People v. Joshua R.

Opinion

CROSBY, J. A Welfare and Institutions Code section 602 petition alleged Joshua R. maliciously inflicted less than $1,000 in damage to property belonging to another and tampered with a motor vehicle. Both counts were sustained. The minor contends the juvenile court improperly delegated the task of determining the amount of restitution to the probation officer. We agree and modify the probation order accordingly.

Welfare and Institutions Code section 729.6, subdivision (a)(1) provides, “the court shall require . . . that the minor make restitution . . . fl[] [t]o the victim.” But it is well settled that the court may not simply delegate the determination of the amount to the probation officer. (See People v. Cervantes (1984) 154 Cal.App.3d 353, 361 [201 Cal.Rptr. 187].)1 Here, the minute order requires the minor to “make restitution to [the] victim pursuant [1254]to [section] 729.6(a)(1) of W & I Code ... in [an] amount and manner as directed by probation officer. ” (Italics added.) This was error.

The amount of restitution is for the court to decide unless the minor consents to a delegation of this function to the probation officer in the first instance. Nothing in the record suggests Joshua ever consented to such an arrangement.2

The vehicle’s owner testified she obtained two repair estimates for the damage, one for $511, the other for $516. As a practical matter, the amount awarded as restitution to the victim would be the lower of the two sums. Neither the court nor the probation officer would be likely to select a different amount. Still, under Penal Code section 1203.1k, the minor was entitled to have the juvenile court set the restitution sum.

We note our colleagues in the Sixth District recently reached different results in two opinions, In re Paul D. (Cal.App.) and In re Thomas R. (1991) 2 Cal.App.4th 738 [3 Cal.Rptr.2d 499], In Paul D. the probation officer’s report indicated the victim requested restitution in a particular amount, but no documentation supported the figure. Without further information on the subject, the court simply ordered the minor to pay restitution in a sum not to exceed the amount requested: “ ‘The exact amount is going to be determined by the probation officer. Th[e] [amount asked for] sounds high enough that I want that verified.’ ”

The appellate court observed that in the case of an adult defendant granted probation, the trial court “ ‘may . . . order the probation officer to set the amount of restitution and the manner in which restitution is to be made to a victim. The defendant shall have the right to a hearing before the judge to dispute the determinations made by the probation officer . . . .’(Pen. Code, § 1203.1k.)” (In re Paul D. (Cal.App.).) The panel concluded the juvenile court could make a similar order: “The fact that the probationer has a right to withhold consent, and the fact that the court has the power to countermand,