Opinion
A152752
08-02-2018
In re J.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.W., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1100350)
J.W. appeals from a juvenile court order requiring him to pay victim restitution to the probation department for the cost of an electronic ankle monitor that the minor cut off which he was on home supervision. He contends the order was an abuse of discretion because his conduct was not related to any alleged offense and the order was imposed in conjunction with a commitment to secured confinement rather than probation. We affirm.
BACKGROUND
Appellant's juvenile court history began in 2011, when he was 12 years old, with a sustained count of misdemeanor petty theft for which he was placed on non-wardship formal probation. (Welf. & Inst. Code, § 725.) Two months later, in August 2011, he was adjudged a ward of the juvenile court for the misdemeanor offense of making criminal threats (Pen. Code, § 422) and released to his mother on Juvenile Electronic Monitoring (JEM); a second supplemental petition filed in May 2012, again resulted in release on JEM.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On this petition, one count of felony making criminal threats was sustained; two counts of assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); and one count of exhibiting a deadly weapon (Pen. Code, §§ 417, subd. (a)(1)), were dismissed.
This court affirmed the dispositional order. (In re J.W. (May 5, 2015, A143108) [nonpub. opn.].)
In 2014, appellant was committed to the Youth Offender Treatment Program (YOTP) at juvenile hall, with various conditions of probation, after a count of carjacking (Pen. Code, § 215, subd. (a)) alleged in a third supplemental petition was sustained. He was released to his mother's custody on home supervision in January 2016, for completion of the community supervision phase of the YOTP program, and released from home supervision in April 2016. The YOTP commitment was set aside in November 2016, with wardship and probation continuing. In January 2017, the probation department recommended that the wardship and probation be terminated successfully, but the juvenile court declined, wanting appellant to spend additional time on probation.
A count of felony second degree robbery (Pen. Code, § 211/212.5, subd. (c)) was dismissed, as were allegations that both offenses were committed while armed with a firearm (§ 12022, subd. (a)(1)) and alleged probation violations.
In March 2017, the probation department alleged that appellant violated probation by missing two appointments with his probation officer and appearing in a video on Youtube holding a weapon. A bench warrant was ordered on March 22; appellant was arrested on April 19 and detained in county jail. He admitted the failure to report violation at a hearing on April 20, and on May 2 the court ordered him released on home supervision.
Another probation violation was filed on July 11, 2017, alleging that between June 29 and July 9, appellant left his home without prior authorization 11 times and failed to charge his ankle monitor, preventing the device from providing his location, three times. On July 12, the probation department informed the court that it appeared appellant had cut off his ankle monitor, as a "strap tamper alert" had been received and the probation officer had not been able to determine appellant's whereabouts. The court ordered a bench warrant, and appellant was subsequently taken into custody on August 2, 2017. On August 9, he admitted the probation violation. The probation department recommended that appellant be ordered to enroll in and complete the "DUECE" program and to pay the department victim restitution in the amount of $1,520 for the cost of the ankle monitor and related equipment that had not been returned, with appellant and his parents jointly and severally liable for restitution. (§ 730.7, subd. (a).)
On August 23, 2017, the court re-committed appellant to the YOTP, and at a subsequent restitution hearing ordered him to pay restitution of $1,520 to the probation department for the cost of the ankle monitor he had cut off while on home supervision.
Appellant filed a timely notice of appeal on October 19, 2017.
DISCUSSION
The restitution order was imposed as part of the disposition after the juvenile court sustained allegations that appellant violated probation by leaving his mother's home without authorization 11 times between June 29 and July 9, and failing to charge his ankle monitor, preventing the device from providing his location, three times during that period. After filing the notice of probation violation on July 11, at a hearing on July 12, the probation department informed the court that it appeared appellant had cut off his ankle monitor, as a "strap tamper alert" had been received and the probation officer had not been able to determine appellant's whereabouts. The court ordered a bench warrant, and appellant was subsequently taken into custody on August 2, 2017. On August 9, he admitted the probation violation. The offense for which appellant had been on probation was a carjacking committed in July 2014.
Appellant argues that he could not be ordered to pay restitution for the ankle monitor because the probation department was not a direct victim of the carjacking for which he was declared a ward of the court under section 602. Recognizing that restitution ordered as a condition of probation is proper if it is "reasonably related either to the crime of which the defendant is convicted or to the goal of deterring future criminality" (People v. Carbajal (1995) 10 Cal.4th 1114, 1123), appellant contends the restitution order here is invalid because he was committed to the YOTP and restitution ordered outside the context of probation is limited to direct victims of the criminal conduct committed.
Section 730.6, subdivision (a)(1), states the Legislature's intent that "a victim of conduct for which a minor is found to be a person described in Section 602 who incurs an economic loss as a result of the minor's conduct shall receive restitution directly from that minor." Section 730.6 is the juvenile counterpart of Penal Code section 1202.4, which requires that an adult defendant convicted of a crime be ordered to pay restitution to victims who incur economic loss "as a result of the commission" of that crime. (Pen. Code, § 1202.4, subds. (a)(1), (a)(3)(B).) Under both statutes, a governmental agency is a "victim" entitled to restitution if it is a "direct victim" of the minor's crime. (§ 730.6, subd. (j)(3); Pen. Code, § 1202.4, subd. (k)(5).) A direct victim is one against whom a defendant's crimes are committed, the " 'immediate object[s]" of the offenses. (People v. Martinez (2005) 36 Cal.4th 384, 392-393, quoting People v. Birkett (1999) 21 Cal.4th 226, 232-233.)
