Opinion
A157270
05-29-2020
In re M.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.M., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1800712)
Appellant was the victim of a drive-by shooting and returned fire as the shooter's vehicle fled the scene. A vehicle parked on the street was hit by numerous bullets. The occupants of the car from which shots were fired were never apprehended. Appellant pled guilty to a charge of possessing a firearm and was placed on probation. He challenges an order requiring him to pay restitution for the damage to the parked vehicle damaged in the shooting, claiming he was not responsible for any of the damage. We affirm.
BACKGROUND
The incident was described in the probation report, which summarized the police report. Around 11:32 p.m. on September 2, 2017, then 17-year-old appellant and two other minors were standing on the southeast corner of Guerrero Street and Rosa Parks Lane in San Francisco when shots were fired at them from a red sedan driving slowly southbound on Guerrero Street. Appellant was shot in the right elbow; one of the other minors was shot in the leg and the third was shot in the chest. Police officers responding to the scene located appellant nearby and he was transported to the hospital. A minivan parked facing north on the east side of Guerrero Street, just south of the intersection with Rosa Parks Lane, had numerous bullet holes in the windshield and driver side panels. Several casings were located on the southbound lane of Guerrero Street just west of Rosa Parks Lane.
The incident was captured by a surveillance camera. As described in the police report, the recorded video showed the three minors standing on the southeast corner before "quickly laying down in the prone position and moving to cover" as a red sedan drove slowly southbound in the number one lane on Guerrero Street at the intersection of Rosa Parks Lane. The video did not capture a suspect discharging a firearm at the group as the vehicle passed. It showed appellant "quickly standing up simultaneously brandishing a firearm, taking a shooting position and returning fire at the vehicle as it fled the scene southbound on Guerrero." Appellant then ran to a nearby address seeking medical attention.
On September 6, 2017, appellant went to the police station to retrieve his cell phone, which had been seized after the shooting. He was given Miranda warnings and interviewed. Appellant initially denied having a gun, then told the officer he had found a backpack on BART a week earlier that contained the gun. He stated that he shot at the car to protect himself and "threw the gun" immediately after shooting it. He told the officer "a lot of people have problems with him" and "the '4L' gang members probably have problems with 'Valencia Gardens' guys," and said he was afraid for his life because this was the second time he was shot and the third time he was "shot at."
Appellant later told the probation officer he had been shot in the back in June 2017, and in May 2017, had been a passenger in a vehicle in which one of his friends was the victim of a fatal shooting.
Subsequently, officers investigating the shooting determined it was gang related and "developed probable cause to arrest appellant," located him in the location of the shooting, and arrested him on assault and firearms charges.
A juvenile wardship petition filed in San Francisco on September 12, 2017, charging appellant with possession of a loaded firearm (Pen. Code, § 25850), carrying a concealed firearm (Pen. Code, § 25400), and being a minor in possession of a firearm (Pen. Code, § 29610). Appellant admitted the count of carrying a concealed weapon in exchange for dismissal of the other two counts. The matter was transferred to Solano County for disposition, as appellant had moved from his mother's home in San Francisco to his father's in Fairfield. On November 21, 2017, appellant was adjudged a ward of the court and placed on probation with various conditions, including that he pay restitution as determined by the probation officer pursuant to Welfare and Institutions Code section 730.6.
On June 22, 2018, appellant was arrested in San Mateo County after helping a friend escape from a group home and failing to yield to a police officer who attempted to conduct a traffic stop. Appellant, having just turned 18 years old, pled no contest in adult court to felony evading a police officer (Veh. Code, § 2800.1, subd. (a)) and was placed on probation for three years.
In July 2018, appellant's juvenile case was transferred to Contra Costa County, where he was to live with his adult sister. He was continued as a ward of the court, with conditions of probation including gang terms as to which the court had previously reserved imposition, and restitution was left open, to be determined by the court.
