In re G.H.

Filed 6/17/10 In re G.H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Amalia Meza, Judge. Affirmed.

G.H. entered a negotiated admission in juvenile court to four counts of receiving stolen property (Pen. Code,[1]  496, subd. (a)) (counts 4, 5, 6 and 16) and one count of carrying a concealed firearm in a vehicle that was under his control ( 12025, subd. (a)(1)), knowing the firearm was stolen ( 12025, subd. (b)(2)) (count 8). The court dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) five counts of receiving stolen property (counts 14, 15, 17, 18 and 19); two counts of residential burglary ( 459, 460) (counts 1 and 2); and one count each of burglary ( 459) (count 10); firearm theft ( 487, subd. (d)(2)) (count 3); receiving a stolen vehicle ( 496d) (count 7); carrying a concealed firearm in a vehicle in which he was an occupant ( 12025, subd. (a)(3)), knowing the firearm was stolen (count 9); carrying a loaded firearm on his person or in a vehicle ( 12031, subd. (a)(1)), knowing the firearm was stolen ( 12031, subd. (a)(2)(B)) (count 11); unlawfully driving or taking a vehicle (Veh. Code,  10851, subd. (a)) (count 12); and misdemeanor possessing live ammunition ( 12101, subd. (b)(1)) (count 13). The negotiated admission did not include an agreement concerning restitution. The court declared G.H. a ward, under the supervision of the probation officer, and committed G.H. to Camp Barrett for a period not to exceed 270 days, after which he was to be placed with his mother on home supervision.

After an evidentiary hearing, the court ordered G.H. to pay $110,000 in victim restitution, an amount reached by stipulation.[2] The restitution was payable to Martha and James T. (the T.'s), the victims of G.H.'s March 4, 2009, receipt of stolen property (count 4) and two dismissed counts, a February 2 residential burglary and a February 2 firearm theft (counts 1 and 3). G.H. reserved his right to appeal the issue of his liability and appeals the restitution order. We affirm.

FACTUAL BACKGROUND[3]

On February 2, 2009, the T.'s' home was burglarized. Property stolen from the home included jewelry, a flat screen television, a laptop computer, knives, a computer game system, a digital camera and four handguns.

A citizen informed the police that G.H. and J.H. were armed and were committing residential burglaries in San Diego. On March 4, 2009, police officers saw G.H. leave the home where he lived with J.H. G.H. opened the trunk and driver's side door of a car that had been stolen two weeks earlier. The officers searched the car and found three stolen handguns, including one under the driver's seat. The officers searched the home and found a substantial amount of stolen property. In G.H.'s and J.H.'s bedrooms were items belonging to the T.s and other victims whose homes had been burglarized in February. The property found in the home included big screen televisions, computers, cameras, video cameras, computer game systems and jewelry. An adult detained at the time of G.H.'s arrest said G.H. and J.H. talked openly about committing robberies and posed for photographs with guns and stolen property.

The police recovered the T.'s' computer game system, camera, three of the four guns and two pieces of jewelry. The computer, the fourth gun and most of the jewelry were not recovered. There was no evidence the television or the knives were recovered. Ms. T. testified the value of the unrecovered jewelry was $139,000 or $140,000. There was no evidence regarding the value of the computer, the fourth handgun, the television or the knives. The stipulation did not specify what property was covered by the $110,000 in restitution.

DISCUSSION

G.H. contends the restitution order was an abuse of discretion because it related to the dismissed residential burglary count, he denied committing the burglary and a preponderance of the evidence did not show he was responsible for the loss of the T.'s property incurred in the burglary.[4] G.H. argues the court erred to the extent it equated his Harvey waiver with an admission and based the restitution order on the Harvey waiver.

The standard of proof at a restitution hearing is a preponderance of the evidence. (People v. Baker (2005) 126 Cal.App.4th 463, 469.) "While we review all restitution orders for abuse of discretion, we note that the scope of a trial court's discretion is broader when restitution is imposed as a condition of probation. . . . As this court has held, '[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. . . ." ' [Citation.] With respect to the third criterion, 'an order for restitution, i.e., attempting to make a victim whole, has generally been deemed a deterrent to future criminality [citation], and the court is not limited to the transactions or amounts of which defendant is actually convicted [citations].' [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 663, fn. 7) "[R]estitution 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]. There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

The above principles apply in juvenile cases. (In re T.C. (2009) 173 Cal.App.4th 837, 847, citing In re I.M. (2005) 125 Cal.App.4th 1195.) Additionally, "[a] condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court." (In re Todd L. (1980) 113 Cal.App.3d 14, 19.) Even if there had been no Harvey waiver, the juvenile court could have considered the dismissed counts in ordering G.H. to pay restitution. (In re T.C., supra, at pp. 849-850.)

G.H. was charged with burglarizing the T.'s' home and stealing their guns. G.H. admitted having in his bedroom property stolen from the T.'s' home and from the homes of other burglary victims. G.H. also admitted carrying a concealed, stolen gun in a car. When he was arrested, he was about to get into the car, which had been recently stolen and contained stolen guns. Information the police received before and after G.H.'s detention linked him to the spate of burglaries and the stolen guns. G.H. agreed that in ordering restitution, the court could consider all of the dismissed counts, including the burglary of the T.'s' home and the theft of their guns, the burglary of another residence, the receipt of property stolen from other victims, the car theft and the firearm possession offenses. During the admission proceedings, the court explained to G.H. that the dismissed counts "still can be considered by . . . the court in deciding what to do with you as far as . . . any restitution that may have to be paid back for the victims for their loss." G.H. said he understood. The restitution order was reasonably related to G.H.'s receipt of property stolen from the T.'s.

The restitution order was also designed to deter future criminality. G.H. committed serious crimes and engaged in dangerous behavior. The restitution order will impress upon him " 'the gravity of the harm he has inflicted' " on the victims and offer him the opportunity to make amends. (In re T.C., supra, 173 Cal.App.4th at p. 848.)

The restitution order is not an abuse of discretion.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

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[1] Further statutory references are to the Penal Code unless otherwise specified.

[2] G.H.'s liability was joint and several with his co-offender, J.H., and their parents.

[3] These facts relate to the offenses against the T.'sthe admitted receiving stolen property count and the dismissed residential burglary and firearm theft countsand, where necessary, to other counts. The facts are derived from the parties' stipulation, testimony at the restitution hearing and the probation officer's supplemental report.

G.H. claims no reports were admitted into evidence at the restitution hearing, there is no indication the court considered any reports, and if it did, he was denied due process because he had no opportunity to challenge them. In fact, at the outset of the hearing the court said, "I reviewed the probation officer['s] supplemental report . . . ." There was no objection. There was no due process denial.

[4] G.H. also argues the restitution order violates his constitutional rights because the amount is excessive and is not reasonably related to the admitted counts or to his conduct. As noted above, G.H. stipulated to the amount of restitution. As discussed below, the restitution order is not otherwise infirm.