Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J56340
OPINION ON REHEARING
HULL, J.
Mathew W., a minor, appeals from an order of the juvenile court, Judge Richard Vlavianos, increasing the amount of restitution the minor had originally been ordered to pay four and one-half years earlier by Judge Michael Platt. We affirm the order.
Facts and Proceedings
In June 2000, based upon the minor’s having been declared a ward of the court for having participated with four other youths in vandalizing a residence owned by Lincoln Unified School District (Lincoln), the court, Judge Jack Fraser, ordered restitution to be paid jointly and severally by the minor and his parents to Lincoln, with the amount of restitution to be determined later by the probation officer.
In July 2001, after having received documentation from Lincoln and its insurance carrier claiming $193,813.80 in damages, the probation officer submitted an order, concurred in by the district attorney, determining the amount of restitution to be paid by the minor to be $5,000. The probation officer arrived at the $5,000 figure by dividing Lincoln’s “out-of-pocket” expenses of $25,000 by five, which was the total number of minors involved in the vandalism. Judge Michael Platt signed the order. The other four minors were likewise ordered to pay $5,000 in restitution. Neither the minor nor the People appealed from the restitution order.
In 2003, one of the co-minors sought review of the restitution order, seeking to lower the amount. Judge Richard Vlavianos heard the motion and concluded that the $5,000 amount had been unlawfully determined. Consequently, Judge Vlavianos ordered an evidentiary hearing for all of the minors on the issue of restitution.
On July 29, 2004, the evidentiary hearing commenced for the minor and three of the co-minors. At the commencement of the hearing, the minor objected to a reconsideration of the amount originally determined. Citing Welfare and Institutions Code sections 775 and 730.6, subdivision (h)(4) (all subsequent unspecified statutory references are to the Welfare and Institutions Code), Judge Vlavianos overruled the objection.
Following protracted hearings, Judge Vlavianos issued a written ruling, filed January 23, 2006, setting restitution as to each minor at $46,000, with liability to be joint and several and the parents’ liability limited to $25,000.
On appeal, the minor contends (1) the original restitution order was not subject to reconsideration by Judge Vlavianos because any error by Judge Platt was judicial rather than clerical; (2) principles of collateral estoppel barred Judge Vlavianos from reconsidering the amount of restitution; (3) a restitution order that includes an order of joint and several liability for the amount of restitution among codefendants is erroneous as a matter of law; (4) if an order of joint and several liability is not erroneous as a matter of law, imposition of joint and several liability under the facts of this case was an abuse of discretion; and (5) the trial court abused its discretion when it did not find compelling and extraordinary reasons not to impose full restitution.
This court ordered supplemental briefing on certain issues that we will address in part VI of this opinion.
The People respond as follows: since Judge Platt used an erroneous method to calculate the restitution, the minor’s “sentence” was unauthorized and therefore correctable at any time during the minor’s probation; that applying collateral estoppel in this case would be against public policy; and that there was no abuse of discretion by the court in imposing joint and several liability. The People do not respond to the final assignment of error.
Discussion
I
Introduction
Section 730.6, subdivision (h) provides in pertinent part: “A minor shall have the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount on its own motion or on the motion of the district attorney, the victim or victims, or the minor.”
Section 775 provides: “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by [article 20].”
Read together, it is apparent that a restitution order in a juvenile matter may be modified on the court’s own motion and that the modification may be made at any time so long as the minor remains subject to the jurisdiction of the juvenile court and so long as the modification proceedings meet the applicable procedural requirements of article 20 of the juvenile court law. (Welf. & Inst. Code, div. 2, ch. 2 (§ 775 et seq.).) Article 20 consists of sections 775 to 785.
II
Clerical versus Judicial Error
The minor first takes issue with the court’s authority to modify the original order for restitution by bringing to bear that body of law that relates to the correction of clerical, as opposed to judicial, error. He points out that, normally, mere clerical error can be corrected at any time whereas “judicial error,” cannot. Since, in his view, Judge Platt’s original restitution order was judicial error, if it was error at all, it was not subject to correction by Judge Vlavianos years later.
“It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. [Citation.] The court may correct such errors on its own motion or upon the application of the parties. [Citation.]
“Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is ‘whether the error was made in rendering judgment, or in recording the judgment rendered.’ [Citation.] Any attempt by the court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted. [Citation.]
“An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion.” (In re Candelario (1970) 3 Cal.3d 702, 705.)
Although the minor’s discussion of clerical versus judicial error is generally correct, his argument on this point fails because it is also established that judicial error can be corrected if there is an appropriate statutory basis for doing so. Thus, “[t]his rule allowing correction of clerical error, whether made by the clerk, counsel, or the court itself, is to be distinguished from the situation involving judicial error, which can only be corrected by appropriate statutory procedure.” (People v. Schultz (1965) 238 Cal.App.2d 804, 808, italics added.) As the court observed in Maxwell v. Perkins (1953) 116 Cal.App.2d 752, 755: “[Judicial error] may be corrected only by appropriate statutory procedure . . . .” Such statutory procedures include those allowing for an appeal (see Lankton v. Superior Court (1936) 5 Cal.2d 694, 696; Stevens v. Superior Court (1936) 7 Cal.2d 110, 112) or for a motion for new trial (see Lankton, supra, at p. 696).
