In re N.R.

Filed 10/8/08 In re N.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Minor N.R. appeals from an order setting victim restitution. We find no error and affirm.

Background

On April 14, 2007, N.R. and a companion dined at Eds Mudville Grill in Clayton. When they finished eating, they dashed from the restaurant without paying and N.R. took a purse from the coat rack that belonged to grill employee Angela Derespini. Grill employees chased N.R. As he ran, he discarded Derespinis purse on a trail behind the restaurant. The purse was recovered but it was stained. Ms. Derespinis keys were missing and a number of pictures that were in the purse were damaged.

Pursuant to a negotiated disposition, N.R. admitted to misdemeanor defrauding of an innkeeper in return for dismissal of a charge of misdemeanor petty theft. N.R. was declared a ward of the court, placed on probation, and ordered to pay victim restitution, including $350 for the damaged purse.^[1] This appeal timely followed.

Discussion

I. The Restitution Proceedings

Derespini told the probation department she paid $350 for the purse and that professional cleaning failed to remove the stains. The prosecutor submitted the restitution amount on that information. N.R. objected to the amount.

The court set the matter for a contested evidentiary hearing on the value of the purse. It suggested that Derespini provide a purchase receipt for the purse if possible, but if not, her testimony alone, if believed, was sufficient to establish the claim. On December 5, 2007, the probation department reported that Derespini did not have a receipt but said she paid $395 for it. The court continued the matter for a week so that the probation department could clarify whether the purse cost $350 or $395.

On December 12, 2007, the precise value remained unresolved. Derespini confirmed she did not have a receipt. She told the probation department that she bought the purse the month before the theft, and that the same bag could be found online. The purse was found online for $395.^[2] At N.R.s request, the court set a contested hearing.

N.R. subpoenaed Derespini to appear with the purse. At the outset of the hearing, the court apologized to Derespini for the subpoena. The court said: They are not allowed to do that. The victims rights are very clear on that issue. . . . I think its outrageous to the victim who was ordered to appear at a restitution hearing. The court issued an order to show cause as to why the public defenders office should not be sanctioned or found in contempt for issuing the subpoena, and continued the hearing to allow the parties to submit authority on whether a crime victim may be subpoenaed or cross-examined at a restitution hearing.

At the next hearing, the prosecutor clarified that Derespini paid $350 for her purse and the $398 purse found online was similar but not the same. N.R. argued that he should be permitted to subpoena and cross-examine Derespini about the value of her purse. The court disagreed: Im not saying you cant call the victim. Im not stopping you from contacting the victim. Im forbidding you from subpoenaing the victim to come to court to testify to her losses on a crime committed on her. The court ordered $350 in restitution for the purse and, based on discussions held off the record, dismissed the order to show cause.

II. Analysis

N.R.s sole contention is that the trial court erred when it refused to allow him to compel Derespinis attendance and testimony at the restitution hearing. It did not.

The key case addressing a criminal defendants right of confrontation at a restitution hearing is People v. Cain (2000) 82 Cal.App.4th 81. It explains: The scope of a criminal defendants due process rights at a hearing to determine the amount of restitution is very limited:  A defendants 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.] [] While we have not been able to find any cases dealing specifically with the defendants right of confrontation at a hearing to determine the amount of restitution, California courts have repeatedly held that the defendant does not have a Sixth Amendment right of confrontation at the sentencing stage of a criminal prosecution. [Citations.] . . . . [] In our view, a hearing on an amount of restitution to be made to the victim pursuant to [Penal Code] section 273.5 is part and parcel of the sentencing process. We find no persuasive justification for granting the defendant more due process protection at this hearing than at a sentencing hearing.^[3] (Id. at pp. 86-87.) In a footnote, Cain observes that Naturally, the trial courts retain discretion to permit such cross-examination on a case-by-case basis. (Id. at p. 87, fn. 4.)

Tacitly acknowledging this authority, N.R. correctly refrains from arguing he had a due process right to subpoena his victim. Instead, he contends the court failed to recognize that it had the discretion to allow him to examine Derespini, and therefore erroneously failed to exercise that discretion. (See People v. Downey (2000) 82 Cal.App.4th 899, 912.) The record does not support the contention. True, it is possible to infer from the courts statements on January 30, 2007, that it believed there was an absolute legal bar against subpoenaing a crime victim to testify at the restitution hearing. But, indisputably, by the following week the court had independently researched the precedent, was well-versed in the law on this point, and specifically debated Cain with defense counsel at the hearing. On this record, we will not conclude the court was unaware of its discretionary authority to permit the victims testimony. In any event, the courts outrage at the defense subpoena dispels any suggestion it would have exercised its discretion to permit the cross-examination. Assuming arguendo that the court erredand we do not so findany purported error could only have been harmless.

Although N.R. does not explicitly argue the courts ruling was an abuse of discretion, any such contention would fail. N.R. argues he should have been allowed to question Derespini about (1) the pre-theft condition of the purse; (2) the amount she paid for it; (3) whether it was a genuine Coach bag or a knock-off; and (4) whether further professional cleaning could have restored it to its original condition. But N.R. had other means to explore these questions. For example, an expert could testify on the purses provenance, replacement value, and whether it could have been restored to its original condition. Furthermore, there was no need to question Derespini about the price she actually paid because, when an item cannot be repaired, its value for restitution purposes is the replacement cost. (Welf. & Inst. Code,  730.6, subd. (h)(1), italics added.) Defendant was free to introduce evidence that the purse could be replaced for less than $350, if such evidence was to be found, and it is difficult to fathom how his cross-examination of Derespini about her purchase price would have helped him.

People v. Prosser (2007) 157 Cal.App.4th 682, on which N.R. relies, is inapposite. The victims in Prosser were called as prosecution witnesses at the restitution hearing, to provide the value of their stolen property. The passage quoted by N.R. merely observes that the defendant had the opportunity to challenge their testimony through cross-examination and other means. Prosser does not stand for the proposition that a defendant has a right to compel victims to attend and testify at a restitution hearing by subpoena.

In short, the court committed neither legal error nor an abuse of its discretion.

Disposition

The restitution order is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Jenkins, J.

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^[1] N.R. was also required to pay Eds Mudville Grill $18.49 for the cost of the meal and $122.50 for Derespinis costs associated with the stolen keys and having the purse cleaned. These amounts are not challenged.

^[2] The $395 figure was apparently a typographical error, as the online printout showed a price of $398.

^[3] Although Penal Code section 273.5 applies specifically to offenders convicted of spousal abuse, Cains reasoning applies equally to restitution in juvenile cases made under Welfare and Institutions Code section 730.6.