Opinion
H043104
03-09-2017
IN RE CRISTIAN S., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Cristian S., Defendant and Appellant.
Sidney S. Hollar, under appointment by the Court of Appeal for Appellant, for Defendant and Appellant Cristian S. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General, for Plaintiff and Respondent The People.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part IV. of the Discussion.
Sidney S. Hollar, under appointment by the Court of Appeal for Appellant, for Defendant and Appellant Cristian S.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General, for Plaintiff and Respondent The People.
RUSHING, P.J.Pursuant to a negotiated agreement in this Welfare and Institutions Code section 602 proceeding, the minor Cristian S. admitted one count of conduct that if committed by an adult would constitute lewd or lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a) ), and two other counts were dismissed. The same judge, the Honorable Margaret Johnson, handled both the jurisdiction and disposition hearings. The amount of victim restitution could not be determined at the disposition hearing and the parties appeared several times thereafter for "restitution setting." The case was ultimately set for a contested hearing on victim restitution six months after the disposition hearing. On the day of the contested restitution hearing, the minor's counsel made a motion to continue the hearing because Judge Johnson was away at a judicial training conference. The visiting judge who had been assigned the restitution hearing denied the continuance request, conducted the hearing, and ordered the minor to pay $12,501.39 in victim restitution.
All undesignated statutory references are to the Welfare and Institutions Code.
On appeal, the minor argues the juvenile court violated his rights under People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220 (Arbuckle ) when it denied his request to have Judge Johnson preside over the restitution hearing. We conclude in the published portion of this opinion that the Arbuckle right does not apply to victim restitution hearings in juvenile court. We also hold that even if Arbuckle applied, any error was harmless because the minor received a fair hearing on the restitution issue, and the minor did not meet his evidentiary burden of demonstrating that the amounts ordered as victim restitution were excessive. In the unpublished portion of this opinion, we reject the minor's arguments that the court abused its discretion in ordering restitution for the male victim's bedroom furniture, clothing, and for costs associated with a therapy dog. Accordingly, we will affirm the restitution order. FACTS
In the fall of 2013, the minor was 13 years old. At that time, the minor's neighbor (Victims' Mother) occasionally had the minor watch her four-year-old son (sometimes Male Victim) while Victims' Mother picked up her seven-year-old daughter (sometimes Female Victim) from school. Victims' Mother left her son with the minor on October 2, 2013. She did not lock her front door when she left.
When Victims' Mother returned, her front door was locked. She knocked several times. When the minor opened the door, Victims' Mother noticed he was very sweaty. The minor said they had been playing hide and seek and her house was very warm. Victims' Mother noticed her son's shirt was tucked into his underwear and "his pants were not straight." She had never before seen him tuck his shirt in this way. When the minor asked if the boys could continue playing, Victims' Mother sent him home.
Victims' Mother went into her son's room and "had a feeling something wrong had occurred." She asked her son what happened and he said the minor had touched his anus with his "wee wee," meaning the minor's penis. Later that evening, Female Victim told her mother she had previously "seen and heard [the minor] ask [Male Victim] to touch his ‘wee wee.’ " Female Victim also said the minor had also asked "her to touch his ‘wee wee’ on various occasions" and that the minor had touched her vagina.
Victims' Mother asked the minor to come to her house. She told him she had a teddy bear with a camera in her children's bedroom that had recorded everything, but wanted to hear from him. She said if he told her the truth, she would not tell his parents. The minor told Victims' Mother he put his penis between Male Victim's legs, admitted he had touched Female Victim, and said he had been " ‘touching them for a couple of weeks.’ " Victims' Mother then asked the minor's parents to come over and the minor admitted in front of his parents that he had touched both victims in a sexual way.
