Opinion
H045238
09-21-2018
IN RE R.Q., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.Q., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 315JV41226)
R.Q., a minor, committed misdemeanor theft or unauthorized use of a vehicle (Veh. Code, § 10851 subd. (a)). The juvenile court ordered R.Q. to pay $2,166.51 in restitution to the victim. On appeal, R.Q. challenges the order, arguing that in determining the amount of restitution, the juvenile court should have apportioned fault in relation to the victim's own negligence and reduced the restitution amount accordingly. We are not persuaded by R.Q.'s argument, and affirm the order.
I. STATEMENT OF THE FACTS AND CASE
The facts are taken from the probation report.
In July 2016, Arindam Jha parked his 2011 Dodge Charger in the parking lot of his apartment complex. Jha then opened the front door of his apartment with his house keys, which were attached to his car key, and left the keys in the lock overnight. When Jha left his apartment the next day, he found that his house key and car keys were no longer in his front door lock, and his car was missing from the parking lot. On July 10, 2016, Jha reported his car stolen.
On August 3, 2016, Sheriff's deputies stopped R.Q. while he was driving Jha's car. R.Q. told deputies that he bought the car from a man named Juan with money he had earned working at the flea market. R.Q. paid Juan $1,000 during their first meeting, and agreed to pay another $200 when Juan returned to give him the title to the car. R.Q. said that Juan never returned with the title. R.Q. did not know that the car was stolen.
On August 5, 2016, the Santa Clara County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging that R.Q. committed misdemeanor theft or unauthorized use of a vehicle (Veh. Code, § 10851 subd. (a)). R.Q. admitted the allegation on October 24, 2016. The juvenile court sustained the petition and R.Q. was adjudged a ward of the court. On August 23, 2017, R.Q. was placed on probation with a condition that he pay restitution to Jha.
All further statutory references are to the Welfare and Institutions Code.
A contested restitution hearing was held on October 18, 2017. Jha represented that he had incurred $2,166.51 in economic loss as a result of the theft of his car. The losses included fees for towing, detailing, replacement of the car battery, Uber rides to work, and the costs to replace personal items such as a laptop computer, a $230 check, boxing equipment, and a soccer ball that were missing from the car when it was returned to him.
R.Q. testified that he purchased the car in July 2016 from "a guy," named Juan whom he met while he was working at the flea market with his grandfather. Juan wanted R.Q. to pay $6,000 for the car, but R.Q. only had $1,200 cash with him at the time. R.Q. testified that Juan agreed to take $1,200 that day, and when he returned the next day with the pink slip to the car, R.Q. would pay him another $1,000. When Juan did not return with the pink slip the next day, R.Q. knew that the car was stolen. R.Q. did not see that the VIN number had been scratched off the door of the car. R.Q. drove the car around for about a month or two before he was arrested. R.Q. said that when he bought the car, the only thing inside the car was the net that divided the trunk. There were no other items inside the car.
The defense argued at the hearing that R.Q. should not be required to pay restitution for the items that were missing from Jha's car, because when he received the car from Juan, the items were not inside.
The juvenile court found that R.Q.'s testimony at the hearing was not credible, and that R.Q. had stolen the car. R.Q. was ordered to pay the full amount in restitution to the victim for all his economic losses, with the exception of the $230 check. R.Q. filed a notice of appeal on November 7, 2017.
Although the juvenile court stated on the record that the $230 check was not included in the restitution amount, the minute order and abstract of judgment reflect that the restitution order was for the full amount requested of $2,166.51. When there is a discrepancy between the oral record as reflected in the reporter's transcript and the minute order or the abstract of judgment contained in the clerk's transcript, the oral record controls; we presume any inconsistency is the result of clerical error and rely upon the oral pronouncement contained in the reporter's transcript. (People v. Mesa (1975) 14 Cal.3d 466.) The abstract of judgment must be corrected to reflect that R.Q. owes restitution in the amount of $1,936.51 ($2,166.51-$230 for the check that the juvenile court omitted from the order). --------
II. DISCUSSION
A. Victim Restitution
Persons who suffer losses as a result of a defendant's criminal activity are entitled as a matter of constitutional right to be made whole for their loss. (Cal. Const., art. I, § 28.) Welfare and Institutions Code Section 730.6 provides for restitution when a minor described in section 602 causes a victim to incur economic loss as a result of the minor's conduct. (§ 730.6, subd. (a)(1).) Upon finding a minor to be a person described in section 602, the juvenile court must order the minor to pay victim restitution. (§ 730.6, subd. (a)(2)(B).) The juvenile court shall order full restitution unless it finds compelling and extraordinary reasons not to do so and states them on the record. (§ 730.6, subd. (h).) The restitution order shall be in an amount sufficient to fully reimburse the victim for all determined economic losses incurred as the result of the minor's conduct. (Ibid.) In addition to making the victim whole, victim restitution also has a deterrent and rehabilitative effect. (People v. Cookson (1991) 54 Cal.3d 1091, 1097.)
