Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. JV-310119
Marchiano, P. J.
The juvenile court found that appellant Kimberly C. committed misdemeanor vehicular manslaughter without gross negligence (Pen. Code, § 192, subd. (c)(2) [section 192(c)(2)]), as a result of a collision which killed the driver of a motorcycle and seriously injured his passenger. The passenger incurred substantial medical expenses.
Appellant and her parents appeal from restitution orders of the juvenile court which direct appellant to pay over $700,000, and her parents $5,000, in restitution to the passenger and two members of her family. The primary contention on appeal is that the motorcycle passenger was not a “victim” of the crime of misdemeanor vehicular manslaughter, and thus is not the proper subject of a restitution order.
We find that the passenger is not a “victim” of appellant’s crime, and thus the statute mandating restitution for victims of juvenile crime (Welf. & Inst. Code, § 730.6) does not apply. But we hold that restitution was properly imposed in the juvenile court’s discretion, because restitution to the passenger is a reasonable condition of appellant’s probation. We therefore affirm the restitution orders as to appellant. We reverse the restitution order regarding appellant’s parents, because they are only liable for appellant’s willful misconduct and appellant’s conduct amounted only to ordinary negligence.
I. FACTS
Appellant drove on the left side of double yellow lines in violation of Vehicle Code section 21460, subdivision (a), and collided with an oncoming motorcycle, causing the death of the driver. The juvenile court found that appellant had violated section 192(c)(2), made her a ward of the court until her 21st birthday, and placed her on probation conditioned on 400 hours of community service and restitution.
We affirmed the adjudication of wardship in a prior appeal. We held that the evidence is sufficient to show that appellant carelessly took her eyes off of the road before the collision, which supplies the necessary negligence to support a finding that she violated Vehicle Code section 192(c)(2). (In re Kimberly C. (Apr. 7, 2006, A111282) [nonpub. opn.].)
We restate the facts surrounding appellant’s offense as set forth in our prior opinion.
“Under applicable standards of appellate review, we must view the facts in the light most favorable to the juvenile court’s determinations, and presume in support of those determinations the existence of every fact which the juvenile court could reasonably find from the evidence. (See People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
“On the afternoon of August 20, 2004, [appellant’s] Volkswagen Rabbit convertible crossed the center double yellow lines on Highway 20 in Lake County, and collided with an oncoming Harley-Davidson motorcycle driven by John Tucci. Tucci was killed and his passenger, his girlfriend Donna Sufak, was seriously injured.
“Witness Thomas Dorsey was driving behind [appellant] as she approached the site of the collision, and witnessed the accident. Dorsey testified he was driving his delivery truck eastbound on Highway 20 toward Colusa County, in the slow lane, when [appellant’s] Rabbit passed him in the fast lane. This was about four or five miles before the site of the collision. [Appellant] was not speeding. Both Dorsey and [appellant] were driving at about the speed limit, which was 55 miles per hour.
“Dorsey was ‘sit[ting] high off the ground’ in his delivery van, and could see the back of [appellant’s] head and her hand movements, including movements toward the middle of the car or the passenger seat. About two miles before the site of the collision, Dorsey saw [appellant] start to weave within her lane. She weaved three or four times. It ‘[l]ooked like she was playing with the radio.’ When she reached toward the radio, her car weaved. Then she stopped her hand motion ‘for a brief time.’
“About 100 yards before the collision site, Dorsey saw [appellant] ‘move[] her right hand’ and ‘put her head down.’ Apparently, [appellant] moved her right hand away from the radio ‘at least a couple of seconds’ before the accident. Dorsey testified that [appellant] moved her head ‘[n]ot so much towards the dash[board], ’ but ‘kind of straight down.’ Her head was down for ‘[q]uite a few seconds.’
“Three times Dorsey demonstrated for the court how [appellant’s] head moved, but the three physical demonstrations were not accompanied by a description for the record. Dorsey did testify that the head motion was ‘[l]ike a relaxed kind of deal.’ He agreed that the head motion was ‘consistent with someone that looked like they were looking down on the floorboard, ’ and also agreed the motion was ‘consistent with someone who might have passed out.’
