Opinion
F040644
7-31-2003
In re CHARLES C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CHARLES C., Defendant and Appellant.
Jordan Funk and Robert L.S. Angres, under appointments by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John G. McLean and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL HISTORY
On November 29, 2001, the minor, Charles C., no stranger to the juvenile justice system, admitted that on or about July 18, 2001, he had committed a felony residential burglary, with the intent to commit a theft. Maximum confinement was determined to be six years. In return for his admission, the prosecution dismissed the second allegation of the petition (which alleged Charles C. had received property taken in that burglary), reserving the right to comment on that charge as it might pertain to Charles C.s disposition, per People v. Harvey (1979) 25 Cal.3d 754, 758-759, 159 Cal. Rptr. 696, 602 P.2d 396. The court, which had previously found Charles C. a ward of the court on November 14, 1997, on an unrelated petition, committed him to the California Youth Authority (CYA) for a maximum term of six years, to be served consecutively to the prior CYA commitment imposed on September 28, 2001, on yet another unrelated petition. The court adopted the probation departments recommendation regarding victim restitution and ordered Charles C. to pay restitution to the victims in the amount of $ 27,000. On January 3, 2002, Charles C. requested a Cervantes 1 hearing to determine the proper amount of victim restitution to be paid.
People v. Cervantes (1984) 154 Cal. App. 3d 353, 361, 201 Cal. Rptr. 187 [requiring judicial determination of victims restitution].) On May 16, 2002 the court hearing concerned only Charles C. The May 20, 2002 hearing concerned several other juveniles, including Charles C., who had been adjudged wards of the court for their part in a series of burglaries which occurred at the victims residence between the dates of July 16, 2001 and July 19, 2001.
On May 16, 2002 and May 20, 2002, Charles C.s Cervantes hearing was held. At the conclusion of this hearing the court ordered Charles C. to pay $ 29,838.90 in restitution to the victims, Dawn Balenger-Curl ($ 8,388.90) and Dominque Curl ($ 21,450.00). Charles C.s liability for this restitution order was ordered to be joint and several with the other minors 2 then before the court.
Marcus C., Brent B., Nicholas B., and Jose F.
Charles C.s timely appeal followed.
STATEMENT OF FACTS
The facts are gleaned from the police reports submitted as part of the Cervantes hearing, as well as the transcript of the Cervantes hearing itself.
On July 18, 2001, Bakersfield police began investigation of a burglary at the victims residence. The burglary had been reported by Marcus C., a 15-year-old juvenile who had been hired by the victims to do yard work at their residence while they were out of town. The victims left the residence at approximately 4:30 on July 16, 2001. Investigating officers discovered that not only had the residence been burglarized it had also been vandalized and ransacked. A swastika was drawn on the living room wall; next to and below the swastika someone had written "Still raciest [sic]." Additional writings were on the front door, walls, and other objects in the residence. Pictures of the victims family were also stuck to the walls with knives and scissors. Officers took several photographs documenting the damage to the residence. Marcus C. also contacted the local news media. After the police had left, and either before or after the media left the residence, Marcus C. took local juveniles on a guided tour of the burglarized and ransacked residence. These juveniles included Charles C., Jose F. (who stated he had not entered but remained at the rear door while the "tour" was being conducted), Jonathan A., Dale V., Brent B. and Benjamin M. Marcus C. denied allowing anyone but Charles C. inside the residence.
On July 19, 2001, Detective Bennett of the Bakersfield Police Department conducted a follow-up investigation, speaking with the mother of the victim and Marcus C. Bennett, while viewing the scene, noticed that the swastika had been crossed out by three lines drawn through it. Marcus C. also noted that those markings had not been there on July 18, 2001 when he reported the burglary. Additionally, Marcus C. pointed out that the entertainment center had a line of salt and pepper atop it, which had also not been present on July 18, 2001. Additional photographs were taken of the scene and later compared with the initial photographs taken on July 18, 2001. The obvious differences between the sets of photographs were the crossed-out swastika and the lines of salt and pepper atop the entertainment center. Additionally, a photograph album that had been pinned to the wall (with a kitchen knife) was no longer pinned to the wall but was lying on top of the entertainment center.
