Opinion
F042186.
7-8-2003
In re O.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.B., Defendant and Appellant.
Shama H. Mesiwala, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stephen G. Herndon and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court committed O.B. to the California Youth Authority (CYA) for up to 8 years for admittedly committing a lewd or lascivious act upon a minor under the age of 14 years. (Pen. Code, § 288, subd. (a).) On appeal, O.B. contends the juvenile court improperly delegated its obligation to determine the amount of victim restitution to the county probation department. We disagree.
BACKGROUND
The relevant factual background is taken from O.B.s probation report.
On the evening of February 16, 2002, 16-year-old T.J. and 11-year old Jane Doe were home alone when T.J.s boyfriend, J.J., and 17-year-old O.B. came over to visit. T.J, J.J., and O.B. went to the backyard and smoked marijuana while Jane fell asleep on the couch.
The juvenile court petition refers to the victim as "Jane Doe" and the probation report identifies her as "Confidential Victim."
Jane awoke and found O.B. on top of her, biting her breasts through her clothing. He complied with her request to stop and get up. Jane then went into a bedroom to lie down. A few minutes later, a naked O.B. entered the room, removed Janes clothing, and initiated sexual intercourse.
Jane was shocked and did not know what to do. She tried to wiggle out from under O.B. to no avail. From outside the room, T.J. heard the bed bumping against the wall and asked what was happening. She came in and noticed Jane looked very upset and had blood on her shirt.
O.B. explained that he thought Jane consented to sexual intercourse and that she seemed much older than 11. He did not notice a foot-long blood stain on his shirt until after the incident.
DISCUSSION
Welfare and Institutions Code section 730.6 requires the juvenile court to order a minor within its jurisdiction to pay restitution to a victim of a crime. If the juvenile court is unable to determine the amount of loss suffered by the victim at the disposition hearing, the "restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation." (§ 730.6, subd. (h).) "But is well settled that the court may not simply delegate the determination of the amount to the probation officer." (In re Joshua R . (1992) 6 Cal.App.4th 1252, 1253; see also Pen. Code, § 1203.1k) A minor has "the right to a hearing before a judge to dispute the determination of the amount of restitution." (§ 730.6, subd. (h).)
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The reporters transcript from O.B.s disposition hearing indicates the juvenile court ordered him to pay victim restitution and that it "be determined by Probation and collected by the Youth Authority." O.B. believes the juvenile court improperly delegated its victim restitution responsibility to the probation department.
O.B. discounts the significance of the juvenile courts signed minute order. According to the clerks transcript, the juvenile court ordered: "[Deputy Probation Officer] to determine the amount of restitution to be paid to victim, if disputed reserved to Court. and [sic] collected by CYA."
The first sentence is preprinted on the minute order and the second sentence is handwritten.
When the reporters and clerks transcripts conflict in the record, they must be harmonized when possible. (People v. Smith (1983) 33 Cal.3d 596, 599, 189 Cal. Rptr. 862, 659 P.2d 1152, citingIn re Evans (1945) 70 Cal. App. 2d 213, 216, 160 P.2d 551.) If they may not be harmonized, the circumstances of the particular case will govern whether one part of the record prevails over the other. (Ibid.)
"As a general rule, we presume that the trial court has properly followed established law." (People v. Diaz (1992) 3 Cal.4th 495, 567, 834 P.2d 1171; see also Evid. Code, § 664.) Taking into account the presumption the juvenile court appropriately issued its restitution order, the reporters and clerks transcripts are in accord. Both the oral and minute orders directed the probation officer to determine the amount of victim restitution. Elaborating on the oral order, the minute order explained the juvenile court reserved jurisdiction to hold a hearing and formally set the amount of restitution if O.B. disagreed with the probation officers determination. Nothing in the juvenile courts oral order divests O. B. of his statutory right to return to the juvenile court to formally set the amount of victim restitution. (Pen. Code, § 1203.1k.) Approving of a similar juvenile court order, the Sixth Appellate District explained:"The juvenile court is in effect merely delegating to the probation officer the ministerial function of arriving at a stipulated level of restitution with the minor, his parents, and his attorney. If no agreement is reached, the matter is simply returned to the court for adjudication." (In re Thomas R. (1991) 2 Cal.App.4th 738, 743.)
Although here the juvenile courts oral order could have been more explicit, its signed minute order sufficiently evidenced its intent to retain final determination over the amount of O.B.s victim restitution.
DISPOSITION
The judgment is affirmed.