In re M.S.
Filed 2/27/12 In re M.S. CA1/5
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opinion has not been certified for publication or ordered published for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
FIVE
Juvenile Court Law.
and Respondent,
and Appellant.
A130290
(Contra Costa County
Super. Ct. No. J0701442)
Several
teenagers, including appellant M.S., entered the home of a vacationing neighbor
and committed various acts of vandalism and theft over a one-month period.
Appellant was continued as a ward of the juvenile
court after he admitted a petition alleging a single count of
Code, §§ 459, 460, subd. (a).) He
now challenges the order directing him to pay restitution to the victim as a
condition of probation, arguing that he was deprived of due process during the
restitution hearing. We affirm.
Yolanda
Norwood, the victim in this case, returned from a month-long vacation to find
that her home had been ransacked, vandalized and burglarized. The intruders had broken a window to gain
access, sprayed an unknown liquid on the walls and ceiling, consumed food and
alcohol, strewn her belongings throughout the home, and stolen or damaged
several valuable items.
Neighbors
informed Norwood that neighborhood teenagers were responsible. Norwood confronted C.W. and her friend M.B.,
teenage girls who admitted that they had entered the home with appellant and
had taken some purses and clothing. They
said the home had already been vandalized.
Police officers later responded to a disturbance call at appellant’s
house and found Norwood arguing with appellant and his friend F.M. Appellant told the officer, “I regret
everything I did.”
Appellant
told the officer that three weeks earlier, he and F.M. and another youth, C.B.,
had walked by Norwood’s house and noticed a piece of paper posted on the door.
a rock, and entered the house. Appellant
and C.B. stole a flat screen television, a PlayStation 2, and stereo equipment,
which they stored in a vacant house down the street. Property belonging to
Norwood, including a pocket bike, a stereo system and a coin collection, were
found in appellant’s home.
The
district attorney filed a supplemental
delinquency petition
name="_ftnref2" title="">[2]
alleging that appellant had committed a residential burglary. Appellant admitted the allegation and was
placed on probation, subject to a one-year commitment to a juvenile rehabilitation facility and
various other terms and conditions such as the requirement that he pay direct
victim restitution.
On
September 26, 2008, the probation department sent appellant a “Notice of
Determination of Amount of Restitution,” indicating that the court would set
the amount: “The victim reports a broken
window in the family room, her possessions in multiple rooms ransacked, a hole
in the wall, various liquid substance[s] sprayed throughout her home and
multiple stolen items (television sets, stereo system, CD players, a pocket
bike, 300 music CD’s and DVD’s, clothing and food). The victim reports damage to some of the
recovered items. She reports the
mustard, ketchup, salad dressing, honey, syrup, marinades, and other items
sprayed throughout her home ruined many of her possessions and electronic
equipment. . . .[¶] Documentation is available in the probation
file.”
On
February 23, 2009, the probation officer advised the court that Norwood was
seeking $56,805.37, as set forth in a five-page itemized list she had prepared
detailing her losses. Some of the more
valuable items that had been stolen or damaged were a Kenwood refrigerator
($1,600), a red suede couch ($2,000), a Kenwood stereo ($2,000), diamond
earrings ($1,000), a necklace set ($1,000), a Gucci watch ($1,450), pieces of gold
($1,500), a custom-made chain and pendent ($12,500), and a diamond and sapphire
ring ($7,500).
On
November 23, 2009, the court commenced a hearing to determine the restitution
owed by appellant, C.W. and F.M., who had also been declared wards of the court. Norwood presented an itemized list of
property that had been stolen or damaged and additionally elected to appear at
the hearing and testify. Norwood
explained that she had valued the stolen or damaged articles based on either
her purchase price or the cost of replacement, and that she had used the full
replacement price for certain sets of items (knives, dining room chairs) where
only some of the components were damaged or missing.
The
restitution hearing continued on November 25, 2009, at which time defense
counsel cross-examined Norwood extensively about her valuation of certain items
and her claim that some of those items were damaged or still missing. In an attempt to discredit Norwood’s claim by
showing that she lacked the financial wherewithal to have purchased some of the
more expensive items, counsel asked Norwood about her employment and
income. The court sustained the
prosecutor’s relevancy objection: “Her income
is not relevant to this. She may have
inherited money. She may have earned it
all. May have been given to her as a
gift from the boyfriend or family member.”
The
hearing resumed on January 8, 2010, at which time Norwood submitted an itemized
one-page list showing an additional $5,796.30 in stolen or damaged
property. Norwood had submitted these
items to the probation department as part of her original claim, but, in the
process of duplication, the page had been omitted from the materials the
Probation Department submitted to the court.
Defense counsel objected to these items as untimely. The court allowed the supplemental list to be
introduced, reserving a ruling on counsel’s timeliness objection, and on
February 22, 2010, the court continued to hear testimony by witnesses, including
Norwood.