The following day, Victims' Mother took her children to Santa Clara Valley Medical Center for a medical examination and reported that they had been molested by the minor. Later that day, the police interviewed both victims. Female Victim told the officer the minor "had touched her vagina over her clothing once and about 4 times underneath her clothing skin to skin." She said she saw the minor touch Male Victim's penis once. Once, through her bedroom window, she saw the minor, who was sitting on her bed, tell Male Victim to touch the minor's penis. Female Victim reported that the minor had "told her that her mother would go to jail if she told on him." The minor also said he would get in trouble if she told anyone. Male Victim said the minor touched his penis and sodomized him (the officer's words) and that it occurred more than once. Victims' Mother reported that three or four weeks prior to October 2, Male Victim (who was potty-trained) began having accidents, had lost his appetite, and had lost a lot of weight.
The minor was detained on October 4, 2013. He was released from custody to his parents on the Community Release Program the following day. Since the minor has two younger siblings, the probation department and his parents arranged for him to live with his aunt.
PROCEDURAL HISTORY
I. Wardship Petition & Proceedings Regarding Competency
The prosecution filed a juvenile wardship petition pursuant to section 602, which alleged conduct that if committed by an adult would constitute two felony counts of lewd or lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a) ): one count for each victim.
At the detention hearing in October 2013, the court found that the minor was a person described by section 602, continued him on the Community Release Program in his aunt's home, and ordered no contact with the victims. The court granted the minor's counsel's request for a psychological evaluation to assist the minor's counsel in determining whether to enter a plea based on insanity or present a defense based on the minor's mental or emotional condition (Evid. Code, § 1017 ).
In November 2013, the prosecution filed an amended petition (§ 602 ), which retained the original counts and added one count of sodomy by force on a child under the age of 14 (Pen. Code, § 288, subd. (c)(2)(B) ). After the minor's counsel declared a doubt as to the minor's competency (Pen. Code, § 1368 ), the juvenile court suspended proceedings and ordered a psychological evaluation to address competency. In March 2014, Judge Johnson took over the case. In May 2014, after two psychologists opined that the minor was incompetent, Judge Johnson found the minor incompetent, but restorable, and referred him to the County's competency restoration program.
Although the minor admitted he had touched Male Victim's penis and Female Victim's vagina, he denied sodomizing Male Victim.
Between May 2014 and February 2015, Judge Johnson held 14 hearings to review the minor's progress in the competency restoration program and the Community Release Program. After living with his aunt for 10 months and following the development of a safety plan, the court authorized the minor to return to his parents' home on the Community Release Program in August 2014. By that time, the minor's family no longer lived next door to the victims. In February 2015, Judge Johnson found the minor had been restored to competency and reinstated juvenile court proceedings.
II. Jurisdiction and Disposition
The parties resolved the case at a jurisdiction hearing on April 6, 2015. The prosecution amended count 1 of the petition (forcible lewd or lascivious act upon children under the age of 14) to add the names of both victims and asked that the remaining counts be dismissed. The minor admitted count 1. Judge Johnson accepted the admission, sustained the petition as to count 1, found that the minor was described by section 602, and dismissed counts 2 and 3. The maximum custody time is 10 years. The court ordered a psychological evaluation for disposition to address risk assessment and the minor's treatment needs. The psychologist concluded the minor's risk for sexual re-offense was low and recommended outpatient sex offender therapy.
At the disposition hearing in May 2015, the probation officer recommended probation. The minor's participation in the Community Release Program for almost 20 months had been exemplary: he reported to probation as required, there were no discipline problems at home or at school, and each of his chemical tests was negative. The minor had been receiving psychotherapy. The probation officer recommended that the safety plan remain in place while the minor is on probation, that the minor continue his psychotherapy, and that the minor also receive outpatient sex offender treatment. The prosecutor read a victim impact statement written by Female Victim, and Victims' Mother addressed the court.
Judge Johnson placed the minor on probation with terms and conditions, including 45 additional days on the Community Release Program and ordered the sex offender therapy. She also ordered victim restitution, with the amount to be determined at a future hearing.
