Opinion
B163792
10-22-2003
In re AMICAR H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. AMICAR H., Defendant and Appellant.
Larry S. Dushkes, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.
Amicar H. appeals from a juvenile court order requiring him to pay $4,418.50 in victim restitution as a condition of his informal supervision program under Welfare and Institutions Code section 654.2. The amount of restitution represented the cost of repairing the victims car after Amicar fled the scene of an accident that he had caused. Amicar claims there is no statutory authority for awarding restitution as part of a program of informal supervision. He further argues that assuming restitution was proper, the amount should have been limited to the $250 insurance deductible actually paid by the victim. We affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
When he was 16 years old, Amicar took a car owned by his brothers wife without her permission. He collided with a truck driven by the victim and left the scene of the accident without providing any identification or insurance information. Amicar did not have a drivers license at the time.
The District Attorney filed a section 602 petition alleging that Amicar had committed the misdemeanor offenses of hit and run driving and driving without a license. (Veh. Code, §§ 20002 , subd. (a), 12500, subd. (a).) The probation officer recommended an informal supervision program under section 654.2. The court adopted this recommendation after eliciting an admission by Amicar that he had committed the crimes alleged in the section 602 petition. The conditions of Amicars informal supervision included a requirement that he pay restitution to the victim.
At a separate hearing to determine restitution, the probation officer informed the court that the repair bill for the damage to the victims car was $4,418.50, but the victims insurance company had paid all but the $250 deductible. The victim had not been physically injured and was seeking to recover only the amount of the deductible. The juvenile court ordered Amicar to pay the entire $4,418.50 to the victim.
DISCUSSION
Victim Restitution is a Proper Condition of Informal
Supervision Under section 654.2
Amicar claims the restitution order must be vacated as unauthorized. He observes that section 730.6, which governs restitution in juvenile cases, applies on its face to a minor who "is found to be a person described in Section 602." He observes that section 654.2 expressly allows the court to implement a program of informal supervision after a juvenile petition has been filed and "without adjudging the minor a ward of the court." (Italics added.) Amicar reasons that because his program of informal supervision did not include an adjudication under section 602, restitution may not be ordered as a condition of such a program.
The People agree that an adjudication under section 602 is inconsistent with a program of informal supervision under section 654.2. They claim the juvenile court nonetheless made such an adjudication when it required Amicar to admit that he committed the crimes alleged in the section 602 petition and stated that it was making "all findings" beyond a reasonable doubt. The People do not claim that this purported section 602 adjudication requires a reversal of the order placing Amicar on a program of informal supervision, but they argue that it does support the courts restitution order.
It is well established that a true finding under section 602 is inherently inconsistent with a program of informal supervision under section 654.2. (In re Omar R. (2003) 105 Cal.App.4th 1434, 1438; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 968; In re Adam R. (1997) 57 Cal.App.4th 348, 352-353.) "[T]he purpose of the section 654 informal supervision program is to avoid a true finding on criminal culpability which would result in a criminal record for the minor." (Adam R., at p. 352.)
The record does not establish that the court actually adjudicated Amicar a ward under section 602. Although it elicited an admission of criminal conduct and stated that it was making unspecified "findings" beyond a reasonable doubt, its minute orders do not reflect a wardship adjudication. Nor did the court give Amicar the modified Boykin-Tahl advisements that are required before a minor may enter a formal admission to a section 602 petition. (See In re Ronald E. (1977) 19 Cal.3d 315, 321.) Absent a showing to the contrary, we must presume the court was aware the law prevented it from both making an adjudication under section 602 and placing Amicar on a program of informal supervision under section 654.2. (See, e.g., People v. Sangani (1994) 22 Cal.App.4th 1120, 1138.) We construe the record as not including an adjudication under section 602.
But the absence of an adjudication under section 602 does not require reversal of the restitution order as Amicar claims. Our Supreme Court has held that restitution may be ordered as a condition of informal supervision, even though it is not specifically mentioned in the statutes. (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 747-748; see also In re Thomas R. (1991) 2 Cal.App.4th 738, 742.) This is consistent with the underlying statutory purpose of rehabilitating juveniles. "[A]lthough restitution serves the obvious function of compensating the victims of crime, it also impresses upon the offender the gravity of the harm he has inflicted upon another, and provides an opportunity to make amends. . . . As it is directly related to the crime, restitution can, if proper in the circumstances, lead the minor to realize the seriousness of his crime, and to accept responsibility for it." (Charles S., at p. 748.)
