Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. NJ24277 John C. Lawson, II, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant Daniel D.
Lisa Holder, under appointment by the Court of Appeal, for Defendant and Appellant S.J.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant Alexander E.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., David A. Voet, Jaime L. Fuster and Stephanie Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Minors Daniel D., S.J., and Alexander E. appeal from the orders of wardship (Welf. & Inst. Code, § 602) entered following their admissions that they entered a dwelling house without the owner’s consent, a misdemeanor (Pen. Code, § 602.5). They contend the juvenile court erred and abused its discretion by ordering each of them to pay $10,000 in victim restitution. Appellant Alexander E. also contends the minute order in his case must be amended to conform to the court’s oral pronouncement of judgment. We conclude the restitution orders were improper to the extent they required appellants to pay for thefts committed by other minors, where there is no evidence appellants’ conduct was reasonably related to that loss. Accordingly, we remand for further proceedings, at which time the juvenile court is also directed to correct Alexander E.’s minute order.
FACTUAL AND PROCEDURAL BACKGROUND
We glean the facts from the probation and police reports, as well as from testimony adduced at the restitution hearing.
1. The offenses.
Dr. Walter Vukcevical owned a home with a swimming pool in Long Beach. In the summer of 2008, Vukcevical drained the pool and left it empty after a neighbor complained that it was drawing mosquitoes. In September 2008, Vukcevical and his wife left on an extended six-week absence, leaving the house locked and secured, and gave no one permission to enter.
On November 2, 2008, the couple returned to find their house had been burglarized and every room in the house ransacked. The basement wine cellar, which had been locked, had been broken into. Numerous highly valuable items of property had been stolen, including a Rolex watch, a four-carat diamond ring, an antique “art deco” bracelet, artwork, Waterford crystal, Limoges china, wine, “junk silver, ” and uncirculated silver coins. None of the stolen items had been insured. Beer cans and alcoholic beverage bottles were strewn inside the residence. Six crates packed with china, crystal, and other valuables had been placed on the dining room table, as if ready for transport. Graffiti had been placed on one of the entrances from the street, indicating that loiterers should exit through the back door. Vukcevical alerted police.
Police arrived to find minors Connor W. and Jack B. skateboarding in the empty pool. While police were at the residence, appellants Daniel D. and Alexander E. arrived at the rear gate, with skateboards in hand. The officers determined that the residence had been entered through a sliding glass door leading into the kitchen. A glass panel had been broken and removed, allowing the burglar(s) to reach in and open the door. It appeared as though the residence had been used as “a place to loiter and hang out.”
Eventually seven juveniles, including appellants, were detained and questioned by police. Alexander E. related that he had heard the residence had been abandoned for 10 years and no one lived in the house. He admitted skateboarding in the pool on October 29, October 30, and November 2, 2008. He also admitted being in the house on October 29, with companions Connor W. and Jack B.; the group had entered through the broken and unlocked sliding glass door. The boys “went inside and walked all over the house upstairs and downstairs touching several items.” Alexander E. denied taking anything from the home. He was aware that minor Jeremy S. had hosted a Halloween party in the house; however, Alexander E. stated he did not attend.
In addition to appellants, Connor W., James G., Jack B., and Jeremy S. were charged with burglary and/or trespass. They are not parties to this appeal.
Daniel D. told police he had heard from friends that the house had been abandoned and the owner had died. He admitted being at the property at least five times; he was accompanied by Connor W., Jack B., and Alexander E. on at least three of those occasions. He “mainly went to the house to skateboard in the empty pool after school and stayed there until it was dark.” The residence was “an after school hangout.” He entered the house on October 29, 2008, with Jack B., through the broken sliding glass door. He opened the refrigerator and walked throughout the house touching items. He entered the house a second time on October 31, 2008, when he helped Jeremy S. move couches and set up for the Halloween party. He denied taking anything from the home, and claimed he did not attend the party.
S.J. told police that he had heard no one had lived at the house for years. He initially admitted being at the house twice to skateboard, but denied entering the house. When told the residence would be fingerprinted and he would be arrested if his fingerprints were found inside, he admitted he had been inside the house and had touched various items. He denied taking anything. A consent search of his bedroom was performed by police; no stolen property related to the burglary was discovered.
Jack. B. told police that the house was a “known hang-out for skateboarding in the empty pool” and “at least 30 to 40 kids knew about it.”
