In re Joshua J.

Filed 1/28/09 In re Joshua J. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lawrence Kapiloff, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Joshua J. entered a negotiated admission to receiving stolen property (Pen. Code,  496, subd. (a)). The juvenile court dismissed the remaining counts, which were unrelated, without a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The court continued Joshua as a ward of the court[1] and placed him on probation at home with various conditions, including that he pay restitution to the owner of the stolen property that Joshua received. At a subsequent restitution hearing, the court ordered Joshua to pay the victim $3,205.

Joshua appeals, contending the court abused its discretion by ordering him to pay $3,205 in restitution because the victim's losses were not reasonably related to his crime of receiving stolen property.

FACTS

On January 3, 2006, Florencia Nunez left her backpack in a shopping cart while she carried other items into her friend's house. The shopping cart was left unattended in front of her friend's apartment complex for a few minutes. When Nunez returned, the backpack was gone. No one witnessed the theft. Nunez told police the backpack contained $2,100, immigration papers, California identification, Mexican identification, a medical card, a social security card and a black wallet.

On July 25, 2007, police entered Joshua's home as part of an investigation in which a complaining witness had accused him of assault, robbery and false imprisonment earlier that month. During the search of Joshua's bedroom, the police found Nunez's backpack in the closet. There was no money in the backpack. Initially, Joshua told police that the backpack belonged to his aunt.

Joshua told a probation officer that he and a friend had found the backpack on the sidewalk near Southcrest Park.[2] Joshua decided to take it home, where he opened it and found some identification cards, but nothing else. Joshua admitted he had hoped to find money in the backpack. Joshua placed the backpack in his closet and forgot that it was there. When asked why he had falsely told police that the backpack belonged to his aunt, Joshua indicated that he was scared and did not know why he had lied.

At the January 29, 2008, restitution hearing, Nunez testified the backpack contained $3,000 in cash$2,000 in United States currency and $1,000 in Mexican moneyand a purse worth about $30. It cost Nunez $150 to replace the documents that were inside the backpack. Additionally, Nunez estimated the backpack was worth $25.

DISCUSSION

In challenging the restitution order, Joshua's principal contention is that as a condition of probation, the order was not reasonably related to his crime of receiving stolen property. Joshua also contends there was insufficient evidence to support the amount of restitution, and faults the juvenile court for curtailing his counsel's arguments against the restitution order.

Article I, section 28, subdivision (b), of the California Constitution, which was added as part of Proposition 8 in 1982, states in part:

"It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary."

Welfare and Institutions Code section 730.6 governs restitution in cases where a minor is adjudicated a ward of the court pursuant to Welfare and Institutions Code section 602. The statute provides: "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 any economic loss as a result of the minor's conduct shall receive restitution directly from that minor." ( 730.6, subd. (a)(1).) The restitution ordered "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." (Welf. & Inst. Code, 730.6, subd. (h).)[3]

In light of these statutory provisions, courts have recognized that "[a] victim's restitution right is to be broadly and liberally construed." (People v. Mearns (2002) 97 Cal.App.4th 493, 500.) The determination of whether to award restitution, and the amount to award, is vested by statute in the trial court, and is reviewable on appeal only for an abuse of discretion. We review the juvenile court's restitution order for abuse of discretion. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.) A court abuses its discretion by acting contrary to law or failing to use a rational method that could reasonably be said to make the victim whole (ibid.), or by making an order that is arbitrary, capricious or " ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " ' " (People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal).)

"[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." (People v. Baker (2005) 126 Cal.App.4th 463, 469.)

We see no abuse of discretion in the instant case. First, the court-ordered restitution falls within the broad statutory mandate of "full restitution" for all "economic loss" incurred as a result of the minor's criminal conduct. (Welf. & Inst. Code, 730.6.) In Carbajal, supra, 10 Cal.4th 1114, 1126, the California Supreme Court rejected the notion that a restitution order was limited to losses caused by the offense of which a defendant was convicted or as a result of an act committed with the same state of mind as the offense of which he was convicted. Instead, the court found that "the restitution condition must be reasonably related either to the crime of which the defendant is convicted or to the goal of deterring future criminality." (Id. at p. 1123.) Our high court explained:

"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]. There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable." (Id. at p. 1121.)

