Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV117596
OPINION
BUTZ, J.
In November 2004, Justin M., a minor, admitted both a charge of conspiracy to commit felony assault (Pen. Code, §§ 182, subd. (a)(1) & 245, subd. (a)(1)) and a criminal street gang enhancement (Pen. Code, § 186.22, subd. (b)(1)), charges which arose out of the fatal shooting of 15-year-old Mario Vidal on August 5, 2004.
The minor was committed to the California Youth Authority and, inter alia, ordered to pay restitution jointly and severally with six other minors in the amounts of $19,617.83 to Michelle Brooks, the victim’s mother; $5,681.76 to Gary Brooks, the victim’s stepfather; $16,030.56 to Mario Vidal, Sr., the victim’s biological father; and $5,350 to the Victim Compensation Fund.
Effective July 1, 2005, the California Youth Authority was renamed the “Division of Juvenile Facilities” within Juvenile Justice of the Department of Corrections and Rehabilitation.” (Gov. Code, §§ 12838, subd. (a), 12838.3.)
On appeal, the minor contends that the award to the victim’s stepfather is unauthorized. We agree and shall modify the order.
DISCUSSION
Welfare and Institutions Code section 730.6 (hereafter section 730.6) governs restitution in juvenile delinquency cases. Subdivision (h) of section 730.6 provides that restitution shall be paid to the victim or victims for losses caused by the minor’s conduct. Subdivision (j) of the same section states: “For purposes of this section, ‘victim’ shall include the immediate surviving family of the actual victim.”
The minor argues that for purposes of restitution in section 730.6 a stepparent is not a member of the “immediate surviving family” of the victim. The People argue to the contrary, claiming that a “stepparent is a parent” because “[t]here is no restriction in the Code [limiting restitution] to biological or adopted parents” and that “[a]ny argument to the contrary is sophistry.” For reasons to follow, we agree with the minor.
Although the People do not specify which code they are referring to in using the term “the Code,” we presume they are referencing the Welfare and Institutions Code.
Although the phrase “immediate surviving family” is not defined in section 730.6, the essentially indistinguishable phrase “immediate family” is defined in several other code sections. A few such examples are: “public member’s spouse, parents, children, or his or her children’s spouses” (Bus. & Prof. Code, § 3625, subd. (c)(2)); “one’s spouse, children, parents, siblings, and spouses of one’s children or siblings” (Bus. & Prof. Code, § 7510.2, subd. (g)); “homeowner, his or her spouse, their parents, their children, and their grandchildren under 18 years of age” (Civ. Code, § 798.35); “spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any person who regularly resides, or, within the six months preceding any portion of the pattern of conduct, regularly resided, in the [person’s] household” (Civ. Code, § 1708.7, subd. (a)(2)); and “student athlete’s spouse, child, parent, stepparent, grandparent, grandchild, brother, sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin, or the spouse of any of those persons, or guardian of any of those persons” (Ed. Code, § 67360, subd. (c)(1), italics added).
These examples show that, depending upon the purpose to be served, the Legislature is quite capable of enlarging or restricting the class of persons whom it considers to be included in the phrase “immediate family.” Since it is a settled axiom of statutory construction “that when the drafters of a statute have employed a term in one place and omitted it in another, it should not be inferred where it has been excluded” (People v. Woodhead (1987) 43 Cal.3d 1002, 1010), we will not read the term “stepfather” into the phrase “immediate surviving family” where it has not been included.
The People claim the trial court’s finding that a stepparent is a parent is supported by definitions in the Unemployment Insurance Code, one of which defines a “Parent” to mean “a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child. (Unemp. Ins. Code, § 3302, subd. (g).) However, rather than supporting the trial court’s and the People’s position that a stepparent is a parent, placement of the term stepparent in the cited section of the Unemployment Insurance Code is simply another example of the Legislature’s enlargement of a classification for a specific purpose.
Additional support for the minor’s position is found from the following. Prior to August 16, 2004, Penal Code section 1202.4--a parallel statute to Welfare and Institutions Code section 730.6 governing restitution in adult criminal cases--defined “victim” to include “[t]he immediate surviving family of the actual victim” (Pen. Code, § 1202.4, subd. (k)(1)), various business or commercial entities (Pen. Code, § 1202.4, subd. (k)(2)), and “‘[d]erivative victims’” as defined in Government Code section 13960 (Pen. Code, 1202.4, subd. (k)(3)). (Pen. Code, § 1202.4, Stats. 2000, ch. 198, § 4.)
Effective August 16, 2004, Penal Code section 1202.4, subdivision (k)(3) was rewritten as follows:
“(k) For purposes of this section, ‘victim’ shall include all of the following: [¶] . . . [¶]
“(3) Any person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions:
“(A) At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim. “(B) At the time of the crime was living in the household of the victim. “(C) At the time of the crime was a person who had previously lived in the household of the victim for a period of not less than two years in a relationship substantially similar to a relationship listed in subparagraph (A). “(D) Is another family member of the victim, including, but not limited to, the victim’s fiancé or fiancée, and who witnessed the crime. “(E) Is the primary caretaker of a minor victim.” (Pen. Code, § 1202.4, as amended by Stats. 2004, ch. 223, § 2.)
The restitution provisions of section 730.6, however, remained unchanged. When the Legislature uses a critical word or phrase in one statute, the omission of that word or phrase in a similar statute dealing with the same subject generally shows a different legislative intent. (In re Young (2004) 32 Cal.4th 900, 907.) Here, the Legislature’s rewriting of Penal Code section 1202.4, subdivision (k)(3) to impliedly include stepfathers as an immediate surviving family member, and not making a similar change to Welfare and Institutions Code section 730.6, the analogous section for restitution in juvenile cases, shows a legislative intent that stepparents not be included in the latter section.
In a footnote, the People suggest that the failure of the Legislature to similarly amend Welfare and Institutions Code section 730.6 as it did Penal Code section 1202.4 “may have been an oversight.” It is improper to raise an issue in a footnote. (Cal. Rules of Court, former rule 14(a)(1(B) [now rule 8.204(a)(1)(B)]; Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 160.) Consequently, we need not, and do not, consider the issue. (Ibid.)
Nor do we accept the People’s assertion that it is “sophistry” to argue that a “stepparent is [not] a parent.” Generally, the parental rights that receive protection in this state are derived from judicial recognition of “‘natural familial relationships.’” (In re Jodi B. (1991) 227 Cal.App.3d 1322, 1328.) “Likewise, adopted children and their adoptive parents are considered by law to bear ‘the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation.’ [Citation.] No such fundamental bond is recognized, on the other hand, in the stepparent-stepchild relationship. [¶] The status of stepparent arises solely as a result of the marriage of that person to the natural parent. [Citation.] A stepparent bears no legal obligation to contribute directly to the support of the child [citations], and upon the termination of the marriage the stepparent-stepchild relationship ceases.” (Id. at pp. 1328-1329.) Clearly, California law generally does not equate stepparent with parent, unless adoption of the minor by the stepparent has occurred.
In light of the foregoing analysis, the court’s award of restitution to Gary Brooks, the stepfather of the deceased minor Mario Vidal must be vacated.
DISPOSITION
The juvenile court’s order of restitution in the amount of $5,681.76 to Gary Brooks is vacated. The juvenile court is directed to amend its records accordingly and to forward appropriate documents to the parties and the Juvenile Justice Division of Juvenile Facilities of the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P. J., RAYE, J.