Defense
counsel continued to cross-examine Norwood in an attempt to show that her
restitution claim was inflated. Along
these lines, counsel asked Norwood whether her house had been foreclosed upon
and whether she was facing an unlawful detainer/eviction action when she
purchased some of the items for which restitution was sought. The court sustained the prosecutor’s
relevancy objection. Counsel argued that
this evidence was relevant to Norwood’s credibility because (1) if Norwood had
a negative cash flow necessitating a foreclosure, she could not have purchased
luxury items during that period as she claimed; and (2) Norwood would have been
very unlikely to leave highly valued property in a house that was in
foreclosure. The court disallowed
questions on the subject of eviction and foreclosure: “Whatever these things might show, I don’t
think they are bearing on honesty or veracity.
People can be very honest and have foreclosure [or] an unlawful detainer
suit brought against them.”
The
restitution hearing concluded on March 25, 2010, at which time the parties
revisited the topic of questioning Norwood about her employment and sources of
income. Defense counsel argued that the
court had the power to order Norwood to testify about these areas, noting a
potential due process violation in the event she was not required to answer the
questions. The court disagreed,
reasoning that it could not compel a victim to appear and testify during a
restitution hearing and, as a corollary, could not compel a victim who did
appear to answer certain questions.
Defense
counsel asked Norwood where she was employed during 2004, and Norwood stated
she would rather not answer because “I don’t feel it’s important that where I
worked [] had anything to do with my house being broken into.” She stated that she would rather not answer
questions about her salary or income.
However, she had brought with her a bank statement from that period to
rebut the suggestion that she did not have the money to pay for the items she
was claiming. The statement showed
Norwood had deposited over $102,000 into one of her accounts in 2004 and
withdrawn about $36,000, leaving a balance of over $65,000.
Persisting
in their efforts to show that Norwood did not have the money to purchase the
items for which restitution was sought, defense counsel elicited testimony that
her house was in foreclosure and she had initiated forbearance. Asked by defense counsel whether she had the
money to make her mortgage payment at that time, Norwood declined to
answer. She then explained that she did
not follow through with the forbearance because it would have cost her more
than she wanted to pay and by that time, the house had been “destroyed”
(apparently referring to the damage cause by appellant and others).
After
taking the case under submission, the court issued a written order and decision
on October 1, 2010. It ruled that
Norwood was entitled to restitution from appellant and C.W. in an amount of
$62,514.66, and from F.M. in an amount of $56,805.87, the liability for those
amounts being joint and several. The
amount owed by F.M. was less because F.M. had stipulated to a total amount
before Norwood amended her claim during the hearing to include additional
items.
In
its written ruling, the court explained in some detail its decision to award
restitution for items of property whose value or damage had been contested by
the defense. It also addressed Norwood’s
credibility as a witness: “Having listened
to and observed Ms. Norwood testify, the court finds her to have been credible. Ms. Norwood testified in a subdued, calm,
deliberate and articulate manner, and in great detail, almost always without
hesitation in responding to questions.
In short, her testimony had the ‘ring of truth.’ Her home had been ransacked, and she appeared
to the court to have been emotionally devastated by the occurrence. Much has been made by minors’ counsel of Ms.
Norwood’s reluctance and refusal to answer questions regarding her employment
or sources of income. The inference the
court was apparently being asked to draw is that Ms. Norwood did not have the
wherewithal to purchase the items she was claiming to have been damaged or
stolen, and therefore her claim is fabricated.
To the contrary, the court’s impression was that for some unknown reason
Ms. Norwood was embarrassed to reveal her employment or sources of income. The court ultimately did not compel her
testimony on this subject matter because it believed it could not in light of
the fact that a victim cannot be compelled to appear and testify at a
restitution hearing in the first place.
[(Cain)]. Ms. Norwood had appeared voluntarily. She could have simply submitted her claim in
writing . . . and never appeared to testify as to anything, let alone her
employment or sources of income. At a
restitution hearing, 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; the rigorous procedural safeguards required during the guilt phase
. . . are not required.’
1153, 1161. It should [be] noted that
the court’s finding that Ms. Norwood is and was credible does not derive in any
part from the court’s view that it had to ignore her refusal to answer certain
questions; the court simply believed it could not compel her testimony; the
court has considered her refusal to answer those questions and has nevertheless
found her to have been credible.”
Appellant
argues that he was deprived of due process of law because (1) the juvenile
court improperly restricted his right to cross-examine Norwood about the
sources of income that would have enabled her to purchase the property for
which restitution was claimed; (2) the court delegated to Norwood the right to
control the proceedings; and (3) the court allowed Norwood to supplement her
claim in the middle of the hearing. We
disagree.
