Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 52-003500
Minor Jeremiah F. admitted that he was within the provisions of Welfare and Institutions Code section 602 in that he committed vandalism resulting in damages over $400 (Pen. Code, § 594, subd. (b)(1); count three), unauthorized entry of a dwelling (§ 602.5; count four), and receiving stolen property (§ 496; count five). In exchange, two counts of first degree burglary (§§ 459, 460, subd. (a)) were dismissed outright. The minor was adjudged a ward and placed on probation in his mother’s home on terms and conditions including incarceration for eight days and restitution to the victims. Following a contested hearing, the court ordered restitution in the amount of $73,953.56. The minor, his parents, coparticipant M.G., and M.G.’s parents were made jointly and severally liable for the total amount of restitution.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, the minor claims the restitution award is erroneous in five respects: (1) there was insufficient evidence to support restitution for nine of the 16 days the victim appeared in court, (2) the Legislature has not authorized restitution in juvenile cases for the costs of installing and monitoring a burglar alarm system, (3) restitution for the costs of replacing decorative rocks was improper because the damage was de minimis and no evidence was presented of the costs of repair or replacement, (4) the victim’s wage loss should have been based on an eight-hour work day rather than a 14-hour day, and (5) the restitution order should direct that the minor shall receive notice of sums paid by his coparticipants. We affirm the judgment.
Because the case was resolved by plea, our statement of facts is taken from the probation officer’s report.
On July 24, 2005, Dennis Loe and his two children went to southern California for a vacation. Neither Loe nor either child gave anyone permission to enter their residence or use their swimming pool.
That same day C.C., M.G., and C.S. entered Loe’s backyard through a side gate and swam in the pool. C.C. then entered the residence by climbing through a partially open window. He opened a sliding glass door and all three juveniles entered the house to get drinks.
The next day, the three juveniles and the minor went to Loe’s residence. C.C. and the minor dropped a large rock into the pool. Using a hammer, the minor tried to pry off the cover of the pool drain in the belief that he could empty the pool and skateboard in it. For an unknown reason, the minor also struck a piece of tile next to the spa.
D.M. went to the Loe residence after receiving an invitation from M.G. When he arrived, he saw M.G., C.C., and the minor inside the house watching television and eating popcorn and ice cream. C.C. took a motorcycle from the shed and drove it in the backyard until it crashed into a fence. As D.M. was leaving he heard M.G., C.C., and the minor talking about taking Loe’s car for a joyride.
On the second night (July 25, 2005), C.C., M.G., and the minor took Loe’s car from the residence. C.C. and M.G. drove the car while the minor was in the front passenger seat. They drove in a grassy area and through a parking lot.
Steven Loe, the father of Dennis Loe, was looking after the house while his son was on vacation. On July 25, 2005, Steven noticed that the door to the backyard shed was open. The next day, Steven went to the residence and observed a male juvenile leaving the house. Steven asked the juvenile why he was there. He replied that the homeowner’s son had given permission for him and his friends to swim in the pool. After calling his son, Steven learned that no one was supposed to be inside the house. Steven entered the house, detained three juveniles (C.C., M.G., and the minor), and called the police.
DISCUSSION
I
The minor contends there was insufficient evidence to support restitution for nine of the 16 days that victim Loe appeared in court. We are not persuaded.
The juvenile court ruled that Loe was entitled to recover one day of wage loss for each of his 16 court appearances, “in order to fully reimburse him for the economic losses incurred as a result of the [minors’] conduct.”
The minor disputes nine of the 16 days on the ground that Loe’s “testimony as a witness in [the minor’s] case was not required” at those times. But contrary to his argument, Welfare and Institutions Code section 730.6, subdivision (h)(4), does not limit restitution to days during which the victim not only appears in court but also furnishes testimony as a witness.
Further references to “section 730.6” are to the Welfare and Institutions Code.
Section 730.6, subdivision (h), provides in relevant part that restitution “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 minor’s conduct . . ., including all of the following: [¶] . . . [¶] (4) Wages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minor’s parent . . . due to time spent as a witness or in assisting the police or prosecution.” (Italics added.)