Jeremy S. admitted to police that he took jewelry and other items from the residence without permission. A search of Jeremy S.’s residence revealed property taken from the home valued at approximately $70,000.
2. Proceedings in the juvenile court.
a. Charges and admissions.
Juvenile petitions filed on January 2, 2009, alleged that appellants committed first degree residential burglary (Pen. Code, § 459), and that Alexander E. and S.J. committed trespass by entering and occupying property without the owner’s consent (Pen. Code, § 602, subd. (m)). As part of a negotiated disposition, all three appellants subsequently admitted committing unauthorized entry of property (Pen. Code, § 602.5), and all other counts were dismissed. The petitions were sustained. Appellants were declared wards of the court and placed home on probation. The court ordered each appellant to pay a $50 fine to the restitution fund. Jeremy S. admitted committing burglary of the house.
The court cautioned before taking appellants’ admissions: “The more significant restitution in this case is restitution to the victim who had a substantial loss in this case. We will have a restitution hearing, but you are each responsible for restitution to the victim for the loss in this case.” The minors indicated they understood.
b. The restitution hearing.
On December 10, 2009, the trial court held an evidentiary hearing to determine the appropriate amount of victim restitution. Dr. Vukcevical testified that the cost to repair the pool was $3,500 and the cost to repair the damage to the house was $17,000. The value of the stolen and unrecovered property was $171,100, but the doctor only claimed a total of $91,900 for all losses, including the house and pool. The prosecutor stated he was “prepared to put on testimony as to culpability, if the court wants to go into that issue.” Counsel for Jeremy S. objected that such evidence was irrelevant, and that liability for the victim’s entire loss should be imposed on all minors jointly and severally. Counsel for the other minors argued that their clients had admitted misdemeanor trespass only, had not admitted stealing items from, or causing any damage to, the house; thus they were not jointly and severally liable for the entire loss. Officer Kevin Davis testified that he had individually interviewed the minors. The parties stipulated that the officer would testify to the matters contained in various police reports, and the juvenile court could review the police reports in lieu of the officer’s live testimony.
c. The juvenile court’s restitution orders.
On March 2, 2010, the court ruled on the issue of victim restitution. It explained its reasoning as follows: “When it comes to juvenile restitution orders, the question is not only as to whether or not to make the victim whole, ” but also to rehabilitate the minors. Because the house “became an open-door playground for many minors through word of mouth [to] go into and trespass [and] vandalize the home, to steal property from the home, ” it was “somewhat difficult” to determine the appropriate amount of restitution or who committed the actual thefts. All the minors were, or should have been, aware that the house was occupied and they should not have been there. The court opined that Jeremy S. “may be primarily responsible” for the restitution, based on the police reports. However, “there is a certain amount of responsibility on both a trespass, as well as a burglary.”
The court indicated it would not impose joint and several liability on the minors, but instead would “make an order specifically as to each minor, ” given the large dollar amount at issue. The court ordered that Jeremy S. pay $30,000 in direct victim restitution. It ordered the remaining six minors, including the three appellants here, to each pay $10,000 in direct victim restitution pursuant to Welfare and Institutions Code section 730.6, subdivisions (h) and (i), and Penal Code section 1202.4, subdivision (a). Daniel D., S.J., and Alexander E. appeal.
The reporter’s transcript references Welfare and Institutions Code section 730, but it is apparent the court intended to reference section 730.6.
DISCUSSION
1. Standard of review.
A court has broad discretion in making a restitution award, especially when restitution is a condition of probation (People v. Anderson (2010) 50 Cal.4th 19, 28; In re Alexander A. (2011) 192 Cal.App.4th 847, 853; In re G. V. (2008) 167 Cal.App.4th 1244, 1250). We review a restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Taylor (2011) 197 Cal.App.4th 757, 761; People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409; In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) “ ‘[A]ll that is required is that the trial court “use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.” [Citations.]’ ” (People v. Prosser (2007) 157 Cal.App.4th 682, 689-690.) A restitution order based on a demonstrable error of law constitutes an abuse of discretion. (People v. Woods (2008) 161 Cal.App.4th 1045, 1049.)
2. Evidence sufficient to prove victim’s loss.
Initially, we address Daniel D.’s contention that the juvenile court “did not use a reasonable method to establish the amount of loss.” Daniel D. complains that Dr. Vukcevical did not provide receipts, photographs, or other records to prove “the property lost was even in the house.” He posits that, because “the items were not sufficiently identified, ” he lacked a reasonable opportunity to challenge the valuation assigned by the court. As a result, Daniel D. contends the award violated his due process rights.
