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In re Alex K.

California Court of Appeals, Third District
Sep 23, 2008
No. C057952 (Cal. Ct. App. Sep. 23, 2008)

Opinion


In re ALEX K., a Person Coming Under the Juvenile Court Law. ELIAS FERNANDEZ, JR., as Chief Probation Officer, etc., Plaintiff and Respondent, v. ALEX K., Defendant and Appellant. C057952 California Court of Appeal, Third District September 23, 2008

NOT TO BE PUBLISHED

Super. Ct. No. JL07028

CANTIL-SAKAUYE, J.

An original petition alleged that minor Alex K. came within the provisions of Welfare and Institutions Code section 602 in that he committed felony vandalism. (Pen. Code, § 594, subds. (a), (b)(1).) Alex K. admitted the allegation as a misdemeanor. At disposition, the juvenile court placed him on probation. (§ 725, subd. (a).) One of the conditions of Alex K.’s probation required him to pay victim restitution in an amount to be determined at a restitution hearing. A contested restitution hearing was held and Alex K. was ordered to pay $1,400 in victim restitution jointly and severally with a co-offender.

Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

Alex K. appeals the restitution order claiming it was an abuse of discretion. We shall reverse the restitution order and remand for a new restitution hearing because we conclude the juvenile court’s order was entered based on an erroneous understanding of the law.

FACTUAL AND PROCEDURAL BACKGROUND

The social study report submitted for disposition in this matter reflects the following factual background.

We take our statement of underlying facts from the social study report as Alex K. admitted the allegation of the petition. There was no jurisdictional hearing.

Modoc County Undersheriff Gary Palmer responded to a report of a Modoc County employee that sometime over the weekend of September 8-10, 2007, approximately 14 light poles, which were in the process of being installed at the park in Cedarville, had been damaged or destroyed. Conduit for the wiring had been placed in cement pending installation. Someone had apparently twisted the poles off at the base and thrown them around the park. Numerous shoe prints and some bicycle prints in the dirt around the area were discovered. Palmer canvassed the neighborhood for possible witnesses. He was told of a party held for a minor at the park over the weekend that several juveniles attended. Further investigation by Deputy Casey Haddox led to a minor who named Alex K. and L.M. as being responsible for the damage.

Haddox interviewed Alex K., who stated he was at the park on September 9, 2007 with his friend L.M. Alex K. said he noticed several plastic pipes set in the concrete walkways. Several of these pipes were already broken when he and L.M. arrived. Alex K. said he broke one additional pipe and L.M. broke approximately two to three other pipes before they left the park.

Both Alex K. and L.M. were charged with and admitted the allegation they committed vandalism.

Alex K. and L.M. agreed to a combined restitution hearing. At the restitution hearing, the parties stipulated that 14 pieces of conduit were reported damaged and that repairs would cost $100 per piece of conduit. Bosco Concrete was the victim of the vandalism.

Haddox then testified that he had interviewed Alex K. and L.M. as part of his investigation of the park vandalism. L.M. admitted to Haddox that he had broken some of the conduit cemented to the ground. L.M. could not give an exact number, but estimated that he and Alex K. collectively broke no more than seven. In his written statement, L.M. stated he broke “some poles.” Haddox testified Alex K. told him several pipes were broken prior to his arrival with L.M. Alex K. said he broke one pipe in front of the restrooms and L.M. was responsible for two to three others. Haddox testified the two minors were the only two he was able to make contact with and interview. He said there potentially could be more responsible individuals, but “I don’t know. I followed it as far as I could. I worked the case for a few days; when I ran out of leads, I submitted my report.” He did not receive any information that anybody else was responsible for the broken conduits.

L.M. testified at the restitution hearing that he and Alex K. went to the park. They did not go to meet anybody and there were no other people there. They saw some of the conduits were broken. L.M. broke two more and Alex K. broke one. When asked about his interview with Haddox, L.M. testified Haddox asked him how many conduits in the park were broken and he answered no more than a total of seven. L.M. said he was not referring to the number he broke. L.M. admitted that in his written statement he was not sure of the number he and Alex K. broke, but claimed he now remembered.

