Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV126747
ROBIE, J.
Following a contested jurisdiction hearing, the Sacramento County Juvenile Court found that minor J. S. came within the provisions of Welfare and Institutions Code section 602 in that he unlawfully drove upon a highway in willful and wanton disregard for the safety of persons and property, and that he proximately caused bodily injury to A. D. and Andrea Thomas. The court granted the minor’s motion to dismiss two related counts. He was adjudged a ward of the court, placed on probation, and released to his own care and custody because he had just turned 18 years of age. The court found the maximum confinement time to be one year four months. The minor was ordered to pay a $50 restitution fine, and the court retained jurisdiction on the issue of victim restitution.
For consistency, we shall refer to J. S. as the minor even though he reached adulthood following the present incident.
Following a contested hearing, the court ordered the minor to make restitution to Thomas in the amount of $35,232.84.
The minor contends, and the People concede, the maximum term of confinement set forth in the minute order must be stricken. The minor further contends the victim restitution award must be reduced to exclude certain medical expenses and costs of selling personal property. We shall modify the judgment by striking the maximum term of confinement.
FACTS
On June 24, 2007, the 17-year-old minor was driving his car with two male passengers, 17-year-old A. D. and 18-year-old A. R., who were friends and schoolmates. The trio was traveling on Auburn-Folsom Road approaching the intersection with Douglas Boulevard. A. D. directed the minor to make a left-hand turn onto Douglas. The minor slowed, but he was still going 20 to 45 miles per hour when he made the turn. The car’s tires either hit, or almost hit, the concrete median near the traffic light, but the car did not skid.
After making the turn, the minor drove down Douglas Boulevard at 55 to 60 miles per hour. The speed limit is 55 miles per hour. The boys discussed whether the car could tip over. A. D. said that the car could tip over; A. R. countered that the car had a low center of gravity and probably would not tip.
The minor turned the car to the left and right and lost control. The car skidded into the oncoming lane of traffic and collided with Andrea Thomas’s oncoming truck. A witness in another car thought the minor was driving recklessly at the time of the accident.
A. D. suffered a rib fracture, a fracture of the sternum, and injuries to his lungs. Thomas suffered bruising of the middle of her body, which limited her ability to bend. She also had limited use of her right arm and suffered headaches following the collision.
DISCUSSION
I
The Maximum Confinement Time
The minor contends, and the People concede, the one-year, four-month maximum period of confinement ordered by the juvenile court must be stricken. We accept the People’s concession.
Welfare and Institutions Code section 726, subdivision (c), provides: “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.”
Welfare and Institutions Code section 726, subdivision (c), is inapplicable where the minor is not removed from the physical custody of his or her parents or, as here, from his own care and custody as an adult.
In In re Ali A. (2006) 139 Cal.App.4th 569, this court concluded that, “[w]hen a juvenile ward is allowed to remain in his parents’ custody, there is no physical confinement and therefore no need to set a maximum term of confinement. Consequently, the maximum term of confinement included in the dispositional order here is of no legal effect.” (Id. at p. 571.) Because the minor was not prejudiced by the presence of the term, we concluded “there is no basis for reversal or remand in this case.” (Id. at p. 574.)
Thereafter, in In re Matthew A. (2008) 165 Cal.App.4th 537, Division Eight of the Second Appellate District noted that juvenile courts were continuing to specify maximum terms for minors who remained in parental custody. Concluding that prior appellate opinions had been ineffective in deterring the practice, the court struck the maximum confinement term set by the juvenile court. (Id. at pp. 541-542.)
In this case, the parties agree that the setting of a maximum confinement term was improper and that the term should be stricken. We shall do so.
II
Victim Restitution
The minor contends the award of victim restitution ($35,232.84) must be modified to exclude reimbursement for “selling her piano for money ($2,400.00),” “selling the bedroom set for money ($3,000.00),” two future MRI examinations ($5,400), and the future cost of reading the MRI results ($614). We consider these items in turn.
The heading in the minor’s opening brief incorrectly refers to “the restitution fine” rather than to the restitution owed to Thomas.
A
Piano And Bedroom Set
Thomas submitted to the probation department an itemized restitution claim that included, among other things, reimbursement “for the need to hire a laborer to assist at home ($310.84), selling her piano for money ($2,400.00), selling the bedroom set for money ($3,000.00), reduced price to sell her home ($22,000.00), and the need for two MRI’s ($5,000.00).”
At the contested restitution hearing, Thomas was the only witness. Neither the piano nor the bedroom set was discussed. After Thomas testified, the juvenile court asked the minor’s counsel whether he considered any of the claimed items of restitution to be inappropriate. Counsel objected to various items, but no mention was made of the piano or the bedroom set.