These arguments are meritless. First, Daniel D. did not interpose a due process challenge on this ground below, nor did he complain that the items were insufficiently described or valued. He has therefore forfeited these contentions on appeal. (In re S. S. (1995) 37 Cal.App.4th 543, 547-548; People v. Zito (1992) 8 Cal.App.4th 736, 742; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1395.)
In any event, the claims fail on their merits. A restitution award must be based on the amount of loss claimed by the victim, or any other showing made to the court. (Pen. Code, § 1202.4, subd. (f); Welf. & Inst. Code, § 730.6, subd. (h).) The standard of proof is preponderance of the evidence. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542; People v. Baker (2005) 126 Cal.App.4th 463, 469.) When determining the amount of the victim’s loss, the court may use any rational method that is reasonably calculated to make the victim whole. (People v. Ortiz (1997) 53 Cal.App.4th 791, 800; People v. Tucker (1995) 37 Cal.App.4th 1, 6.) Where there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found. (People v. Taylor, supra, 197 Cal.App.4th at p. 761; People v. Prosser, supra, 157 Cal.App.4th at p. 686.) An award may not be made without any basis, or based upon speculation alone. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.)
A court may rely upon the victim’s uncorroborated statements or testimony, on probation reports, or on other documentary evidence in making its calculation. (See People v. Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543; People v. Prosser, supra, 157 Cal.App.4th at pp. 690-691; People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; In re S. S., supra, 37 Cal.App.4th at pp. 546-548; People v. Hove (1999) 76 Cal.App.4th 1266, 1274-1275.) It is well settled that statements by a crime victim about the value of items stolen or the amount of the loss constitute prima facie evidence of value for purposes of restitution. (People v. Prosser, supra, at p. 690; People v. Keichler, supra, at p. 1048; see also In re S. S., supra, at p. 547.) Once the victim has made a prima facie showing of loss, the burden shifts to the defendant to demonstrate that the amount is other than that claimed. (People v. Prosser, supra, at p. 691; People v. Taylor, supra, 197 Cal.App.4th at p. 761; People v. Fulton (2003) 109 Cal.App.4th 876, 886-887.) “Were the law otherwise, a victim in a case such as this would be without a means for recovery.” (People v. Prosser, supra, at p. 691.)
Here, Dr. Vukcevical specifically identified each loss and gave the basis for his value estimates. Vukcevical obtained several estimates to repair his pool, which was 22 by 12 feet in dimension. The skateboarding activity had broken the plaster and tiles. The cost to replaster and repair the broken tiles was estimated by the pool service used by the doctor to be $3,500. The pool had been in good condition prior to being used as a skate park. At the time of the hearing, the pool had not been repaired. Vukcevical had made the pool “available for viewing” to appellants’ attorneys, but none of them had come out to inspect it.
Because we conclude ante that appellants cannot be required to make restitution for the losses due to theft, we do not detail the evidence related to the stolen items.
Damage to house included a “broken window off the kitchen [that] was the source of entry, ” graffiti placed on the entrance door indicating the youths should exit through the alley, the broken wine cellar door, and the broken safe. Vukcevical estimated the cost to repair this damage at $17,000.
The victim’s cost estimates had a reasonable basis and were clear and specific. The pool repair calculation was based on a repair estimate. The doctor’s testimony was more than sufficient to make a prima facie showing of loss and shift the burden to appellants. (People v. Prosser, supra, 157 Cal.App.4th at pp. 690-691.) His testimony thus provided a factual and rational basis for the amount of restitution ordered by the court. (See, e.g., People v. Taylor, supra, 197 Cal.App.4th at p. 761; People v. Keichler, supra, 129 Cal.App.4th at p. 1048; People v. Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543.) Daniel D.’s citation to People v. Vournazos (1988) 198 Cal.App.3d 948, for the proposition that “a victim’s bald assertion of loss” does not shift the burden to the defense, is unavailing. Vournazos has been criticized as imposing an unwarranted burden on the trial court, prosecutor, and victim (People v. Gemelli, supra, at p. 1543; People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245; In re S. S., supra, 37 Cal.App.4th at pp. 546-547), and we decline to follow it. In any event, the evidence in the instant case was qualitatively different than that provided in Vournazos.
