Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. JU021051
Mihara, J.
The juvenile court found that appellant F.C. had committed arson (Pen. Code, § 451) and vandalism (Pen. Code, § 594) and that the loss exceeded $1 million (former Pen. Code, § 12022.6). The arson had caused more than $2 million in damage. At the restitution hearing, appellant asked the court to not impose full restitution. The court concluded that it could not find “compelling and extraordinary reasons” for not ordering full restitution (Welf. & Inst. Code, § 730.6, subd. (h)), and it ordered appellant to pay full restitution.
On appeal, appellant contends that his right to equal protection was violated because Welfare and Institutions Code section 730.6 precludes consideration of his “inability to pay” in making a restitution order, but Welfare and Institutions Code section 742.16 permits consideration of a juvenile ward’s ability to pay restitution where the ward is found to have committed a vandalism or graffiti offense. He also maintains that the juvenile court abused its discretion in failing to find that there were “compelling and extraordinary reasons” for ordering him to pay less than the full amount of restitution. We reject both of his contentions and affirm the restitution order.
I. Background
In the early morning hours of September 16, 2006, appellant, who was 15 years old at the time, and his 16-year-old and 18-year-old compatriots set seven separate fires at San Lorenzo Valley High School and one fire at the middle school that shared the high school’s campus. Seven of the eight fires were small and burned out without extensive damage. However, the remaining fire severely damaged the high school’s library. All of the fires were intentionally set. The three boys made no attempt to put out any of the fires or to summon help, and they left the scene within minutes of the fire alarm going off. Appellant was arrested a few days later. He admitted that he had personally set at least one of the fires, and he told the police that he and his compatriots “didn’t mean to intentionally set that big of a fire.”
A Welfare and Institutions Code section 602 petition was filed alleging that appellant had committed arson (Pen. Code, § 451) and vandalism (Pen. Code, § 594) and specially alleging that the property damage exceeded $1 million (former Pen. Code, § 12022.6). After a contested jurisdictional hearing, the juvenile court found the allegations true. Appellant was placed on probation in the custody of his mother and stepfather, and the court set the maximum term of confinement for the two felonies at nine years. The court ordered that restitution be made to the high school in an amount to be determined.
The restitution hearing was not held until January 2010. In the interim, appellant had graduated from high school, completed his community service, obtained part-time employment, and complied with the other conditions of his probation. The school district sought $2,187,974.20 in restitution. Appellant did not challenge the validity of the amount of the school district’s request, but he asked the court to find “compelling and extraordinary reasons” for not imposing full restitution.
Although a different judge presided at the restitution hearing than had conducted the jurisdictional hearing, the judge who issued the restitution order had reviewed the transcripts of the jurisdictional hearing.
Appellant presented the statements of three of his family members. Appellant’s mother told the court that her son “has always been an amazing, sensitive, compassionate person.” “He has a lot of friends. And he has always been very compassionate, loving animals and plants. He aspires to be a writer. He’s a fantastic writer. He has always had a deep love for books and has very many creative talents. He is a fantastic drummer.” She described how appellant “has done an amazing job of keeping motivated and excited about life and even with this terrible tragedy that happened....” Appellant’s mother explained that he had recently obtained his driver’s license and “moved into his own place, ” where he helped out his disabled landlord. Appellant “works really hard at part-time jobs.” He had worked at a pizza place and at Jamba Juice, and he was now working at Baskin Robbins. Appellant had done his community service at a recycling center. His mother felt that, “if full restitution is placed upon him, ... it’ll squash a person who could contribute to the community and to society as a whole.”
Appellant’s stepfather seconded appellant’s mother’s comments. He asserted that appellant “is a very compassionate kid” who is “very respectful to adults” and had “never been in any other type of trouble.” Appellant’s stepfather was concerned about “such a large amount” of restitution and hoped that appellant could instead “physically be of service” to “the community.” Appellant’s grandmother proclaimed that appellant had “just been a joy to me always.” She wanted appellant to be able “to go see the world and do things.”
Appellant read a letter he had written to the court. He maintained that “that night in late September is just a big misunderstanding.” Appellant pointed out that he had completed his community service and paid his fines, and he was living on his own and working. “The thought of this overwhelming debt makes me nauseous. I will never be able to get a loan for a new car or house, even if the economy is bad. I don’t believe I deserve this additional punishment. I have gone above and beyond expectations, because I myself want to succeed and always have. If this burden is placed upon my shoulders, everything I’ve been working for will crumble. [¶] I have learned my lesson, and I promise to keep on being a positive influence on society, to better the world and the people around me.”