“After [appellant] put her head down, she ‘slowly kept going straight as the road made a gradual right turn, ’ crossed the center yellow lines, and collided with Tucci’s motorcycle as he came around the corner in the westbound lane.
“Donna Sufak testified that she suffered a broken left wrist, left ankle, and right tibia. She had pins and screws in the tibia and three pins in her pelvic bones. She suffered a compound fracture of her right femur, lost an inch and a half of bone, and has a rod in her right thigh. She spent three weeks in a hospital and over three months in a rehabilitation center.
“The parties stipulated that Tucci died of ‘blunt force injuries’ suffered in the collision.
“California Highway Patrol Officer Brendan Bach investigated the accident. [Appellant’s] Rabbit did not leave any skid marks. He spoke to [appellant], who ‘didn’t recall what happened exactly.’ He concluded the collision occurred at 2:22 p.m. He testified, ‘It was a warm day.’ He determined that [appellant] had violated Vehicle Code section 21460, subdivision (a), which prohibits driving on the left side of double yellow lines. [Fn. omitted.]
“ [Appellant] testified on her own behalf. On August 20, 2004, she was driving her Rabbit convertible on Highway 20 from Clearlake to Williams to meet a friend for lunch. She had been driving for 45 minutes to an hour by the time of the collision. [Appellant] testified her convertible top was down, and it ‘was very warm, very hot.’
“[Appellant] ‘assume[d]’ she had her car radio on. She did not remember adjusting the volume or changing the stations. She was ‘most likely’ listening to the radio. She had CD’s in the car but they were locked in the glove compartment, and she couldn’t open the glove compartment without stopping the car.
“[Appellant] testified that her hands were on the steering wheel and she was doing nothing in the car other than driving. She ‘should not have’ done anything with her right hand, such as reaching over to pick something up or to change a radio station, because ‘I’d never do anything like that when I’m driving.’ But then she admitted she changed the radio volume when she drove, but could do that without looking at the radio controls. She did not remember touching the radio before the collision.
“[Appellant] did not remember the collision and did not ‘remember anything from two miles previous to the [collision].’ She did not remember her car being in the westbound lane. She testified she did not deliberately cross over the double yellow lines, and did not intend to do so.
“[Appellant] did not remember feeling sick on the day of the collision. But sometime after the day of the collision, when she was playing soccer at her high school, she ‘felt really hot’ and apparently passed out.
“On cross-examination, [appellant] testified that she was hungry at the time of the collision. (She was meeting a friend for lunch, but the collision occurred well after 2:00 p.m.) [Appellant] said she ‘believe[d]’ she passed out, and was ‘assum[ing]’ that because ‘I don’t know for sure because I don’t remember.’ She was hospitalized after the accident and diagnosed with a concussion, but the hospital did not perform any neurological examinations to determine whether she had passed out. Ultimately, she admitted that as she sat testifying in court, she did not know whether she had passed out or not. Then she said, ‘I do not know because I do not remember.’
“On redirect examination, [appellant] said she thought she passed out ‘[b]ecause it was really hot and there was no other excuse as to why I would not remember.’ ”
(In re Kimberly C. (Apr. 7, 2006, A111282 [non-pub. opn.].)
As noted, the juvenile court found that appellant had violated section 192(c)(2), made her a ward of the court until her 21st birthday, and placed her on probation. In its disposition order of August 22, 2005, the juvenile court directly ordered appellant to pay restitution in an amount of over $1.4 million. The dispositional order also made those same restitution orders conditions of appellant’s probation.
The disposition order was apparently drafted before the dispositional hearing, which was also held on August 22, 2005. At that hearing, the court and parties expressed some concern over whether the restitution amounts were accurate. Accordingly, the juvenile court adopted all of the terms and conditions of wardship “with restitution reserved to the next court date.” The juvenile court made a handwritten entry on its disposition order: “8-22-05 restitution reserved.”
Subsequently, the juvenile court conducted evidentiary hearings to determine the exact amount of restitution. The court entered orders directing that appellant pay $674,740.40 restitution to Ms. Sufak for her medical expenses, an additional $7,800.98 for lost wages, and an additional $15,100.00 for the cost of an air ambulance. The court also ordered appellant to pay $5,245.20 in restitution to two of Ms. Sufak’s daughters, to cover their traveling expenses from Wisconsin to California so that they could be with Ms. Sufak while she was in the hospital.
Appellant was also ordered to pay $3,353.00 to Mr. Tucci’s mother for expenses of his burial and headstone. Appellant does not challenge this order on appeal.
The juvenile court’s restitution orders were on the standard form for restitution imposed under Welfare and Institutions Code section 730.6. But the court’s August 22, 2005 dispositional order, which also makes the restitution a condition of probation, remains in full force and effect. Thus, the restitution remains a condition of appellant’s probation. The parties do not contend otherwise.
The court determined that appellant’s parents’ liability was limited by Vehicle Code section 17709 to $30,000. Since the parents’ insurance company had already paid $25,000, the court ordered the parents to pay $5,000 in restitution to Ms. Sufak.
Vehicle Code section 17709 governs civil liability of parents who sign for the driver’s license of a minor child.
While this appeal was pending, the juvenile court modified its restitution orders to provide that appellant reimburse one of Sufak’s daughters, rather than Sufak herself, for the cost of the air ambulance. The modification simply changed the payee of the air ambulance reimbursement, and did not change the amount of restitution.
II. DISCUSSION
Appellant’s Appeal
Welfare and Institutions Code section 730.6 governs mandatory restitution in juvenile cases. It requires restitution to the person who is “a victim of conduct for which a minor is found to be a person described in Section 602 who incurs any economic loss as a result of the minor’s conduct.” (§ 730.6, subd. (a)(1); see subds. (a)(2)(B), (h).) The statute provides that “ ‘victim’ shall include the immediate surviving family of the actual victim.” (§ 730.6, subd. (j).) The statute also provides for restitution to business and government entities when the entity “is a direct victim of an offense.” (§ 730.6, subd. (k).) And the statute provides that the restitution order is enforceable as a money judgment. (§ 730.6, subd. (r); see Pen. Code, § 1214.)
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Appellant contends that Ms. Sufak and her daughters are not the proper subject of restitution orders because Ms. Sufak is not the victim of the crime for which appellant was made a ward of the juvenile court—misdemeanor vehicular manslaughter without gross negligence. Appellant argues that the only victim of a crime in this case is Mr. Tucci, and that there is no chargeable criminal offense that involves Ms. Sufak.
Obviously, while there is such a thing as negligent homicide, there is no such thing as negligent assault.
Noting that our Supreme Court has adopted the Black’s Law Dictionary definition of “victim” as the object of a crime (see People v. Crow (1993) 6 Cal.4th 952, 957 (Crow)), appellant argues that restitution is not proper under section 730.6 because Ms. Sufak is not an actual victim of appellant’s crime, and is neither a surviving family member of victim Tucci nor a business or governmental entity which is a direct victim of the manslaughter.
This issue is not determinative of this appeal, but appellant is correct. Ms. Sufak is not an actual victim of vehicular manslaughter, at least not in the legal sense, because that crime necessarily requires the death of the victim. And, although Ms. Sufak is obviously not a business or government entity, the restitution cases which discuss the concept of a “direct victim” tend to take a fairly restrictive approach to the concept of victimhood. (See, e.g., People v. Martinez (2005) 36 Cal.4th 384, 386, 393-394 (Martinez) [Department of Toxic Substance Control not a direct victim of methamphetamine manufacture simply because it incurred clean-up costs relating to defendant’s laboratory]; Crow, supra, 6 Cal.4th at pp. 956-960 [defrauded public agency a direct victim because it suffers actual economic loss]; In re Johnny M. (2002) 100 Cal.App.4th 1128, 1129, 1131-1134 (Johnny M.) [school district direct victim of property damage to classrooms].)