Contrary to Daniel D.’s argument, he had a meaningful opportunity to challenge the victim’s cost estimates. The restitution hearing was set at the time the minors’ admissions were taken, and transpired approximately eight months later. Appellants clearly had adequate notice and time to prepare. At the April 21, 2009 hearing the juvenile court instructed the prosecutor to “get all [the] documentation together” and provide it to appellants’ counsel. It is apparent the parties had received such discovery itemizing the doctor’s losses before the December 2009 restitution hearing; counsel for some of the youths referenced such discovery at the April 21, 2009 proceedings. The pool had been made available for viewing, allowing appellants to prepare their own repair estimates if they so desired; none availed themselves of this opportunity. None of the appellants indicated, prior to or at the restitution hearing, that they lacked information or needed additional time to prepare their own loss estimates. There is no basis to conclude appellants lacked the necessary information or could not obtain it through reasonable efforts. (See In re S. S., supra, 37 Cal.App.4th at p. 548.) Daniel D.’s argument that the items were not “sufficiently identified” is unavailing. The losses were clearly and specifically identified and described. The cost of repairs should have been readily discernable, if appellants had chosen to conduct an investigation. Appellants were all given the opportunity to cross-examine the victim at the restitution hearing. Due process is satisfied if appellant is given notice of the amount sought and a hearing to contest that amount. (People v. Thygesen, supra, 69 Cal.App.4th at p. 993.) Such was the case here.
3. The order was erroneous to the extent it included restitution for stolen items.
Appellants’ more significant contention is that the amount of restitution awarded was not reasonably related to the damage caused by their criminal conduct. They point out that they only admitted to trespass, not burglary, and contend they cannot be required to make restitution for the thefts and some or all of the damage to the house, losses that were not the result of their conduct. The People, on the other hand, contend that the restitution orders were permissible within the court’s broad discretion to fashion restitution orders as part of each appellant’s probation. We agree that, to the extent the restitution orders included liability for the thefts, the juvenile court abused its discretion.
Appellants each adopt slightly different approaches to the issue. Alexander E. concedes that he could properly be ordered to pay the $3,500 for damage to the swimming pool, but no more. S.J. urges that he can be held liable, at most, for a portion of the damages to the pool, window, and door, which he mistakenly calculates at $17,000. (In fact, the victim testified that $3,500 in damage was caused to the pool, and $17,000 to the house.) Daniel D. suggests he can be held responsible only for one-sixth of the amount of damages to the pool, or approximately $583.
a. Applicable legal principles.
In 1982, California voters passed Proposition 8, which gave all crime victims the constitutional right to receive restitution from offenders convicted of committing crimes against them. (Cal. Const., art. I, § 28, subd. (b); In re T.C. (2009)173 Cal.App.4th 837, 844.) A victim’s restitution right is to be broadly and liberally construed. (People v. Superior Court (Lauren M.) (2011) 196 Cal.App.4th 1221, 1224 ; In re Johnny M., supra, 100 Cal.App.4th at p. 1132.) However, the right to recover from any given defendant is not unlimited. (People v. Woods, supra, 161 Cal.App.4th at p. 1049.) In a juvenile case, victim restitution may be ordered pursuant to Welfare and Institutions Code section 730.6, or as a condition of probation pursuant to section 730.
Welfare and Institutions Code section 730.6 implements the constitutional right to victim restitution and parallels Penal Code section 1202.4, which governs adult restitution. (In re M.W. (2008) 169 Cal.App.4th 1, 4-5; In re Tommy A. (2005) 131 Cal.App.4th 1580, 1587; In re Johnny M., supra, 100 Cal.App.4th at p. 1132.) Section 730.6 requires a juvenile court to order a minor to pay restitution to any victim who has suffered economic loss “as the result of the minor’s conduct.” (Welf. & Inst. Code, § 730.6, subd. (h), italics added; In re I. M. (2005) 125 Cal.App.4th 1195, 1208, fn. 4; see also Pen. Code, § 1202.4, subd. (f).) Full restitution is required in the absence of compelling or extraordinary reasons, and a minor’s inability to pay is not a relevant consideration. (§ 730.6, subd. (h).) When imposed pursuant to Welfare and Institutions Code section 730.6, subdivision (h), or Penal Code section 1202.4, a restitution award is limited to losses arising out of criminal activity that formed the basis for the conviction or sustained petition. (People v. Woods, supra, 161 Cal.App.4th at p. 1049; People v. Lai (2006) 138 Cal.App.4th 1227, 1247; People v. Percelle (2005) 126 Cal.App.4th 164, 179-181.)