The court admonished appellant for this statement. “Now, [appellant], you talked about it being a misunderstanding. There was no misunderstanding. You participated in something --” Appellant interrupted and asserted: “It was a poor choice of words.” The court clarified that appellant had “participated in something that was illegal” and “caused damage” for which he needed to take responsibility.
Appellant’s trial counsel asked the court to “exercise your discretion essentially to fashion another number, to come up with a number that you believe is reasonable that you believe serves the purposes of the law and the spirit of the law both as it relates to restitution and as it relates to juvenile justice.” She argued that appellant had been the youngest of the three perpetrators and therefore “subject to a little more peer influence, ” and had engaged in no prior or subsequent criminal behavior. “And there is this concern that this overwhelming restitution will really put a damper on this young man we have before us.” “He’s not going to be able to pay this. And I know the Court can’t consider that for purposes of this proceeding. But he won’t.” She asserted that the school district had been fully reimbursed for its loss by its insurance company and that the insurance company was not a “victim.” Appellant’s trial counsel asked the court to order “some amount of restitution” to the school district, but she urged the court to “set an amount that is reasonably related to his ability to pay and to his future earnings, without saddling him with that enormous number.”
However, she admitted: “I don’t know the details of the relationship between the insurance company and the school....” She thought it was “likely any restitution to the school then would go back to the insurance company.”
The prosecutor argued that ordering full restitution would have “a deterrent effect” and would be “rehabilitative.” She contended that the high level of damages was not itself a compelling or extraordinary reason for not ordering full restitution. She also took issue with appellant’s statement to the court that the fire was a “misunderstanding, ” and she argued that this statement showed that appellant had not been rehabilitated and had not taken full responsibility for his actions. The prosecutor pointed out that, in three years, the three perpetrators together had only paid a total of $500 toward their restitution obligation.
The court told appellant that what he needed “to work on is the sense of responsibility.” It noted that “[t]his school district pays a lot of money every single month for premiums for coverage.... And they have to pay that every single month as far as premiums and now future premiums will be affected. With insurance, once you make the claim, your insurance rates go up.” The court concluded that it was not “able to articulate an exception that the law tells me I must articulate in order for the Court to go against the statutory default, the statutory rule, in this particular situation. It’s for full restitution aimed at the juvenile offender, and the Court cannot stray from that rule and make a different ruling, other than ordering full restitution, unless it finds compelling and extraordinary reasons for not doing so and stating those on the record. I am not able to go to that level and grant an exception in this case.” The court ordered appellant to pay restitution in the amount of $2,187,974.20, for which he and his two compatriots were jointly and severally liable. Appellant timely filed a notice of appeal from the restitution order.
II. Discussion
Both of appellant’s claims on appeal concern the application of Welfare and Institutions Code section 730.6. This statute mandates: “Upon a minor being found to be a person described in Section 602, the court... shall order the minor to pay... [¶]... [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (h).” (§ 730.6, subd. (a)(2)(B), italics added.) Subdivision (h) of section 730.6 provides: “Restitution ordered pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall be imposed in the amount of the losses, as determined.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. A 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.” (§ 730.6, subd. (h), italics added.)
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise specified.
A. Equal Protection
Appellant contends that his right to equal protection was violated because section 730.6 precluded consideration of his “inability to pay” full restitution for the damages caused by his arson offense while section 742.16 permits consideration of inability to pay full restitution where the juvenile ward has been found to have committed a vandalism or graffiti offense.
Section 742.16 provides: “If a minor is found to be a person described in Section 602 by reason of the commission of an act prohibited by Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7 of the Penal Code, and the court does not remove the minor from the physical custody of the parent or guardian, the court as a condition of probation, except in any case in which the court makes a finding and states on the record its reasons why that condition would be inappropriate, shall require the minor to wash, paint, repair, or replace the property defaced, damaged, or destroyed by the minor or otherwise pay restitution to the probation officer of the county for disbursement to the owner or possessor of the property or both. In any case in which the minor is not granted probation or in which the minor’s cleanup, repair, or replacement of the property will not return the property to its condition before it was defaced, damaged, or destroyed, the court shall make a finding of the amount of restitution that would be required to fully compensate the owner and possessor of the property for their damages. The court shall order the minor or the minor’s estate to pay that restitution to the probation officer of the county for disbursement to the owner or possessor of the property or both, to the extent the court determines that the minor or the minor’s estate have the ability to do so, except in any case in which the court makes a finding and states on the record its reasons why full restitution would be inappropriate. If full restitution is found to be inappropriate, the court shall require the minor to perform specified community service, except in any case in which the court makes a finding and states on the record its reasons why that condition would be inappropriate.” (§ 742.16, subd. (a), italics added.) The Penal Code sections to which section 742.16 refers, Penal Code sections 594, 594.3, 594.4, 640.5, 640.6, and 640.7, proscribe vandalism and other acts of defacement with graffiti or other inscribed material.