III. Victim Restitution
A. Restitution Claim and Restitution Setting Hearings
In August 2015, the probation officer submitted a report to the court, which stated that the victims' parents sought $23,196.39 in victim restitution for the following: (1) $4,655.00 in lost wages for the victims' father; (2) $13,800 for the rental value of Male Victim's unoccupied bedroom after the molestations; (3) $2,190.45 to replace Male Victim's bedroom furniture, décor and some of his clothing; and (4) $2,550.94 for a therapy dog. The claim did not include the cost of the victims' medical or therapy appointments.
At a restitution setting hearing in August 2015, the victims' parents submitted a document in Spanish requesting approximately $2,000 in expenses. It was not clear whether these were duplicative of or in addition to amounts previously claimed. Judge Johnson continued the restitution setting hearing to clarify the claim and for the parties to explore resolution of the restitution claim. The attorneys appeared six times between September 8 and November 30, 2015 for "restitution setting" to discuss the restitution claim and readiness to proceed with a contested hearing on restitution. On November 3, Judge Johnson set the matter for a contested restitution hearing on the afternoon of December 3, 2015.
B. Motion to Continue Restitution Hearing
After she took over the case in March 2014, Judge Johnson presided over every hearing, except for the restitution setting hearing on September 8, 2015. On November 30, 2015, the attorneys appeared for a readiness conference regarding the contested restitution hearing. We do not have a reporter's transcript of that hearing, but the minute order supports the conclusion that the attorneys declared they were ready to proceed, since the contested hearing remained on calendar for December 3. The next day, the minor's counsel asked the clerk to place the matter on calendar for the morning of December 3 to request a continuance.A retired visiting judge, the Honorable Leslie Nichols, heard the motion to continue on December 3. The minor's counsel stated, "The reason is simply that ... Judge Johnson is familiar with this minor, with the case, with the history of the case. The victim has been here on several occasions and the judge has gotten an opportunity to know the victim because she has spoken out in court before. [¶] And that's my only reason, your Honor. I think it would be in the best interest of the minor if we leave it before Judge Johnson." The minor's counsel did not mention Arbuckle .
By "victim," we understand the minor's counsel to mean Victims' Mother. Although the record is not entirely clear, by our count, Victim's Mother appeared before the court 13 times before the restitution hearing. The minor victims also appeared in court on several occasions.
The prosecutor objected to a continuance, arguing that the victims' parents were prepared to come to court that afternoon and had taken time off work to do so. She said a volunteer attorney in the district attorney's office would be handling the hearing, that the volunteer attorney had prepared for the hearing and would be leaving the district attorney's office at the end of the week. The prosecutor argued that if the court granted a continuance, another attorney would have to prepare for the hearing, and the victims' parents would have to take additional time off work. She asserted: "This is a restitution matter. It's not sentencing" and argued Judge Johnson "certainly set the case in contemplation that another judge might hear it. If she found it necessary to preside herself, she would have set the case on a day that she is here."
Judge Nichols denied the motion to continue. He explained that as a visiting judge, it is his practice to ask the court to leave a note on the file if there is a special problem or the file needs special attention. He stated he was there "to work," and there was no direction from the court to "do anything other than the work regularly assigned. So balancing all of these factors, the hardship, taking another day coming to court, it's hard to justify a continuance...."
C. Restitution Hearing and Order
At the restitution hearing that afternoon, Judge Nichols explained that Judge Johnson was away at a judicial training program. He said he denied the motion to continue "because I'm here to work." He explained that he had asked Judge Johnson to identify any cases that required special consideration and had not received a response. He said this "suggested that I shouldn't do anything other than hear the cases regularly assigned.... For that reason and also because witnesses had been notified here today, I felt it best to go forward."
