From Casetext: Smarter Legal Research

People v. Simon C. (In re Simon C.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jan 2, 2020
A157993 (Cal. Ct. App. Jan. 2, 2020)

Opinion

A157993

01-02-2020

In re Simon C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. SIMON C., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1900045)

On January 11, 2019, a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) was filed in the Marin County Superior Court charging appellant, then 17 years of age, with one count of second degree burglary of a vehicle, a felony (§ 459), receiving stolen property, a felony (§ 496, subd. (a)), and possession of burglary tools, a misdemeanor (§ 466). After the court deemed him eligible for probation (§ 1203.06) and deferred entry of judgment, the district attorney agreed to reduce the two felony charges to misdemeanors; appellant admitted both offenses and the remaining misdemeanor was dismissed. The matter was then transferred to Contra Costa County, the minor's county of residence, for a dispositional hearing.

All subsequent statutory references will be to the Penal Code.

At the dispositional hearing on February 5, 2019 (all dates are in that year), appellant was adjudged a ward of the court, ordered to reside with his mother for 75 days on home supervision, and to comply with numerous conditions of probation. Additionally, the court ordered restitution to be paid to the victims, with appellant, his parents, and two adult codefendants to be jointly and severally liable for that payment.

After a hearing on May 2, the court reserved ruling on mother's ability to pay a $50 restitution fine, due to uncertainty as to her ability to pay that amount. After a subsequent restitution hearing on May 30, and receipt by the court of a report on restitution by the juvenile probation department, the court ordered restitution in the amount of $378 to be paid to one of the victims, based on that victim's claim that that amount was the cost of replacing the window of the vehicle appellant broke.

This timely appeal, which is solely from the dispositional order, was filed on July 29, 2019.

Appellant's court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. The limited issue addressed by the parties and the court at the dispositional hearing was the propriety of the victim restitution awarded the victim of the auto burglary, and that is the only issue before us in this appeal.

FACTS AND PROCEEDINGS BELOW

The facts are taken from reports of the "Detention Hearing Information Sheet" filed in the Contra Costa County Superior Court, the recommendation of the probation department to the juvenile court of that county, and the reporter's transcripts of the restitution hearings in the juvenile court.

On January 7, 2019, Marin police officers responded to the report of an auto burglary at the Northgate Shopping Center in Corte Madera. A security guard reported that she observed surveillance footage showing a minor, later identified as appellant, smash the right rear window of a parked vehicle, remove a gold colored backpack from the back seat, and then flee the scene in a 2012 Honda.

Two days later, returning to the same shopping center to investigate another reported auto burglary, officers pursued a suspect vehicle and stopped it after it turned into a dead end street. The passengers of the vehicle, appellant and two adults, were detained and taken into custody. A search of the vehicle revealed a California driver's license, a social security card, and prescription drugs belonging to one of the victims, along with a purse, duffle bag, sunglasses, and a camera belonging to a second victim. Most of these items were stolen from the auto burglary reported to police on January 7. Burglary tools were also found in the car.

Restitution

A camera and other items found in the vehicle belonged to Maria, the victim of the prior auto burglary shown on tape, in which a window was smashed. Maria stated that she received back most of her property taken from that vehicle with the exception of cash that was in her wallet. Additionally, the family for whom she worked as a nanny had to pay for replacement of the broken window, which was "approximately $300," and she felt it necessary to repay them the full replacement cost.

Maria reported that her purse, camera, and wallet containing $85 in cash had been stolen from the vehicle; but all of the items had been returned to her except for the $85 in cash. The "Victim Impact Statement" she later filed, stated that the cost of replacing the smashed right rear window was $293. That amount was paid by the owner of the car, who employed Maria as a nanny, but Maria wanted to reimburse the owner. The statement also states that Maria was not physically affected by the offense, only emotionally, but she did not require therapy.

At the hearing on February 5, appellant did not object to replacement of the $85 cash stolen and the $293 cost of replacing the smashed window. However, defense counsel did ask the court "to stay the imposition of the restitution fine, even though it's $50. There's a recent decision, [People v.] Dueñas [(2019) 30 Cal.App.5th 1157], that holds in the adult context that it would violate due process to impose without [an] ability to pay determination, so I ask the court to stay that unless and until ability to pay [has been established.]" When the prosecutor said she was unfamiliar with the issue presented by People v. Dueñas, supra, 30 Cal.App.5th 1157 (Dueñas), the court stated "if you'd like to pass it that's fine with me, but I think that we can go forward with the understanding that that determination will be made in the future." Later at the hearing the court made it clear that "[r]estitution is to be left open and paid at a rate and manner as determined by the court. We should actually set a restitution compliance date. We can set that out 60 days. I am finding that the minor and parents are jointly and severally liable to pay restitution as ordered by the court. [¶] And I'm finding that the minor and co-responsibles, [the adults found in the vehicle and detained with appellant on January 9], jointly and severally liable to pay restitution as ordered by the court. [¶] Regarding the restitution fine, I will stay the imposition of the restitution fine." As to those remaining issues, the court stated that the issue of "ability to pay the restitution fine" would be addressed at a "restitution pretrial" in 90 days.