Detective Bennett canvassed the neighbors, and spoke with Jose Gonzales, one of the victims neighbors. Mr. Gonzales said that on July 17, 2001, shortly before 1:00 p.m. he saw three juveniles at the victims residence. Two of them were on bicycles in the driveway; the third juvenile was near the front window and appeared to be attempting to open the window with a long screwdriver. Mr. Gonzales yelled at the juveniles and they all ran off. Mr. Gonzales believed the juveniles live in the neighborhood as he believed he had seen them before near the community mailboxes. Detective Bennett went to the community mailboxes, which is near a local recreation center. While there, Bennett spoke with two juveniles, Brent B. and Nicholas B., who were aware something had happened as they had seen the police and media at the residence, but claimed they did not know anything about a burglary.
Brent B. spoke with Bennett again on July 21, 2001. Brent B. stated that on July 17, 2001, Marcus C. had told him that he had broken into the residence, taking a cellular telephone, two pagers, and several compact discs. The following day, July 18, 2001, around 3:00 p.m., Brent B. saw Marcus C. again. Marcus C. told him he was waiting for the police, and said he had drawn "Nazi signs and racist things on the wall to get the police off of him as he is black." 4 Brent B. denied any involvement in burglarizing or vandalizing the residence.
"The police reports alternative list Marcus C. as a "HMJ [Hispanic male juvenile]" and a "BMJ [Black male juvenile]."
According to Brent B., sometime during the evening of July 16, 2001, Marcus C. burglarized the residence, taking a cellular telephone and a pager. Marcus C. later showed Brent B. and Nicholas B. a cellular telephone and pager he had stolen. Marcus C. told Brent B. and Nicholas B. where he had taken the property from and offered to show them the residence. That same evening Brent B., Nicholas B., and Marcus C. reentered the victims residence, taking additional items. Upon leaving, they left the rear sliding glass door unlocked, and the following morning, July 17, 2001, Brent B. and Nicholas B. reentered the residence, taking additional property. That afternoon Brent B. and Nicholas B., along with Ronnie M., attempted to reenter the residence through the garage door, but were observed by a neighbor, and they left. Both Brent B. and Nicholas B. admitted their involvement in the two burglaries and the one attempted burglary. However, both denied any involvement in the vandalizing of the residence and told the officers there had been no damage to the residence at the time of their entries. Brent B. believed Marcus C. was responsible for the vandalism, but had not personally seen Marcus C. doing any damage to the residence.
Jose F. and Charles C. admitted to burglarizing the residence on the evening of July 18, 2001. Jose F. entered through a kitchen window, unlocking the sliding glass door and allowing Charles C. inside. Charles C. took some jewelry from the master bedroom. Jose F. initially denied taking any property, but later admitted he had taken some VHS prerecorded tapes, a couple of Playstation games and a pair of earrings. Jose F. also admitted he had crossed out the swastika on the wall because "he did not think the swastika was right." Jose F. also admitted dumping out salt and pepper on the entertainment center, stating he was going to use one of the containers to put some change in. Both denied damaging any of the property or vandalizing the residence. Marcus C. denied any involvement in the burglaries or vandalism of the residence.
According to Detective Bennetts investigation, the victims residence had been burglarized four separate times. The first burglary occurred on July 16, 2001, by Marcus C., and the second burglary later that day by Marcus C., Brent B. and Nicholas B. The following morning, July 17, 2001, the third burglary was committed by Brent B. and Nicholas B, who along with Ronnie M. also attempted to enter the residence later that afternoon. The fourth burglary was committed by Charles C. and Jose F. during the late evening of July 18, 2001, or early morning of July 19, 2001. The vandalism, with the exception of the crossed-out swastika and salt and pepper poured out onto the entertainment center, had all occurred prior to the burglary by Charles C. and Jose F. Marcus C., Brent B., Nicholas B., Ronnie M., Charles C. and Jose F. were all arrested on various charges related to the burglaries and attempted burglary of the residence.
Cervantes Hearing
On May 16, 2000, the court, after reviewing the briefing filed by the parties and the probation memorandum of January 9, 2002, as well as the submitted police reports and photographs, heard oral argument from Charles C.s counsel and the prosecutor as to the scope of Charles C.s potential restitution liability to the victims. Charles C. argued that his admission that he committed a burglary of the residence "on or about or between July 18, 2001 and July 19, 2001," limited his liability for the acts committed by the other minors prior to that date. The prosecutor argued Charles C.s admission bound him to the acts committed by all of the juveniles who burglarized and vandalized the victims residence. The court pointed out that it was considering Charles C.s liability under a theory of conspiracy, and specifically referenced CALJIC No. 6.10.5, which defines conspiracy in cases where a conspiracy had not been alleged, but where evidence of conspiracy was produced at trial. The prosecutor agreed with the courts inclination, and argued that the burglaries and vandalism that occurred at the victims residence was an "on-going" event, for which Charles C. should be held jointly and severally liable.