The victims' parents testified at the hearing. The minor did not present any evidence. By the time of the hearing, the victims' restitution claim had increased to $26,301.39. The additional $3,105 claimed included $2,983 for costs related to taking the victims to therapy and medical appointments (gasoline and the children's meals) and $122 for two more months of veterinary insurance for the therapy dog.
Judge Nichols denied the $13,800 claim for the rental value of the unoccupied bedroom, awarded the other items claimed, and ordered the minor to pay $12,501.39 in victim restitution.
DISCUSSION
I. General Principles Regarding Victim Restitution
"Enacted in 1982, Proposition 8, the ‘Victims' Bill of Rights,’ amended the California Constitution to provide that ‘all persons who suffer losses' resulting from crime are entitled to ‘restitution from the persons convicted of the crimes causing the losses.’ (Cal. Const., art. I, § 28, subd. (b)(13)(A).) In 1983, the Legislature enacted Penal Code section 1202.4, which requires a full victim restitution order in criminal cases for every determined economic loss unless there are compelling and extraordinary reasons not to do so. (Pen. Code, § 1202.4, subd. (f).) In 1994, the Legislature enacted section 730.6 to provide ‘parallel restitutionary requirements for juvenile offenders.’ [Citation.]" (Luis M. v. Superior Court (2014) 59 Cal.4th 300, 304-305, 173 Cal.Rptr.3d 37, 326 P.3d 969 (Luis M . ).)
The purposes of an order for victim restitution in delinquency cases are threefold: to make the victim whole by compensating the victim for economic losses, to rehabilitate the minor, and to deter future delinquent behavior. (Luis M ., supra , 59 Cal.4th at p. 305, 173 Cal.Rptr.3d 37, 326 P.3d 969 ; In re Anthony M . (2007) 156 Cal.App.4th 1010, 1017, 67 Cal.Rptr.3d 734 (Anthony M . ).)
"[A] victim ... who incurs an economic loss as a result of the minor's conduct shall receive restitution directly from the minor." (§ 730.6, subd. (a)(1).) As relevant here, section 730.6 provides: "[T]he court shall order the minor to pay, in addition to any other penalty provided or imposed under the law ... [¶] ... [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (h)." (§ 730.6, subd. (a)(2)(B).) Subdivision (h)(1) provides in part that victim restitution "shall be imposed in the amount of the losses, as determined.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.... A restitution order ... shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct for which the minor was found to be a person described in Section 602, including all of the following: [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. [¶] (B) Medical expenses. [¶] (C) Wages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minor's parent, parents, ..., while caring for the injured minor..... [¶] (D) Wages or profits lost by the victim, and if the victim is a minor, wages or profits lost by the minor's parent, parents,..., due to time spent as a witness or in assisting the police or prosecution....." (§ 730.6, subd. (h)(1).) An order for victim restitution "shall identify the losses to which it pertains, and shall be enforceable as a civil judgment...." (§ 730.6, subd. (i).)
" ‘ "In keeping with the [voters'] ‘unequivocal intention’ that victim restitution be made, statutory provisions implementing the constitutional directive have been broadly and liberally construed." ' [Citations.]" (Luis M ., supra , 59 Cal.4th at p. 305, 173 Cal.Rptr.3d 37, 326 P.3d 969.) Section 730.6 grants the minor "the right to a hearing to dispute the determination of the amount of restitution," and empowers the court to modify any orders it makes. (§ 730.6, subd. (h).)
II. Standard of Review
"Generally speaking, restitution awards are vested in the trial court's discretion and will be disturbed on appeal only where an abuse of discretion appears. [Citation.] Like most generalizations, however, this one can lead to errors if not applied with circumspection. No court has discretion to make an order not authorized by law, or to find facts for which there is not substantial evidence. A reviewing court will generally examine an issue of law independently of a lower tribunal's ruling. [Citation.] Its determination on an issue of fact is reviewed under the substantial evidence standard. [Citation.] The standard of review therefore depends on the nature of the question presented." (In re K.F . (2009) 173 Cal.App.4th 655, 661, 92 Cal.Rptr.3d 784 (K.F . ); Luis M ., supra , 59 Cal.4th at p. 305, 173 Cal.Rptr.3d 37, 326 P.3d 969 [victim restitution order reviewed for abuse of discretion].)
