Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Before Vartabedian, Acting P.J., Harris, J. and Dawson, J.
APPEAL fro a judgment of the Superior Court of Tulare County No. JJD060461, Valeriano Saucedo, Judge.
Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Appellant Jairo A., a minor, admitted allegations that he committed the following offenses: receiving stolen property, viz., credit cards (Pen. Code, § 496, subd. (a)), a felony, and committing battery while on school property (§ 243.2, subd. (a)), a misdemeanor. Following the subsequent disposition hearing, the court adjudged appellant a ward of the court and placed him on probation, the terms of which included that he serve 365 days in the Tulare County Youth Facility and pay restitution to the owner of the stolen credit cards in the amount of $463.13, representing damage sustained to the card owner’s vehicle, and the value of items taken, in the burglary in which the cards were stolen.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant’s sole contention is that the court erred ordering appellant to pay restitution. We will affirm.
FACTUAL BACKGROUND
Appellant’s adjudication of receiving stolen property was based on his possession of two stolen credit cards. A police officer found the cards in a search of appellant’s person on June 2, 2006. Appellant told the probation officer he found the credit cards on the ground, picked them up “for no apparent reason” and “decided to keep [them].”
Resa Sprague told the probation officer the following. The two credit cards found in appellant’s possession were taken from her car in a burglary on May 31, 2006. Also taken in the burglary were various items of personal property, including a purse, a camera and Sprague’s driver’s license. The value of these items, including the replacement fee of $20 for her driver’s license, was $258. In addition, the window of her vehicle was broken in the burglary. The replacement cost of the window was $205.13. No charges were made to the cards.
DISCUSSION
Appellant first argues that the court erred in ordering that he pay restitution because his conduct did not cause the losses upon which the restitution order was based. As he points out, the restitution order was based on losses suffered as a result of a burglary, and although appellant was adjudicated of unlawfully possessing credit cards taken in that burglary, he was not shown to have committed the burglary.
As indicated above, the challenged restitution order was a condition of probation. Welfare and Institutions Code section 730, subdivision (b) provides, in relevant part: “[T]he court may impose and require any and all reasonable conditions [of probation] that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” Thus, “[a] juvenile court is vested with broad discretion to select appropriate probation conditions.” (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.)
In the context of adult offenders, our Supreme Court, in People v. Lent (1975) 15 Cal.3d 481, established a three-part test for determining the validity of a condition of probation: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ….’” (Id. at p. 486.) This test applies to juvenile court probation orders (In re Josh W. (1997) 55 Cal.App.4th 1, 6), with certain qualifications, including the following: “‘A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.’” (In re Abdirahman S. (1997) 58 Cal.App.4th 963, 969; accord, In re Josh W., supra, at pp. 5-6.)
“Restitution has long been considered a valid condition of probation. [Citation.] … California courts have long interpreted the trial courts’ discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation].” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, italics added, fn. omitted.)
A juvenile court’s exercise of discretion in imposing conditions of probation “will not be disturbed in the absence of manifest abuse.” (In re Josh W., supra, 55 Cal.App.4th at p. 5.)
We acknowledge, as appellant asserts, that the record does not support the conclusion that appellant committed the burglary that resulted in the damages which gave rise to the restitution order, but we reject his claim that a restitution order is invalid unless the perpetrator’s conduct caused the victim’s loss. In People v. Goulart (1990) 224 Cal.App.3d 71, the defendant was convicted of unlawfully interfering with a line erected and maintained by a public utility company for transmitting electricity, and “similar charges” were dismissed, with a Harvey waiver. (Goulart, supra, at p. 77.) The appellate court upheld an order that the defendant pay more than $42,000 in restitution as a condition of probation, even though the restitution order reflected “energy thefts during time periods which [the defendant] was not, and some of which he could not have been, charged.” (Id. at p. 79, italics added.) The court concluded that the restitution order would serve to rehabilitate the defendant. (Ibid.) Goulart illustrates the following principle: “That a defendant was not personally or immediately responsible for the victim’s loss does not render an order of restitution [as a condition of probation] improper.… [T]he question simply is whether the order is reasonably related to the crime of which the defendant was convicted or to future criminality.” (In re I.M. (2005) 125 Cal.App.4th 1195, 1210.)
See People v. Harvey (1979) 25 Cal.3d 754.
In re I.M. is also instructive on this point. In that case, the juvenile court sustained a wardship petition alleging a minor had been an accessory after the fact (§ 32) to a murder and that in committing that offense he had acted with the specific intent to benefit, promote, further or assist the unlawful conduct of a criminal street gang (§ 186.22, subd. (b)(1)). The juvenile court placed the minor on probation and ordered as a condition of probation that the minor pay $15,184.43 in restitution to cover the cost of the victim’s funeral. (In re I.M., supra, 125 Cal.App.4th at p. 1199.)
The appellate court concluded that although the minor’s conduct did not cause the loss upon which the restitution order was based, the trial court did not abuse its discretion in ordering restitution for that loss. The court stated that because the minor had been found to have been promoting and assisting gang conduct, the restitution order served the rehabilitative purpose of making the minor aware of the consequences of his choice of participating in gang activities, including the emotional and financial effects on the family members of the victims of gang violence. (In re I.M., supra, 125 Cal.App.4th at p. 1210.)