L.M.’s mother testified that L.M. told her he broke two or three and that seven or 10 were already broken.

Alex K. testified he broke one conduit and L.M. broke two. They got the idea because other broken conduits were scattered over the park.

Counsel for Alex K. and L.M. asked the juvenile court to find Alex K. and L.M. jointly and severally liable for three conduits, for a total restitution order of $300. The prosecutor took the position the court should order payment in the amount of $1,400 in order to make the victim whole or at a minimum in the amount of $700 for the seven conduits/pipes Haddox said L.M. admitted to him they broke.

The juvenile court commented that it believed the law was clear “that if there’s no responsibility, there’s no ability on the Court’s part to impose restitution.” However, “[t]he problem that this case presents, though, in my mind is that we do know that damage was done to 14. We don’t know that anybody but [L.M.] and Alex did it. They have said that they haven’t; that they didn’t do it; they haven’t done it. I could, I suppose, under that testimony decide that there was enough evidence for me to conclude that they did not do the other damage. The problem, though, comes I think from [the prosecutor’s] argument, which I think is also correct, that where there is a liability, the Court must provide for full restitution. And if we had somebody who had come to the park before the boys did and came in and tell [sic] me that when they were in the park there were eleven broken conduits there, clearly I couldn’t in my mind order these minors to pay restitution for those 14 because there would have been no evidence to tie them to it. But the facts that we have presented are that 14 were broken. We know that they have admitted doing three of them, I think I’m compelled to order restitution for the full amount, and that will be my order.”

Defense counsel asked the juvenile court if it was finding that it believed L.M. and Alex broke the other 11 conduits/pipes.

The court responded: “No, I’m finding that the other eleven were broken, and I don’t know who broke them, and I have no evidence to decide that they didn’t break them. And I’m not compelled to accept their testimony.” The court then ordered Alex K. and L.M. jointly and severally liable for $1,400 in victim restitution, but advised the minors that “[i]f there is any scuttlebutt in the community, any discussion and gossip in the community about who is responsible for those others, and you bring it to the attention of your attorneys and the law enforcement, and it turns out that indeed there is evidence that somebody else did it, we will certainly revisit the restitution part of the order, but as it stands now that will be the order.”

DISCUSSION

“In 1982, by initiative measure, the voters passed Proposition 8 giving all crime victims the constitutional right to receive restitution from the offender who was convicted of committing a crime against them.” (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.) Proposition 8 states: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.” (Cal. Const., art. I, § 28, subd. (b).)

The Legislature implemented Proposition 8 by amending the restitution statutes applicable to adult offenders and section 730.6, which is the parallel provision applicable to juvenile offenders. (In re Anthony M., supra, 156 Cal.App.4th at p. 1016.) Section 730.6 provides, in relevant part: “It is the intent of the Legislature that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs any economic loss as a result of the minor’s conduct shall receive restitution directly from that minor.” (§ 730.6, subd. (a)(1).)

Accordingly, when a minor is found 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).) Section 730.6, subdivision (h), states in part “[t]he court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” The statute also states that the restitution order “shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor’s conduct for which the minor was found to be a person described in Section 602[.]” (§ 730.6, subd. (h).)

The juvenile court is vested with considerable discretion in determining the amount of restitution to be ordered. “‘[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; accord, In re Brian S. (1982) 130 Cal.App.3d 523, 533-534.) Victim restitution serves not only the purpose of making the victim whole, but provides a deterrent and rehabilitative effect. (People v. Cookson (1991) 54 Cal.3d 1091, 1097; In re Anthony M., supra, 156 Cal.App.4th at p. 1017; In re Brittany L., supra, at p. 1387.)