III. Arbuckle
The minor argues that restitution is part of sentencing and asserts that since restitution is part of sentencing, the juvenile court erred as a matter of law and violated his rights under Arbuckle when it refused to continue the restitution hearing to allow Judge Johnson—the judge who had taken his plea—to hear the contested restitution matter. The minor adds that since Judge Johnson presided over his case for almost two years, she was "intimately familiar" with the case and the parties. He notes also that Judge Johnson heard victim impact statements from Female Victim and Victims' Mother at the disposition hearing.
The Attorney General responds that none of the legal authority cited by the minor supports the claim that he had a right to a hearing on victim restitution before the same judge who determined disposition. The Attorney General argues that Arbuckle expresses no view regarding victim restitution hearings and that the minor has not demonstrated prejudice: how a restitution hearing before Judge Johnson would have resulted in a better outcome.
A. The Rule of Arbuckle
In Arbuckle , the defendant entered a plea before Judge Robert London. Sentencing was delayed by a motion and writ petition related to sentencing. (Arbuckle , supra , 22 Cal.3d at pp. 752-753, 150 Cal.Rptr. 778, 587 P.2d 220.) While the writ was pending, Judge London transferred to another department. After the writ was denied, the case was assigned to Judge Raymond Roberts, who imposed a prison sentence. The defendant objected to being sentenced by Judge Roberts and insisted he was entitled to be sentenced by Judge London under the terms of his plea bargain. (Id. at p. 753, 150 Cal.Rptr. 778, 587 P.2d 220.)
The Supreme Court's analysis of this question in Arbuckle was quite short. (Arbuckle , supra , 22 Cal.3d at pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220.) The court stated, "We agree that the plea bargain herein was entered in expectation of and in reliance upon sentence being imposed by the same judge. Our conclusion is supported by the judge's repeated use of the personal pronoun ["I"] when referring to sentencing in the proceeding in which the plea bargain was accepted." (Id. at p. 756, 150 Cal.Rptr. 778, 587 P.2d 220.) Judge London had told the defendant: " ‘I have agreed, as has your attorney,..., that before I could send you to the State Prison, I would have to get that 90–day diagnostic study and I would follow that recommendation." (Id. at p. 756, fn. 4, 150 Cal.Rptr. 778, 587 P.2d 220.) The Supreme Court also stated: "As a general principle, moreover, whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea. [Citations.]" (Id. at pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220, footnote omitted, citing a treatise, a law review article, and two books.) The court held: "Because the defendant has been denied that aspect of his plea bargain, the sentence imposed by another judge cannot be allowed to stand. [Citations.] The defendant is entitled to be sentenced by Judge London, or if internal court administrative practices render that impossible, then in the alternative [the] defendant should be permitted to withdraw his plea." (Id. at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220.) The court clarified: "If the original judge is not available for sentencing purposes after a plea bargain, the defendant must be given the option of proceeding before the different judge available or of withdrawing his plea." (Id. at p. 757, fn. 5, 150 Cal.Rptr. 778, 587 P.2d 220.)
The Arbuckle right is not a constitutional or a statutory right; it is contract right recognized in the case law. (People v. McIntosh (2009) 177 Cal.App.4th 534, 541, 98 Cal.Rptr.3d 901 [" Arbuckle was not premised on constitutional or statutory mandates, but rather on contract principles"]; In re James H . (1985) 165 Cal.App.3d 911, 921, 212 Cal.Rptr. 61 (James H . ) [Arbuckle is " ‘a hybrid, judicially promulgated contractual right’ "].)