Victim restitution may also be imposed as a condition of probation pursuant to Welfare and Institutions Code section 730, subdivision (b). That statute gives a juvenile court broad discretionary power to impose terms and conditions of probation to achieve justice and enhance the ward’s rehabilitation. (In re G.V. (2008)167 Cal.App.4th 1244, 1250; In re Tommy A., supra, 131 Cal.App.4th at p. 1587; In re Christopher M. (2005) 127 Cal.App.4th 684, 692.) “Restitution has long been considered a valid condition of probation.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; see also In re T.C., supra, 173 Cal.App.4th at pp. 847-848.) The court may use any rational method of fixing the restitution amount, “provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation.” (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391-1392; In re S. S., supra, 37 Cal.App.4th at p. 549.) A proper restitution order in a juvenile case “ ‘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.’ ” (In re S. S., supra, at p. 550; see also In re T.C., supra, at p. 848.)
When imposed as a condition of probation, restitution is not limited to losses directly caused by the minor’s criminal conduct. (People v. Lai, supra, 138 Cal.App.4th at pp. 1247-1248; People v. Woods, supra, 161 Cal.App.4th at pp. 1049-1050; People v. Anderson, supra, 50 Cal.4th at pp. 27-29; In re T.C., supra, 173 Cal.App.4th at p. 847; In re I. M., supra, 125 Cal.App.4th at pp. 1209-1210.) A court has discretion to order restitution as a condition of probation, “even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation].” (People v. Carbajal, supra, 10 Cal.4th at p. 1121; People v. Anderson, supra, at pp. 27-28.) “That a defendant was not personally or immediately responsible for the victim’s loss does not render an order of restitution [as a condition of probation] improper.... [T]he question simply is whether the order is reasonably related to the crime of which the defendant was convicted or to future criminality.” (In re I. M., supra, at p. 1209; People v. Carbajal, supra, at p. 1123; People v. Lent (1975) 15 Cal.3d 481, 486-487.)
A juvenile court may impose joint and several liability for a direct victim restitution order when more than one wrongdoer is responsible for the offense. (In re S. S., supra, 37 Cal.App.4th at p. 550; see People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535; People v. Neely (2009) 176 Cal.App.4th 787, 800.) A joint and several restitution order “means that the defendant (or juvenile) is responsible to make restitution for the full amount of the victim’s losses, but that the defendant’s obligation shall be reduced by any payments to the victim by other wrongdoers.” (In re S. S., supra, at p. 550; People v. Blackburn, supra, at p. 1535.) Contrary to Daniel D.’s contention, per capita apportionment among the responsible parties is not the rule. (In re S. S., supra, at p. 549.)
b. Application.
It is readily apparent that restitution for the damage to the pool, and at least some of the damage to the house, is reasonably related to appellants’ offenses. Each of the minors admitted repeatedly skateboarding in the empty pool. Obviously the damage to the pool was a direct result of their activities. Appellants each trespassed inside the house, entering through the broken sliding glass door. It is unknown who broke the door and initially gained entry into the house. But whether or not appellants were responsible for initially breaking the door, the breakage was reasonably related to their offenses. Had the door not been broken, they could not have trespassed inside the house. Likewise, the graffiti on the entry door, directing loiters where to exit the premises, was placed for the benefit of persons, such as appellants, who chose to use the house as a “hang out” and the pool as a skate park. Regardless of whether or not appellants personally inscribed the graffiti, it was reasonably related to their misconduct. Appellants used the property as a place to loiter and “hang out”; thus any other damage to the interior of the house reasonably related to these activities is also their responsibility. Restitution serves important rehabilitative functions consistent with the purposes of the Juvenile Court Law. (In re G. V., supra, 167 Cal.App.4th at p. 1250.) Therefore, it would have been within the juvenile court’s discretion to order each appellant jointly and severally liable for the damage to the pool, as well as at least some portion of the damage to the house.
The record does not demonstrate how much of the $17,000 in damage to the house was attributable to the broken safe or wine cellar, damages that were not reasonably related to appellants’ conduct. Presumably, the itemization of loss submitted by the victim shows this information, and may be relied upon by the court on remand to determine which damages to the house are reasonably related to appellants’ conduct.