The juvenile court expressly found that restitution for all 16 days was necessary “in order to fully reimburse [the victim] for the economic losses incurred as a result of the [minors’] conduct.” Section 730.6, subdivision (h)(4), expressly includes the dates on which the victim gave testimony, but it does not expressly or impliedly exclude other dates on which he appeared in court, so long as payment for those dates is necessary to fully reimburse him for economic losses caused by the minor’s conduct. The “use of the word ‘including’ before the list of kinds of losses indicates the Legislature’s intention not to limit the court to the kinds of losses specified, but to allow the court broad discretion to determine the victim’s economic loss.” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1135.) The juvenile court expressly found that restitution for all 16 days was necessary to fully reimburse the victim. No evidence suggested that the victim’s presence in court on the disputed days was causally unrelated to the juveniles’ conduct. No abuse of discretion is shown.
Without argument or citation of authority, the minor claims he should not be liable for restitution for any date that the court proceedings involved only M.G., the coparticipant, and did not involve the minor. We disagree.
“The purpose behind requiring a minor to pay victim restitution is for its deterrent as well as rehabilitative effect. ‘Requiring the [minor] to make complete reparation to 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.]’” (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387, fns. omitted.) The deterrent and rehabilitative purposes are served so long as the day’s court appearance was causally related to the juveniles’ conduct. That is so even if a particular appearance is necessitated solely by the legal strategy or tactics of a coparticipant. No error is shown.
II
The minor next contends the juvenile court erred in awarding restitution for the victim’s installation of a burglar alarm and for one year of burglar alarm service. Again, we disagree.
The victim requested restitution for the cost of installing a new home security system ($972) plus alarm service for the previous 12 months ($504). After reiterating that section 730.6 mandates reimbursement for all economic losses incurred as a result of the minors’ conduct, the juvenile court noted that section 730.6 closely parallels Penal Code section 1202.4, which governs adult restitution. Section 1202.4, subdivision (f)(3)(J), allows the victim of a first degree burglary to be reimbursed for the expense of installing a residential security system.
The minor concedes that sections 730.6 and 1202.4 both require restitution for every determined economic loss incurred as a result of the minor’s or defendant’s conduct. (§§ 730.6, subd. (h); 1202.4, subd. (f)(3).) Because each statute’s listing of specific items of loss is merely exemplary (“including” in § 730.6; “including, but not limited to” in § 1202.4), the listing of security systems in the adult scheme but not the juvenile scheme does not indicate any legislative intent to preclude reimbursement for such systems in juvenile cases.
Section 1202.4, subdivision (f)(3)(J), allows restitution for “[e]xpenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks.” The minor claims the expense of monitoring a home security system, after it is installed, is not an economic loss within the meaning of the statute. But if requisite expenses are not paid, an installed security device might do little if anything to increase residential security. The juvenile court could reason that monthly monitoring expenses increase residential security within the meaning of section 1202.4.
The minor claims “the addition of a burglar alarm to the property represents an improvement to the property,” not compensation for an economic loss. But by enacting section 1202.4, subdivision (f)(3)(J), the Legislature has determined that expense should be compensable, regardless of whether it is characterized as an improvement or an economic loss.
The minor notes that section 1202.4, subdivision (f)(3)(J), is expressly limited to the offenses listed in section 667.5, subdivision (c). Those offenses include first degree burglary, “wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).)
Because the Loes were away on vacation at the time of both entries and Loe’s father arrived on the scene only after both entries had been effected, the burglary arguably was not within the provisions of section 667.5, subdivision (c)(21), and section 1202.4, subdivision (f)(3)(J). But, as we have explained, subdivision (f)(3), includes but is not limited to, the matters specified in subsection (J). Moreover, as we have explained, section 730.6 mandates reimbursement for all economic losses incurred as a result of the minors’ conduct. The fact the burglary charge was dismissed outright as to the minor did not preclude the court from ordering restitution for the alarm.