B. Arbuckle and Restitution Hearings in Juvenile Court
In determining whether the minor had a right under Arbuckle to have Judge Johnson preside over the restitution hearing, we first examine the question whether Arbuckle applies to restitution hearings in juvenile court.The minor asserts " Arbuckle applies generally in juvenile cases." The Attorney General disagrees, arguing that proposition is currently pending before the California Supreme Court in K.R. v. Superior Court (2015) 243 Cal.App.4th 495, 196 Cal.Rptr.3d 681 (K.R . ), review granted March 9, 2016, S231709. The Attorney General does not brief the point further. In his reply, the minor agrees that the question whether Arbuckle applies in juvenile cases is pending before the Supreme Court in K.R .
We disagree with the parties on this point. The issue in K.R . is not whether Arbuckle applies in juvenile cases. That question was settled long ago. In In re Mark L . (1983) 34 Cal.3d 171, 193 Cal.Rptr. 165, 666 P.2d 22 (Mark L . ), the California Supreme Court stated: " Arbuckle has been extended to dispositions by judges in juvenile cases." (Mark L ., at p. 177, 193 Cal.Rptr. 165, 666 P.2d 22, citing In re Thomas S . (1981) 124 Cal.App.3d 934, 937, 177 Cal.Rptr. 742 (Thomas S . ) and In re Ray O . (1979) 97 Cal.App.3d 136, 139-140, 158 Cal.Rptr. 550 ; see also James H ., supra , 165 Cal.App.3d at p. 917, 212 Cal.Rptr. 61.) The court also applied Arbuckle in Mark L ., a juvenile case. (Id. at pp. 174, 179-181, 193 Cal.Rptr. 165, 666 P.2d 22.)
The issue in K.R. is whether the minor in that case was entitled to a disposition hearing before the same judge who accepted his admission when the minor did not demonstrate individualized facts establishing that a disposition hearing before the same judge was an implied term of his plea agreement. Thus, the question presented in K.R. is the nature of the showing required for Arbuckle to apply, not whether Arbuckle applies in juvenile court proceedings.
In K.R., the Court of Appeal stated that Arbuckle first engaged in an individualized analysis and held, based on what Judge London said when he took the plea, that the defendant entered into the plea agreement " ‘in expectation of and in reliance upon sentence being imposed by the same judge.’ " (K.R., supra, 243 Cal.App.4th at p. 505, 196 Cal.Rptr.3d 681, quoting Arbuckle, supra, 22 Cal.3d at p. 756, 150 Cal.Rptr. 778, 587 P.2d 220.) However, in the next paragraph, Arbuckle appears to announce a broad general rule that " ‘whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge.’ " (K.R. at p. 505, 196 Cal.Rptr.3d 681, quoting Arbuckle, at pp. 756-757, 150 Cal.Rptr. 778, 587 P.2d 220.) The K.R. court noted that after Arbuckle , some courts applied the broad general rule and others applied the individualized analysis. The K.R. court stated, however, that it has been settled for more than 25 years that Arbuckle applies only when the defendant or minor can demonstrate specific facts showing "the plea was given ‘in expectation of and in reliance upon sentence [or disposition] being imposed by the same judge’ " who took the plea. (K.R., at pp. 508-509, 196 Cal.Rptr.3d 681, quoting Arbuckle, at p. 756, 150 Cal.Rptr. 778, 587 P.2d 220 and citing James H., supra, 165 Cal.App.3d at p. 920, 212 Cal.Rptr. 61, People v. Ruhl (1985) 168 Cal.App.3d 311, 315-316, 214 Cal.Rptr. 93 (Ruhl ), and People v. Horn (1989) 213 Cal.App.3d 701, 707-708, 261 Cal.Rptr. 814 (Horn ).) In K.R., the Court of Appeal held that the minor had not made the requisite factual showing to demonstrate that Arbuckle applied in his case. (K.R., at pp. 695-696, 196 Cal.Rptr.3d 681.)
