Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. JV 44313, Roger T. Picquet, Judge
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
On January 6, 2006, a juvenile wardship petition was filed, charging T.R., age 17, with burglary-grand theft of a travel trailer (Pen. Code § 459), count 1; second degree burglary of a vehicle (Pen. Code, § 495), count 2; and receiving stolen property belonging to Joel Switzer and Steven Murdock (Pen. Code, § 496, subd. (a)), count 3. The minor admitted count 3, and the remaining counts were dismissed. Restitution was imposed as a condition of probation, and the juvenile court ordered the minor to pay the dollar amount as determined by the probation department. The department calculated restitution as the value of the stolen property, plus the cost of installing a security system and lighting for the business T.R. had burglarized.
T. R. violated probation by failing to pay restitution, and the juvenile court set the matter for a contested restitution hearing. The minor argued that the probation condition requiring him to pay for the installation of the security system was unauthorized under Welfare and Institutions Code section 730.6. We strike a portion of the restitution award, but otherwise affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS
The victim, Joel Switzer, owned Switzer Diesel Repair (Switzer's Diesel) in Santa Margarita. The business consisted of a shop building and an enclosed lot on which vehicles were stored. The property was surrounded by a chain link fence with razor wire on top.
The record is unclear whether there are one or two buildings on the lot.
On December 22, 2005, police responded to a burglary report at Switzer's business. A travel trailer owned by Steven Murdock was parked in a fenced storage area. Personal items were missing from the trailer, which included household goods, clothing and stereo equipment. The offense was charged as having occurred between October 21 and December 22.
On December 31, 2005, police responded to another burglary report at Switzer's business. The burglary occurred in the "outside yard area" of the property. Missing was a Western Flyer bicycle. Someone had forced their way into a locked car and took a radio, two speakers and a Pioneer stereo. Switzer's gate had been spray-painted, and "'fuck you rat'" was spray-painted on a sign outside. The lock to the gate was on the ground and several spray can lids were found around the business. The police later recovered the bicycle.
Switzer received a tip that T.R. lived across the street from his business and might have information about the burglaries. He contacted the police who located the residence. On January 1, 2006, an officer contacted the minor's mother and told her he was investigating recent burglaries and believed the minor might have information. The minor's mother stated that T.R. was not at home, but he had been sneaking out at night and she believed he might have been burglarizing Switzer's Diesel.
T.R. later told his mother that he had taken items from trailers and cars on Switzer's lot and stored them in a shed on the family's property. She called the police and T.R. admitted to the officer that he had twice broken into Switzer's Diesel. The first time, he entered two unlocked travel trailers and removed several items. On the second occasion, he broke into a truck and Chevrolet Camaro and took stereo equipment. The officer recovered the stolen goods from the shed, which included DVD's and motocross gear.
Failure to Pay Restitution
The probation department determined that the minor should pay restitution in the amount of $5,141.84, and fines and fees of $1,499.41. Monthly payments of $245 were to begin in May 2007. In July, a juvenile wardship petition was filed pursuant to section 777. It alleged that T.R., now age 18, had violated probation by failing to pay restitution. A hearing was set, and the probation department issued a memorandum indicating that T.R. had not made any recent payments for restitution, and his balance due was now $6,783.73.
T.R. failed to appear for his probation violation hearing, and a bench warrant was issued. He was arrested on the outstanding warrant and detained. A probation department memorandum, filed on January 23, 2008, indicated that he owed $5,359.99, plus fines and fees, for a total balance of $6,880.71. The department recommended that the wardship be terminated as unsuccessful, that all petitions be dismissed and the outstanding restitution be converted to a civil judgment.
Restitution Hearing
T.R. filed a motion to modify restitution. He claimed that the installation of a security system on commercial property after the commission of a crime did not represent a compensable loss under either the Penal Code or the Welfare and Institutions Code. The court set the matter for a contested restitution hearing.
Switzer testified that he had owned the business for four years, and had never had a problem with theft. Beginning in November 2005, he was burglarized three or more times. This caused him to install a burglary system and add lighting. The lighting was mounted on the building to illuminate the back of the building and the lot. Switzer believed T.R. was responsible for all the burglaries because much of the stolen property was found in a shed at his house. He estimated that the value of the unrecovered property was approximately $500.
Switzer sought restitution for installation of the burglary system, security lighting and stolen property, for a total dollar amount of $4,189.48. Submitted into evidence was (1) a sales contract indicating that Switzer had paid $1,049.08 for installation of a burglary system on December 22; and (2) a $2,500 estimate by a construction company for installation of security lighting, dated December 28. Switzer testified that he had paid for the lighting. Also submitted was a list of unrecovered property with a dollar amount assigned to each item.