III
The minor contends the juvenile court erred in awarding $1,000 for replacement of the decorative rock group, because any damage was de minimis and there was no evidence of the costs of repair or replacement. We disagree.
In its restitution order, the juvenile court addressed the issue of “Decorative Rockwork” as follows: “From the testimony of [the original builder of the pool] and Exhibits 5, 6, 7, and 8, the Court finds that the minors’ conduct resulted in several rocks in the waterfall grouping being dislodged, and a part of one rock in the decorative rock grouping being broken off. The Court finds that the rocks in the waterfall can be repaired to their condition prior to the vandalism by re-mortaring the loose rocks, and re-grouting the entire waterfall so the grout color will match. [The builder] testified that it would cost approximately $350.00 for this repair. The Court further finds that the damaged rock in the decorative rock grouping must be replaced in order to return the rock grouping to its condition prior to the vandalism. As it would be nearly impossible to find a replacement rock of the same size and color, the victim is awarded restitution of $1,000.00 for replacement of the decorative rock grouping. Therefore, the victim is awarded the sum of $1,350.00 as restitution for the decorative rock work.” (Italics added.)
We first consider the minor’s claim that the photographs, exhibits 7 and 8, were not introduced in evidence. At the restitution hearing in October 2006, M.G. provided exhibits 5 (pool waterfall, close-up), 6 (pool waterfall, distant), 7 (rocks next to pool and patio), and 8 (rocks, close-up). At the outset of the restitution hearing in October 2006, the prosecutor requested a stipulation to admit exhibits including photographs 5 through 8. According to the reporter’s transcript, the minor’s counsel replied, “I do not stipulate to the photographs[’] admissibility,” and M.G.’s counsel stated, “Likewise.”
The Attorney General argues the reporter’s transcript may be inaccurate to the extent it suggests that M.G. objected at the restitution hearing to exhibits he had offered at that hearing. We need not resolve this contention because, as the Attorney General also notes, even if the minor did not stipulate to the exhibits’ admission at the outset of the hearing in October 2006, he attached exhibits 5 through 8 to his Response to People’s Summary of Restitution filed in February 2007. He cannot claim the court erred by failing to disregard his own submission.
As the juvenile court found, and as the minor concedes, exhibits 7 and 8 show that a portion of one rock next to the pool and patio has been broken off. Having examined the photographs, we conclude the juvenile court did not abuse its discretion when it failed to find this damage “de minimis.” (People v. Giordano (2007) 42 Cal.4th 644, 663, fn. 7 [standard of review is abuse of discretion]; In re Johnny M., supra, 100 Cal.App.4th at p. 1134 [applying that standard].)
The minor claims the restitution for the damage to the rock group should have been limited to “the diminution in value the spot makes to the pool, or the victim’s real estate.” Because no evidence was presented as to either measure of “diminution in value,” no evidence supports the minor’s argument that the diminution was less than the $1,000 awarded by the juvenile court.
The builder of the pool provided exhibit 1, an estimate of the costs to perform various repairs. The estimate includes $5,500 to replace two moss rock waterfalls, and $900 for “Misc. Moss Rock on Beam and Jump Rock.” At the hearing, the builder testified that it would cost approximately $6,000 to “re-do the rock, all the rock[,] because the rock won’t match.” The builder testified that he did not recollect having seen any damage to any rocks that had been hammered on. Thus, he never identified the “Misc. Moss Rock on Beam and Jump Rock” listed in his estimate as being the decorative rock grouping visible in exhibits 7 and 8. However, the photographs suggest the decorative rock grouping was only a small portion of the rock installed on the victim’s pool. The court could deduce that, if all the rocks could be replaced for approximately $6,000, then the decorative rock grouping in exhibits 7 and 8 could be replaced for about $1,000.
Finally, the juvenile court did not err in concluding that the rock grouping had to be replaced rather than repaired. The pool builder testified that chlorinated water in pools alters the color of rocks and that a replacement rock would look different than existing rocks. Although the testimony appeared to relate most specifically to rocks that comprised portions of the waterfall spillway, the court could deduce that that the principle also applied to the chipped rock at the edge of the pool. There was no abuse of discretion.