A restitution hearing was held on April 30, 2019. Appellant did not contest the amount sought by the victim but argued he should not be required to pay any restitution because the damage to the vehicle was caused by the drive-by shooters. The court rejected this argument and ordered appellant to pay victim restitution in the amount of $3,385.15, with his parents jointly and severally liable. Due to his felony offense and adult probation, the court denied appellant's motion to terminate juvenile probation successfully. The court subsequently signed the form "JV-790 Order for Victim Restitution," terminated probation unsuccessfully and vacated wardship. Appellant remained on adult probation.
DISCUSSION
Appellant contends the restitution order is invalid because there is no "causal link" between his conduct and the losses the award is intended to compensate. He argues the damage to the car did not result from his possession of a firearm, which was the conduct for which the section 602 petition was sustained. Further, he maintains the damage did not result from any conduct on his part but was caused entirely by the drive-by shooter.
A juvenile court is required to award restitution to victims who sustain an economic loss "as a result of the minor's conduct for which the minor was found to be a person described in Section 602" unless it finds "compelling and extraordinary reasons for not doing so." (Welf. & Inst. Code, § 730.6, subds. (a), (h)(1).) "This duty to impose restitution implements the right of crime victims to seek and obtain restitution, a right that is secured by our Constitution. (Cal. Const., art. I, § 28, subds. (a)(3) & (b)(13)(A), (B) ['Restitution shall be ordered from the convicted wrongdoer in every case . . . in which a crime victim suffers a loss'].)" (In re S.O. (2018) 24 Cal.App.5th 1094, 1100 (S.O.).) Section 730.6 expressly limits this mandatory restitution to "losses caused by the minor's charged, criminal conduct." (S.O., at p. 1100; 730.6, subd. (h)(1).)
Further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Section 730.6, subdivision (a), provides, "(a)(1) 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 an economic loss as a result of the minor's conduct shall receive restitution directly from that minor." Subdivision (a)(2)(B) of the statute directs, "[T]he court shall order the minor to pay . . . [r]estitution to the victim or victims, if any, in accordance with subdivision (h)." Pursuant to subdivision (h)(1) of the statute, "Restitution ordered pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall be imposed in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. A minor's inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of the restitution order. . . ."
Additionally, if the court places a minor on probation, it has discretion to order restitution as a condition of probation pursuant to section 730, subdivision (b). Restitution as a condition of probation may be awarded for losses resulting from a broader range of conduct, such as conduct underlying uncharged or dismissed counts, as long as the order is reasonably related to the "reformation and rehabilitation of the ward." (§ 730, subd. (b); S.O., supra, 24 Cal.App.5th at p. 1102.)
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."
The effect of these statutes is that "section 730.6 'serve[s] as a floor, not a ceiling, for juvenile probation conditions [citations].' " (In re T.C. (2009) 173 Cal.App.4th 837, 845 (T.C.), quoting In re Walter P. (2009) 170 Cal.App.4th 95, 99.) Consequently, here, even if the juvenile court could not have ordered appellant to pay restitution for the damage to the car pursuant to section 730.6 because the offense of possessing a firearm did not in and of itself involve shooting the car, the court nevertheless had authority to award restitution as a condition of probation under section 730, subdivision (b), if such award was justified by appellant's non-offense conduct.
Appellant suggests the court did not intend to order restitution as a condition of probation, noting that the JV-790 form Order for Victim Restitution indicates Welfare and Institutions Code section 730.6 among its sources of authority, and that the court terminated probation and wardship proceedings immediately after imposing the restitution order. But the court terminated probation and vacated the juvenile proceedings because appellant was no longer a minor and was on adult probation. Victim restitution had been ordered as a condition of probation from the outset, with the amount left to be determined. As appellant acknowledges, the court's explanation of its order invoked the language of probation and section 730, stating that "it would be appropriate for rehabilitative purposes to order restitution here."
" 'Restitution has long been considered a valid condition of probation.' (People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal); see People v. Birkett (1999) 21 Cal.4th 226, 235.) This is undoubtedly because restitution furthers the twin goals of reforming and rehabilitating a minor by (1) 'impress[ing] upon the [minor] the gravity of the harm he [or she] has inflicted upon another,' (2) 'provid[ing] an opportunity to make amends,' thereby giving the minor a chance to demonstrate 'to himself [or herself] that he [or she] is changing,' and (3) 'deterring future criminality' by deterring 'future attempts to evade his [or her] legal and financial duties.' (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 747-748; Carbajal, at p. 1124; see People v. Anderson (2010) 50 Cal.4th 19, 27.)" (S.O., supra, 24 Cal.App.5th at p. 1099.)
" '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.]' (In re Sheena K. (2007) 40 Cal.4th 875, 889.) In determining how best to rehabilitate a minor, the juvenile court should consider the broadest range of information. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.) 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. [Citation.]' (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)" (T.C., supra, 173 Cal.App.4th at p. 845.)
" 'A victim's restitution right is to be broadly and liberally construed.' (People v. Mearns (2002) 97 Cal.App.4th 493, 499.) ' "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." ' (Ibid.; People v. Dalvito (1997) 56 Cal.App.4th 557, 562 . . . .)" (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132; Luis M. v. Superior Court (2014) 59 Cal.4th 300, 305.) "However, where the specific issue is whether a court has the authority to issue restitution, we review that question of law independently." (S.O., supra, 24 Cal.App.5th at p. 1098.)
Appellant argues the restitution award was impermissible even under section 730, subdivision (b), because his non-offense conduct did not "in any way" cause the damage to the minivan. In his view, the evidence shows without question that all the damage to the minivan was caused by shots from the passing car and none by appellant's return fire. He argues that "no case has permitted an award of restitution absent evidence that defendant's conduct played a causal role in the damage addressed by the restitution award," and no rehabilitative purpose can be served by requiring a defendant to pay for damage caused by an independent third party.
Even under section 730.6, the minor's conduct need not be the sole cause of the victim's economic loss. (In re A.M. (2009) 173 Cal.App.4th 668, 673.) For an award of restitution under section 730.6, the defendant's criminal conduct must be a "substantial factor' in causing the victim's economic loss," meaning the conduct "must be more than a 'trivial or remote' factor contributing to the victim's loss, but it need not be the 'sole' cause of the loss." (S.O., supra, 24 Cal.App.5th at p. 1101.)
As a factual matter, the juvenile court found that appellant was "substantially a factor in the damage" to the vehicle because he "was actively engaged in a gun battle" and the court could not "parse out which particular bullet or bullets hit the van." The court was "not persuaded that it was only gun fire from within vehicle that resulted in the damage to the car."
Appellant argues these remarks demonstrate the juvenile court shifted the burden of proof, awarding restitution because appellant did not conclusively prove he did not cause the damage to the minivan when in fact the prosecutor had the burden of proving the damage resulted from appellant's conduct. We do not read the remarks this way. Appellant's attorney had argued appellant had no responsibility for the damage because circumstantial evidence indicated it was caused by the drive-by shooter; the prosecutor argued restitution could be awarded "regardless of whether his particular bullet penetrated this particular vehicle." The court rejected the argument that appellant's "participation in this gun battle was so attenuating that restitution would not be in order," commenting that if appellant had not returned fire, the court would agree he was only a victim of the drive-by shooting. The court's comment that it was not persuaded by appellant's characterization of the evidence did not amount to burden shifting. --------
Appellant takes issue with the court describing the event as a "gun battle" with "bullets going all over the place" and casings "found all over the place," pointing out that the police report stated only that appellant returned fire as the vehicle fled the scene and "several casings" were located "on the south-bound lane of the 200 block of Guerrero Street just west of Rosa Parks Lane." Appellant maintains the court erroneously viewed the situation as involving prolonged back-and-forth gunfire, but the court's point was simply that although appellant was a victim of the drive-by shooting, he chose to actively engage in a gun fight by returning fire.
Appellant's insistence that all the damage to the minivan was necessarily caused by the drive-by shooter is not justified. We agree that the gunshots to the driver's side panels must have been caused by shots from the passing car, as the damage was on the side of the minivan facing the street where the shooter's vehicle was driving and appellant was apparently on the sidewalk. The damage to the windshield of the minivan is a different story. Since the minivan was facing north, it is reasonable to assume the windshield was hit by shots fired from the vehicle driving southbound. But with appellant located at the southeast corner of Rosa Parks Lane and Guerrero and the minivan parked on the east side of Guerrero just south of Rosa Parks Lane, depending on exactly where appellant was standing and his angle of fire (details the police and probation reports do not provide), it is not unreasonable to think the windshield could also have been hit by shots from appellant's gun.
In any event, appellant's strict focus on proof of causation is misplaced with respect to restitution ordered pursuant to section 730, subdivision (b). "That a defendant was not personally or immediately responsible for the victim'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].' (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) 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 (I.M.).)
The defendant in I.M. was convicted of acting as an accessory after the fact to murder based on his leaving the scene with the shooter and taking the gun and a backpack from the shooter and carrying them until the shooter took them back. Ordered to pay restitution for the murder victim's funeral expenses, the defendant argued his conduct took place only after the victim was killed and the shooter was the immediate cause of the economic loss. (I.M., supra, 125 Cal.App.4th at p. 1208.) The I.M. court held the restitution award served a rehabilitative purpose because the defendant was found to have been promoting and assisting gang conduct and the order served to make him "aware of the consequences of [gang membership] by compelling him to share responsibility for the gang-related activities in which he in some way participated." (Id. at p. 1210.)
Here, as the trial court noted, although appellant denied being a gang member, appellant believed the drive-by shooting was gang-related and had armed himself for protection after having been targeted in prior shootings. Appellant responded to the drive-by shooting by firing at the departing vehicle on a public street, with all the attendant danger to people and property in the area. The rehabilitative purpose of the restitution order is obvious—forcing appellant to be aware of and take responsibility for the consequences of participating in an exchange of gunfire on a public street.
Appellant relies upon People v. Scroggins (1987) 191 Cal.App.3d 502, 506 (Scroggins), and In re Maxwell C. (1984) 159 Cal.App.3d 263, 266 (Maxwell C.), in arguing that the rehabilitative and deterrent functions of restitution apply only if the restitution "is tied to harm actually caused by the defendant and not an independent third party." In Scroggins, the defendant was found in possession of certain property that had been stolen from other residents in the apartment complex where he was living. After being charged with and convicted of receiving stolen property, he was ordered to pay restitution to victims of burglaries at the apartment complex for the value of other property that had not been recovered, despite an absence of evidence he was responsible for those losses. (Scroggins, at p. 504.) In Maxwell C., which the Scroggins court found directly on point, the minor was adjudged a ward of the court after admitting allegations that he received stolen property. The stolen property, a car stereo, had been returned to the victim. The minor was ordered to pay restitution not only for damage to the stereo but also for damage caused to the vehicle in the burglary in which the stereo was stolen, despite not having been charged with the burglary.
Scroggins and Maxwell C. both relied heavily upon People v. Richards (1976) 17 Cal.3d 614, which held that restitution cannot serve a rehabilitative purpose " '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 . . . .' " (Scroggins, supra, 191 Cal.App.3d at p. 506, quoting Richards, at p. 622; Maxwell C., supra, 159 Cal.App.3d at pp. 265-266 ) Richards has since been disapproved on this point. (Carbajal, supra, 10 Cal.4th at p. 1126.)
Under the familiar rule described in People v. Lent (1975) 15 Cal.3d 481, 486, "a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' " (Id. at p. 486) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379-380.)
Appellant's conduct in returning fire as the drive-by shooter's vehicle drove away was itself criminal, albeit uncharged, and was obviously related to the offense for which he was declared a ward of the court. The requirement that he pay restitution for the damage to the minivan, as we have said, required him to recognize a consequence of exchanging gunfire on an urban street, thus connecting the restitution award to the rehabilitative and deterrent purposes of such awards. As the award was "reasonably related to the crime of which the defendant was convicted or to future criminality" (I.M., supra, 125 Cal.App.4th at p. 1209), it was not an abuse of discretion.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.