Opinion
C084902
08-31-2018
In re D.N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.N., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV138241)
Minor D.N. appeals an order of the juvenile court requiring him to pay $10,000 in restitution to the victim G.K. D.N. argues the trial court abused its discretion in ordering that restitution because it was neither reasonably related to his crime nor to the threat of future criminality.
We disagree and affirm the restitution order.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are derived from the testimony at the contested restitution hearing that occurred on May 17 and June 8, 2017.
On September 2, 2016, G.K.'s locked truck was stolen from his locked garage, presumably using the truck key located within the garage. Inside that truck was a bag containing at least $10,000 in cash, which G.K. used for his restaurant business. By the time authorities responded to the report of a burglary in progress, the suspects had fled. None of the fingerprints located in the garage matched then 15-year-old D.N. A couple of weeks later on September 17, 2016, D.N. was apprehended driving G.K.'s stolen truck. The bag of cash was no longer in the truck.
A juvenile wardship petition (Welf. & Inst. Code, § 602) was filed alleging D.N. committed felony unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)—count one), felony receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)—count two), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)—count three). Thereafter, the juvenile court granted the People's motion to reduce count one to a misdemeanor, and D.N. pleaded guilty to that reduced count. At this hearing, D.N.'s counsel made clear on the record that D.N. was admitting "that he drove the [truck] and that the [truck] was stolen and he knew the [truck] was stolen. We're not admitting to the initial taking of the [truck], but the subsequent driving of a [truck] he knew was stolen." Counts two and three were dismissed in the interests of justice, although the parties agreed they could be considered at the disposition hearing. D.N. was placed on six months of probation pursuant to section 725, subdivision (a), including a condition he pay restitution to G.K. in an amount to be determined at a future hearing. The probation department's restitution report recommended $19,771 in restitution to G.K.
Undesignated statutory references are to the Welfare and Institutions Code.
Thereafter, another wardship petition (§ 602) was filed against D.N. alleging he committed felony robbery (Pen. Code, § 211—count one). The juvenile intake report associated with D.N.'s arrest and detention indicates D.N. knocked a woman to the ground and stole her purse. Ultimately, D.N. admitted to felony attempted robbery in association with this new matter. The juvenile court sustained the wardship petition and adjudged him a ward of the court. The court found D.N. had failed section 725, subdivision (a) probation and reinstated probation with additional restrictions including a gang condition. D.N. was ordered to make restitution to the new victim, J.S., in addition to G.K., in an amount to be determined at future hearings. The probation department's next restitution report continued to recommend $19,771 in restitution for G.K. and recommended no restitution for J.S., who had not responded to the probation department's attempts to contact her.
The court held a contested restitution hearing to establish the amount of restitution to be paid to G.K. At that hearing, D.N.'s counsel argued restitution should be limited to any damage that occurred to the truck while in D.N.'s "dominion and control" and that any order requiring D.N. to pay for damages associated with the burglary or original truck theft would be too attenuated. The juvenile court agreed no restitution would be ordered for the burglary, determined no money had been claimed for damage to the truck, and ordered D.N. to pay $10,000 in restitution to cover the cash, which G.K. testified had been in the stolen truck. The court remarked, "That's why you don't do crime, folks, because all the case law says you got to make the victim whole."
D.N. timely appealed.
DISCUSSION
D.N. argues the trial court abused its discretion in ordering $10,000 in restitution to G.K. because it was neither reasonably related to his crime nor to the threat of future criminality. He reasons the trial court's finding that G.K. must be made whole should have been considered only after the trial court found either a reasonable relationship to his crime or future criminality and that the record does not support that the restitution order was reasonably related to either one. We disagree.