At the conclusion of this hearing the court found Charles C. to be jointly and severally liable for the losses suffered by the victims.
"[THE COURT]: And in considering the offers of proof, I do find that we do have liability. [Charles C.] specifically had liability that would be likened to that of an aider and abettor. It is vicarious. It is consistent with the allegation that he committed these offenses on or about July 18 and July 19. [P] Those dates are not alleged as exact dates, and the case law, Im satisfied, allows proof of circumstances that are close in time to those dates. It need not be exactly on those dates as alleged. [P] Im satisfied that the minor was aware when he entered the plea, from those allegations, that he was being held accountable for his conduct, which includes the conduct of co-conspirators. [P] And what we have here in effect was [Marcus C.] providing, basically, the opportunity for himself and others to commit a series of burglaries that were all related. [Marcus C.] was the common denominator in these by providing knowledge and access to the home to make the fellow conspirators aware of the opportunity to steal from the home. And [Charles C.s] conduct directly related or was a natural consequence. And to cite the language used in [CALJIC No.] 6.10.5 [(6th ed. 1996) 5, it was a — [Charles C.s] conduct was a probable and reasonable consequence of [the other juvenile, Marcus C.] bringing him into the home, showing him what was there, and the other co-conspirators having conducted similar burglaries. [P] So I am going to deny [Charles C.s] motion to exclude him from being jointly and severally liable for all the restitution which the Court finds is owed to the victims in this case. So basically I am denying the request to limit the scope of this particular subjects responsibility for restitution. [P] The only issue thats now remaining is the dollar amount of the restitution which all of these companion cases will be jointly and severally liable for. So I think I have adequately indicated my ruling. You have preserved your position for any appellate issues. Any further record to make on this issue, Mr. Kinney [Charles C.s attorney]?"
It is apparent the court was actually referring to the following language from CALJIC No. 6.11 (2000 rev.) (6th ed. 1996) "[A member of a conspiracy is not only guilty of the particular crime that to [his] [her] knowledge [his] [her] confederates agreed to and did commit, but is also liable for the natural and probable consequences of any [crime] [act] of a co-conspirator to further the object of the conspiracy, even though that [crime] [act] was not intended as a part of the agreed upon objective and even though [he] [she] was not present at the time of the commission of that [crime] [act]."
Thereafter, Charles C.s attorney objected to the courts ruling, and reiterated Charles C.s position with regard to the scope of his liability for restitution. The court rejected Charles C.s argument, indicating it had no further comment on its ruling. The court did, however, clarify its position as to the purpose of the hearing to be held on May 20, 2002: "I just want to make sure my ruling is clear that, when we come back Monday morning, the only issue is going to be now the dollar amount. We are not going to argue scope." Charles C.s counsel acknowledged the courts position on that issue.
DISCUSSION
Charles C.s sole contention on appeal concerns the juvenile courts order requiring joint and several restitution to the victims. Charles C. contends the court abused its discretion because the bulk of the victims losses, as determined at the Cervantes hearing, were not attributable to his conduct.
Respondent contends the court did not abuse its discretion and that under the facts of Charles C.s case the imposition of joint and several liability for the victims losses was appropriate.
Welfare and Institutions Code section 730.6 governs the imposition of restitution orders upon minors adjudged wards of the court. It states, in pertinent part:
"(a)(1) 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 minors conduct shall receive restitution directly from that minor.
"(2) Upon a minor being found to be a person described in Section 602, the court shall consider levying a fine in accordance with Section 730.5. In addition, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, both of the following:
"....
"(B) Restitution to the victim or victims, if any, in accordance with subdivision (h).
"....
"(h) Restitution ordered pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. A minors 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. A restitution order pursuant to subparagraph (B) of paragraph (2) of subdivision (a), to the extent possible, shall identify each victim, unless the court for good cause finds that the order should not identify a victim or victims, and the amount of each victims loss to which it pertains, and 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 minors conduct for which the minor was found to be a person described in Section 602, including all of the following:
"(1) 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.
"....
"(3) Wages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minors parent, parents, guardian, or guardians, while caring for the injured minor. Lost wages shall include any commission income as well as any base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
"(4) Wages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minors parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the police or prosecution. Lost wages shall include any commission income as well as any base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown.
