In re D.T.

Filed 2/25/09 In re D.T. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

D.T. appeals from an order of the juvenile court requiring him to pay restitution in the amount of $1,950 to the victim of a residential burglary, including $1,000 for jewelry missing from her home. He contends there is not substantial evidence to support the victims claim that the jewelry was worth $1,000. We affirm.

Background

On January 22, 2008, appellant admitted a single count of residential burglary (Pen. Code, 459; Welf. & Inst. Code,  602[1]). The juvenile court deferred entry of judgment pursuant to section 790 and placed appellant on probation. At a contested restitution hearing, the 85-year-old victim sought restitution as follows: $300 for a damaged sewing machine, $200 for a damaged chest of drawers, $120 for a broken stereo system, $30 for a broken iron, $300 for a broken clothes dryer, and $1,000 for lost jewelry. With regard to the jewelry, she testified that she calculated its value based on what her son told her it was worth. Her son gave [her] jewelry all the time for [her] birthday and Christmas. And he just amounted up that much because [she] had a necklace, a ring and a bracelet . . . [I]t was 14 carat gold. She clarified that this was all gold jewelry but the rest of the jewelry was not gold and it did not cost that much. The jewelry was about 10 years old and had never been appraised.

At the conclusion of the hearing, the court ordered plaintiff to pay $1,950 in restitution, including $1,000 for the jewelry. Appellant filed a timely notice of appeal.

Discussion

Initially, respondent questions whether the restitution order is an appealable order because the juvenile court deferred entry of judgment pursuant to section 790. (See In re Mario C. (2004) 124 Cal.App.4th 1303, 1308 [order granting deferred entry of judgment under section 790 is not an appealable judgment or order under section 800 because [a]s its very name indicates, the order does not enter judgment but defer[s] such entry indefinitely, perhaps permanently].) Appellant, however, is not appealing the order deferring entry of judgment. Rather, he appeals the order imposing restitution as a condition of probation. Under section 794, When a minor is permitted to participate in a deferred entry of judgment procedure, the judge shall impose, as a condition of probation, the requirement that the minor be subject to warrantless searches of his or her person, residence, or property under his or her control, upon the request of a probation officer or peace officer. The court shall also consider whether imposing random drug or alcohol testing, or both, including urinalysis, would be an appropriate condition of probation. The judge shall also, when appropriate, require the minor to periodically establish compliance with curfew and school attendance requirements. The court may, in consultation with the probation department, impose any other term of probation authorized by this code that the judge believes would assist in the education, treatment, and rehabilitation of the minor and the prevention of criminal activity. The minor may also be required to pay restitution to the victim or victims pursuant to the provisions of this code. No court has considered directly whether an order issued pursuant to section 794 is appealable. (But see In re Johnny M. (2002) 100 Cal.App.4th 1128, 1129-1130 [reviewing restitution order entered after deferral of judgment without discussion of appealability].) Nonetheless, we conclude that despite the absence of a judgment, the order requiring payment of restitution is appealable under section 800.[2] (See In re Do Kyung K. (2001) 88 Cal.App.4th 583, 590 [juvenile may appeal order placing him on probation without wardship pursuant to  725, subd. (a)].) The order is unconditional and effective immediately. If not presently appealable, the order might never be subject to review. Accordingly, we consider the merits of the appeal.

As noted above, 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 pursuant to section 602. Section 730.6, subdivision (h) provides in relevant part, The court shall order full restitution . . . of a dollar amount sufficient to fully reimburse the victim . . . for all determined economic losses incurred as the result of the minors 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, or the actual cost of repairing the property when repair is possible. Juvenile court judges have broad discretion in fixing the amount of restitution and the 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 re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392.)  [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 defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action . . . .   (Id. at p. 1391.)  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.  (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)

Here, the victims testimony provided a sufficient basis for the juvenile courts order. When 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 defendant to demonstrate that the proffered value is erroneous. (People v. Prosser (2007) 157 Cal.App.4th 682, 684-685.) In Prosser, the court held that the victims testimony constituted substantial evidence of value, even though it was unsupported by receipts or appraisals, and even though a detailed description of each piece of jewelry was not given. (Id. at p. 685.) The court explained, It was up to defendant to obtain more particular descriptions through cross-examination, to seek whatever documentation she thought would be necessary to challenge the proffered values, and to object when the court ordered restitution without assigning a particular value to each individual piece of jewelry stolen. Having failed to do so, she did not meet her burden. (Ibid.) In the present case, the trial court relied on the victims sworn testimony regarding how much she was told her jewelry was worth. The victims testimony as to the worth of the missing jewelry seems reasonable in view of her description of the jewelry and its likely relationship to replacement cost, at least for the purpose of establishing a prima facie case. For the same reasons identified in Prosser, appellant failed to meet his burden of challenging the victims prima facie showing.

We are not convinced by the decision in People v. Vournazos (1988) 198 Cal.App.3d 948, cited by appellant, to alter this conclusion. In that case, the court reversed a restitution order because the amount of restitution was not supported by substantial evidence. (Id. at p. 958.) The court explained, In ordering defendant to pay $2,180 in restitution, the trial court relied entirely on the recommendation of defendants probation officer who, in turn, derived the figure solely from [the victims] statement of loss and his discussions with [the victim]. Neither the statement nor the testimony of the probation officer established that the sum claimed by [the victim] for loss of property was based on the replacement cost of the property. (Ibid.) In People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as stated in People v. Sexton (1995) 33 Cal.App.4th 64, 70, the court found the reasoning of the Vournazos court unpersuasive in part because it imposes an unwarranted burden on the trial court, the prosecutor, and the victim and in part because it was at odds with the statement in [People v. Hartley (1984) 163 Cal.App.3d 126, 130] that valuation may be based on a loss report filed with the police. The court recognized that in many other contexts, an owners opinion of the value of his or her property is sufficient evidence to establish value, and in the context of the relaxed procedure to determine conditions of probation there [was] no justification for requiring a more stringent rule . . . . (Foster, supra, at p. 948; see also People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [a victims statement of loss and a probation officers recommendation [is] prima facie evidence of value to determine an appropriate amount of restitution].) We agree with the reasoning of Foster and Gemelli. (Accord People v. Tabb (2009) 170 Cal.App.4th 1142.)

Disposition

The order awarding restitution is affirmed.

_________________________

Pollak, J.

We concur:

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McGuiness, P. J.

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Jenkins, J.

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[1] All further statutory references are to the Welfare and Institution Code.

[2] Section 800, subdivision (a), provides in relevant part A judgment in a proceeding under Section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment.