Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV116889
DAVIS , J.
Based upon a group of youths beating and shooting Desmond L. during an attempted kidnapping and attempted carjacking, K.P. (appellant), already a ward of the juvenile court, was charged with those offenses. Appellant entered into a negotiated settlement whereby he admitted being an accessory to the attempted carjacking, and the original two counts were dismissed. At the time of his admission, appellant was also informed that victim restitution would be sought against him.
We use the victim’s first name not out of disrespect but to protect his privacy.
At the disposition hearing, appellant, now 18 years old, was continued on probation as a ward of the juvenile court and ordered to serve five months in juvenile hall. The matter was continued for determination of restitution.
Following a contested restitution hearing, at which appellant’s attendance was waived by his counsel, appellant and his parents were ordered to pay $13,207, jointly and severally along with any other cominors for whom restitution was likewise ordered.
On appeal, appellant contends the juvenile court erred by (1) determining that his maximum period of confinement was four rather than three years; (2) imposing victim restitution for damages not caused by his conduct; and (3) conducting the restitution hearing in his absence without an adequate showing that he had agreed to such a procedure. We agree with appellant’s first and third contentions, but not his second. Accordingly, we shall remand for further proceedings.
Appellant originally also contended his parents should not be held jointly and severally liable for restitution, but he has since withdrawn this argument.
The facts are drawn from both the victim’s testimony and the court’s comment at the restitution hearing.
At the restitution hearing, Desmond testified that he had stopped to get gasoline at an AM/PM Mini-Market and was approached by a minor, who asked if he had any marijuana. Desmond replied that he did not and went to pay for his gas. On Desmond’s return, he was again asked by the same minor if he had marijuana, and again he replied that he did not. Sensing a “problem,” Desmond told the minor that if he was after Desmond’s car he could have it.
As Desmond began walking away, another minor approached him carrying a nine-millimeter handgun and told him to get into the car. When the minor cocked the gun, Desmond grabbed the minor’s hands and they began to struggle. As they were struggling, “two individuals” struck Desmond in the back of the head. Desmond slipped and was shot in the arm, but he managed to push the gunman and run away. Although there were five minors in the area, only three struck Desmond.
After viewing videotape of the incident, the court determined that appellant was not the person carrying the firearm.
Desmond presented medical bills for his injuries totaling $13,207.
Discussion
I
The juvenile court, with agreement by appellant’s counsel, found appellant’s maximum period of confinement for being an accessory was four years. However, as the People acknowledge, since the negotiated settlement did not include any admission by appellant regarding any prior sustained petitions, and because the maximum sentence for being an accessory is three years (Pen. Code, §§ 18, 32), appellant’s maximum confinement period is three years. Accordingly, we shall direct the juvenile court to amend its records to so reflect.
II
Relying solely on the reasoning of In re Maxwell C. (1984) 159 Cal.App.3d 263 (Maxwell C.), appellant contends the juvenile court prejudicially erred in ordering that he pay $13,207 in restitution for economic losses sustained by the victim without any evidence that the losses were related to appellant’s conduct. As appellant sees it, the victim’s injuries were not related to appellant’s conduct because the factual basis for appellant’s admission to being an accessory was that after Desmond was beaten and shot, appellant led the shooter to a place of safety. Since the reasoning underlying appellant’s argument has been rejected by our state Supreme Court, we too reject his position.
In Maxwell C., the court held that the minor, whose offense was receiving stolen property (a car stereo), could not be required to pay restitution to the owner of an automobile for damages to the vehicle caused by the stealing of the stereo without evidence that the minor was involved in the stealing. (Maxwell C., supra, 159 Cal.App.3d at pp. 265-267.)
In arriving at its holding, Maxwell C. relied on People v. Richards (1976) 17 Cal.3d 614 (Richards), which held that for restitution to be imposed it must be directly related to the crime charged and must relate to acts by the accused which were committed with the same state of mind as the offense of which the accused had been convicted. (Maxwell C., supra, 159 Cal.App.3d at pp. 265-266, citing Richards, supra, 17 Cal.3d at p. 622.)
However, in People v. Carbajal (1995) 10 Cal.4th 1114, the Supreme Court stated: “[I]nsofar 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 which he was convicted . . .’ [citation], we disapprove it.” Since both the reasoning and holding of Maxwell C. on the same point now relied on by appellant have been impliedly overruled, appellant’s argument is rejected.