“ ‘ “ ‘The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ ” ’ [Citation.] It is often stated that ‘[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citation.] The use of the term ‘similarly situated’ in this context refers only to the fact that ‘ “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.”...’ [Citation.] There is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
The preliminary issue is whether a juvenile adjudicated a ward due to his or her commission of a vandalism or graffiti offense and a juvenile adjudicated a ward due to his or her commission of some other criminal offense are sufficiently similar with respect to the purposes of these two restitution statutes that some level of scrutiny is required to determine whether the distinction regarding consideration of inability to pay full restitution is justified. Obviously, the general purpose of both section 730.6 and section 742.16 is to secure restitution from juvenile wards for the victims of their criminal offenses. Therefore, we will assume for the sake of argument that these two groups of juvenile wards are sufficiently similar with respect to this general purpose to merit some level of scrutiny.
Appellant concedes that the appropriate level of scrutiny is rational basis review. “[T]he burden of demonstrating the invalidity of a classification under [the rational basis] standard rests squarely upon the party who assails it.” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17.) Under rational basis review, “the classification need only be rationally related to a legitimate state purpose in order to withstand equal protection scrutiny.” (People v. Leung (1992) 5 Cal.App.4th 482, 494.) “[I]t is irrelevant whether the perceived reason for the challenged distinction actually motivated the Legislature, [as] equal protection ‘... require[s only] that a purpose may conceivably or “may reasonably have been the purpose and policy” of the relevant governmental decisionmaker’ [citation] and that ‘the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.’ [Citation.] Thus, ..., we must undertake ‘ “ ‘ “a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals” ’ ” ’ [citation] by inquiring whether ‘ “the statutory classifications are rationally related to the ‘realistically conceivable legislative purpose[s]’ [citation]”... and... by declining to “invent[ ] fictitious purposes that could not have been within the contemplation of the Legislature....” ’ ” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1201.)
Appellant acknowledges that the legislative intent underlying section 730.6 was to “make the victim whole, ” rehabilitate the perpetrator, and deter further offenses. He argues that none of these objectives justifies a distinction between those who commit vandalism or graffiti offenses and those who commit other criminal offenses. In our view, the Legislature could have reasonably determined that the need to deter vandalism and graffiti offenses is not as dire as the need to deter offenses which pose a greater threat of harm to persons and property, such as arson. Vandalism and graffiti offenses as a class generally do not endanger people, and the Legislature could have reasoned that the damage these offenses usually inflict on property is of less concern than the economic losses suffered by the victims of other criminal conduct. While vandalism and graffiti are frequently unsightly, the damage resulting from a vandalism or graffiti offense often does not even prevent the property owner from continuing to use the damaged property. The same cannot be said for the damage that is inflicted on property by an offense such as arson, which frequently destroys property. This distinction could justify the Legislature’s decision to preclude consideration of inability to pay except as to the damage caused by vandalism and graffiti offenses.
Appellant rejects this rational basis for the distinction as mere “conjecture.” Rational basis review requires only a “conceivable” purpose that “ ‘ “may... have” ’ ” motivated the Legislature. (People v. Hofsheier, supra, 37 Cal.4th at p. 1201.) Hence, a court may permissibly consider any conceivable purpose that might have motivated the Legislature to create the distinction. Here, the Legislature “ ‘ “may... have” ’ ” been motivated to permit consideration of inability to pay as to only vandalism and graffiti offenses by the fact that vandalism and graffiti offenses rarely harm people and are less likely than other offenses to result in the destruction of property. On this basis, we conclude that a rational basis supports the distinction, and we reject appellant’s equal protection contention.
B. Court’s Exercise of Its Discretion
Appellant’s remaining claim is that the juvenile court abused its discretion in failing to find “compelling and extraordinary reasons” justifying ordering less than full restitution.
The “compelling and extraordinary reasons” provision “allows a trial court some discretion to decline to impose restitution in unusual situations specific to a particular crime, defendant, or other circumstance.” (People v. Giordano (2007) 42 Cal.4th 644, 662.)