This, however, is not what the juvenile court did. It expressly stated that it was not imposing joint and several liability. The amount of loss claimed by the victim was approximately $92,000. The restitution ordered by the trial court from all seven minors totaled $90,000. The aggregate amount of restitution from the seven minors was clearly fashioned to make the victim whole. Because liability was not joint and several, each minor’s payments would not have been credited toward the total. (People v. Blackburn, supra, 72 Cal.App.4th at p. 1535.) Therefore, it is clear the $10,000 each appellant was ordered to pay encompassed not only damage to the pool and house, but also included some portion of the loss due to theft. As noted, appellants argue that this was error, because a defendant cannot be required to pay restitution for losses caused by others.
Dr. Vukcevical explained that he had originally calculated his losses to be $467,900, which was reduced by $76,000 in recovered property. The juvenile court asked, “Would you be satisfied with an amount of $91,900?” The doctor responded, “That is the actual loss we are claiming.”
S.J. urges that restitution must directly relate to the crime charged and must be based on acts committed by the defendant with the same state of mind as the offense for which he was convicted. Urging that “[t]he state of mind with which burglary is committed is different than that required for trespass, ” S.J. argues restitution was improper in this case. In support, S.J. relies on People v. Richards (1976) 17 Cal.3d 614, People v. Scroggins (1987) 191 Cal.App.3d 502, and In re Maxwell C. (1984) 159 Cal.App.3d 263, 265. However, People v. Carbajal, supra, 10 Cal.4th at page 1126, overruled Richards on this point, stating “insofar 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 of which he was convicted...’ [citation], we disapprove it.” (People v. Carbajal, supra, at p. 1126.) Scroggins and Maxwell, in turn, relied on Richard’s reasoning. (People v. Scroggins, supra, at pp. 505-507; In re Maxwell C., supra, at pp. 265-266.) S.J.’s argument is therefore not persuasive.
In People v. Leon (2004) 124 Cal.App.4th 620, 622, checks were stolen from a stroke victim’s apartment. Six of the checks were fraudulently written on the victim’s account. One, for $2,450, was made out to, and cashed by, defendant Leon; three, totaling $11,000, were made out to, and cashed by, codefendant Garza. The trial court sentenced Leon to prison and ordered him to pay restitution for the full amount of loss, $13,450, jointly and severally with Garza. The court reasoned that Leon was “ ‘part and parcel’ ” of the crime, showed no remorse, and lacked insight into the wrongfulness of his actions. (Id. at p. 622.) The appellate court concluded this was error. Penal Code section 1202.4 requires restitution in “ ‘every case in which a victim has suffered economic loss as a result of the defendant’s conduct.’ ” (People v. Leon, supra, at p. 622.) Eleven thousand dollars of the loss resulted from Garza’s crimes, not Leon’s; nothing in the record suggested Leon aided and abetted Garza in writing and cashing the checks. Therefore, Leon could be ordered to pay only $2,450, the amount of the check he wrote. (Ibid.; see also People v. Percelle, supra, 126 Cal.App.4th at pp. 178-179 [restitution improper where defendant, sentenced to prison rather than probation, was acquitted of the crime upon which the restitution order was based].)
In contrast, restitution imposed as a condition of probation has been upheld where it is reasonably related to the crime or preventing future criminality. In In re I. M., supra, 125 Cal.App.4th 1195, the minor, a gang member, acted as an accessory after the fact to a murder committed by a fellow gang member. He had approached the victims along with the shooter. After the shooter issued a gang challenge and shot at the victims, the minor and the shooter ran away together, and the minor held the gun for the shooter. On these facts, In re I. M. held a restitution order requiring the minor to pay for the victim’s funeral expenses was reasonably related to his offense of being an accessory after the fact. (Id. at pp. 1208-1210.) Although the minor’s offense of being an accessory after the fact took place after the murder occurred, the minor had been “promoting and assisting gang conduct” that led to the loss. (Id. at p. 1210.) The restitution order thus served a rehabilitative purpose by making the minor aware of the consequences of his gang membership “by compelling him to share responsibility for the gang-related activities in which he in some way participated.” (Ibid.) It also forced him to face the “emotional and financial effects of gang-related activity on the family of the victim, ” and was therefore directly related to his future criminality. (Ibid.)