IV
The minor contends the juvenile court erred in calculating the amount of Loe’s wage loss due to court appearances and assisting with investigation. He reasons that the court should have used an eight-hour work day rather than a 14-hour day, because there was no evidence that he worked 14 hours on the days he went to court or on the days he assisted with the investigation. The point has no merit.
Loe was a truck driver for a supermarket chain and worked up to 70 hours per week. He was paid $20.42 for each of the first eight hours, then time and a half ($30.63) for the next four hours, then double time ($40.84) for anything over 12 hours. Loe worked between 55 and 70 hours per week.
Loe testified that he worked an average of 14 hours per day and received a daily wage of $367.56. Loe provided work receipts for a recent three-week period showing he averaged 14 hours per day.
The trial court awarded Loe $367.56 for each day he was unable to work due to court appearances (16 days), investigation (five days), lost vacation (three days), and obtaining a restraining order (one day).
As noted, section 730.6, subdivision (h), requires restitution in “a dollar amount sufficient to fully reimburse the victim” for economic losses, including lost wages. (See part I, ante.) The evidence is undisputed that Loe worked an average of 14 hours per day, not eight hours; and that each day he did not work represented a loss of 14 hours of pay, not a loss of eight hours.
Because restitution was awarded for Loe’s inability to perform his regular job, rather than for his efforts making court appearances, conducting investigation, obtaining a restraining order or foregoing his vacation, it is irrelevant whether the court hearings “lasted more than normal court hours,” or whether his investigative and other efforts “occupied more than 8 hours on any given day.” On this record, basing restitution on anything less than Loe’s normal 14-hour day would have been an abuse of discretion.
The minor suggests Loe was not entitled to restitution for his lost work days because he could have rearranged his schedule to work on days he otherwise would have taken off. The minor offers no authority for this proposition, and we are not aware of any. Loe was not required to forfeit his days off as a result of the minor’s conduct.
V
The minor contends the restitution order should be modified to require that he be notified of any restitution payments by M.G., C.C., or any other minor responsible for the damages. He notes that C.C.’s case was transferred to a different county and, as a result, neither he nor his parents participated in the restitution hearing, raising the prospect that Loe may recover duplicative restitution from the minor and from C.C. We find no error.
The minor’s argument is based on People v. Zito (1992) 8 Cal.App.4th 736, which stated in dictum: “One way to make sure the victim does not receive double compensation is to require that defendants receive notice of amounts paid by codefendants.” (Id. at p. 745.)
Applying the Zito dictum in the juvenile context is problematic. As the minor concedes, juvenile “records are confidential, making it hard for [the minor] to determine how much of the balance due the victim remains outstanding as a result of payments from other juveniles.” This confidentiality forecloses the simplest options, requiring each paying juvenile to disclose his payments to the others or allowing paying minors access to the others’ compliance reports filed pursuant to Welfare and Institutions Code section 730.8.
The minor’s only suggestion is an order “requiring the victim to account to [the minor] for payments made to the victim by the co-defendants or others held jointly and severally liable to the victim for restitution.” (Italics added.) Even if placing the onus on victim Loe avoids the confidentiality issue, it raises a due process issue in that Loe is not a party to this appeal, is not otherwise before this court, and has not had any opportunity to address the minor’s request.
The minor could have avoided this due process problem by raising the Zito notice issue at the restitution hearing. Application of the “general rule” that “only ‘claims properly raised and preserved by the parties are reviewable on appeal’ [citation]” is particularly appropriate where, as here, resolution of the unpreserved issue would require issuance of an order to a person not before the court. (People v. Smith (2001) 24 Cal.4th 849, 852; see People v. Scott (1994) 9 Cal.4th 331, 354; People v. Welch (1993) 5 Cal.4th 228, 235.)
DISPOSITION
The order of the juvenile court is affirmed.
We concur: ROBIE, J., DAVIS, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.