We cite adult criminal cases because Penal Code section 1202.4, subdivision (k)(2), parallels section 730.6, subdivision (k). (See Martinez, supra, 36 Cal.4th at p. 394, fn. 2; In re Johnny M, supra, 100 Cal.App.4th at p. 1132.)
In re Brian N. (2004) 120 Cal.App.4th 591 took an expansive view of “direct victim, ” and held that a fire department was a direct victim because it incurred labor costs fighting an arson fire on a vacant lot which the department did not own. (Id. at pp. 593-595.) The Supreme Court has disapproved that holding. (Martinez, supra, 36 Cal.4th at p. 394, fn. 2.)
We also note that Penal Code section1202.4, governing restitution for adult offenders, has a broader definition of victim than section 730.6. The Penal Code provision provides for restitution to so-called derivative victims, who generally qualify for restitution if they suffer economic loss as a result of the defendant’s conduct. (Pen. Code, § 1202.4, subds. (k)(3), (k)(4); see Gov. Code, § 13951, subd. (c); People v. O’Neal (2004) 122 Cal.App.4th 817, 821.) Arguably, Ms. Sufak would qualify as a derivative victim if this was an adult criminal case. But since the Legislature has placed an expanded definition of victim in the adult statute, but not the juvenile one, we must assume a lack of Legislative intent to expand the definition of “victim” for juvenile restitution. (See People v. Trevino (2001) 26 Cal.4th 237, 242.)
Thus, section 730.6 does not mandate restitution in this case because it only mandates restitution to victims and Ms. Sufak is not a victim. But the juvenile court had the power to exercise its discretion and order restitution as a condition of probation. As such, the restitution may be broader in scope than the terms of section 730.6, and may include a person who has suffered from appellant’s conduct, but is not the actual victim of the crime. This is because the salutary purposes of juvenile probation are more encompassing than a restitution statute strictly limited to direct victims.
When a ward of the juvenile court is placed on probation, the juvenile court “may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (§ 730, subd. (b).) In addition, section 731 specifically authorizes that the juvenile court may order restitution upon an adjudication of wardship. It is clear that section 731 authorizes restitution even in the absence of a specific (in the present case, an applicable) restitution statute. (See In re Maxwell C. (1984) 159 Cal.App.3d 263, 265.)
Section 731’s authorization of restitution dates to 1976 (Stats. 1976 ch. 1071, § 30, p. 4829), and has been a part of our traditional juvenile court law. Section 730.6 was enacted to enable the Victims’ Bill of Rights (Cal. Const. art. 1, § 28), passed by the voters as Proposition 8 in 1982. (See In re Johnny M., supra, 100 Cal.App.4th at pp. 1132-1133, fn. 4.)
The juvenile court has broad discretion to impose reasonable conditions of probation. (In re Daniel R. (2006) 144 Cal.App.4th 1, 6 (Daniel R.); see People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) The juvenile court’s discretion “ ‘is even broader than that of a criminal court.’ ” (In re Christopher M. (2005) 127 Cal.App.4th 684, 692 (Christopher M.).) An appellate court reviews a juvenile court’s imposition of probation conditions only for abuse of discretion (Daniel R., supra, 144 Cal.App.4th at p. 6; see Carbajal, supra, 10 Cal.4th at p. 1121), and will not disturb the juvenile court’s discretion unless it finds a manifest abuse. (Christopher M., supra, 127 Cal.App.4th at p. 692.)
It has long been recognized that restitution “can be a valuable tool of rehabilitation.” (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 748 (Charles S.); see In re Brian S. (1982) 130 Cal.App.3d 523, 528-529 (Brian S.).) In this sense, restitution not only compensates crime victims but “impresses upon the offender the gravity of the harm he has inflicted upon another. . . .” (Charles S., supra at p. 748.) “[R]estitution can, if proper in the circumstances, lead the minor to realize the seriousness of his crime, and to accept the responsibility for it.” (Ibid.)
Furthermore, restitution brings home to the minor the real-world implications of his conduct. A restitution order “serves the salut[a]ry purpose of making the offender understand that he has harmed not merely society in the abstract but also individual human beings. . . .” (Brian S., supra, 130 Cal.App.3d at p. 529.) “ ‘Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused.’ ” (Carbajal, supra, 10 Cal.4th at p. 1124, quoting Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10.)