The court took the matter under submission and issued a written ruling on July 21, 2008, setting the amount of restitution at $4,189.48. It stated that Switzer "was taking measures to try and prevent [burglaries] from occurring again," which included installation of a security system and more perimeter lighting. The court noted that "[Switzer] testified he would not have installed the new system and lights but for the fact of the on-going burglaries by the minor. [¶]... [H]e had every reason to believe another trespass and burglary would occur if he did not take the steps he did. Therefore, under... [section] 730.6 and Penal Code [section] 1202.4, these costs are a legitimate expense resulting from the minor's criminal acts and for which he is responsible."
Both the juvenile court and T.R. indicate that $2,500 represented the costs of both the security system and lighting. However, this reflects only the cost of installing the lighting. The cost of installing the burglary system was $1,049.08, bringing the total to $3,549.08. This figure does not include the dollar amount of the stolen property.
The court ordered T.R. to pay $4,189.48 in restitution to Switzer and $1,170.07 to Murdock, for the property stolen from his trailer. It ordered the wardship terminated as unsuccessful and the petitions dismissed.
DISCUSSION
Crime victims have a constitutional right to receive restitution from the wrongdoer for financial losses "suffer[ed] as a result of criminal activity." (Cal. Const., art 1, § 28, subd. (b)(13)(A) & (B); People v. Carbajal (1995) 10 Cal.4th 1114, 1122; In re M.W. (2008) 169 Cal.App.4th 1, 6.) The Legislature implemented this provision by amending the restitution statutes applicable to adult offenders and section 730.6, the parallel provision applicable to juvenile offenders. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016-1017; In re M.W., supra, at p. 4.)
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." Restitution "shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct...." (Id., subd. (h).)
The categories of loss include full or partial payment for the value of stolen or damaged property, calculated as the replacement cost or cost of repair; medical expenses; lost wages or profits; and time spent as a witness or assisting the police or prosecution. (§ 730.6, subd. (h)(1)-(4).) The payment of restitution fines and orders shall be imposed as a condition of probation (id., subd. (l)) and the order of restitution shall be enforceable as a civil judgment (id., subd. (i)).
Legislative use of the term "including" that precedes the types of losses enumerated in the statute (stolen or damaged property, medical expenses, lost wages and time spent assisting the prosecution), indicates the Legislature's intent not to limit the type of losses, but to allow the court broad discretion to determine the victim's economic loss. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1135; see also In re M.W., supra,169 Cal.App.4th at pp. 5-6.) This is evident from the cases interpreting section 730.6. (In re M.W., supra, [restitution for cost of victim's mental health services]; In re Dina V. (2007) 151 Cal.App.4th 486 [restitution in amount to repair a stolen vehicle was proper, even though it exceeded the replacement cost]; In re G.V. (2008) 167 Cal.App.4th 1244 [restitution order proper where minor was ordered to both pay for damage to cars and perform community service]; In re Johnny M., supra, [reimbursement for labor costs of salaried employees who repaired damage to school classrooms].) Any interpretation that limits a victim's rights to restitution would derogate the expressed intent of article 1, section 28 and the provisions of the implementing statutes. (People v. Carbajal, supra,10 Cal.4th at p. 1122.)
Imposition of Restitution as Condition of Probation
T.R. argues that the cost of installing a new security system and lighting following a burglary cannot be considered an economic loss, under the statute. We review an order of restitution for an abuse of discretion. (In re Dina V., supra,151 Cal.App.4th at p. 489; In re Johnny M., supra,100 Cal.App.4th at p. 1132.) If the propriety of the order turns on the interpretation of a statute, a question of law is raised, which we review de novo. (In re M.W., supra,169 Cal.App.4th at p. 4.) We will not disturb the juvenile court's order imposing a condition of probation absent a manifest abuse of discretion. (In re G.V., supra, 167 Cal.App.4th at p. 1250; In re Christopher M. (2005) 127 Cal.App.4th 684, 692.)
The juvenile court may order restitution to further the legislative objectives of "making the victim whole, rehabilitating the minor, and deterring future delinquent behavior. [Citation.]" (In re M.W., supra,169 Cal.App.4th at p. 6; In re Tommy A. (2005) 131 Cal.App.4th 1580, 1587-1588; In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387.) The court may impose any reasonable conditions of probation designed to enhance "the reformation and rehabilitation of the ward...." (§ 730, subd. (b); In re G.V., supra,167 Cal.App.4th at p. 1248.) The issue is whether the order is reasonably related to the crime of which the defendant was convicted or to future criminality. (In re I.M. (2005) 125 Cal.App.4th 1195, 1209.) A probation condition will not be held invalid unless it bears no relationship to the crime of which the offender was convicted, relates to conduct that is not criminal, and requires or forbids conduct that is not reasonably related to future criminality. (In re G.V., supra, at p. 1250.)