We review a restitution order for abuse of discretion. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) The 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., supra, 156 Cal.App.4th at p. 1016; In re Johnny M., supra, at p. 1132.) “[W]hen the propriety of a restitution order turns on the interpretation of a statute, a question of law is raised, which we review de novo. [Citation.]” (In re Anthony M., supra, at p. 1016.)

Alex K. contends the juvenile court abused its discretion in ordering restitution for all 14 of the damaged conduits. He claims the court improperly shifted the burden of proof to him when it based its order on his failure to prove someone else damaged the other 11 conduits. He claims the order lacks a factual and rational basis since it was based on no evidence at all. That is, while the juvenile court was not compelled to accept his and L.M.’s testimony; disbelief of their testimony was not affirmative evidence to the contrary.

Respondent notes a restitution order need not “be limited to the exact amount of loss in which the individual is actually found culpable” (In re Brian S., supra, 130 Cal.App.3d at p. 534, fn. 4), and claims substantial evidence supports the juvenile court’s conclusion that the minors were responsible for the damage to all the light poles.

Here, defense counsel specifically asked the juvenile court if it was finding that it believed L.M. and Alex K. broke the other 11 conduit/poles and the court disclaimed that it was making such a finding. Thus, the question here is not whether there was sufficient evidence from which the juvenile court could have found Alex K. and L.M. to be responsible for damaging all of the conduits/poles. Given what we can discern from this record, at best, the juvenile court admitted it did not know who broke the conduit/poles and went on to describe the status of the evidence. Therefore, we do not address either respondent’s or Alex K.’s arguments regarding the evidentiary basis for finding the minors responsible for damaging all 14 conduits/poles.

As we understand the juvenile court’s comments, it did not make a decision as to whether Alex K. and L.M. did or did not damage more than the three conduits/poles they admitted at the restitution hearing. Rather, after acknowledging the correctness of the prosecutor’s argument, that where there is liability the court must provide for full restitution, the court simply concluded it was “compelled” under section 730.6 to order full restitution by the minors. This was an erroneous understanding of the law.

As respondent notes, a juvenile court does not need to limit the amount of victim restitution it orders to the specific amount of loss for which the minor is actually found culpable (In re Brian S., supra, 130 Cal.App.3d at p. 534, fn. 4; see People v. Carbajal (1995) 10 Cal.4th 1114, 1121), here the misdemeanor vandalism admitted by the minors. But the statutory obligation of the juvenile court to order full restitution is limited to economic losses related to the minor’s conduct, either alone or in conjunction with others. (§ 730.6, subd. (a)(1) [victim who incurs economic loss as a result of the minor’s conduct shall receive restitution]; § 730.6, subd. (h) [restitution amount shall be sufficient to fully reimburse victim for losses incurred as a result of the minor’s conduct].) Here, the juvenile court did not find Alex K. and L.M. damaged all 14 conduits/poles. Thus, the juvenile court could not rationally find the victim (Bosco Concrete) incurred economic losses for all 14 conduits/poles as a result of their conduct. Under these circumstances, the juvenile court was not compelled to order Alex K. to pay full restitution for all of Bosco Concrete’s economic losses just because Alex K. admitted he and L.M. were responsible for some of the losses.

Because the juvenile court’s order was entered based on an erroneous understanding of the law, we shall reverse the restitution order and remand for a new restitution hearing.

DISPOSITION

The order requiring Alex K. to pay victim restitution in the amount of $1,400 is reversed and the matter is remanded to the juvenile court for a new restitution hearing.

We concur: DAVIS, Acting P.J., NICHOLSON, J.


Summaries of

In re Alex K.

California Court of Appeals, Third District
Sep 23, 2008
No. C057952 (Cal. Ct. App. Sep. 23, 2008)
Case details for

In re Alex K.

Case Details

Full title:ELIAS FERNANDEZ, JR., as Chief Probation Officer, etc., Plaintiff and…

Court:California Court of Appeals, Third District

Date published: Sep 23, 2008

Citations

No. C057952 (Cal. Ct. App. Sep. 23, 2008)