Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge, Super. Ct. No. J224975
HUFFMAN, J.
This appeal presents the question of whether a juvenile court can impose restitution as a condition of probation based upon losses caused by other minors where there is no evidence that the minor before the court participated in any of the conduct related to the loss. We conclude that the broad discretion accorded to juvenile court judges in selecting conditions of probation does not include ordering restitution for offenses regarding which there is no evidence that any conduct by the minor was involved in the action creating the loss.
L.B. admitted one count of burglary, as a misdemeanor, as part of a plea agreement in which the prosecution agreed to dismiss two other counts with a "Harvey waiver." The court placed the minor on probation and ordered the minor to be jointly and severally responsible for restitution to victims of crimes committed by other minors during a series of thefts from student lockers at Point Loma High School in the city of San Diego. L.B. appeals contending the court abused its discretion in ordering restitution for offenses committed by others. We will reverse that portion of the judgment requiring L.B. to pay restitution as a condition of probation and affirm the remainder of the judgment.
People v. Harvey (1979) 25 Cal.3d 754.
FACTS AND PROCEDURAL BACKGROUND
Between September 22, 2009 and October 30, 2009, several male students broke into a number of student lockers at Point Loma High School. The thieves took cell phones and other electronic items as well as cash and wallets. L.B. was interviewed by school police and admitted breaking into the locker of student G.S., and taking items of property on September 22, 2009.
Various other students admitted to breaking into lockers and stealing property from them. L.B., who was a 15-year-old sophomore at the high school, admitted knowing the other students who had participated in the thefts. He denied participating in the thefts, other than from G.S.
L.B. was charged with one count of burglary, one count of receiving stolen property and one count of petty theft, occurring between September 22 and October 2, 2009. On February 3, 2010, pursuant to a plea agreement, L.B. admitted the burglary count as a misdemeanor and the other two counts were dismissed with a Harvey waiver. At a restitution hearing on June 29, 2010, the court held L.B. to be jointly and severally responsible for $995 in restitution to victims of the rash of thefts by several minors. The victim, G.S., had received his property back and did not request restitution. L.B. objected to the restitution order.
DISCUSSION
1. Background
The trial court conducted a contested restitution hearing on June 29, 2010. At that hearing a number of minors were present. Each had been charged separately with various crimes arising out of the rash of break-ins at Point Loma High School. Although the minors had not been charged together, nor were any allegations made regarding a possible conspiracy, the prosecution requested that each minor be jointly and severally responsible for the restitution order for all victims. L.B. objected to restitution as a condition of his probation on the grounds he was not involved in any of the crimes for which restitution was to be ordered, nor had he been charged with any crime regarding those losses.
In ruling on the challenged restitution order, the court first noted the minors had each been charged with separate offenses. The court noted also that the record was "pretty clearly lacking" in evidence that the minors had aided and abetted each other. The court went on to note, however, that there was a "remarkable sharing of information" as to what the minors collectively knew about the incidents.
The court did not identify what the "shared information" was, or which of the minors "shared" such information and to which incidents the information might have related. In short, although there was an absence of evidence of collective action by the minors in the nature of assisting each other, the court treated the record as an indication of some undefined sort of joint action.
L.B. contends there is nothing in the record that shows his participation in any of the thefts, other than the items taken from G.S. Accordingly, L.B. argues the trial court abused its discretion in imposing restitution as a condition of probation, for which he was not merely "uncharged, " but for crimes in which he had no participation.
2. Legal Principles
Trial court orders granting restitution are generally reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The court enjoys broad discretion in selecting the information upon which it can base a restitution order. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.)
Juvenile courts also have a responsibility to require restitution for losses which are the result of the delinquent's behavior. (In re Tommy A. (2005) 131 Cal.App.4th 1580, 1587.) Welfare and Institutions Code section 730.6, subdivision (a)(1) provides: "It is the intent of the Legislature that 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 shall receive restitution directly from that minor." In addition, section 730.6, subdivision (h), requires the court to order full restitution unless there are exceptional circumstances.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Finally, section 730, subdivision (b), provides the juvenile court with authority to require restitution as a condition of probation as part of its broad power to foster rehabilitation and ensure public safety. (Pen. Code, § 1203.1; In re T.C. (2009) 173 Cal.App.4th 837, 844-845; In re I.M. (2005) 125 Cal.App.4th 1195, 1208-1209; People v.Carbajal (1995) 10 Cal.4th 1114, 1121-1122.) Restitution is a valid condition of probation when it is reasonably related to the crime of which the defendant was convicted or to the extent it aids in preventing future criminality. (In re I.M., supra, 125 Cal.App.4th at p. 1209.)
3. Analysis
Both In re T.C, supra, 173 Cal.App.4th 837 and In re I.M., supra, 125 Cal.App.4th 1195, hold that the broad discretion of juvenile courts to address rehabilitation of minors permits restitution conditions of probation for uncharged crimes as well as those which have been dismissed. We certainly agree with the general proposition adopted by the courts in In re T.C. and In re I.M., to the extent they recognize the power of the trial court to require restitution as a condition of probation where the minor has some participation in the conduct which causes the loss to the victim. However, in both of the cited cases the minor had some participation in the events in which the victim was harmed. In In reI.M., supra, at pages 1208 to 1209, the minor had been convicted of being an accessory to murder. The minor was ordered to pay funeral costs as a condition of probation. The court found the condition reasonably related to the minor's conduct and appropriate to rehabilitation.
In re T.C., supra, 173 Cal.App.4th at pages 843 to 848, dealt with a minor who had been declared a ward for vehicle thefts and was again found responsible for another vehicle theft. In the later adjudication the minor also admitted involvement in taking another car, for which the minor was not tried. Again the court found the restitution condition for the unadjudicated vehicle theft appropriate to the minor's admitted conduct and the minor's need for rehabilitation. We have no quarrel with the analysis of either case.
The present case is distinguishable from those approving restitution as a condition of probation. In the case before us there is no substantial evidence to connect the minor with the crimes, which produced the losses for which the court ordered restitution. Plainly, the trial court suspected the minor of cooperating with some or all of the minors who committed the thefts at issue here. However, as the court correctly noticed, evidence of any aiding and abetting among the group of minors is "pretty clearly lacking." Indeed it is. The minor here was charged with crimes occurring between September 22 and October 2, 2009, whereas a large number of the thefts by other minors, which created the losses involved here, occurred later. As the probation officer noted, the police reports are vague as to which minors, if any, cooperated with each other on the crimes at issue here. L.B. was never charged with the crimes involved in these losses. He did not admit participation in any of the crimes, nor is there any substantial evidence to show any level of participation by him in the crimes involved in the restitution order.
We conclude the trial court abused its discretion in imposing the challenged condition of probation. However sincerely the trial judge may have suspected joint action by this group of minors, as to this minor the record provides only conjecture that he had any involvement in the crimes for which restitution has been ordered. Basing a condition of probation on speculation was an abuse of discretion.
DISPOSITION
The probation order is reversed to the extent it includes a condition requiring the minor to be responsible for the $995 of ordered restitution. The trial court is directed to strike the challenged condition. In all other respects the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.