The minor in In re Johnny M. twice burglarized school classrooms, causing damage. On the first occasion, clean-up was done by the custodial staff. The director of maintenance for the school district investigated the burglaries and the maintenance supervisor changed the locks and made a new keying system for the classrooms. Overtime payments were made to custodians and grounds men, for their labor to increase security to avoid another break-in. Following the second burglary, custodial staff was not immediately available, so the school principal spent two hours cleaning the rooms. The director of maintenance, the maintenance supervisor and principal were all salaried employees. (In re Johnny M., supra,100 Cal.App.4th at pp. 1130-1131.)
The juvenile court ordered the minor to reimburse the school district $3,071.14, for "the reasonable value of employee work product lost as a result of the criminal conduct of another...." (In re Johnny M., supra,100 Cal.App.4th at p. 1134.) This represented the salary rate of the district employees, including benefits, for the time diverted from their regular duties. On review, the appellate court determined that the school district incurred an economic loss because it was deprived of the work product the salaried employees would have generated, had they not been obliged to clean up the classrooms. (Ibid.)
T.R. burglarized Switzer's business sometime between October 21 and December 22, 2005, the day the offense was reported to police. On the same date, Switzer paid for the installation of a burglary system. We cannot say whether Switzer's purchase of the burglary system was a result of T.R.'s criminal act. Although both could have occurred on December 22, there is no indication in the record whether Switzer purchased the system before or after Murdock reported the burglary. Section 730.6 requires reimbursement to the victim for economic loss incurred "as the result of the minor's conduct." (Id., subd. (h).) On this record, we are unable to conclude that the purchase of the burglary system ($1,049.08) was the result of the offense reported to the police on December 22.
However, it is clear that the estimate Switzer obtained on December 28, 2005, for the installation of security lighting ($2,500) occurred after the first burglary. Switzer's estimate (and subsequent payment for its purchase) was an economic loss resulting from T.R.'s criminal act committed sometime between October 21 and December 22. Switzer made no security purchases after the December 31 burglary, thus that offense did not result in economic loss. We conclude that, of the two burglaries, there is a causal connection only between the first offense and the December 28 purchase of security lighting sufficient to justify the imposition of restitution.
T.R. claims that, because his probation was terminated and he has appealed from an order establishing a civil judgment, we may not rely on the principles of restitution applicable to probationers. We reject this argument because T.R. was on probation at the time the condition was imposed.
Installation of Security System as Restitution
The minor observes that the adult restitution statute, Penal Code section 1202.4, enumerates more categories of loss than its counterpart, section 730.6. The adult statute permits as restitution the costs of mental health counseling; interest; attorney's fees and costs of collection; relocation of a victim away from the offender; installing or increasing residential security for victims of a violent crime committed in his or her home; and retrofitting a residence to accommodate a victim disabled by the crime. (Pen. Code, § 1202.4, subd. (f)(3)(C) & (F)-(K).)
T.R. notes that the adult restitution statute permits as restitution the cost of installing a residential security system, but makes no reference to a commercial security system. He reasons that the Legislature must have therefore intended to exclude installation of a burglary system at a business establishment. This argument is without merit because the categories of losses enumerated in Penal Code section 1202.4 are not exclusive. To the contrary, a victim's right to restitution under Penal Code section 1202.4 must be broadly and liberally construed. (People v. Bartell (2009) 170 Cal.App.4th 1258, 1261; People v. Mearns (2002) 97 Cal.App.4th 493, 500.) Inclusion of a residential security system does not exclude installation of a commercial security system as an economic loss under either statute.
The minor places special emphasis upon Penal Code section 1202.4, subdivision (f)(3)(J), which provides that an offender may be ordered to pay the cost of installing a residential security system when a violent crime has been committed against a victim in his or her home; and subdivision (f)(3)(I), which provides as restitution the cost of relocating an adult victim away from the defendant and includes expenses for utilities, housing deposits, temporary lodging, food, clothing and personal items.
Penal Code section 1202.4, subdivision (f)(3)(J) includes as an economic loss "[e]xpenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of [Penal Code] Section 667.5, including, but not limited to, a home security device or system, or replacing the number of locks."
The subdivisions cited by T.R. address facts vastly different from those before us. They concern losses resulting from a violent crime committed against a person in his or her home. By contrast, T.R.'s offense was a property crime committed at a business establishment with no one present. The juvenile court was authorized under section 730.6 to order restitution to Switzer for the cost of installing the security lighting. There was no manifest abuse of discretion.
DISPOSITION
We strike that portion of the restitution award to Switzer representing $1,049.08, the cost of installing the burglary system. The judgment (orders of restitution to Switzer and Murdock) is otherwise affirmed.
We concur:
YEGAN, Acting P.J., PERREN, J.