Opinion
B228500
02-09-2012
In re LUIS C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LUIS C., Defendant and Appellant.
Sarvenaz Bahar, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KJ34244)
APPEAL from an order of the Superior Court of Los Angeles County, Daniel S. Lopez, Judge. Reversed in part, affirmed in part.
Sarvenaz Bahar, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Luis C. appeals from a juvenile court order sustaining felony counts of arson and recklessly causing a fire, ordering him home on probation with conditions, and awarding restitution of $4,262,303.32 to the United States Forest Service (Forest Service). We reverse in part and affirm in part.
BACKGROUND
A November 17, 2009 petition pursuant to Welfare and Institutions Code section 602 alleged that Luis C., then 13 years old, had set fire to and burned forest land in the San Gabriel Mountains at Azusa Canyon and Morris Lake. The petition alleged that Luis C. had committed two felonies: arson of a structure or forest in violation of subdivision (c) of Penal Code section 451 (count 1) and recklessly causing a fire of a structure or forest in violation of subdivision (c) of Penal Code section 452 (count 2). Luis C. denied both counts of the petition.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
The juvenile court conducted the adjudication hearing from May 24 to May 26, 2009. At the close of the hearing, the court found the allegations true, sustained both counts, and declared both offenses to be felonies. With the consent of the parties, the court proceeded directly to disposition and found Luis C. to be a ward of the court, ordered him home on probation, and placed him in the care, custody, and control of the probation officer, with multiple conditions including that Luis C. not possess any incendiary device, not use any fireworks, stay away from the Morris Dam area, and not be in any campsite or forest area without a responsible adult. After stating the probation conditions, the court asked Luis C.'s counsel if she requested a restitution hearing, and counsel answered in the affirmative. The court conducted that hearing on October 22, 2010, and ordered restitution in the amount of $4,262,303.32 to the Forest Service.
The evidence at the adjudication hearing showed that Luis C. lit brush on fire with a barbecue lighter in the rugged terrain near Morris Lake. The resulting fire (the Morris Fire) burned for about 10 days and consumed about 3,000 acres of land.
The sole witness at the restitution hearing was District Ranger L'Tanga Watson of the Forest Service, who testified that she was authorized to testify on behalf of the Forest Service and had knowledge of the Morris Fire. Watson stated that the Forest Service "is not seeking restitution in this matter."
The juvenile court asked for the amount of damage done by the Morris Fire, and the prosecutor referred the court to a fax from the Forest Service dated January 12, 2010. The fax included a Forest Service summary report for the Morris Fire dated December 30, 2009, which itemized charges and gave a total of $4,262,303.32 in "expenditures" associated with the Morris Fire, including over $1 million each for "premium pay," "contracts," and "aircraft."
The fax cover sheet identified the sender as Special Agent JoAnne Baldwin of the Forest Service. Watson testified that she was familiar with Baldwin, "a special agent that deals with claims after arson fires. So if her numbers are—if these are her numbers, this would be the final determination. I haven't seen it."
Defense counsel objected to further testimony by Watson concerning the fax because Watson had "no knowledge related to the document." The court overruled the objection and then asked Watson whether she was familiar with the summary report. Watson testified, "Not this actual document, no." The court then proceeded to question Watson about whether the document provided an "accurate assessment."
The prosecution argued that although the Forest Service did not request it, the court should order restitution for the "damage to federal land" in the amount stated in the summary report contained in the fax. The prosecution relied on Penal Code section 1203.1d, subdivision (d), which provides that "[d]ocumentary evidence . . . relevant to the value of the stolen or damaged property . . . shall not be excluded as hearsay evidence." Defense counsel objected to the admission of the fax on grounds of "lack of foundation, speculation, and hearsay," but the court overruled the objection and admitted the document.
The court ordered restitution to the Forest Service in the full amount requested by the prosecution, $4,262,303.22. The court reasoned that the victim's failure to seek restitution was not a determining factor, and by statute "the minor's inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order. Nor [shall] inability to pay be a consideration in determining the amount of [the] restitution order." (See § 730.6, subd. (h).)
DISCUSSION
First, in his opening brief Luis C. argues that the juvenile court's finding on the arson count is not supported by substantial evidence because there is no evidence that he harbored the necessary intent. In his reply brief, however, he concedes that the underlying legal issue was resolved against him in In re V.V. (2011) 51 Cal.4th 1020, and we agree.
Second, Luis C. argues that the juvenile court erred by making true findings on both the arson and recklessly causing a fire counts, because the latter is a lesser included offense of the former. We agree. (See People v. Lopez (1993) 13 Cal.App.4th 1840, 1846; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324; People v. Hooper (1986) 181 Cal.App.3d 1174, 1181-1182, disapproved on other grounds by People v. Barton (1995) 12 Cal.4th 186, 198, fn. 7.) The respondent's brief presents no persuasive argument for a contrary conclusion, and the respondent's brief does not mention any of the relevant cases although Luis C. cited them in his opening brief. We accordingly reverse the juvenile court's finding on count 2, recklessly causing a fire.
Third, Luis C. challenges the restitution award on several grounds. We find two of those grounds meritorious and dispositive, and we therefore express no opinion on the others.
Luis C. argues that substantial evidence did not support the restitution award because the record does not contain evidence that the Forest Service owned the land burned by the Morris Fire. We agree.
The restitution ordered by the juvenile court is to reimburse a victim for economic loss caused by the minor's conduct subjecting him to juvenile court jurisdiction. (§ 730.6, subd. (a)(1).) The court may reimburse a "government, governmental subdivision, agency, or instrumentality . . . when that entity is a direct victim of an offense." (Id., subd. (k).)
The record contains no evidence that the Forest Service owned the land burned by the Morris Fire. The record therefore contains no evidence that the Forest Service is a direct victim of Luis C.'s crime, so the restitution award is not supported by substantial evidence.
Respondent argues that Luis C. forfeited the point by failing to raise it at the restitution hearing. The argument lacks merit. "Sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. [Citations.] This view has been repeatedly adopted in appeals from juvenile court orders. [Citation.]" (In re K.F. (2009) 173 Cal.App.4th 655, 660 [discussing a substantial evidence challenge to a restitution order].)
Luis C. also argues that the juvenile court abused its discretion by admitting the summary report of the "expenditures" associated with the Morris Fire, and that the amount of the restitution award is consequently not supported by substantial, admissible evidence. We agree.
The record contains no evidence authenticating the summary report. The juvenile court therefore abused its discretion by overruling Luis C.'s foundation objection and admitting the document. (See Evid. Code, § 1401.) Penal Code section 1203.1d, subdivision (d), on which the court expressly relied, does not provide to the contrary. That statute relates only to documentary evidence of "the value of the stolen or damaged property" and provides only that such evidence "shall not be excluded as hearsay evidence." (Pen. Code, § 1203.1d, subd. (d).) The statute says nothing about other evidentiary objections.
Respondent again argues that Luis C. forfeited the point by failing to raise it at the restitution hearing. Respondent acknowledges, however, that Luis C. objected to admission of the document on the basis of "lack of foundation," and respondent does not explain why that objection was insufficient to preserve the authentication issue for appeal. We conclude that it was sufficient.
Because the points we have discussed are dispositive, we express no opinion on any other potential infirmities in the restitution award.
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DISPOSITION
The juvenile court's finding on count 2, recklessly causing a fire, is reversed. The award of restitution to the Forest Service is reversed. The order is otherwise affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J.
We concur:
CHANEY, J.
JOHNSON, J.