Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV31770
RUSHING, P.J.
I. Statement of the Case
On July 17, 2006, the Santa Clara County District Attorney filed a petition under Welfare and Institutions Code section 602, alleging that J.F., a minor, had vandalized glass sculpture in the pond in front of the Campbell Heritage Theater (Theater), causing more than $400 in damage. (Pen. Code, § 594, subds. (a), (b)(1).) The minor had two accomplices, T.L. and E.F. On September 27, 2006, after the minor admitted the allegation, the juvenile court admitted him to a deferred-entry-of-judgment (DEJ) program and, among other things, ordered restitution for the damages to the Theater, which amounted to $14,747. However, the court ultimately made all three perpetrators jointly and severally liable for the total damages.
All further unspecified statutory references are to the Penal Code.
On July 29, 2009, the probation department recommended that E.F.’s restitution obligation be vacated and that the joint and several restitution obligation of the minor and T.L. be reduced to $9,831.34. Over the minor’s objections, the court granted the request. The minor appeals from the order, claiming the court abused its discretion.
We affirm the order.
II. Background
After the court ordered joint and several liability for $14,747, E.F. and his family paid $1,375. E.F. also performed 300 hours of community service valued at $3,540.66. The Theater, through its representative and building manager, agreed to accept that community service as a substitute for monetary restitution because E.F. was the only perpetrator who had expressed remorse for his conduct. The Theater also noted that E.F. had asked permission to reduce his share of the restitution, E.F.’s father had recently passed away, and E.F.’s family’s financial circumstances were apparently limited. Although the minor and T.L. had also made some restitution, the Theater was adamant that they remain liable and not be allowed community service in lieu of actual payment. The probation department then requested that E.F.’s restitution order be vacated and the remainder of restitution continue to be the joint and several responsibility of the minor and T.L.
The court held two hearings on the request. The minor objected. He claimed that it was unfair for him to potentially be liable for the whole $9,831.34, when E.F. was able to escape liability by actually paying only $1,375. The minor argued that E.F. should remain jointly and severally liable for the rest of the unpaid restitution. ~(RT 6-8)~ Alternatively, he argued that he be allowed to reduce his liability through community service.
The court found the probation department’s request to be reasonable under the circumstances and granted it.
III. Applicable Legal Principles
The juvenile court “is vested with discretion to apportion restitution in a manner which will effectuate the legislative objective of making the victim whole and rehabilitating the minor[, ]” and this discretion includes imposing joint and several liability on multiple perpetrators. (In re S.S. (1995) 37 Cal.App.4th 543, 549; see People v. Zito (1992) 8 Cal.App.4th 736, 744.) “Generally, an order of restitution will not be overturned in the absence of an abuse of discretion. [Citation.] The court abuses its discretion when it acts contrary to law [citation] or fails to ‘use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious’ [citation].” (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.)
On appeal, the juvenile court’s orders are presumed to be correct, and the appellant bears the burden to show error. (See In re Julian R. (2009) 47 Cal.4th 487, 498-499.)
IV. Discussion
The minor contends that vacating E.F.’s restitution order was an abuse of discretion. He asserts that doing so was “inequitable” because it extinguished E.F.’s potential liability for more than one-third of the damages if the minor or T.L. or both defaulted on their shares. He claims that as an unfair consequence, the court increased the minor’s potential liability for more than his one-third share by making him solely responsible if T.L. defaults. The minor also claims the court erred in failing to consider community service in lieu of actual payment and also failed to consider the amount of restitution he had already paid.
Under the original restitution order, the minor, E.F., and T.L. were jointly and severally liable for the $14,747. In other words, each was potentially liable for the entire amount.
E.F. distinguished himself from the others after the incident by showing remorse and seeking to do community service in lieu of payment because of his father’s death and the family’s financial situation. His family paid $1,375 in restitution, and the Theater accepted the value of E.F.’s community service as additional restitution. Thus, E.F. paid the equivalent of his fair share-i.e., one-third-of total amount of restitution.
Although one purpose of restitution is to make the victim whole, it is also intended to deter future delinquent behavior and rehabilitate the perpetrator. (In re Anthony M., supra, 156 Cal.App.4th at p. 1017.) Given the absence of evidence that E.F. had engaged in further unlawful or delinquent acts, his remorse for the vandalism, the efforts he and his family made to pay restitution, and the mitigating circumstances of his father’s death and the family’s financial situation, the juvenile court reasonably could find that the restitution order had served its deterrent and rehabilitative purposes and that the interests of justice were best served by vacating E.F.’s restitution order, and thereby extinguishing any further restitution liability. Given E.F.’s unique circumstances, which differentiated him from the minor and T.L., we do not consider the court’s decision to be arbitrary, capricious, or unreasonable. Indeed, as noted, the Theater supported that decision.
Clearly, the court’s decision affected the minor’s circumstances. The minor started out being potentially liable for the entire $14,747 if both E.F. and T.L. defaulted. However, the court gave both the minor and T.L. credit for the restitution made by E.F., and thus, the minor’s potential liability was reduced to $9,831.34. Moreover, although before the court’s order, the minor and E.F. shared the risk of increased liability if T.L. were to default; and although after the order, the minor bore the entire risk, the increased contingent burden on the minor does not, in our view, seem so unfair or inequitable as to outweigh the justification for the court’s order or render it unreasonable and an abuse of discretion as a matter of law.
This is especially so because after the incident, the minor had probation violations, failed his DEF program, was placed on an electronic monitoring program, and, in 2008, absconded from his residence. In 2009, he was arrested on outstanding arrest warrants for theft and falsely identifying himself to a peace officer. (§§ 484, 148.9.) He was convicted of receiving stolen property. (§ 496.) Moreover, the juvenile court had to hold two hearings concerning restitution because the minor failed to appear at the first hearing. Under the circumstances, the court reasonably could have concluded that any increased contingent burden on the minor as a consequence of its decision would serve the purposes of deterrence and rehabilitation.
Concerning the minor’s claim that the court failed to consider community service in lieu of actual payment, the record reveals that at the first hearing on the reallocation of restitution, the minor’s attorney said he understood why E.F. was allowed to satisfy restitution through community service and, therefore, he was “not arguing that [the minor] should get community service.” However, at the next hearing, counsel requested the opportunity for the minor to pay with a combination of paying and community work. Citing the minor’s “history, ” the court rejected that request. Thus, contrary to the minor’s claim, the court did consider and rejected community service as a form of restitution.
Concerning the minor’s claim that the court failed to acknowledge that he had paid some restitution, we note that the reports for the two hearings revealed that the minor’s family had paid $940 toward restitution; and by the second hearing, they had paid $1,065. Moreover, at the second hearing, counsel orally reported that the minor and his family had paid over $1,000, and the court expressly said that it was crediting the minor for that payment. Thus, the record establishes that the court considered the minor’s payments.
In sum, the minor has not met his burden on appeal to demonstrate that the juvenile court abused its discretion.
V. Disposition
The court’s order is affirmed.
WE CONCUR: PREMO, J., DUFFY, J.