III
Appellant contends the juvenile court’s order requiring him to pay $13,207 in victim restitution must be reversed because his absence from the restitution hearing at which that amount was determined was not voluntary, he had not consented to his counsel’s waiving his right to be present, and he was prejudiced by his absence. The People claim that the record shows that appellant’s absence was voluntary and, even if not voluntary, he suffered no prejudice. On this record, appellant has the better argument.
At the commencement of the restitution hearing, the court noted that appellant was not present and asked appellant’s counsel if he waived appellant’s appearance. Counsel responded yes, explaining that appellant’s absence was “not [appellant’s] fault” because he was “apparently at the Sacramento County Boys Ranch in custody and was not transported.” Nothing more was asked of counsel by the court in this regard, and nothing more was offered by counsel to the court. The restitution hearing was then conducted in the minor’s absence.
A minor is entitled to be present at the restitution hearing (Cal. Rules of Court, rule 5.530(b)(1)), however, as with other rights, he may knowingly and intelligently waive those rights. (In re Sidney M. (1984) 162 Cal.App.3d 39, 48 [“While it is certainly true that a minor subjected to the juvenile court system is entitled to fundamental due process and fairness [citations], it is equally settled beyond question that a minor may be capable of knowingly and intelligently waiving his or her rights”].)
Appellant asserts as fact that he “did not consent to his counsel waiving his appearance,” that he “wanted to be present” at the hearing, and that he “wished to testify.” However, the only support we can find for the first two assertions is appellant’s citation to his notice of appeal contained in the clerk’s transcript, and no support for the third assertion. Consequently, these assertions are disregarded.
Here, there is no evidence that appellant entered a knowing and voluntary waiver of his presence. All the record shows is that appellant was absent from the hearing, that counsel agreed to waive appellant’s presence, and that counsel explained appellant’s absence as being due to appellant’s not having been transported to the hearing from the Sacramento Boys Ranch. There is no evidence that counsel had discussed the matter with the minor or that counsel had been authorized by the minor to waive his appearance. On such a barren record it cannot reasonably be concluded that the minor knowingly and intelligently waived his presence at the hearing.
We find that appellant’s involuntary absence from the hearing did prejudice him. The juvenile court accepted appellant’s counsel’s argument that based upon the evidence shown at the restitution hearing, the victim’s injuries were not attributable to appellant’s conduct. Nevertheless, as a condition of probation, the court ordered restitution “one, for his participation after the fact; two, as a condition of probation which restitution is necessary to aid in the rehabilitation of [appellant] as a reminder that he shouldn’t have been there in the first place. [¶] He shouldn’t have been involved.”
At the conclusion of Desmond’s testimony, and in response to counsel’s argument that there was no evidence that appellant had caused any of Desmond’s injuries, the juvenile court stated: “That [appellant] admitted only to participating or assisting the shooter after the fact, that, I don’t think, as I understand and interpret the law involving juvenile restitution -- which gives the Court great discretion in imposing restitution -- that does not warrant a restitution order of zero in this case.”
In imposing restitution, a court is not limited to the amount shown by the evidence but may, as a condition of probation, impose an amount even greater if it will aid the appellant’s rehabilitation or deter future criminality. (See In re I.M. (2005) 125 Cal.App.4th 1195, 1208-1211; People v. Carbajal (1995) 10 Cal.4th 1114, 1126-1127.)
While appellant’s absence could not reasonably have affected the determination of the amount of damages the victim suffered, as this amount was established solely by medical bills, had appellant been present he may have been able to persuade the court that, for various reasons including his inability to pay, it should reduce the amount of restitution ordered.
Even had the court determined appellant was responsible for the victim’s injuries, section 730.6, subdivision (h), permits the court to order less than full restitution upon a finding of “compelling and extraordinary reasons for not doing so, and states them on the record.” Since the court may order restitution in an amount less than that shown to have been caused by the appellant (Welf. & Inst. Code, § 730.6, subd. (h)), it follows that it can order less than full restitution where restitution is imposed as a condition of probation.
Disposition
This matter is remanded to the juvenile court with directions to amend its records to reflect that appellant’s maximum period of confinement is three years and to afford appellant an opportunity to be present at a hearing to show why the full amount of restitution should not remain at $13,207.
We concur: BLEASE , Acting P.J. MORRISON , J.