The rehabilitative function of restitution is just as important in a case where the court elects to order a program of informal supervision as it is in a case where a true finding is made under section 602. There being no explicit statutory provision to the contrary, we conclude that reasonable restitution may be ordered as a condition of an informal supervision program under section 654.2. The trial court did not err when it ordered Amicar to pay restitution in this case.
The Amount of Restitution was not Limited to the
Victims Insurance Deductible
Amicar was ordered to pay for the full amount of damage he caused to the victims car. He argues that if restitution was appropriate, it should have been limited to the victims out-of-pocket losses—in this case, the $250 insurance deductible.
Although section 730.6 expressly applies only in cases where there has been a wardship adjudication under section 602, it is also an appropriate guidepost for assessing a restitution order in a case where the juvenile has been placed on informal supervision. (See Charles S. v. Superior Court, supra, 32 Cal.3d at pp. 747-749.) That section requires, "Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (§ 730.6, subd. (h)(1).) The trial court interpreted this language to mean that the victim was entitled to the full amount of repair costs, whether or not his insurance had paid for some of those costs.
An identical argument was recently rejected in In re Brittany L. (2002) 99 Cal.App.4th 1381. The court in that case observed that in passing section 730.6, the Legislature had declared its intent that the victim "shall receive restitution directly from that minor." (Id. at p. 1386, citing § 730.6, subd. (a)(1).) "The purpose behind requiring a minor to pay victim restitution is for its deterrent as well as rehabilitative effect. [Fn. omitted.] Requiring the [minor] to make complete reparation to [his or] her victims for the harm done to them is more likely to make an impression on the [minor] than simply imposing a statutory fine. [Citation.] [Fn. omitted.] These purposes would be thwarted if a minor was relieved from responsibility for making [his or] her victims whole simply because the victims had been farsighted enough to purchase insurance . . . ." (Id. at p. 1387; see also People v. Hove (1999) 76 Cal.App.4th 1266, 1272-1273 [victim entitled to full restitution from adult defendant although Medicare and MediCal paid his bills and he suffered no direct economic loss].)
This result is consistent with our Supreme Courts decision in People v. Birkett (1999) 21 Cal.4th 226, which considered the effect of third party insurance upon direct restitution orders in adult cases. Interpreting a 1994 version of the adult restitution law that contained language similar to section 730.6, the court in Birkett concluded that insurers who paid for losses caused by a criminal offense were not direct victims entitled to an award of restitution. Instead, the immediate victim was entitled to receive "the full amount of the loss caused by the crime, regardless of whether, in the exercise of prudence, the victim had purchased private insurance that covered some or all of the same losses." (Id. at p. 246; contrast People v. Bernal (2002) 101 Cal.App.4th 155, 165-167 [defendant entitled to offset for payments made by his own insurance company to victim, on theory that those payments were made "directly from" the defendant under restitution scheme].) An insurance carrier who had already paid a claim could then seek reimbursement from its insured through whatever civil remedies were available. (Birkett, at pp. 246-247.)
Amicar argues that the reasoning of Birkett does not apply to his case because there are differences between the current adult and juvenile restitution statutes. He points out that in 1995, the Legislature amended the adult restitution law to explicitly preclude the court from deducting insurance payments from the amount of victim restitution. Thus, Penal Code section 1202.4, subdivision (f)(2) now provides, "Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of any third party." Amicar argues the Legislature did not intend a similar rule in juvenile cases, because it has not added the quoted language to section 730.6.
This purported omission does not require an offset of payments made by the victims insurance company against orders of juvenile restitution. Section 730.6 as written permits the court to award the full amount of restitution to a victim, even if it does not specifically refer to the indemnification and subrogation rights of third parties. Its language is similar to the adult restitution statute considered in Birkett, which did not contain any express language about third party subrogation or indemnification.
The judgment (order setting direct victim restitution) is affirmed.
We concur: GILBERT, P.J. and YEGAN, J.