Restitution as a condition of probation is not limited to the criminal conduct for which the defendant was convicted. (Carbajal, supra, 10 Cal.4th at pp. 1121-1125; People v. Lai (2006) 138 Cal.App.4th 1227, 1247-1248.) Restitution may be proper where the economic loss was not necessarily caused by the defendant’s criminal conduct, and even when the loss is traceable to uncharged or dismissed counts or charges on which a defendant is acquitted. (Carbajal, supra, 10 Cal.4th at p. 1121.) This is so because a broader scope of restitution may fulfill the salutary purpose of probation just discussed: the reformation and rehabilitation of the probationer by making amends to society for his conduct. (Id. at pp. 1121-1122.)
In Carbajal, the court upheld a probation condition of restitution to the owner of a car damaged by a hit-and-run driver, despite the fact that the defendant’s crime was leaving the scene of an accident, a crime against society, not an offense directly involving the actual damage to the car. The court held that the restitution was reasonably related to the conduct of leaving an accident scene, which deprives the damaged car owner of information needed to pursue civil remedies and which harms all law-abiding drivers by increased insurance premiums. Restitution was consistent with the purposes of probation. (Carbajal, supra, 10 Cal.4th at pp. 1119, 1122-1125.)
In In re I. M. (2005) 125 Cal.App.4th 1195 (I. M.), this court followed Carbajal and upheld restitution, as a reasonable condition of probation, for economic loss not directly caused by the defendant’s criminal conduct. The defendant in I. M. had been made a ward of the juvenile court for being an accessory after the fact to a murder. As a condition of probation, defendant was ordered to pay restitution to the murder victim’s family for the expenses of his funeral. (I. M., supra, 125 Cal.App.4th at pp. 1199, 1208.) Defendant challenged the restitution order on the grounds that the family’s economic loss was the direct result of someone else’s criminal conduct, and that defendant’s criminal liability was based on conduct which occurred only after the family sustained the economic loss. (Id. at p. 1208.)
We rejected this argument, noting that the sentencing court has “broad power . . . to impose conditions to foster rehabilitation and to protect public safety. [Citation.] This power includes ordering restitution, if such a condition is reasonably related to the crime of which the defendant was convicted or to future criminality. [Citations.]” (I. M., supra, 125 Cal.App.4th at pp. 1208-1209.)
While the circumstances in I. M. are somewhat different from the present case, the rule remains: restitution may be imposed as a condition of probation when it is reasonably related to a defendant’s criminal conduct. Here, appellant’s criminal negligence resulted in a collision that killed Mr. Tucci and at the same time—as a result of the same criminal negligence—seriously injured Ms. Sufak. Strictly speaking, only Mr. Tucci was the legal victim of appellant’s manslaughter—but Sufak’s injuries directly resulted from appellant’s negligent conduct.
Indeed, appellant conceded at oral argument that the juvenile court could properly order her to pay restitution to Ms. Sufak, and essentially argued only that the substantial amount is so disproportionate to the circumstances of this case that it is an unreasonable probation condition. Appellant contends the six-figure restitution award is unreasonable particularly in light of her youth and the fact that her conduct arose out of ordinary negligence, and from a first offense not involving recklessness or alcohol.
Appellate counsel speculates that the burden of owing such a substantial amount “is likely to result in emotional and mental problems that may hinder rehabilitation or drive [appellant] to severe depression or other impulsive actions that otherwise would be out of character.” Counsel also characterizes the evidence of the accident as “close to equally supporting a conclusion that [appellant] had fainted while driving” and was thus not negligent.
We appreciate appellant’s youth and the burden of the restitution award. But as a result of appellant’s negligence behind the wheel of a car, one life has been taken and another subjected to serious injury and severe pain and suffering. We cannot view the evidence in a light favorable to a finding of nonnegligent conduct, having affirmed on appeal the juvenile court’s finding of negligence. And we cannot indulge in speculation on the impact of the award on appellant’s psyche. On the facts of this case, given appellant’s negligent driving and Ms. Sufak’s considerable medical expenses, we cannot say that the restitution award was an abuse of the juvenile court’s discretion.