Direct
victim restitution in a juvenile case is governed by Welfare and Institutions
Code section 730.6, which tracks the adult offender restitution provisions in
Penal Code section 1202.4. (
1010, 1016.) Like an adult offender, a
juvenile defendant has the right to a hearing to dispute the amount of
restitution. (Welf. & Inst. Code,
§ 730.6, subd. (h).) A victim’s
right to restitution is broadly construed and the court has discretion when
determining the formalities to be followed and the evidence to be
considered. (People v. Millard (2009) 175 Cal.App.4th 7, 42.)
A
criminal defendant does not have a Sixth Amendment right to confrontation
during a hearing to determine the amount of restitution. (Cain,
supra, 82 Cal.App.4th at pp.
86-87.) Though he does have a constitutional
right to due process, that right is very limited. (Id. at
p. 87; In re Brittany L. (2002) 99
Cal.App.4th 1381, 1391 (Brittany L.).) The court need not conduct “a lengthy, formal
hearing to explore all aspects of the victims’ claimed losses and appellant’s
defenses.” (Brittany L., at p. 1391.) “
‘ “A defendant’s due process rights are protected when the probation report
gives notice of the amount of restitution claimed . . . , and the defendant has
an opportunity to challenge the figures in the probation report at the
sentencing hearing.” ’ [Citations].” (
“ ‘The due-process clause should not be treated as a device for
freezing the evidential procedure of sentencing in the mold of trial
procedure.’ ” (People v. Baumann (1985) 176 Cal.App.3d 67, 81.)
Appellant
argues that the court should have compelled Norwood to answer questions about
her income and employment, so that the defense could show she lacked the
financial means to have purchased the items for which restitution was claimed.
Assuming the court had the discretion to make such an order, its failure to do
so did not deprive appellant of due
process. As the trial court
correctly observed in its written ruling, Norwood was not required to testify
at all. Even a victim’s uncorroborated
statement to a probation officer may support a restitution award. (People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1547.) Norwood’s election to voluntarily appear
allowed appellant to question her extensively about particular items that were
damaged or stolen. Appellant was given
greater latitude than due process requires.
The
court reasonably concluded that Norwood’s income and employment were of
marginal relevance in assessing her credibility, and did not outweigh her
privacy interest in keeping information about her income and employment
confidential.
title="">[5] Appellant has not cited any authority holding
that there is a constitutional due process right to cross-examine the victim
during a restitution hearing in an attempt to discredit the victim’s statement
of economic loss. The defense was free
to argue that Norwood’s reluctance to answer questions on those topics
suggested she had something to hide, but the court found Norwood to be
credible, taking her refusal to answer into account.
We
similarly reject appellant’s corollary argument that the trial court abdicated
its function as a neutral finder of fact when it refused to compel testimony
about Norwood’s employment and sources of income. The court made evidentiary rulings, as it was
empowered to do. That it ruled against
appellant does not indicate it was lacking impartiality, or that it allowed the
victim to become the “de facto finder of fact.”
Even in the context of a criminal trial—at which, unlike a restitution
hearing, the defendant possesses a constitutional
him—an evidentiary ruling does not ordinarily violate due process. (See People
v. Benavides (2005) 35 Cal.4th 69, 91.)
Appellant
finally contends he was deprived of adequate notice when the court ordered him
to pay over $5,000 for items that were first disclosed to him during the
restitution hearing. We disagree.
Norwood
submitted a five-page list of items totaling $56,805.37 on February 23,
2009. The restitution hearing commenced
on November 23, 2009. On January 8,
2010, during the third session of that hearing, Norwood supplemented her claim
with an additional one-page list of items totaling $5,796.30. Norwood had previously given this page to the
probation department, but apparently, in the process of duplication, it had
been omitted from the materials provided to the court. Appellant’s counsel objected to the inclusion
of those items in the restitution order.
The restitution hearing continued on February 22 and March 25, 2010,
during which time counsel was able to cross-examine Norwood about the items on
the supplemental list. Counsel renewed
the objection to the supplemental list during the March 25 hearing. The restitution that appellant was ordered to
pay included items on the supplemental claim.
As
the People note, there is no express statute of limitations on victim
restitution, and the doctrines of estoppel and laches do not apply to such
claims. (People v. Harvest (2000) 84 Cal.App.4th 641, 652.) Welfare and Institutions Code section 730.6,
subdivision (h) contemplates that a restitution order may be modified.
appellant claims that he was deprived of adequate notice because the
supplemental list presented by Norwood was first introduced “in the middle of
the [restitution hearing],” but that hearing continued over a number of days
and his trial counsel was able to cross-examine Norwood about the contents of
the list. Appellant had sufficient
notice of the supplemental claim to effectively challenge it during the
hearing; if he believed he needed to present additional information, he should
have requested a continuance for that specific purpose. (See In
re S.S. (1995) 37 Cal.App.4th 543, 548; People
v. Prosser (2007) 157 Cal.App.4th 682, 692.)
The
judgment (restitution order) is affirmed.
NEEDHAM,
J.
We concur.
SIMONS,
Acting P. J.
BRUINIERS,
J.
initiated.
vandalism case.