B. Standard of Review
Restitution awards are vested in the trial court's discretion and will be disturbed on appeal only when there has been an abuse of discretion. (People v. Fortune (2005) 129 Cal.App.4th 790, 794; People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644.) " '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.' " (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
C. Comparative Negligence
R.Q. argues that the trial court erred in ordering him to pay the full amount of restitution in this case, because Jha's losses were due in part to Jha's own negligence in leaving his keys in the lock of his front door. He asserts that the juvenile court should have applied the doctrine of comparative negligence to reduce the amount of restitution by the percentage of Jha's own fault.
Initially, we find that R.Q. has forfeited this issue and may not raise it for the first time on appeal. (People v. McCullough (2013) 56 Cal.4th 589, 593.) While the defense objected to the restitution order in the juvenile court on the ground that R.Q. should not be responsible for Jha's personal property because the items were not in the car when R.Q. purchased it, the defense did not object on the ground that the juvenile court should have apportioned fault to Jha for his losses. "Ordinarily, a criminal defendant who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal." (In re Sheena K. (2007) 40 Cal.4th 875, 880.) " 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' " (Id. at p. 881.)
However, even if the issue were not forfeited on appeal, we conclude it fails on the merits. R.Q. relies on People v. Millard (2009) 175 Cal.App.4th 7 (Millard), to support his contention that the comparative negligence doctrine should be applied to reduce the amount of restitution owed in this case. In Millard, the defendant was driving his car and suddenly turned left in front of the victim who was riding a motorcycle at a high rate of speed. The victim struck the defendant's car and suffered injuries including bone fractures, lacerations, bruises and a concussion. (Id. at p. 17.) The defendant was intoxicated at the time of the accident. Following a jury trial, the defendant was found guilty of "driving under the influence while committing an act forbidden by law and causing bodily injury to another person." (Id. at p. 19.)
The trial court ordered the defendant to pay restitution, but reduced the amount of the order by 25 percent because the victim was partly at fault for his own injuries. The victim was speeding at the time of the accident, and was "untrained in motorcycle driving, took no evasive maneuvers and in essence went straight into the defendant's car without even a minimal amount of avoidance taken." (Millard, supra, 175 Cal.App.4th at p. 37.) The trial further court noted that the defendant's offense was a "negligence[-]type crime," because it was "driving under the influence and causing injury with no aggravation involved. A simple illegal left turn is what this case was . . . ." (Ibid.)
The Court of Appeal held that the trial court did not abuse its discretion by reducing the restitution award by the percentage that the victim was at fault of his own injuries. The court stated: "a trial court is not precluded from applying the doctrine of comparative negligence to reduce the amount of Penal Code section 1202.4 victim restitution that a criminally negligent defendant must pay when the victim's negligence was also a substantial factor in causing his or her economic losses." (Millard, supra, 175 Cal.App.4th at p. 41.) The court reasoned that criminal defendants are required to reimburse their victims only for those economic losses suffered " 'as the result of the defendant's criminal conduct,' " and "[i]f the doctrine of comparative negligence were not applicable, a criminally negligent defendant could be required to reimburse a victim for economic losses that were comparatively the result or the fault of the victim's own negligence." (Millard, supra, 175 Cal.App.4th at p. 39.) The court further reasoned, "Application of comparative negligence holds a criminally negligent defendant responsible for the full amount of the victim's economic losses that resulted from the defendant's proportionate fault." (Id. at p. 41; emphasis added.)
Millard permits a trial court to consider a crime victim's comparative negligence in determining a restitution amount in a criminal case in which the defendant was criminally negligent. Millard is inapplicable to the case before us because here, R.Q. was not criminally negligent; rather, he committed the intentional act of theft or unauthorized use of a vehicle (Veh. Code, § 10851 subd. (a)). Although Jha left his keys in his front door overnight, he is not responsible for R.Q.'s intentional theft of his car. There is no authority for the proposition that comparative negligence should be applied to reduce a person's financial responsibility for causing harm to a victim by committing an intentional crime. We find that the juvenile court properly ordered R.Q. to pay the full amount of restitution for the losses Jha suffered.
III. DISPOSITION
The order is affirmed. The abstract of judgment shall be corrected to reflect the juvenile court's order that R.Q. pay restitution in the amount of $1,936.51.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Grover, J.