The probation department was a direct victim of appellant's loss or destruction of the ankle monitor, but appellant maintains he could not be ordered to pay restitution because his conduct relating to the monitor was not "the conduct for which [he was] found to be a person described in Section 602" as required by section 730.6, subdivision (a)(1); the 2014 carjacking, his most recent substantive offense, was not an offense committed against the probation department and did not cause the loss of the monitor. Appellant appears to concede he could have been ordered to pay restitution for the monitor if he had been separately alleged to have violated section 871, subdivision (d): Under that statute, a minor who "removes his or her electronic monitor without authority and who, for more than 48 hours, violates the terms and conditions of his or her probation relating to the proper use of the electronic monitor shall be guilty of a misdemeanor" and, "[i]f an electronic monitor is damaged or discarded while in the possession of the minor, restitution for the cost of replacing the unit may be ordered as part of the punishment." Since no petition alleged violation of section 871, however, appellant argues the juvenile court abused its discretion in ordering restitution.
Section 730.6 is not the exclusive authority for an order requiring a minor to pay restitution. (In re T.C. (2009) 173 Cal.App.4th 837, 844-845.) Section 730, subdivision (b), authorizes the juvenile court to impose " 'any and all reasonable conditions [of probation] that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.' " (In re T.C., at pp. 844-845, fn. 3.) Section 731 specifically authorizes the court to require a ward to "make restitution." Section 202, subdivision (f), also authorizes an order requiring a minor to pay victim restitution. The requirements of section 730.6 do not limit the juvenile court's discretion to order restitution pursuant to other sources of authority. (In re T.C., at pp. 844-845, fn. 3.)
Section 730, subdivision (b), provides: "When a ward described in subdivision (a) is placed under the supervision of the probation officer or committed to the care, custody, and control of the probation officer, the court may make any and all reasonable orders for the conduct of the ward including the requirement that the ward go to work and earn money for the support of his or her dependents or to effect reparation and in either case that the ward keep an account of his or her earnings and report the same to the probation officer and apply these earnings as directed by the court. The court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced."
Section 731 provides in pertinent part: "(a) If a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602, the court may order any of the types of treatment referred to in Sections 727 and 730 and, in addition, may do any of the following: [¶] (1) Order the ward to make restitution, to pay a fine up to two hundred fifty dollars ($250) for deposit in the county treasury if the court finds that the minor has the financial ability to pay the fine, or to participate in uncompensated work programs. . . ."
Section 202, subdivision (f), provides: "(f) In addition to the actions authorized by subdivision (e) [sanctions for delinquent conduct], the juvenile court may, as appropriate, direct the offender to complete a victim impact class, participate in victim offender conferencing subject to the victim's consent, pay restitution to the victim or victims, and make a contribution to the victim restitution fund after all victim restitution orders and fines have been satisfied, in order to hold the offender accountable or restore the victim or community." --------
As appellant recognizes, where restitution is ordered as a condition of probation, the court has much wider discretion than it does under section 730.6 or Penal Code section 1202.4. Restitution ordered as a condition of probation is not limited to the conduct underlying the actual conviction and, " '[u]nder 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].' " (In re I.M. (2005) 125 Cal.App.4th 1195, 1209, quoting People v. Carbajal, supra, 10 Cal.4th at p. 1121.) A restitution order as a condition of probation is proper if it is "reasonably related either to the crime of which the defendant is convicted or to the goal of deterring future criminality." (Carbajal, at p. 1123.)
Appellant reasons that because he was committed to YOTP, the standards applicable to probation conditions do not apply. While appellant was not immediately released on probation, however, he was placed in the custody of the probation officer for placement at the YOTP. The YOTP is a program at juvenile hall, which is "under the management and control of the probation officer." (§ 852.) The court imposed a number of "probation terms for YOTP." We are aware of no authority that precluded the juvenile court from imposing a restitution order as a condition of probation because appellant was being committed to the YOTP. (See, e.g., In re Brian S. (1982) 130 Cal.App.3d 523, 528-529 [minor committed to boys ranch and ordered to pay restitution pursuant to section 731].)
Requiring a minor to pay restitution serves the goals of deterrence, rehabilitation and compensation of a victim's economic losses. (In re T.C., supra, 173 Cal.App.4th at p. 848; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017; In re Brittany L. (2002) 99 Cal.App.4th 1381, 1387; Charles S. v. Superior Court (1982) 32 Cal.3d 741, 747-748; In re Brian S., supra, 130 Cal.App.3d at pp. 528-529.) As indicated above, the loss need not have been caused by the criminal conduct underlying the adjudicated offense if the restitution order is "reasonably related to the crime of which the defendant was convicted or to future criminality." (In re I.M., supra, 125 Cal.App.4th at p. 1209.)
Here, the restitution order requires appellant to compensate the probation department for the loss of equipment used to monitor appellant on home supervision. His act of cutting off the ankle monitor allowed him to evade the restrictions of the home supervision program and to evade apprehension. As we have said, appellant was not independently alleged to have violated section 871, subdivision (d), but he does not suggest his conduct would not constitute an offense under that statute. The restitution order imposes responsibility upon appellant for the loss of the probation department's property directly caused by his conduct in evading home supervision, conduct that could have been alleged as a misdemeanor offense. The restitution order was directly related to the charged violations of probation, which included another, less egregious, form of evading supervision (failing to charge the electronic monitor), as well as unapproved absences. It was reasonably related to future criminality, as it served the goals of impressing upon appellant the consequences of his behavior and deterring future violations of the law and judicially imposed sanctions.
DISPOSITION
The restitution order is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.