Opinion
2d Juv. No. B211385.
6-25-2009
In re A.F.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.F.M., Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan, Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
A juvenile petition filed pursuant to Welfare and Institutions Code section 602 alleged that A.F.M. committed forgery of a check (Pen. Code, § 470), grand theft (§ 487, subd. (a)), attempted forgery of a check (§§ 664/470) and receiving stolen property (§ 496, subd. (a)). A.F.M. admitted the allegations of the petition. The trial court held a restitution hearing, after which it ordered restitution in the amount of $9,331.75.
On appeal, A.F.M. contends the trial court erred in excluding polygraph evidence at the restitution hearing. She also contends the amount of restitution is not supported by substantial evidence. We affirm.
FACTS
On November 6, 2007, A.E. and A.F.M. stole a purse from a BMW automobile. They took the purse to a nearby carwash, emptied the contents into a back pack, and threw the purse into the bushes. Later, they tried to cash forged checks.
Restitution Hearing
Tiare Frontera owned the purse and BMW. She testified that at the time the purse was stolen, it contained $2,800 in cash and a tanzanite and diamond ring. A bank statement showed she had made a $5,000 withdrawal a few days prior to the theft. The ring had been appraised at $4,500 but Frontera said it was worth $5,000. In addition, she said her $2,000 purse had been damaged.
Frontera also testified she spent $1,000 for having her car towed to the BMW dealership. She had to have her car and her husbands car rekeyed at a cost of $1,642.46. She had to rent a car from the dealership at a cost of approximately $87 per day. A borrowed vehicle agreement has $85 per day handwritten on it.
Frontera said a real estate deal fell through because she could not get to an appointment to sign escrow instructions. She spent $3,000 for having architectural plans drawn for the house. Finally, she said the need to replace prescription medications caused her health insurance to be cancelled. It cost her an additional $500 for new insurance.
Frontera said she had $2,800 in her purse because she had to return a deposit to a tenant who was moving out of a rental she owned. Initially, she identified the tenant as "Ashley." Later she identified the tenant as Christina Perano. She did not have a rental agreement to verify the amount she owed Perano. A rental agreement Frontera had with another tenant for a larger property had a $200 deposit. Frontera said she could not pay Perano any money on the day her purse was stolen. But she claimed that she later made a direct deposit of $750 into Peranos account.
Defense
Frontera admitted she had once made a false statement in order to obtain a prescription by telephone.
Perano, Fronteras tenant, told an investigator Frontera owed her only $800. Perano said Frontera never made a direct deposit to her account.
Mark Bachman is an owner of BMW Santa Maria, the dealership to which Frontera had her car towed. Bachman testified the dealership does not charge for cars it loans to customers and Frontera was not charged for hers. He said customers fill out the information on the car loan agreement. He did not recognize the handwritten dollar amount on the car loan agreement as being in the handwriting of any of his employees.
A.F.M. moved to admit the results of a polygraph examination taken of Frontera. The motion alleged that she was examined about her knowledge of disputed items contained in the purse. The trial court denied the motion.
The trial court ordered A.F.M. to pay Frontera restitution, as follows: $2,800 for the cash; $4,500 for the ring; $1,642.46 for replacement car keys; $339.29 for prescription medication; and $50 for Fronteras gas and mileage driving to court, for a total of $9,331.75.
DISCUSSION
I
A.F.M. contends the trial court abused its discretion in excluding polygraph evidence offered by the defense.
Evidence Code section 351.1, subdivision (a) provides: "Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceedings, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results."
The question is whether a juvenile court restitution hearing is a "hearing of a juvenile for a criminal offense." A.F.M. argues a restitution hearing is more civil than criminal in nature. She cites People v. Harvest (2000) 84 Cal.App.4th 641, 645, for the proposition that restitution is not a criminal penalty, but a civil remedy. She also cites In re Angel E. (1986) 177 Cal.App.3d 415, for the proposition that there is no criminal penalty for failure to pay restitution in the absence of a finding that the juvenile had the ability to pay and the failure was intentional.
But the purpose of a restitution order is not solely to compensate the victim. A restitution order can be a valuable tool of rehabilitation. (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 748.) It can lead the minor to realize the seriousness of his or her crime and accept responsibility for it. (Ibid.) Restitution is required whenever a juvenile is adjudged a ward of the court due to a criminal violation. (Welf. & Inst. Code, § 730.6; In re Johnny M. (2002) 100 Cal.App.4th 1128, 1131.) Thus the restitution hearing is a "hearing of a juvenile for a criminal offense." The trial court properly excluded polygraph evidence.
II
A.F.M. contends the restitution order is not supported by substantial evidence. Specifically, A.F.M. challenges the courts order that she must pay $2,800 for the missing cash and $4,500 for the missing ring.
In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment or order. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We discard evidence that does not support the judgment or order as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
Here Frontera testified she had $2,800 in cash and a ring worth $4,500 in her purse before it was stolen, and that those items were not recovered. That is sufficient evidence to support the trial courts findings.
A.F.M. argues the defense showed that, contrary to Fronteras testimony, she did not rent a car from BMW. She asserts that because Frontera showed she was not credible on a material aspect of her claims, it was not rational for the trial court to give credence to her testimony about the lost cash and ring. But A.F.M. cites no authority that requires the trial court to reject all aspects of Fronteras testimony because she was found not credible in one aspect. To warrant rejection of a witnesss testimony that has been believed by the trier of fact, it must be either physically impossible that it is true, or its falsity must be apparent without resorting to inferences or deductions. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) Conflicts and even testimony subject to justifiable suspicion do not justify a reversal. (Ibid.) Here Fronteras testimony about the cash and ring is neither physically impossible to be true, nor is its falsity apparent without resort to inferences or deductions. The order is supported by substantial evidence.
The judgment (order) is affirmed.
We concur:
COFFEE, J.
PERREN, J. --------------- Notes: All statutory references are to the Penal Code unless stated otherwise.