In In re T.C., supra, 173 Cal.App.4th 837, a juvenile petition charged T.C. with the theft of a Dodge Charger and a subsequent theft of a Nissan Maxima. He admitted involvement in the Nissan theft and admitted having possessed the stolen Dodge. (Id. at pp. 840-841.) Pursuant to a plea agreement, T.C. admitted the Nissan theft and the count alleging the Dodge theft was dismissed. The juvenile court nonetheless ordered him to make restitution for both the Nissan and the Dodge as a condition of probation. In re T.C. held this was not an abuse of discretion, because the restitution order was reasonably related to future criminality. (Id. at pp. 847-848.) T.C. had admitted possessing the Dodge, although he did not admit stealing it; he was also on probation at the time for receiving stolen property related to other vehicle thefts. The court reasoned, “Given that appellant continued to involve himself in vehicle theft while he was on probation for offenses related to vehicle theft, the restitution order was reasonable to deter future criminality.” (Ibid.; see also People v. Carbajal, supra, 10 Cal.4th at pp. 1119, 1126-1127 [trial court may condition probation for a defendant convicted of fleeing the scene of an accident on payment of restitution to the owner of the property damaged in the accident]; In re A.M. (2009) 173 Cal.App.4th 668, 673-674 [minor convicted of driving without a license could properly be ordered to pay the burial expenses of the victim she hit and killed while driving; although she was not determined to be at fault for the victim’s death, her inexperience and lack of driving skills played a role in the accident].)
Here, appellants’ conduct was not reasonably related to the thefts. Entry into a dwelling without consent is a crime distinct from burglary or theft. There is no evidence any of the appellants took any of the listed items, or anything at all, from the house. They each denied taking anything. Unlike in In re T.C., they did not admit to possessing any stolen property, and no stolen property was found in their possession. Unlike in In re A.M. and Carbajal, there is no evidence they engaged in the conduct directly causing the loss of the stolen items. There is no evidence, as opposed to mere speculation, that their particular use of the house and pool made the thefts possible or more likely. Unlike in In re I. M., where the murder occurred while the minor was accompanying his fellow gang member in a gang-related attack, there is no showing in the instant case that any of the thefts were carried out in appellants’ presence, or that they encouraged the thefts. There is no evidence they were responsible for the original break-in to the house, which allowed the thief or thieves access. There is no showing they were responsible for bringing the thief or thieves to the house. There is no evidence they personally publicized the fact that the house was empty, accessible, and filled with potential loot.
The People argue there was evidence S.J. either committed burglary, or facilitated the burglary by breaking into the house prior to the date Jeremy S. committed the thefts. The People’s argument is based on statements made by Daniel D. to police, memorialized in the police report. Daniel D. told police he had “heard” that James G. and S.J. “first broke into the house on 10/25/08, ” and that afterwards Jeremy S. broke into the house and “sta[r]ted taking stuff.” Although hearsay is admissible at the dispositional phase of a juvenile delinquency case (In re T.C., supra, 173 Cal.App.4th at p. 848), these rumors are multiple hearsay and appear to lack reliability. Indeed, Alexander E., contradictorily, told police he had “heard through his friends” that Jeremy S. was the first to break into the house. The unreliable nature of the rumors is demonstrated by the fact the minors also told police that they had heard that the victim’s residence had been abandoned for years, and/or that the owner had died. Contrary to the People’s argument, the fact S.J. initially lied to police, and refused to name others who had entered the house, is not sufficient to prove he either was one of the thieves or was the first to break into the house.
It is true that Daniel D. admitted helping set up for the Halloween party. However, there is no evidence the thefts occurred during the Halloween party, or that the party made the thefts more likely; indeed, the presence of the crates of valuables packed and ready for transport, and still in the house after the party, seems to suggest otherwise. There is no showing Alexander E. or S.J. had any role in the Halloween party. The People point to the fact that the minors failed to report the goings-on at the house to their parents or police, but instead continued to loiter there. While we agree that their actions were reprehensible and irresponsible, we do not believe, on the facts of this case, that the failure to report the break-in and loitering creates a reasonable relation between appellants’ conduct and the thefts.