Here the juvenile court reasonably could infer that Joshua took the money out of Nunez's backpack. Joshua acknowledged that when he saw the backpack he had hoped it contained money. Given Joshua's prior theft-related offense (see fn. 1, ante), the court rationally could have found Joshua's statement that there was no money in Nunez's backpack when he found it to be disingenuous. In any event, the fact "[t]hat a [ward] was not personally or immediately responsible for the victim's loss does not render an order of restitution improper." (In re I.M. (2005) 125 Cal.App.4th 1195, 1209.) Restitution as a probation condition is proper if it is "reasonably related either to the crime of which the defendant is convicted or to the goal of deterring future criminality." (Carbajal, supra, 10 Cal.4th at p. 1123; accord, In re I.M., supra, 125 Cal.App.4th at pp. 1209-1210.) "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." (Carbajal, supra, at p. 1121.)

Although there is no direct evidence that Nunez's backpack was stolen as a result of criminal conduct perpetrated by Joshua, restitution may be imposed on another broader ground. Where probation is granted, restitution may be ordered to the end "that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . ." (Pen. Code, 1203.1, subd. (j).) Under this provision, restitution is permitted in the court's discretion if " 'reasonably related to the crime of which the defendant was convicted or to future criminality.' " (People v. Birkett (1999) 21 Cal.4th 226, 235.) In fact, restitution may be imposed 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]." (Carbajal, supra, 10 Cal.4th at p. 1121; see also People v. Goulart (1990) 224 Cal.App.3d 71, 79 [restitution available for uncharged offenses if related to the offense for which defendant was convicted because of the same type].)

We find there was a rational basis for concluding that Nunez's loss was caused by Joshua's related conduct. Joshua had engaged in similar conduct at least one other time. (See fn. 1, ante.)

Joshua's reliance on In re Maxwell C. (1984) 159 Cal.App.3d 263, 265-266, which concluded that a minor who was adjudicated to have unlawfully received stolen property (a car stereo) could not be required to pay restitution for damage to the automobile that resulted when the property was stolen, and People v. Scroggins (1987) 191 Cal.App.3d 502, 504, which concluded that a defendant who pleaded guilty to receiving stolen property could not be required to pay restitution to burglary victims, is unavailing. Both In re Maxwell C. and People v. Scroggins relied on reasoning from People v. Richards (1976) 17 Cal.3d 614, 622, which held the state of mind with which burglary or vandalism is committed is different than that required for receiving stolen propertya point explicitly disapproved by our Supreme Court in Carbajal, supra, 10 Cal.4th at page 1126. "Insofar as Richards may be read to require that trial courts refrain from conditioning probation on restitution '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 . . .', we disapprove it." (Ibid.)

In sum, given the statutory requirement that crime victims receive full restitution for economic loss caused by juvenile offenders, and the juvenile court's broad discretion to fashion conditions of probation to rehabilitate wards, we find no abuse of discretion in the challenged restitution order. Ordering Joshua, who had a prior theft offense, to pay full restitution was a proper method of encouraging his rehabilitation and deterring him from future delinquent conduct. The court did not abuse its discretion by ordering restitution in the full amount of Nunez's loss. (Carbajal, supra, 10 Cal.4th at pp. 1120-1121.)

Joshua is mistaken in arguing that there was insufficient evidence to support the amount of the restitution order because Nunez did not provide documentary evidence in addition to her testimony at the restitution hearing. A victim's statement regarding the amount of loss constitutes prima facie evidence for purposes of restitution. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; accord, People v. Fulton (2003) 109 Cal.App.4th 876, 885-886.)

Nunez was cross-examined by defense counsel and was questioned by the court as well. Under the circumstances presented here, it is understandable that Nunez did not have documentation to supplement her testimony at the restitution hearing regarding her losses from a theft that took place two years earlier. The standard of proof at a restitution hearing is preponderance of the evidence. (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) Nunez's sworn testimony provided a rational and factual basis for the amount of restitution ordered.

We are concerned with the juvenile court's brusque manner toward defense counsel at the restitution hearing. However, any error in this regard was harmless. Counsel essentially attempted to make two arguments belowsubstantial evidence did not support the restitution amount and Joshua should not be ordered to pay restitution in any event because the offense was receiving stolen property, not theft. We have addressed these two arguments and find they lack merit.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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[1] In an earlier case, Joshua had been adjudicated a ward for receiving stolen property. Joshua witnessed a fight between two girls, one of whom lost a ring during the altercation. Joshua found the ring and kept it even though he knew which girl owned the ring.

[2] The amended petition alleged that this occurred on May 15, 2007. At a settlement conference, Joshua admitted that on May 15 he had property in his possession that he knew was stolen.

[3] Welfare and Institutions Code section 730.6 contains similar language to Penal Code section 1202.4, which was implementing legislation for Proposition 8. Penal Code section 1202.4 provides in part: "(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. " Subdivision (f) of Penal Code section 1202.4 provides in part: "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." Penal Code section 1202.4, subdivision (f)(3) provides that the restitution order "shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct . . . ."