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People v. Kimball5/19/2004
the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion." (Emphasis added.)
Appellant had a statutory right to a restitution hearing in order to obtain a judicial determination of the amount of restitution owed. (See People v. Foster (1993) 14 Cal.App.4th 939, 943; People v. Hartley (1984) 163 Cal.App.3d 126, 130.) Furthermore, due process requires notice of the amount sought and an opportunity to challenge that amount in an evidentiary hearing. (People v. Scroggins (1987) 191 Cal.App.3d 502, 508 [due process requires notice of amount claimed and opportunity for hearing; court's denial of request for hearing severely curtailed due process rights]; People v. Thygesen (1999) 69 Cal.App.4th 988, 993 [no due process violation when defendant given notice of amount claimed in advance and hearing to contest that amount].)
Respondent contends appellant is not entitled to a hearing because he failed to make an adequate showing that the amount of restitution recommended exceeded the losses incurred by the victims, citing People v. Hartley, supra, 163 Cal.App.3d at p. 130 and People v. Foster, supra, 14 Cal.App.4th at pp. 946-947. However, Hartley does not stand for the proposition cited. In Hartley, this court remanded the matter for a restitution hearing, finding the trial court's denial of the defendant's request for a hearing error. The court noted that
"Although we hold that the trial court is required to grant a defendant's request for a hearing on the issue of restitution, we do not imply that the requisite hearing approximate the formality of a civil trial. Since a defendant will learn of the amount of restitution recommended when he reviews the probation report prior to sentencing, the defendant bears the burden at the hearing of proving that amount exceeds the replacement or repair cost. At the conclusion of the hearing the trial court must then make an independent judicial determination of the amount of restitution the defendant shall be required to pay based on the available evidence of the replacement or repair cost of the stolen or damaged property." (People v. Hartley, supra, 163 Cal.App.3d at p. 130, emphasis added.)
In other words, although Hartley holds that the defendant bears the burden of proof at the hearing, it does not create a threshold showing to be met before a hearing is granted. (See also People v. Fulton (2003) 109 Cal.App.4th 876, 886 [statute mandates that the amount of restitution is to be based on the "loss claimed by the victim" and defendant has right to a hearing "to dispute the determination of the amount of restitution"].)
Neither does People v. Foster, supra, 14 Cal.App.4th at pp. 946-947 support respondent's contention. In Foster, the court found that the defendant had waived his right to challenge the probation report because he did not object to the recommended restitution amount. (Id at p. 943.) There is clearly no waiver here.
The defendant in Foster then challenged the award as being unsupported by sufficient evidence because it was supported only by statements in the probation report. In this context, the court noted that a property owner's statements found in the probation report about the value of the loss should be accepted as prima facie evidence of value for purposes of restitution. (People v. Foster, supra, 14 Cal.App.4th at p. 946.) It also stated "when the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary info
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