Finally, while appellants were part of a group of youths who loitered and skateboarded, we cannot say the group was the equivalent of the criminal street gang in In re I. M. There, the court noted that the gang of which the minor was a member “ha[d] as a main purpose the commission of violent offenses.” (In re I. M., supra, 125 Cal.App.4th at p. 1210.) Requiring the minor in In re I. M. to pay funeral expenses for the victim, a target of his gang, served to make him aware of, and share responsibility for, “the gang-related activities in which he in some way participated.” (Ibid.) There was no equivalent showing that the group of skateboarders was a tight-knit band which cooperated to rob the house. To the contrary, that Daniel D. and Alexander E. were using the property primarily as a skate park seems borne out by their ill-timed arrival, skateboards in hand, as police were investigating. Where appellants’ conduct was not reasonably related to thefts they did not commit, requiring restitution for the thefts can serve no rehabilitative purpose. Accordingly, the matter must be remanded to the juvenile court for a recalculation of the proper restitution amounts in accordance with the opinions expressed herein.
Appellants Daniel D. and S.J. observe that restitution may be imposed on the theory it is reasonably related to a defendant’s conduct only when it is imposed as a condition of probation. They correctly point out that when imposed pursuant to Welfare and Institutions Code section 730.6 or Penal Code section 1202.4, restitution must be limited to the amount of loss created by conduct for which there is a conviction or a true finding. (People v. Percelle, supra, 126 Cal.App.4th at pp. 179-180; In re T.C., supra, 173 Cal.App.4th at p. 844; see also People v. Anderson, supra, 50 Cal.4th at p. 29 [when restitution is imposed pursuant to section 1202.4, “the statute is explicit and narrow, ” but when restitution is imposed as a condition of probation, the court has broader discretion and flexibility].) Appellants argue that in the instant matter, restitution was imposed not as a condition of probation but pursuant to Welfare and Institutions Code section 730.6.
When imposing restitution, the juvenile court referenced the juvenile restitution statute, Welfare and Institutions Code section 730.6, subdivisions (h) and (i), as well as Penal Code section 1202.4. The restitution orders reference those statutes, and do not indicate the orders were imposed as conditions of probation. The minute orders listing the conditions of probation do not reference the $10,000 restitution order, though they do indicate appellants are to make reparation as determined by the probation officer. These facts suggest restitution was imposed pursuant to the statute. The court’s rationale in imposing the restitution award, however, was in part based on its rehabilitative function, a goal consistent with a probation condition. On remand, the juvenile court can clarify the bases for the restitution orders. (People v. Eddards (2008) 162 Cal.App.4th 712, 717.) Any portion of the restitution awards imposed pursuant to Welfare and Institutions Code section 730.6, subdivision (h), may include only amounts arising out of appellants’ criminal conduct or admitted by them, that is, their trespass and skateboarding in the pool.
Daniel D. further urges that the restitution order could not have been ordered as a condition of probation because the juvenile court failed to adjudicate the issue of his ability to pay. When the court orders a minor to pay restitution as a condition of probation under Welfare and Institutions Code section 730, due process requires that the minor be afforded an opportunity to present evidence regarding his ability to pay. (In re I. M., supra, 125 Cal.App.4th at pp. 1210-1211; People v. Campbell (1994) 21 Cal.App.4th 825, 830-831.) Appellants never requested such a hearing, or objected that they lacked the ability to pay. In any event, such a hearing can be conducted on remand if requested by appellants.
In contrast, when a court orders restitution pursuant to section 730.6, subdivision (h), ability to pay is not a valid consideration in setting the restitution amount. (Welf. & Inst. Code, § 730.6, subd. (h).)
4. Modification of order for Alexander E.
Alexander E. contends three conditions of probation should be amended to conform to the court’s oral pronouncement of judgment, and the People agree. Where a minute order or abstract of judgment differs from the court’s oral pronouncements, the minute order does not control. Any discrepancy is deemed to be the result of clerical error, which may be corrected on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; People v. Zackery (2007) 147 Cal.App.4th 380, 385.) Condition No. 4 should be amended to delete the term “place of employment.” Condition No. 6 should be amended to state, “Do not engage in any type of illegal activities” rather than “delinquent activity.” Condition No. 13 should be amended to substitute “6:00 a.m.” for “7:00 a.m.” Because we remand for recalculation of the restitution award, the juvenile court can correct these clerical errors on remand, to the extent the probation conditions are still extant.
DISPOSITION
The orders are reversed in part and remanded for further proceedings consistent with the opinion expressed herein. In all other respects the orders are affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.