Appellant identifies a number of circumstances that he believes constitute “compelling and extraordinary reasons.” First, he asserts that he did not actually intend to burn down the library. Second, he has no other criminal history. Third, he complied with his probation conditions and obtained employment. Fourth, his family thinks well of him, and he believes he has learned his lesson. Fifth, the school district’s loss was covered by its insurance.
The juvenile court was not required to find that these circumstances were individually or in combination “compelling and extraordinary reasons” for refusing to order full restitution. Many arsonists cause damage that greatly exceeds what they intended, so appellant’s failure to anticipate the damage his acts would cause was not extraordinary. While it is laudable that appellant has no other criminal history, and has complied with his probation conditions and obtained employment, these circumstances are not uncommon. The love of his family and his belief in himself should help appellant to succeed in life, but again they are not extraordinary. It is also not extraordinary that a school district would carry fire insurance that would cover losses caused by arson.
The circumstances relied upon by appellant are common, and they do not become compelling or extraordinary in combination. Further, the juvenile court’s finding, which is supported by the record, that appellant had yet to take full responsibility for his actions is plainly inconsistent with a finding of “compelling and extraordinary reasons” for refusing to order full restitution, as making full restitution is the best way for an offender to demonstrate that he is taking full responsibility for his offense.
Appellant claims that In re Michael S. (2007) 147 Cal.App.4th 1443 (Michael) “recognized” that “where an insurer pays the victim the entire amount of the actual loss” there may be a compelling reason not to order full restitution. Michael does not support this claim.
15-year-old Michael and a friend lit a fire at a high school that caused $139,000 in damage. (Michael, supra, 147 Cal.App.4th at p. 1447.) The school district accepted a payment of $11,735 from Michael’s mother’s insurer and released its claims against both Michael and his mother. (Michael, at p. 1447.) The juvenile court thereafter ordered Michael to pay the remaining $127,000 in restitution to the school district. (Michael, at p. 1447.) On appeal, Michael asserted that the court should have found compelling and extraordinary reasons for ordering less than full restitution due to “the specter of a ‘residual’ civil judgment that will ‘economically cripple’ him ‘well into adulthood, if not for life.’ ” (Michael, at p. 1456.) The Court of Appeal rejected his contention. “The fact that a juvenile delinquency restitution order may extend into adulthood and easily beyond the period of wardship then can hardly be called a ‘compelling’ reason to depart from a rule of full restitution. Extension of juvenile offender liability into adulthood is what one would expect under the language of subdivision (i) of section 730.6.” (Michael, at p. 1457.)
The Court of Appeal’s opinion in Michael also included dicta about how a juvenile court might view the circumstances differently if the mother’s insurer had covered the entire loss in exchange for releases of both Michael and his mother. “Perhaps, had the insurer paid the entire amount of the actual loss, there might be a ‘compelling’ reason not to order ‘full restitution, ’ since at that point the state’s constitutional interest in full restitution would have been satisfied, and all future recovery by the victim would represent a double recovery. [Citation.] Maybe under such circumstances the trial court could adjust any restitution award against Michael strictly in terms of his own ability to pay (present and future) and the state’s interest in deterrence and rehabilitation. But that scenario is not this case. This case involves a substantial uncovered loss by the victim as against a statutory default rule of full restitution aimed at the juvenile offender.” (Michael, supra, 147 Cal.App.4th at pp. 1457-1458, italics added.)
Even if a juvenile court “might” find a compelling and extraordinary reason not to order full restitution where the victim has been fully compensated by the juvenile’s parent’s insurer, that would not establish that the juvenile court abused its discretion in the case before us. The insurer who compensated the school district was not appellant’s parent’s insurer but the school district’s insurer. The court in Michael did not suggest that it would be an abuse of discretion for a juvenile court to not find compelling and extraordinary reasons under its hypothetical. It only hypothesized that a juvenile court “might” find such a reason. We can see nothing compelling or extraordinary in the fact that the school district was able to obtain compensation from its own insurer for its losses. Indeed, such will often be the case. The fact that the school district had shown foresight in obtaining insurance provides no justification for excusing appellant from making full restitution. We can find no abuse of discretion in the juvenile court’s restitution order.
III. Disposition
The juvenile court’s restitution order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J.Duffy, J.
Section 742.16 is part of the Graffiti Removal and Damage Recovery Program. One of the purposes of this program is “[t]o discourage the inscription of graffiti and other material by minors by requiring the offending minors, and their parents who have the financial ability to do so, to bear the costs associated with the unlawful defacement of property with graffiti or other inscribed material.” (§ 742.10, subd. (e).) “[T]he term ‘graffiti or other inscribed material’ includes any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property.” (§ 742.12.)