On appeal, the minor contends “[t]here is no indication” how Thomas’s sale of the piano and bedroom set are “related to the accident for which she suffered injuries.” He concedes that, “[i]f the piano and used bedroom furniture was worth more than [the sales price], and she took a loss, that may be cognizable.” However, the present record sheds no light on this point. That is because the matter was never discussed at the contested restitution hearing.
The general rule applicable to restitution claims is that only those claims properly raised and preserved by the parties are reviewable on appeal. The narrow exception is where the order could not lawfully be imposed under any circumstances in the particular case. (People v. Slattery (2008) 167 Cal.App.4th 1091, 1094.)
The minor acknowledges one scenario in which the claimed restitution could be awarded in this case. However, the record does not support that scenario. Thus, this case falls within the general rule rather than the exception. The contention regarding the bedroom set and piano is forfeited. (People v. Slattery, supra, 167 Cal.App.4th at p. 1094; People v. Le (1995) 39 Cal.App.4th 1518, 1523.)
The People claim “it appears that Thomas indicated to the court that she incurred these losses as a result of the collision.” This claim is not supported by citation to the appellate record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
The minor replies that, if the claim is forfeited, then his counsel rendered ineffective assistance. We disagree.
“‘“[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The court asked counsel whether he considered any claimed items of restitution to be inappropriate, and he made no mention of the piano or the bedroom set. On this record, counsel could have believed that the requests regarding those items were appropriate. Thus, this is not a case in which there “simply could be no satisfactory explanation.” (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) The present appeal is not the appropriate vehicle for the minor’s claim. (Id. at pp. 266-267.)
B
Future MRI Examinations And Readings
Thomas did not accept medical attention at the scene of the collision. One reason was that she did not have medical insurance. After calling her automobile insurer, Thomas went to the hospital. She was bruised and had severe headaches and severe pain that prevented her from moving her neck and right arm. The hospital performed X-rays of her spine, right arm, and right knee, and a CT scan of her head and abdomen. Thomas had no broken bones. The hospital did not tell Thomas that she needed surgery or continued medical treatment at the hospital. She was offered pain medication and told to follow up with her primary physician.
In the months following the accident, Thomas visited a holistic chiropractor whom she had been seeing since the mid-1980’s. The chiropractor helped Thomas obtain disability income, which she was still receiving at the time of trial. The chiropractor recommended that Thomas have an MRI of her right shoulder and right knee, but Thomas had not gotten the MRI due to cost.
As noted, Thomas initially claimed $5,000 in restitution for two future MRI’s. The probation officer requested that she submit documentation as to the cost of the MRI’s. Thereafter, she obtained cost estimates for the MRI procedure ($5,400) and the reading of the results by a radiologist ($614).
At the contested hearing, the minor’s only objection to reimbursement for the MRI was that the procedures would be unnecessary since an X-ray had already confirmed the presence of certain injuries. The prosecutor countered that an X-ray and an MRI serve different purposes and address different injuries.
In its order following the contested hearing, the juvenile court found that “Thomas’ claims for medical expenses, including... an impending MRI test, are legitimate and fully reimbursable.”
On appeal, the minor argues that Thomas “may get better without the test,” and if she does not, she can have the test “and submit the bill, just as she did for the cost of the truck and other expenses.” The minor notes that the court retained jurisdiction to amend the restitution order upon receipt of further evidence of Thomas’s loss. In the minor’s view, the recommended MRI “is not yet a ‘loss’” to Thomas and she can apply for restitution if and when it becomes one. We are not persuaded.
Welfare and Institutions Code section 730.6 requires restitution for every determined economic loss incurred as a result of the minor’s conduct. (§ 730.6, subd. (h).) It is settled that compensable “‘[m]edical expenses’ or ‘[m]ental health counseling expenses’ may be incurred after a restitution hearing is held. [Citation.]” (People v. Giordano (2007) 42 Cal.4th 644, 658.) In calculating a restitution amount that encompasses economic damages in the form of medical expenses, the juvenile court should include “all expenses necessary to treat [the victim’s] injuries, regardless of when they arise,” i.e., before or after the restitution hearing. (People v. Phelps (1996) 41 Cal.App.4th 946, 950.)
The minor’s argument is contrary to Giordano, which he does not cite or discuss. (People v. Giordano, supra, 42 Cal.4th at p. 658.) The juvenile court had a substantial factual basis to conclude that expenses for the MRI would be incurred following the restitution hearing. The court had no duty to compel Thomas to submit a supplemental restitution claim following the MRI procedure.
DISPOSITION
The judgment (disposition order) is modified by striking the maximum term of confinement. As so modified, the judgment is affirmed. The juvenile court is directed to amend its disposition order to conform to our modification.
We concur: SCOTLAND, P. J., HULL, J.