At the May 2 restitution hearing, the court reset "the restitution contest" for May 30 at 1:30 p.m. "And I will reserve restitution in an amount to be determined regarding [the victim of the offenses committed on January 9]." Before the hearing adjourned, defense counsel observed that "under Dueñas the burden is on the district attorney to demonstrate ability to pay the $50 restitution fine" and he had not done so. The district attorney then asked the court to inquire of appellant's mother, who was in the courtroom, whether she "can pay $50 [by] February 2020." After the mother was sworn, she testified on direct that she could do so. However, when asked on cross-examination whether, if her financial situation did not change, a single payment of $50 or 10 payments of $5 a month for 10 months would diminish the amount she had with which to obtain "basic necessities," she stated that it would. She was not sure whether her financial situation would improve if she obtained employment in the near future, but even if she did obtain the type of employment she was seeking she agreed she would still be "using [her] paycheck pretty much entirely toward basic necessities."

After discussing the available options with counsel, the court determined that "I'm just going to reserve ruling on the ability to pay the restitution fine due to her statements that she believes if provided more time and obviously being employed, that she would be able to pay. We'll revisit this. Things can change either for the better or for the worse. Hopefully not for the worse." Defense counsel then objected "to the court considering her future ability to pay" and "not deciding it today under Dueñas."

The court turned to the issue of victim restitution at a hearing on May 30. At the commencement of that hearing, defense counsel argued that the victim impact statement was insufficient to establish a prima facie case, because Maria, the nanny, could easily have inflated the amount of money taken from her wallet and the statement was "perhaps fraudulent," she had returned to Argentina and was therefore no longer available, the cost of replacing the window was apparently paid by her employer, who had not verified the cost of replacing the window or been examined, and the probation department was unable to find the victims of the second auto burglary on January 9. Counsel pointed out that the probation department and the district attorney "have nine months still to try to reach out to people, to try to get the receipt for the court and provide a stronger record and actually make a prima facie case. And if they are able to do that we will submit on restitution, but as it stands right now there's just not enough evidence."

Opposing defense counsel's request that the issue of restitution be reserved, the district attorney argued that the defense could have but failed to earlier challenge Maria's estimate of the costs she incurred, and the court should therefore order restitution in that amount. The court did so, pointing out that there was no doubt the car window had been broken, Maria's victim impact statement provided an exact amount of the cost of replacing it, $293, and she also gave an exact amount of the money taken from her wallet, $85. In light of this, the court found a prima facie showing that shifted the burden to appellant to show that Maria's figures are unreasonably high or not credible and he had not done so. The court therefore set victim restitution in the amount of $378 "joint and several with the parents and the co-responsibles." That amount was payable to the victim, Maria, but the court granted the People's request that Jones, her former employer, be authorized to accept it on her behalf based on her representation to the probation department that she would forward the money to Maria in Argentina.

DISCUSSION

As previously noted, at the commencement of the dispositional hearing, defense counsel asked the court "to stay the imposition of the restitution fine, even though it's $50. There's a recent decision, Dueñas, that holds in the adult context that it would violate due process to impose without [an] ability to pay determination, so I ask the court to stay that unless and until ability to pay [has been established.]" Putting aside the fact that the reasoning and ruling in Dueñas have been rejected by a growing number of appellate courts (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres (2019) 39 Cal.App.5th 917, 923; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844), it appears that the district attorney either accepted its application to this case, or declined to take the risk Dueñas would be judicially found applicable; as he asked the court "to inquire into [appellant's] mom whether she can pay $50" by February 2020. Granting the request, the court adhered to the ruling in Dueñas invoked by appellant—that due process forbids a trial court from imposing a restitution fine and certain other assessments without first determining the defendant's ability to pay. As we have explained, a substantial inquiry was made of whether appellant's mother was able to pay the $50 restitution fine; and as a result of that inquiry, the court concluded that she currently lacked that ability. Accordingly, a restitution fine was not imposed at the hearing on May 2, nor was such a fine imposed at the last hearing on May 30, which was devoted to the subject of victim restitution, to which Dueñas did not apply.

Our Supreme Court has granted review in People v. Kopp, supra, 38 Cal.App.5th 47 to address the following issues: "Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?"

At the close of the hearing, the court stated it would be "speculative to determine right now whether she can or cannot pay because it very well may be that by the end of probation or by our next review that she is capable of paying that amount. So I am going to reserve ruling on the restitution fine amount until I have further information, and I am hopeful that she will be able to obtain employment and that things will be more financially comfortable for her family. So I think we should just revisit this issue." Nothing in the record before us indicates a restitution fine was ever imposed in this case. --------

DISPOSITION

Our independent review found no arguable issues that require further briefing. The judgment, including the restitution rulings, is affirmed.

/s/_________

Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.


Summaries of

People v. Simon C. (In re Simon C.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jan 2, 2020
A157993 (Cal. Ct. App. Jan. 2, 2020)
Case details for

People v. Simon C. (In re Simon C.)

Case Details

Full title:In re Simon C., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Jan 2, 2020

Citations

A157993 (Cal. Ct. App. Jan. 2, 2020)