered no evidence that he had not taken particular items claimed in the loss. Further, the restitution order directs payment for losses incurred by Ms. Enciso as a result of the burglary and not some other crime for which appellant did not admit culpability, whether charged or not. And the order does not implicate civil liability concerns. Thus, the considerations that dictated the results in Maxwell C., Richards, and Scroggins are absent here and these cases are accordingly not applicable or controlling. Moreover, “insofar as Richards may be read to require that trial courts refrain from conditioning probation on restitution ‘unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted’ ” the Supreme Court overruled it in People v. Carbajal (1995) 10 Cal.4th 1114, 1126.
We also reject appellant’s claim that there was insufficient evidence to support the losses claimed by Ms. Enciso. It is true that her claim evolved over time, that at times she gave information to support the loss that was inconsistent with other information she had given, and that her testimony at the hearing about the number of gold coins she was missing was confusing and inconsistent. But she also testified that when the break-in first occurred, she did not know just what she was missing; that some items were initially returned; that as time went by, she discovered more items missing; that by the time of the hearing, some two and half years later, she was not claiming anything for less important items or cash for which she could not account; and that her husband had initially pressured her not to claim anything for the coins. We defer to the trial court’s implicit findings concerning these facts and how they may have affected Ms. Enciso’s ability to be precise or consistent over time about her losses, which she nevertheless had sustained. Moreover, it is clear that the court awarded restitution for only six gold coins, and not 18, thus disregarding Ms. Enciso’s increased and inconsistent claim of loss in this respect and giving credit instead to the probation reports that consistently reflected her claim that she had lost six gold coins. And though Ms. Enciso had no receipts, she presented evidence concerning the cost or replacement value of the three rings and the coins, which evidence went uncontradicted, thus substantiating the valuation aspects of her claim.
Given the applicable standard of review, the liberality afforded to direct victim restitution statutes, the purposes of such restitution, and the lack of a requirement that an order be limited to the exact amount of the loss or that it reflect the amount that would be awardable as civil damages, we conclude that the trial court did not abuse its discretion here. (Brittany L., supra, 99 Cal.App.4th at p. 1391; Johnny M., supra, 100 Cal.App.4th at p. 1132.) There is no evidence that the amount of restitution ordered was arbitrary or capricious or not rationally related to the victim’s economic losses. Further, the order is supported by substantial evidence. We accordingly reject appellant’s claim that there is insufficient evidence to support the order.
DISPOSITION
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.