Unlike Arbuckle and cases that apply Arbuckle (see e.g., James H ., supra , 165 Cal.App.3d at pp. 915, 919, 212 Cal.Rptr. 61 ), the same judge who took the minor's admission (Judge Johnson) presided over his disposition hearing. At disposition, Judge Johnson placed the minor on probation, imposed various conditions of probation, and ordered the minor to pay victim restitution, with the amount to be determined at a later date. The question here is whether, after Judge Johnson ordered victim restitution, the minor was also entitled to have Judge Johnson preside over the contested hearing to determine the amount of victim restitution.
The parties do not cite any cases that address the question whether Arbuckle applies to contested restitution hearings and this appears to be a question of first impression. The minor argues he was entitled to have Judge Johnson preside over the restitution hearing because "restitution is part of ... sentencing" and since restitution is part of "sentencing," the determination of the amount of restitution is subject to Arbuckle .
Arbuckle does not apply in all criminal or juvenile court proceedings. In People v. Miskiewicz (1984) 158 Cal.App.3d 820, 824-825, 204 Cal.Rptr. 873, the court held the Arbuckle right does not extend to a defendant who enters a felony plea before a magistrate pursuant to Penal Code section 859a. This was because Penal Code section 859a provides that upon entry of the felony plea, the magistrate shall immediately certify the case to superior court, and the defendant was so advised in Miskiewicz . (Ibid .; see also People v. Guerra (1988) 200 Cal.App.3d 1067, 1071-1072, 246 Cal.Rptr. 392 )
The Arbuckle right also does not apply to sentencing in probation revocation proceedings, which might occur months or years after the plea bargain. (People v. Martinez (2005) 127 Cal.App.4th 1156, 1159-1160, 26 Cal.Rptr.3d 234, citing People v. Beaudrie (1983) 147 Cal.App.3d 686, 693-694, 195 Cal.Rptr. 289 ; People v. Watson (1982) 129 Cal.App.3d 5, 8, 180 Cal.Rptr. 759.) The Martinez court stated: " ‘there is a distinction between a sentencing hearing following a plea of guilty and a sentencing following a revocation hearing. [The defendant in Martinez ] was sentenced by the same judge who accepted his original plea. Sentence was suspended and he was placed on probation. Once that sentence was imposed, Arbuckle no longer applied.’ " (Id. at p. 1159, 26 Cal.Rptr.3d 234.) The court reasoned, "Multi-judge superior courts act as one superior court" and the departments within the court "operate under the presumption that they are jurisdictionally equivalent and fungible. Arbuckle , resting on contract principles, created a limited exception to the fungibility of superior court departments." (Ibid. ) The court then weighed " Arbuckle 's reasoning against the practical concerns of sentencing outside a plea bargain" and found "those reasons wanting." The court concluded that the passage of time "creates a lower expectation that—unlike at the time of the plea bargain—the original sentencing judge will still be available, let alone hearing criminal matters," and that practical problems—particularly those related to court security—abound. Consequently, any expectation the defendant might have that the original judge would sentence him on the probation violation was unreasonable. (Id. at p. 1160, 26 Cal.Rptr.3d 234.)
In juvenile court proceedings, victim restitution "shall be imposed in the amount of the losses, as determined." (§ 730.6, subd. (h)(1).) If the amount of victim restitution cannot be ascertained at the time of disposition, "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 commitment or probation." (§ 730.6, subd. (h)(1).) "If the amount of victim restitution is not known at the time of disposition, the court order shall identify the victim or victims,..., and state that the amount of restitution for each victim is to be determined," as was done in this case. (§ 730.6, subd. (h)(2).) When the court has reserved jurisdiction to determine restitution, it may direct the probation officer to determine the amount of restitution. (In re Karen A . (2004) 115 Cal.App.4th 504, 510-511, 9 Cal.Rptr.3d 369, citing § 730.6, subd. (h).) The minor has a right, however, to challenge the probation officer's determination in court. (Id. at p. 511, fn. 9, 9 Cal.Rptr.3d 369 ; § 730.6, subd. (h).) After the court makes a restitution order, the minor's obligation to pay victim restitution may extend beyond the expiration of wardship and into adulthood. (In re Michael S . (2007) 147 Cal.App.4th 1443, 1456, 54 Cal.Rptr.3d 920.) An order for victim restitution is enforceable as a civil judgment. (§ 730.6, subd. (l).)