We acknowledge that the gang-related considerations present in In re I.M. are absent here. But an accessory after the fact to a murder assists the perpetrator in getting away with the murder and in that way, by action(s) taken after the crime, assists in the criminal enterprise. In a similar way, the act of unlawfully possessing property stolen in a burglary occurs after the burglary and assists in one of the main harms of the burglary, viz., depriving the victim of his or her property. As in In re I.M., the restitution order is reasonably related to one of the offenses of which appellant stands adjudicated and to deterring future criminality.
Appellant likens the instant case to In re Maxwell C. (1984) 159 Cal.App.3d 263. In that case, the court held that a minor who was adjudicated of receiving stolen property (a car stereo) could not be required to pay restitution for damage done to the automobile that resulted when the property was stolen. However, In re Maxwell C. is no longer good law as it relied on reasoning from People v. Richards (1976) 17 Cal.3d 614, 622, which has been explicitly disapproved of by our Supreme Court. (Compare In re Maxwell C., supra, at p. 266 [restitution not proper under Richards because the “state of mind with which the burglary or vandalism are committed is different than that required for receiving stolen property”] with People v. Carbajal, supra, 10 Cal.4th at p. 1126 [“insofar as Richards may be read to require that trial courts refrain from conditioning probation on restitution ‘unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted …’ [citation], we disapprove it”].)
Finally, appellant argues that the Lent rule—that a restitution order, imposed as a condition of probation in the case of an adult criminal defendant, is valid if restitution is reasonably related to the offense(s) of which the defendant is convicted or to future criminality—does not apply where, as here, a juvenile is placed on probation. Under such circumstances, appellant argues, it is not sufficient that restitution, ordered as a probation condition, be reasonably related to an offense of which the minor is adjudicated or to deterring future criminality. Indeed, appellant argues that it is not sufficient that the losses be caused by any act committed by the minor. Rather, he argues, restitution ordered as a probation condition in a juvenile case is limited to losses caused by offense(s) of which the minor is adjudicated.
Appellant bases this argument on People v. Lai (2006) 138 Cal.App.4th 1227, in which the court held the Lent rule does not apply when an adult is sentenced to prison, and that in such cases restitution is “limit[ed] … to losses caused by the criminal conduct for which the defendant was convicted.” (Lai, at p. 1249.) Because a juvenile offender, unlike an adult offender, is not free to turn down probation (In re Tyrell J. (1994) 8 Cal.4th 68, 82, overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130), appellant argues, a grant of probation to a juvenile is akin to a prison sentence for an adult, and therefore the limitation on restitution awards applicable to adults sentenced to prison applies where, as here, a minor is placed on probation. And since neither of the offenses of which appellant stands adjudicated—receiving stolen property and battery committed while on school property—caused Sprague’s losses, appellant argues he cannot be ordered to make restitution for those losses. There is no merit to this contention.
The rule that for an adult criminal defendant sentenced to prison, restitution is limited to losses caused by the offense(s) of which the defendant was convicted is based on constitutional and statutory sources. Article I, section 28, subdivision (b) of the California Constitution guarantees “all persons who suffer losses as a result of criminal activity … the right to restitution from the persons convicted of the crimes for losses they suffer.” (Italics added.) “This language discloses a clear intent: ‘every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss.’” (People v. Lai, supra, 138 Cal.App.4th at pp. 1246-1247.) Section 1202.4 implements the constitutional right to restitution for adults. As stated in subdivision (a)(1) of section 1202.4, the Legislature intended to provide “that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Italics added.) “Hence, the reimbursable loss identified by section 1202.4, subdivision (a)(1) is the loss resulting from the crime of which the defendant was convicted.” (People v. Lai, supra, at p. 1247.)
Section 1202.4, of course, applies to adults, but we note that Welfare and Institutions Code section 730.6 is substantively identical to section 1202.4, subdivision (a)(1); it provides: “It is the intent of the Legislature that a victim of conduct for which a minor is found to be a person described in [Welfare and Institutions Code] Section 602 who incurs any economic loss as a result of the minor’s conduct shall receive restitution directly from the minor.” Consistent with this intent, Welfare and Institutions Code section 730.6, subdivision (h) mandates direct victim restitution in an “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 ….” (Italics added.)
However, as indicated above, “an award of restitution has not been so limited when imposed as a condition of [adult] probation.” (People v. Lai, supra, 138 Cal.App.4th at p. 1247.) In such cases, our Supreme Court held in Carbajal, the Lent rule applies. (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) The Lai court held that a different rule applies with respect to adults sentenced to prison because the “rationale [of Carbajal] is inapplicable to a nonprobationary sentence, in which the broad discretion to impose probationary conditions does not exist.” (People v. Lai, supra, at p. 1248.) But as the Lai court noted, the Carbajal court based its holding in part on “the trial court’s broad discretion to set probationary terms ….” (People v. Lai, supra, at p. 1248, italics added.) That rationale applies with equal force to juvenile probation, and there is nothing in Lai that suggests the contrary. Nor is a juvenile court’s broad discretion in setting probationary terms affected by the requirement that a minor pay restitution for losses caused by any offense of which the minor is adjudicated (Welf. & Inst. Code, § 730.6, subd. (h)). Therefore, the Lent rule applies in the instant case. And, as demonstrated above, the probation order in the instant case did not violate the Lent rule.
DISPOSITION
The judgment is affirmed.