"A minor shall have the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount on its own motion or on the motion of the district attorney, the victim or victims, or the minor. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the hearing on the motion. When the amount of victim restitution is not known at the time of disposition, the court order shall identify the victim or victims, unless the court finds for good cause that the order should not identify a victim or victims, and state that the amount of restitution for each victim is to be determined. When feasible, the court shall also identify on the court order, any co-offenders who are jointly and severally liable for victim restitution." (Welf. & Inst. Code, § 730.6, italics added.)
Charles C.s argument focuses upon the statutes language, specifically that which ties the amount of victim restitution to Charles C.s conduct that brought him within the provisions of Welfare and Institutions Code section 602 on this occasion.
We review the juvenile courts findings imposing direct victim restitution for an abuse of discretion. The juvenile courts ruling will not be set aside unless it was arbitrary, capricious and exceeded the bounds of reason. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275 [challenge to amount of restitution]; see People v. Carbajal (1995) 10 Cal.4th 1114, 1121, 899 P.2d 67 [imposition of restitution as condition of probation for hit and run].) As long as "there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." (People v. Dalvito (1997) 56 Cal.App.4th 557, 562; People v. Cain (2000) 82 Cal.App.4th 81, 88; People v. Mearns (2002) 97 Cal.App.4th 493, 499.) Here, we do not deal, at least initially, with the amount of restitution ordered, but rather the joint and several liability imposed upon Charles C. In keeping with the statute, and its purpose, the courts decision, imposing joint and several liability, must also have a factual and rational basis in order for it to survive the abuse of discretion standard. The statute requires restitution be imposed based upon the minors conduct and its relationship with the victims losses, and further allows for the imposition of joint and several liability. (Welf. & Inst. Code, § 730.6, subds. (a) & (h); see In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132-1136 [no abuse of discretion to order restitution to school district for employees wages and benefits associated with their clean-up and repair of minors damage to school property].)
Restitution serves both deterrent and rehabilitative functions, by making the minor aware and cognizant of the actual losses suffered by their victims. (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387; People v. Crow (1993) 6 Cal.4th 952, 957, 864 P.2d 80; Charles S. v. Superior Court (1982) 32 Cal.3d 741, 747, 187 Cal. Rptr. 144, 653 P.2d 648 ["restitution may serve a rehabilitative function consistent with the purposes of Juvenile Court Law."].) "Restitution imposed in a proper case and in an appropriate manner may serve the salutary purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole." (People v. Richards (1976) 17 Cal.3d 614, 620, 131 Cal. Rptr. 537, 552 P.2d 97 [discussing former Pen. Code, § 1203.1], disapproved on other grounds in People v. Carbajal, supra, 10 Cal.4th at p. 1126.)
Restitution in California is now constitutionally mandated whenever a victim suffers a loss as the result of criminal conduct. Article I, section 28, subdivision (b), of the California Constitution states in part: "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. [P] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary...." (Italics added.) This constitutional amendment was not self-executing and the Legislature adopted provisions in both the Penal Code and the Welfare and Institutions Code to effectuate its mandate. (See Stats. 1983, ch. 940, §§ 2, 3, & 4, pp. 3395-3397.)
In 1994 the Legislature further refined the restitution statutes, repealing and then adding Welfare and Institutions Code section 730.6, as well as making changes to the provisions for restitution concerning adult offenders. (See. Stats. 1994, ch. 1106, pp. 5446-5455 (Assem. Bill No. 3169 (1993-1994 Reg. Sess.)).) In adopting this legislation the Legislature declared:
"(a) Section 28(b) of Article I of the California Constitution secures the right to restitution for all persons who suffer losses as a result of criminal activity.
"(b) Restitution is recognized to have a rehabilitative effect on criminals.
"(c) Restitution is recognized as a deterrent to future criminality.
"(d) The right of persons to receive restitution for losses suffered as a result of criminal activity shall be secured as provided in this act." (Stats. 1994, ch. 1106, § 1, pp. 5447-5448 (Assem. Bill No. 3169 (1993-1994 Reg. Sess.)).)
Even prior to this enactment the courts recognized the rehabilitative and deterrent effect of victim restitution. (See People v. Richards, supra, 17 Cal.3d at p. 620 [discussing restitutions purpose as to adult offenders].)
"Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine. [Citation.]" (Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10, 93 L. Ed. 2d 216, 107 S. Ct. 353 [precluding discharge of restitution in bankruptcy].)
However, in order for the restitution order to serve its purpose there must be some relationship between the conduct of the offender and the victims loss. (People v. Lent (1975) 15 Cal.3d 481, 486-487, 124 Cal. Rptr. 905, 541 P.2d 545 [no abuse of discretion where defendant ordered to pay $ 1,278 in restitution to victim, as condition of probation; the amount was based upon a charge of theft for which defendant was acquitted]; People v. Carbajal, supra, 10 Cal.4th at pp. 1124-1127 [no question as to defendants responsibility for the damage to victims vehicle after hit and run, upholding restitution to victim even though offense was for evading responsibility by fleeing accident scene].) This connection is recognized by the plain language of the statute itself, which requires the amount of restitution be as a result of "the minors conduct." (Welf. & Inst. Code, § 730.6 , subd. (a)(1), italics added.)
In In re S.S. (1995) 37 Cal.App.4th 543, the minor argued that the court had erred by imposing joint and several liability for damage to the victims vehicle, which had actually been caused by the codefendant who wrecked the stolen vehicle while attempting to evade police. (Id. at pp. 544-545.) The minor argued the court should have ordered him to pay only one-half of the damage, rather than imposing fully liability for the damage. The court disagreed, finding ample basis in the record to support the courts decision to impose joint and several liability for the damage to the victims automobile. The minor, who admittedly was not operating the vehicle at the time of the damage but was a passenger, had been responsible for the initial theft and driving of the vehicle. (Id. at p. 550.)
In People v. Carbajal, supra, 10 Cal.4th 1114, the Supreme Court upheld an order requiring restitution to the victim of a hit and run for the damage caused to the victims vehicle. The defendant pled no contest to violating Vehicle Code section 20002, subdivision (a). Defendant, relying, in part, upon language from People v. Richards, supra, 17 Cal.3d 614, argued the restitution order was improper because the mental state for leaving the scene of the accident was not coexistent with the mental state of driving and hitting the victims vehicle. (People v. Carbajal, supra, at p. 1126.) The Supreme Court disapproved that language from People v. Richards and held that as long as the restitution order is reasonably related to the underlying conviction and can serve the purposes of restitution the trial court has not abused its discretion. (People v. Carbajal, supra, at pp. 1119, & 1126-1127.) Carbajal did not disturb the logic of Richards, which had held that "absent extraordinary circumstances" restitution could not be imposed for conduct for which the defendant had been acquitted. (People v. Richards , supra, at p. 616.)
Here the trial court, after reviewing the police reports prepared in the investigation, the points and authorities submitted by the parties, and oral argument, concluded that Charles C. was to be jointly and severally liable for all of the victims losses. In doing so, the court relied upon a theory of conspiracy and/or aider and abettor liability. In this respect the trial courts decision is not supported by a factual or rational basis.
According to the police reports, there were four separate burglaries and one attempted burglary. The crimes were reported after three of the burglaries and the one attempt had already been committed, none of which involved either Charles C. or his accomplice Jose F. Photographic evidence of the damage to the residence taken on July 18, 2001, differed from additional photographs taken on July 19, 2001. Most notable was the crossed-out swastika and the salt and pepper that had been dumped on the entertainment center, both of which were admitted by Charles C.s accomplice, Jose F, who admitted his complicity with Charles C. in the burglary of the victims residence during the late evening of July 18, 2001 or early morning of July 19, 2001.
There is no evidence in the police reports, or otherwise, to suggest that the minors involved in the prior burglaries and the attempted burglary ever entered into any type of agreement with Charles C. or Jose F. to commit those burglaries or the later burglary committed by Charles C. and Jose F. Similarly, there is no indication that Charles C. or Jose F. aided and abetted those prior burglaries or, conversely, that the other minors, including Marcus C., aided and abetted Charles C. and Jose F. in the commission of their separate burglary on the evening of July 18, 2001 or early morning of July 19, 2001.
Simply stated, we cannot find that the restitution ordered to be joint and several, as to Charles C., is reasonably related to the conduct either admitted by Charles C. or as shown by the evidence before the court.
DISPOSITION
The order imposing joint and several liability for restitution to the victims in the amount of $ 29,838.90, is reversed, and the matter is remanded to the trial court to determine the losses actually suffered by the victims as a result of Charles C.s and Jose F.s conduct.