Opinion
A134029
09-27-2012
In re E.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County
Super. Ct. No. J11-00692)
In June 2011, 17-year-old E.T. and another young male caused damage to a residence in the course of an attempted burglary. In the resulting delinquency proceeding against E.T., the juvenile court entered a dispositional order that continued E.T.'s pre-existing status as a ward of the court, and in a hearing regarding victim restitution, imposed restitution for the damage he had caused. In this appeal, E.T. challenges a portion of the restitution order, claiming that it exceeds the victims' actual economic loss. We conclude the court acted with proper exercise of discretion in ordering the contested amounts of restitution, and affirm the order.
B ACKGROUND
In the early evening of June 16, 2011, Richmond police officers responded to a report of a residential burglary. Investigating noises from the back yard, they saw E.T. and another young male jumping side fences. The two continued to flee after officers commanded them to stop. Following a pursuit, E.T. surrendered and was detained. Officers conducting a search of his person found rubber gloves and slightly less than one gram of cocaine divided into five plastic "twists," presumably packaged for separate distribution. A search of the home revealed no missing items, but the two suspects had thrown a brick through the window of a bedroom occupied by the tenant's six-year-old daughter, and the brick had further smashed a mirror on a closet door across the room. The two suspects had also removed a microwave oven from a closed, unlocked storage shed in the back yard. They left it in the yard when they sought to escape the responding officers.
Four days later, the prosecutor filed a supplemental wardship petition under Welfare and Institutions Code, section 602, subdivision (a). It alleged E.T. had committed: (1) a felony violation of Penal Code sections 459, 460, subdivision (a), and 664 (attempted residential burglary); (2) a felony violation of Health and Safety Code section 11350, subdivision (a) (unlawful possession of a controlled substance); and (3) a misdemeanor violation of Penal Code section 148, subdivision (a)(1) (resisting arrest). An accompanying filing indicated E.T. was currently on formal probation in another delinquency matter.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
At the time the petition was filed, E.T. already had acquired an extensive record of delinquency convictions or referrals for offenses including theft or robbery (at times accomplished with gratuitous violence), possession of controlled substances, and threats or actual acts of violence.
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At the jurisdictional hearing on June 24, 2011, E.T. pleaded no contest to the felony charge of possession of cocaine, and the juvenile court dismissed the remaining allegations with "restitution reserved."
Ms. White, the tenant of the home, submitted a victim impact statement in July 2011, stating she lived in the home alone with her young daughter. She felt her home had been "violated," and said the damage had left broken glass everywhere in her daughter's room, and she was still finding pieces of broken glass after spending days cleaning up. It had been an extremely "scary" experience, changing the way she "[felt] about [her] personal safety" both at home and elsewhere. The brick thrown through the bedroom window, she believed, "could have killed" her daughter had she been in the bedroom at the time. Although she repainted the girl's bedroom "in an attempt to shift the energy," she would "never feel the same in that house."
Around the same time, Mr. Ozer, the owner of the property and also a victim, submitted a victim claim statement for expenses incurred in the total amount of $788.74. He noted the claimed expenses were for materials only and did not include approximately 40 hours of labor that had been necessary to put the new materials in place. A probation officer who spoke with Mr. Ozer reported the landlord had elaborated by saying he did "not wish to make [the] situation [financially] worse for the minor [but was] more interested [having] the involved minor[] learn[] a lesson" so as not to " 'grow up to become [a] criminal[].' "
An interview of E.T., conducted by a probation officer in July 2011, indicated that despite the minor having been previously confined in juvenile detention facilities for periods cumulating a year or more, E.T. perceived "no need to change" himself or to stop his participation in criminal activity. The evaluating officer saw E.T. as "less than honest" about the subject offenses, and lacking "any degree of regard for the safety of others," also as being "extremely impulsive" and lacking in "empathy [or] remorse." E.T.'s lack of respect for authority, according to the evaluating officer, was reflected both by his commission of additional offenses soon after making court appearances in other delinquency matters, and by his "extremely defiant, threatening, and assaultive behavior" exhibited during periods of detention.
The juvenile court, on August 1, 2011, entered a dispositional order continuing E.T. as a ward of the court with no termination date, and committing him to a county youth rehabilitation facility for nine months plus a 90-day period of conditional release/parole. The conditions of probation to follow E.T.'s release included the payment of a $200 restitution fine by May 31, 2012. (See § 730.6, subd. (b)(1).)
In a supplemental restitution report, prepared and submitted to the juvenile court on November 2, 2011, the probation officer noted the claim for $778.74 that Mr. Ozer had previously submitted. E.T.'s trial counsel objected to some of the materials included in the claim. At a prehearing conference on November 16, he elaborated that some of the claimed materials were "additions . . . not there previously, to protect against future burglaries."
At the conclusion of the contested restitution hearing on December 2, 2011, the court ordered restitution in the total claimed amount of $778.74, payable jointly and severally by E.T., his parents, and the young adult who had been "co-responsible" for the damage.
This appeal followed. (See § 800, subd. (a).)
DISCUSSION
When a minor is adjudged a ward of the juvenile court under section 602, the court is generally required to order the minor to pay restitution to the victims, if any. (§ 730.6, subd. (a)(2)(B).) Such restitution is to be imposed in the amount of the victim's losses, in a "dollar amount sufficient to fully reimburse the victim . . . for all determined economic losses incurred as the result of the . . . conduct" for which the minor was adjudged a ward. (§ 730.6, subd. (h).) The value of economic loss arising from "damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (§ 730.6, subd. (h)(1).)
E.T. argues that certain expenses claimed for restitution by Mr. Ozer are excessive, because they were incurred for improvements rather than for replacement or repair as authorized under section 730.6, subdivision (h)(1). He reasons that because these items were not there before the damage occurred, they are "upgrades" to the property that go beyond the actual economic losses for which restitution is authorized. E.T. cites to the proposition that the amount of restitution is intended to make the victim whole for any economic loss, but not to give the victim a "windfall." (See, e.g., In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017.)
We generally review a restitution order for abuse of discretion, although we conduct a de novo review to the extent the propriety of such an order turns on the interpretation of a statute. (See In re Alexander A. (2011) 192 Cal.App.4th 847, 852 (Alexander A.).) A juvenile court is required to exercise its discretion, in crafting a restitution order, to ensure it is consistent with the goal of the juvenile justice system, which 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." (Id. at p. 853.) Thus, a juvenile court is to apply the delinquency law (including its restitution provisions) with due consideration of the safety and protection of the public, the importance of redressing injuries to victims, and the best interests of the minor. (Ibid.)
The purpose of requiring a minor to pay restitution directly to the victim is for its deterrent value, as well as its rehabilitative effect; the requirement is more likely to make an impression on the minor than the imposition of a statutory fine. (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387 (Brittany L.).) In fixing the amount of a restitution order for property damage under section 730.6, subdivision (h)(1), "the amount . . . cannot be arbitrary or capricious [but] there is no requirement the restitution order be limited to the exact amount of the loss [as to which the minor] is actually found culpable." (Brittany L., supra, 99 Cal.App.4th at p. 1391.) The juvenile court may "[i]ndeed . . . use any rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation." (Id. at pp. 1391-1392.) Restitution is an effective rehabilitative penalty, because it forces the minor to confront, in concrete terms, the harm his actions have caused. (Alexander A., supra, 192 Cal.App.4th at p. 858.)
While restitution in delinquency proceedings is limited under section 730.6, subdivision (a), to make a victim whole for "any economic loss," that term has been accorded "an expansive interpretation." (Alexander A., supra, 192 Cal.App.4th at p. 854, fn. 4.) Perhaps more importantly, a restitution order under section 730.6 is deemed to be a condition of the minor's probation. (§ 730.6, subd. (l).) Section 730.6 has, therefore, been construed to specify when restitution must be imposed, and as such it serves as a "floor, not a ceiling," for reasonable probation conditions designed to enhance rehabilitation. (In re T.C. (2009) 173 Cal.App.4th 837, 845.)
With these principles in mind, we first observe the challenged expenses were for a security door and a security window ($220.15), a motion sensor ($27.28), and a lock set ($41.29), totaling $288.72. According to Mr. Ozer's claim, these items, except for the lock, were installed as "cautionary measure[s]" following the attempted burglary and resulting damage. The juvenile court found—contrary to the claim of E.T.'s trial counsel that the lock was to secure the shed—the landlord had installed the lock to secure the "yard gate," as described in the tenant's victim impact statement.
In allowing these items, the juvenile court noted, in effect, Mr. Ozer was not seeking a "windfall." The motion sensor—designed to activate an outside light at someone's approach—was quite modest in comparison with a "full alarm system." Mr. Ozer had also declined to claim labor expenses so as not "to make the situation worse" for E.T. The court found all the challenged items to be reasonable and appropriate measures taken to prevent any recurrence of the event that had "obviously traumatized" the tenant and had "violated the very sanctity of her home." Further, the court concluded restitution for these items would be "rehabilitative to the minor to teach him that when someone's home is vandalized and intruded upon in this way[,] he should be responsible" for such reasonable amounts.
Aside from the juvenile court's expressed reasons, we note E.T.'s extensive, and at times violent, delinquency record, and his evident lack of empathy or remorse for either any prior criminal acts or the damage he caused to the bedroom of a six-year-old girl. These considerations only underscore the peculiar need for the restitution order crafted in this instance that focused on the goal of rehabilitation by forcing E.T. to confront, in concrete terms, the harm his actions caused. (Alexander A., supra, 192 Cal.App.4th at p. 858.) In doing so, the court was careful not to afford the victims a windfall. In fact, considering Mr. Ozer's forbearance in not claiming the labor costs he incurred, the court, in our view, imposed an amount of total restitution that was well within any reasonable amount it could have calculated by adhering to an analog for the statutory formula for the replacement or repair of damaged property, set out in section 730.6, subdivision (h)(1). The security costs were made necessary by defendant's brazen conduct in seeking entry into the residence. Restitution for the amount fostered rehabilitation, deterrence, acceptance of responsibility, and a modicum of restorative justice for the victims. Applying the principles summarized above, we conclude the court did not abuse its discretion in imposing, as a condition of E.T.'s probation, restitution for the specific items challenged in this appeal.
DISPOSITION
The restitution order is affirmed.
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Marchiano, P.J.
We concur: ______________
Dondero, J.
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Banke, J.