Filed 3/5/15 In re C.E. CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


In re C.E., a Person Coming Under the Juvenile Court                                         C076792
Law.

THE PEOPLE,                                                                      (Super. Ct. No. JV134843)

                   Plaintiff and Respondent,

         v.

C.E.,

                   Defendant and Appellant;

L.P.,
                   Appellant.




         The minor C.E. admitted an allegation in a wardship petition (Welf. & Inst. Code,
§ 602)1 that he violated Vehicle Code section 23153, subdivision (a) by driving while
under the influence of alcohol and causing bodily injury. He also admitted an




1 Undesignated statutory references are to the Welfare and Institutions Code.


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enhancement allegation that he inflicted great bodily injury. (Pen. Code, § 12022.7,
subd. (a).) The juvenile court placed the minor on probation with 90 days in juvenile
hall.
        Following a contested restitution hearing, the juvenile court awarded $376,200
in victim restitution, specifying that the minor’s mother would be jointly and severally
liable for $39,300.
        On appeal, the minor and his mother (collectively the minor) contend the juvenile
court (1) failed to properly apply section 730.6 in awarding restitution for lost
commission income, because section 730.6 required the victim to show a 12-month
income pattern; and (2) failed to offset the restitution with income earned by the victim
during the relevant time period.
        We conclude the juvenile court did not improperly apply section 730.6, and the
restitution award included an offset for the victim’s earnings. We will affirm the juvenile
court’s restitution order.
                                     BACKGROUND
        The minor drank seven beers and two shots at a friend’s house on July 22, 2012.
He subsequently lost control of the car he was driving and collided head-on with another
car driven by a victim who sustained numerous injuries including a compound fracture
to his leg. The collision rendered the victim permanently disabled. A blood-alcohol test
immediately after the accident showed that the minor had a blood-alcohol content of 0.08
percent.
        The victim completed and signed a restitution form identifying reimbursable
losses consisting of $280,059 in medical expenses and $96,231 in lost wages. The victim
also attached medical bills and the deposition of Patricia Motmans, who worked in the
human resources department for the Von Housen Automotive Group. The victim had
been hired by the Von Housen Automotive Group (Von Housen) as a sales associate in
July 2012. Sales associates did not receive an hourly wage, but were compensated based

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on the number of units sold. Although the auto industry generally had turnover with
salespeople, Von Housen was unique, the “crème de la crème.” New sales associates did
not have a probationary or training period. Only one sales associate left in 2012, a recent
hire who returned to his old job. Two new sales associates started in 2012. The associate
with prior sales experience averaged $7,448.74 a month, while the other, who had no
prior sales experience and eventually quit to go to his prior employment, earned
$4,532.76 a month.
       Before the restitution hearing, the parties agreed to omit a $90 flu shot from the
claimed medical expenses and agreed that the restitution amount for medical expenses
should be $279,969.
       The victim testified at the February 2014 restitution hearing. For the six years
prior to the accident, he sold handmade greeting cards, purses, handmade key chains, and
ladies hair accessories, making about $1,200 to $2,000 a month. Before that, he had been
a salesman and sales manager in the automotive industry for 20 years. He quit working
in auto sales to work at home and take care of his ailing parents. He made $80,000 to
$105,000 a year in his last few years in auto sales. The victim decided to reenter the auto
sales business after his wife found out she was pregnant in April 2012. He went to Von
Housen because they were the best dealership in the area. He was set to start working
there the day after the accident. Due to his injuries he could no longer work as a car
salesperson.
       The victim’s lost income claim covered the period from the date of the accident
(July 22, 2012) to the date he submitted his restitution claim (October 22, 2013). He
calculated his lost income for that period by multiplying the $7,448 amount per month
referenced by Patricia Motmans in her deposition as the average income for the new
salesperson with experience, and then subtracting the $15,500 the victim actually earned
in other jobs during that period. The victim testified that the Von Housen job “would