We will not entertain D.N.'s argument raised for the first time on reply that the trial court's failure to discuss any relationship to the crime or future criminality is tantamount to a "misunderst[anding] and misappl[action] [of] the law" resulting in an abuse of discretion. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
As explained in In re Alexander A. (2011) 192 Cal.App.4th 847, 853: "The California Constitution gives trial courts broad power to impose restitution on offenders for losses caused by their criminal conduct. (Cal. Const., art. I, § 28, subd. (b)(13)(A) [all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for those losses] [citation].) A victim's right to restitution is broadly and liberally construed. [Citations.] [¶] In proceedings involving minors, the juvenile court is vested with discretion to order restitution consistent with the goals of the juvenile justice system. [Citation.] The goal of the juvenile justice system is to provide minors under the jurisdiction of the court with care, treatment, and guidance that is consistent with their best interests and to hold them accountable for their behavior as appropriate under the circumstances, consistent with the interests of public safety and protection. (§ 202, subd. (b).) In enforcing, interpreting and administering the juvenile court law, the trial court also is to consider the safety and protection of the public, the importance of redressing injuries to victims and the best interests of the minor. (Id., subd. (d).)"
Section 730.6, subdivision (a)(1) requires a minor to pay restitution for "economic loss as a result of the minor's conduct . . . ." However, that provision sets a floor, not a ceiling for the restitution that may be properly ordered by a juvenile court. (In re T.C. (2009) 173 Cal.App.4th 837, 845 (In re T.C.).) As recognized in In re T.C.: " 'The juvenile court has wide discretion to select appropriate conditions [of probation] and may impose " 'any reasonable condition that is "fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." ' " [Citations.]' [Citation.] In determining how best to rehabilitate a minor, the juvenile court should consider the broadest range of information. [Citation.] Consistent with section 730, the juvenile court 'enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.] That discretion will not be disturbed in the absence of manifest abuse.' " (Ibid.)
" ' "[A] condition of probation which requires or forbids conduct which is not in itself criminal, and is for that reason most vulnerable to challenge, is nonetheless valid if the conduct required or forbidden either (a) has a relationship to the crime of which the offender was convicted, or (b) is reasonably related to future criminality." ' " (In re T.C., supra, 173 Cal.App.4th at p. 847.) A probation condition requiring the payment of restitution is subject to this rule. (Ibid.)
"That a defendant was not personally or immediately responsible for G.K.'s loss does not render an order of restitution improper. To the contrary, 'California courts have long interpreted the trial courts' discretion to encompass the ordering of 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].' [Citation.] Again, the 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. (2005) 125 Cal.App.4th 1195, 1209.)
In People v. Vournazos (1988) 198 Cal.App.3d 948 (Vournazos), the court considered a challenge to the connection supporting the imposition of restitution under circumstances similar to this case (id. at pp. 954-955). The Vournazos defendant was arrested in a stolen car two days after the theft of that car. (Id. at p. 951.) Missing from the car was a briefcase and other personal property. (Id. at pp. 951-952.) The defendant pleaded no contest to unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496). (Vournazos, at p. 951.) After a contested hearing, the trial court followed the probation department's recommendation and imposed $2,180 in restitution to compensate the victim for damage to the stolen car, lost personal items from that car, and lost wages. (Id. at pp. 952-953.)
On appeal, the defendant argued "the restitution imposed as a condition of probation was improper because there was an insufficient connection between the crime of which he was convicted and the property losses claimed by [the victim]." (Vournazos, supra, 198 Cal.App.3d at p. 954.) The Vournazos court rejected this, finding a sufficient connection between receiving the stolen car and driving that car to order the defendant to pay restitution for contents lost from the stolen car without proof that the defendant actually deprived the victim of that property. (Id. at pp. 955-956.)