Since the statutory scheme permits the juvenile court to make a restitution award any time during wardship and allows the court to delegate the determination of the restitution amount to the probation officer, the restitution hearing here is more like the probation revocation hearing at issue in Martinez than the initial sentencing at issue in Arbuckle . Indeed, the type of delay the court expressed concerns about in Martinez occurred here: the contested restitution hearing took place almost eight months after the court took the minor's admission and more than six months after the disposition hearing. We conclude that in contested restitution hearings in juvenile cases, as with sentencing on probation violations, any expectation the minor may have that the original judge would conduct the hearing was unreasonable. (Id. at p. 1160, 26 Cal.Rptr.3d 234.) We therefore conclude that the right afforded by Arbuckle does not apply to contested victim restitution hearings in juvenile court.
C. Prejudice
Even if we were to conclude that Arbuckle applied to restitution hearings in juvenile court, and assuming the minor could demonstrate a factual basis for concluding he had a reasonable expectation that the restitution hearing would be before Judge Johnson, we would hold that any error under Arbuckle was harmless.
Generally, the remedy for Arbuckle error is to remand for a new restitution hearing before the judge who took the admission, Judge Johnson in this case. And if that is impossible, the minor should be given the opportunity to withdraw his admission. (Arbuckle , supra , 22 Cal.3d at p. 757, 150 Cal.Rptr. 778, 587 P.2d 220.) However, one court has considered whether the minor was prejudiced by alleged Arbuckle error, applying the prejudice standard from People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 (Watson ). (James H ., supra , 165 Cal.App.3d at pp. 921-922, 212 Cal.Rptr. 61.)
As we have noted, the victims' parents requested $26,301.39 in victim restitution. Judge Nichols disallowed the amounts claimed as the rental value of the unoccupied bedroom, which was more than half of the amount claimed, and ordered the minor to pay $12,501.39 in victim restitution. As we shall explain in the next section, we reject each of the minor's claims of error regarding the amounts awarded by Judge Nichols as victim restitution. The primary problem with the minor's attack on the restitution order here is that the minor did not meet his burden of presenting evidence demonstrating that any of the amounts claimed were excessive.
The minor argues: "Judge Johnson was in a better position to review ‘compelling and extraordinary reasons' not to order full restitution." Indeed, section 730.6, subdivision (h)(1) provides that the juvenile court "shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." But the minor did not argue below that there were compelling and extraordinary reasons for not ordering full restitution, he simply attacked the reasonableness of the amounts claimed. He has, therefore, forfeited any such claim on appeal. Moreover, other than the brief reference quoted above, the minor does not develop this point on appeal or state what the compelling and extraordinary reasons for not awarding full restitution were. We therefore reject this argument.
Finally, having reviewed the entire record, we conclude the minor received a fair hearing on the question of victim restitution.
Since the minor received a fair hearing and we find no error in Judge Nichols's restitution order because the minor did not meet his evidentiary burden below, there is no reasonable likelihood the minor would have obtained a more favorable restitution order if Judge Johnson had presided over the restitution hearing. (Watson , supra , 46 Cal.2d at p. 836, 299 P.2d 243.) IV. Challenges to Restitution Order
See footnote *, ante.
--------
DISPOSITION
The restitution order is affirmed.
WE CONCUR:
PREMO, J.
GROVER, J.