As we held in the prior appeal: “The evidence shows that two miles from the scene of the collision, [appellant] began to weave within her lane while she appeared to be playing with the car radio. At the point where she was only 100 yards from the scene, she put her head down in a fashion that was consistent both with passing out or with looking down at the floorboard. This head movement was demonstrated to the juvenile court, but has not been specifically described for our benefit in the record. And while there was a brief gap between [appellant’s] playing with the radio and her head movement, we cannot view them in strict separation as [appellant] prefers: at 55 miles per hour, [appellant’s] car would have only taken just over 2.2 minutes to travel the 2 miles from where witness Dorsey saw [appellant] playing with the radio and weaving.
In light of this conclusion, we reject appellant’s claim that her trial counsel was ineffective for failing to argue that the restitution was not a reasonable condition of probation. Since the condition is reasonable, any argument to the contrary would have been academic. We cannot assume any such argument would have changed the juvenile court’s ruling.
The Parents’ Appeal
As noted, the juvenile court ordered appellant’s parents to pay Ms. Sufak restitution of $5,000, the difference between the parents’ Vehicle Code liability of $30,000 and the $25,000 paid Ms. Sufak by their insurance company.
Section 730.7, subdivision (a), provides for parental liability for a juvenile ward’s restitution, subject to the limitations of Civil Code section 1714.1. That section provides for parental liability based on “willful misconduct.” The parents argue that appellant’s conduct was not willful, but only ordinarily negligent. They are correct.
Section 730.7, subdivision (a) also subjects parental liability to Civil Code section 1714.3, which involves injuries from the discharge of firearms and does not apply here.
Willfulness requires “a purpose or willingness to commit the act, or make the omission referred to.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 7, p. 208.) In other words, willfulness requires that the illegal act or omission occur intentionally, that a person knows what he is doing and intends to do it. (People v. Atkins (2001) 25 Cal.4th 76, 85.) Here, appellant did not intend to cross the double yellow lines, but did so with ordinary negligence. Indeed, she was convicted of “misdemeanor vehicular manslaughter without gross negligence.” This does not constitute willful misconduct. (See, e.g., Jones v. Ayers (1963) 212 Cal.App.2d 646, 650 [collecting cases showing that traffic violations, without more egregious facts or a showing of conscious disregard of risk, do not amount to willful misconduct].)
III. DISPOSITION
The restitution orders regarding appellant are affirmed as a reasonable condition of appellant’s probation. The restitution order regarding appellant’s parents is reversed.
Since we have held section 730.6 inapplicable here, the restitution orders may not be enforced as a money judgment pursuant to that statute.
We concur:
Swager, J., Margulies, J.
“The juvenile court is the judge of the credibility of witnesses. That court, not this one, observed the physical demonstration of [appellant’s] head movement. The trial court was entitled to reject [appellant’s] hypothesis that she passed out—which is only a hypothesis due to [appellant’s] memory loss. [Appellant’s] explanation was based on speculation. The juvenile court was entitled to conclude that [appellant] was looking down at the floorboard while driving at high speed—clearly a negligent act. [Footnote omitted.] “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.] (People v. Bean (1988) 46 Cal.3d 919, 933 [internal quotation marks omitted].)”
(In re Kimberly C. (Apr. 7, 2006, A111282 [nonpub. opn.].)
We also reject appellant’s claim that the juvenile court lacked jurisdiction to modify the restitution order pending appeal, to change the payee of the air ambulance reimbursement from Ms. Sufak to one of her daughters. The court retained jurisdiction to supervise appellant while she was on probation pending appeal, and this supervision includes the power to modify probation conditions. (See In re Osslo (1958) 51 Cal.2d 371, 380; In re Omar R. (2003) 105 Cal.App.4th 1434, 1439.) In any case, the modification changed the payee, but not the amount of restitution, making appellant’s argument on appeal somewhat pointless.