Sections 730.6, subdivision (h) and 775 are such statutory procedures. By the Legislature’s plain statements of authority, judicial error in juvenile proceedings may be corrected at any time during which the juvenile is subject to the jurisdiction of the court.
III
Collateral Estoppel
The minor next contends the doctrine of collateral estoppel prevented the trial court’s relitigation of the restitution order. The People argue that application of the doctrine of collateral estoppel would violate the strong public policy in favor of victim restitution. Whatever the merits of the People’s argument, the minor’s argument must fail for the same reason that his argument relating to judicial error failed. By enacting sections 730.6, subdivision (h) and 775, the Legislature has provided specific authority for the court to reconsider and modify restitution orders during the course of its supervision of the minor. In effect, those statutes negate the doctrine of collateral estoppel as to these orders. Assuming without deciding that the requirements for application of the doctrine of collateral estoppel were otherwise met here, the statutes preclude its application and the trial court’s order is not reversible on that basis.
IV
Joint and Several Liability in General
Relying on People v. Hernandez (1991) 226 Cal.App.3d 1374 (Hernandez)(disapproved on another point in People v. Welch (1993) 5 Cal.4th 228, 237), the minor argues that the law precludes the imposition of joint and several restitution orders. Specifically, Hernandez held that such an order, made as a condition of probation, could not be sustained because (1) requiring joint and several performance attempted to address civil liability without the protections of civil litigation due process and (2) such an order is void for vagueness in that the defendant, not knowing how much of the restitution amount his codefendant would pay, would have to wait until perhaps the end of his probationary period to know how much restitution he would be required to pay. (Hernandez, at pp. 1379-1380.)
As the minor recognizes, this holding in Hernandez has been criticized and, in decisions from other districts of the Court of Appeal, has been rejected outright. In In re S.S. (1995) 37 Cal.App.4th 543, the First District Court of Appeal, Division Two, in an opinion dealing with a joint and several restitution order in a juvenile case, held that Hernandez’s blanket rejection of joint and several liability restitution orders was unsound. “We see no basis for holding that the court erred by holding appellant responsible for the entire amount of the victim’s losses. All dispositional orders in a wardship case must take into account the best interests of the child and the rehabilitative purposes of the juvenile court law. (See Welf. & Inst. Code, § 202, subd. (b).) But here, as in an adult criminal case, a proper restitution order ‘may serve the salutary purpose of making [the juvenile] understand that he has harmed . . . individual human beings, and that he has a responsibility to make them whole.’ [Citations.] This ‘salutary purpose’ would be directly undermined by a rule that each participant in a criminal scheme may be held responsible for only a portion of the overall harm. The trial court’s power to tailor an appropriate order cannot be bounded by such per se rules. Instead the court’s allocation of restitutionary responsibility must be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law.” (In re S.S., supra, at p. 550.)
We agree with the In re S.S. court’s conclusion. There are certainly situations where multiple defendants have acted jointly and have jointly caused economic harm. There is no reason why they should not be equally responsible for making the victim whole and accepting their joint responsibility for all of the harm.
The fact that restitution hearings do not have the procedural requirements of civil proceedings for damages gives us little pause. While not all of the procedural trappings of civil actions are present, a properly noticed and conducted restitution hearing allows the parties a full opportunity to present their evidence and arguments and a full opportunity for the court to consider the facts and the law and fashion a proper order, as this case amply demonstrates. And, contrary to the court’s conclusion in Hernandez, there is nothing vague about the resulting order. The defendant is ordered to pay an amount certain to the victim or victims of his crime. If jointly and severally liable codefendants pay part of that amount, the defendant is entitled to an off-set.
And, we note, in 2000, the Legislature amended section 730.6, subdivision (h) adding the following: “When feasible, the court shall also identify on the court order, any cooffenders who are jointly and severally liable for victim restitution.” (Stats. 2000, ch. 1016, § 12.5, p. 39.) While not a specific statutory authorization for joint and several liability, the amendment is, at least, a tacit endorsement of such liability in an appropriate case.
In short, the law does not prevent the court from entering joint and several liability restitution orders.
V
Joint and Several Liability of the Minor
The minor next argues that, even if, as we have concluded, a joint and several restitution order may be appropriate in some cases, it was an abuse of discretion for the court to order joint and several liability in this case. The minor acknowledges that he broke some windows in the house in question and later returned with the other minors and then broke two or three additional windows. But, he argues, when the other boys went inside the house and began to “trash” it, the minor unsuccessfully tried to get the other boys to leave and, when they would not, he left. Under the circumstances, he says, the trial court abused its discretion when it did not limit the amount of his restitution order to the economic loss attendant to the few windows that he broke.