Here, D.N. was found driving a stolen truck some 15 days after its theft. D.N. admitted "that he drove the [truck] and that the [truck] was stolen and he knew the [truck] was stolen." Also taken from the truck was $10,000 in cash, which was never recovered. We find the juvenile court acted within its discretion when it impliedly determined that the loss of money located within a stolen truck when it was taken was reasonably related to the crimes of receiving a stolen truck (which the parties agreed could be considered at disposition) and knowingly driving a stolen truck (which D.N. admitted). (See Vournazos, supra, 198 Cal.App.3d at pp. 955-956.) While the minor's arrest 15 days after the original theft is more than the two days in Vournazos (id. at p. 951) or the same day discovery in People v. Holmberg (2011) 195 Cal.App.4th 1310, 1322, we do not find this passage of time forecloses the reasonable relationship of D.N.'s crime and G.K.'s loss of the $10,000. Nor do we concur that Vournazos is distinguishable because D.N. was not charged with the original theft or burglary. Vournazos did not condition its ruling on the defendant being charged with those crimes. (Vournazos, supra, at pp. 955-956.)
We alternatively find the trial court did not abuse its discretion in impliedly determining the $10,000 restitution order was reasonably related to D.N.'s future criminality. It was reasonable for the court to conclude that making D.N. responsible for this monetary loss, which would not have occurred but for the burglary and related theft of the truck, would impress upon him the indirect consequences of his criminal actions of receiving and driving the stolen truck.
We reject D.N.'s argument that he should not be held responsible because he does not share the criminal tendencies of the individuals who committed the burglary and initial theft of the truck, and thus, that the restitution order cannot serve a rehabilitative purpose. First, like the court in Vournazos, we find similarity in the state of mind for D.N.'s crime and the state of mind causing G.K.'s loss. (Vournazos, supra, 198 Cal.App.3d at p. 955 [a person driving a car with the intent to deprive the car owner of that car "necessarily treat[s] the property in the car with the same intent, i.e., [to] either permanently or temporarily deprive the owner of the car and property"].) Moreover, D.N.'s actions in receiving and driving the stolen truck both furthered the objective of the burglary and theft, to deprive G.K. of the truck (including its contents), and was more detrimental to society than the theft itself. (See People v. Tatum (1962) 209 Cal.App.2d 179, 184 [receiver of stolen property assists the thief and is "more dangerous and detrimental to society than the thief . . . "].) Thus, forcing D.N. to confront the consequences of the loss of the money from the truck supports a correlative rehabilitative purpose. (See Vournazos, supra, 198 Cal.App.3d at pp. 955-956.)
We recognize a violation of Vehicle Code section 10851, subdivision (a) may include joyriding in a car without the intent to steal it; however, here, D.N. admitted he drove the truck knowing it was stolen. --------
Second, even if one were to assume some divergence in state of mind, the Supreme Court has disapproved any requirement that " 'the act for which the defendant is ordered to make restitution [be] committed with the same state of mind as the offense of which he was convicted . . . .' " (People v. Carbajal (1995) 10 Cal.4th 1114, 1126, disapproving of People v. Richards (1976) 17 Cal.3d 614, 622 to the extent it may be read to contain such a requirement.) Accordingly, D.N.'s reliance on People v. Scroggins (1987) 191 Cal.App.3d 502, 505 does not avail him. (See In re T.C., supra, 173 Cal.App.4th at p. 848 [noting Scroggins relied upon this now disapproved principle].)
We also disagree that In re I. M., supra, 125 Cal.App.4th at page 2010, which upheld a restitution order requiring a juvenile defendant to pay funeral costs because it underscored the consequences of his gang membership and required him to face the effects of his actions on G.K.'s family, alters this analysis. D.N.'s relationship with the perpetrators of the burglary/theft, while relevant, is not a prerequisite to the reasonableness of the relationship between the restitution order and his future criminality.
The need for a strong deterrent in this particular case is underscored by D.N.'s robbery of J.S., which occurred shortly after D.N. received probation for driving the stolen truck and under circumstances resulting in the imposition of a probation gang condition. D.N. was not deterred from subsequent criminal conduct by his participation in the court process to date. We will not disturb the trial court's discretionary determination that requiring D.N. to pay $10,000 in restitution to G.K. was reasonably related to D.N.'s future criminality.
DISPOSITION
The restitution order is affirmed.
BUTZ, J. We concur: HULL, Acting P. J. MAURO, J.