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have been the best job I ever had. I was so excited, my family, my wife. I have no doubt
I would have been there on Monday and [would have] been there today.”
       In a detailed written opinion, the juvenile court ordered restitution for medical
expenses in the amount agreed upon by the parties, and also ordered restitution for lost
wages at the $96,231 amount sought by the victim.
                                       DISCUSSION
                                              I
       The minor contends the juvenile court failed to properly apply section 730.6
in awarding restitution for lost commission income, because section 730.6 required
the victim to show a 12-month income pattern.
       Section 730.6 provides for victim restitution when a minor described in section
602 causes a victim to incur economic loss as a result of the minor’s conduct. (§ 730.6,
subd. (a)(1).) Upon finding a minor to be a person described in section 602, the juvenile
court must order the minor to pay victim restitution. (§ 730.6, subd. (a)(2)(B).) The
juvenile court shall order full restitution unless it finds compelling and extraordinary
reasons not to do so and states them on the record. (§ 730.6, subd. (h).) The restitution
order shall be in an amount sufficient to fully reimburse the victim for all determined
economic losses incurred as the result of the minor’s conduct. (Ibid.) In addition to
making the victim whole, victim restitution also has a deterrent and rehabilitative effect.
(People v. Cookson (1991) 54 Cal.3d 1091, 1097.)
       The juvenile court is vested with considerable discretion in determining the
amount of restitution. “ ‘[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. . . .”
[Citation.]’ ” (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391, fn. omitted.) We
review a restitution order for abuse of discretion. (In re Johnny M. (2002)

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100 Cal.App.4th 1128, 1132.) The juvenile court abuses its discretion when it acts
contrary to law or when there is no factual and rational basis for the amount of restitution
ordered. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016; Johnny M., at p. 1132.)
       Section 730.6, former subdivision (h)(4), now subdivision (h)(1)(C) (Stats. 2014,
Ch. 760, § 7, eff. Jan. 1, 2015), authorizes restitution for lost wages or profits, including
lost sales commissions. “Lost wages shall include any commission income as well as
any base wages. Commission income shall be established by evidence of commission
income during the 12-month period prior to the date of the crime for which restitution
is being ordered, unless good cause for a shorter time period is shown.” (§ 730.6,
subd. (h)(1)(C).) Based on that statutory language, the minor argues the victim’s lost
income must be calculated based solely on his income during the 12 months before the
accident when he sold greeting cards and other items. He adds that his crime, by itself,
does not establish good cause to ignore the 12-month requirement, and the victim had
other income which should have been used to calculate loss of income.
       We conclude the juvenile court did not misapply section 730.6. The 12-month
language in subdivision (h)(1)(C) provides a means to determine the average amount
of commission income, but the statute does not say that such evidence must be limited
to the victim’s own prior income. Here, the juvenile court determined average prior
commission income by considering the income information for another similarly situated
salesperson. Although determining future earnings in commission-based jobs like auto
sales can sometimes be difficult, substantial evidence supported the restitution award in
this case. The victim was experienced in auto sales and had earned significant income in
the field before leaving it to care for his elderly parents. Von Housen had low turnover
in its sales force and working there was considered the apex of car sales businesses in the
area. According to Patricia Motmans’s deposition testimony, 10 sales associates at Von
Housen made an average of $6,654 per salesperson in July, $5,911 in August, $10,000
in September, $7,178 in October, $11,142 in November, and $10,360 in December.

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The juvenile court compared the average monthly income during that period -- $8,540 --
to the $7,448 claimed by the victim and found the claimed restitution was “conservative
and well supported by the record.”
       We conclude the trial court did not abuse its discretion in determining the amount
of restitution for lost wages.
                                              II
       The minor further contends the juvenile court failed to offset the restitution
with income earned by the victim during the relevant time period. But the restitution
amount included such an offset. The victim’s calculation for his lost income subtracted
the amount he actually earned during the relevant time period, and the juvenile court’s
restitution order adopted that offset amount. The minor’s contention lacks merit.
                                       DISPOSITION
       The juvenile court’s restitution order is affirmed.



                                                        MAURO                 , J.



We concur:


      HULL                   , Acting P. J.


      ROBIE                  , J.




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