The trial court’s decision regarding the appropriate amount of victim restitution may be reversed only upon a showing of a clear abuse of discretion. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) We find no abuse of discretion here. The damage to the house was accomplished by five boys acting in concert, each causing damage to the house. While the minor tries to limit his activities to a few broken windows, the record reflects that the damage he caused goes beyond that. For example, evidence was presented at the hearing that showed that the broken glass buried itself in the carpet of the house and fell into the floor vent. The minor’s expert agreed the carpet and the carpet pad had to be replaced because there was no way to insure that, if vacuumed or otherwise cleaned, all the glass shards and pieces had been removed from the carpet.
Moreover, the minor admitted the allegations of count 1 of the petition, including the allegation that the vandalism caused monetary damage in an amount between $5,000 and $50,000. By so doing, the minor is deemed to have admitted culpability for the damage and responsibility for the full amount of the victim’s losses. His obligation to reimburse the victim for his loss does not depend on the relative culpability of the other minors. (See People v. Zito (1992) 8 Cal.App.4th 736, 746.)
But even if his admission was not enough by itself to impose full liability, it was certainly reasonable for the court to find impliedly that, while each minor caused separate damage to the house, they would perhaps not have been there at all if not for their confederacy, their agreement to do it together, and that therefore each should be responsible for the total amount of the damage.
The minor, in resisting this conclusion, draws an analogy to the law of conspiracies and argues that, when he urged the other boys to leave, he withdrew from the “conspiracy” and should not be liable for acts that occurred thereafter. This is a creative argument but one that we cannot accept on the facts of this record. The minor did not effectively withdraw from the “conspiracy,” he participated in the crime over the course of two visits to the house. For purposes of restitution, the fact that he suggested the other boys leave and simply chose to go home sooner than two of the other minors cannot shield him from their continued acts of vandalism which he helped set in motion.
VI
Compelling and Extraordinary Reasons Not to Impose Full Restitution
In a variation on the theme of the minor’s relative culpability for the amount of the damage to the house, he argues that the fact that he broke only two or three of the windows in the house and at one point tried to stop the others from vandalizing the house required the trial court to find compelling and extraordinary reasons for him not to pay full restitution for damage to the home. As noted, the People do not respond to the argument. In any event, we cannot agree.
Section 730.6, subdivision (h) requires the court to order “full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 730, subd. (h).) Just as we can find that the court did not abuse its discretion in making liability for the restitution amount joint and several, for those same reasons we do not find that the court abused its discretion in failing to find compelling and extraordinary reasons for limiting the minor’s liability to the economic damages caused by breaking the windows. The trial court was acting well within its authority to decide that the minor’s actions did not establish compelling and extraordinary circumstances, that the minors acted in concert and each should be fully responsible for the damage all of them caused. There was no error.
VII
Other Issues
During the course of the appeal, the court ordered supplemental briefing. Summarized, the court asked the parties to assume that the minor had sufficient notice of the renewed restitution hearings and that no petition was required to institute the hearings. The court asked the parties to give the court their views on (1) whether the modification order had to be based on changed circumstances or new evidence within the meaning of section 778; (2) whether the record reflected changed circumstances or new evidence; (3) whether the court was required to set forth changed circumstances or new evidence in its order modifying restitution; and (4) whether the lack of an appeal from the original order affected the resolution of this appeal.
The parties filed supplemental briefs, the minor taking the position that the modification could be made only on changed circumstances or new evidence, that the court’s order had to reflect those circumstances or that evidence, and that the lack of an earlier appeal had no bearing on this one. The People argue that the modification order that we consider here did not have to depend on changed circumstances or new evidence and to require either would improperly interfere with a victim’s constitutional right to full restitution. The People agree that the lack of an earlier appeal is of no consequence here.
We find the court’s order was lawful even without a showing of changed circumstances or new evidence. While section 778 does appear in the same article of the Welfare and Institutions Code as section 775, the latter section’s language (“subject to such procedural requirements as are imposed by this article”) does not mean that all of the article’s sections apply to all modifications. Obviously, the procedural requirements for removal of a minor from the physical custody of a parent (§ 777), for changing, modifying or setting aside an order of commitment to the youth authority (§ 779), for the return of a minor to the committing court (§ 780), for the sealing and destruction of records (§§ 781, 781.5), for the dismissal of a petition (§ 782), for certain reports to the Department of Motor Vehicles (§§ 783, 784), and for petitions to terminate jurisdiction (§ 785) cannot all apply to the modification of restitution orders.
In fact, the only section applicable to the immediate proceeding is found in section 776 which requires adequate notice of the change or modification. The minor does not claim inadequate notice which, given the history of this litigation, is understandable.
In short, although the wording of section 778 is arguably broad enough to cover the modification of a restitution order, this proceeding was not one on a petition filed pursuant to section 778 and, therefore, its procedural requirements and its requirement of a finding of changed circumstances or new evidence, do not apply. The procedural authority for this proceeding is found in section 775 and, appropriately, section 730.6 which deals specifically with restitution orders. (See In re Brent F. (2005) 130 Cal.App.4th 1124.) In light of the fact that these proceedings complied with those statutory provisions, there was no error.
Disposition
The judgment (order) is affirmed.
We concur: BLEASE , Acting P.J., ROBIE , J.