In re K.G.
Filed 4/5/13
In re K.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re K.G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff
and Appellant,
v.
K.G.,
Defendant
and Respondent.
E056026
(Super.Ct.No. J239207)
OPINION
In re W.W., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff
and Appellant,
v.
W.W.,
Defendant
and Respondent.
E056028
(Super.Ct.No. J239208)
APPEAL from the Superior
Court of
Bernardino County.
Larry W. Allen, Judge. Affirmed.
Michael
A. Ramos, District Attorney, and Brent J. Schultze, Deputy District Attorney,
for Plaintiff and Appellant.
Jan
B. Norman, under appointment by the Court of Appeal, for Defendant and
Respondent K.G.
Mark
Yanis under appointment by the Court of Appeal, for Defendant and Respondent
W.W.
A
juvenile wardship petition was filed alleging that defendant and appellant K.G.
degree burglary (Pen. Code, § 459, counts 1, 5, & 7), received stolen
property (Pen. Code, § 496, subd. (a), count 2), committed vandalism causing
over $400 in damage (Pen. Code, § 594, subd. (b)(1), counts 3 & 6), and
committed arson (Pen. Code, § 451, subd. (c), count 4). A separate juvenile wardship petition alleged
that defendant and appellant W.W. committed second degree burglary (Pen. Code,
§ 459, count 1, 3, & 5), arson (Pen. Code, § 451, subd. (c), count 2),
and vandalism causing over $400 in damage (Pen. Code, § 594, subd. (b)(1),
count 4). Both K.G. and W.W. (the
minors) admitted the allegations that they committed vandalism (Pen. Code,
§ 594, subd. (b)(1)), and an added count of accessory after the fact
to arson (Pen. Code, § 32). A
juvenile court dismissed the other counts, with the stipulation that the
dismissed counts could still be considered in determining restitution. The court declared the minors to be wards and
placed them on probation, under the terms recommended by the probation
department. The court subsequently
imposed victim restitution in the amount of $25,000, with the minors and their
parents jointly and severally liable.
The
People now appeal from the juvenile court’s order of victim restitution,
contending that the court erroneously failed to order full restitution. The People claim that the court based its
order of partial restitution on the minors’ inability to pay, which is an
improper consideration under Welfare and Institutions Code section 730.6,
subdivision (h).
name="_ftnref2" title="">[2] We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
name="_ftnref3" title="">[3]
The
police received a report that there was a large amount of white/yellow powder
inside the Yermo Community Center (the community center), and
that items were missing. The police
discovered that the fire extinguishers had been removed from the walls, and the
locked storage room had been kicked open.
Two possible suspects were interviewed.
One of them told the police that he and his brother discovered the door
to the community center unlocked. They
entered the building. The suspect said
that K.G. entered the building with them and stole soda cans and a digital
recorder. K.G. admitted to the probation
officer that he broke into and vandalized the community center.
Subsequently,
K.G. and W.W. told the police that they vandalized the Yermo Bible Church with paint. They said they also entered the Silver Valley Baptist Church (Silver Valley Church) with another juvenile,
identified as Matt. Once inside, Matt
poured liquid from a metal container onto toilet paper and then lit it on fire
with matches. As the fire grew, Matt ran
out the side door of the church. The
minors attempted to contain the fire, but could not, so they ran out of the
building to an abandoned house. They did
not notify authorities.
The
minors admitted the allegations that they committed vandalism (Pen. Code,
§ 594, subd. (b)(1)), and that they were accessories after the fact to the
arson of Silver Valley Church (Pen. Code, § 32). The court declared them wards and placed them
on probation.
The Silver Valley Church submitted a restitution
claim to the probation department with a total of $448,816.15. The total included restitution for the church
building, the contents of the church, expenses, and the depreciation costs of
the church building and its contents.
The probation department submitted to the court the restitution claim
with a statement of loss provided by the insurance company.
The
court held a restitution hearing on January 18, 2012. The parties
previously had an unreported conference with the court, and the court had
indicated its intention to set the maximum amount of restitution at
$25,000. The prosecutor stated, “I
thought it was going to be $25,000 for each kid and $25,000 for the parents,â€
and added that there were three victims.
The court responded, as follows:
“Well, that’s going to be joint and several on the $25,000. We didn’t discuss how among the three victims
we were going to allocate the $25,000.
That’s what we didn’t discuss.â€
The court indicated that it had only received a restitution claim from Silver Valley Church, but not Yermo Bible Church or the community
center. The court explained how it would
apportion the $25,000 among the three victims, as follows: “What they would normally do in a civil
courtroom is they would add up the three and make the percentage and just do it
[percentage] wise.†Counsel for K.G.
said he would agree to that. The
prosecutor responded, “Now that we know what we’re doing, maybe we can have
probation contact and see—now that [counsel for K.G.] and [counsel for W.W.]
and I have come to an agreement, all it is is getting numbers, maybe probation
could do that.†The court stated that
the parties would have to return for another attorneys only hearing. It noted that the Silver Valley Church’s restitution
claim was in excess of $400,000, which the prosecutor confirmed. The court then stated: “And there would be some amount for the Yermo
church and some amount for the community center. We don’t seem to have those exact
amounts. But probably it’s all going to
come close to half a million dollars. In
reviewing the law in this matter, it’s clear that generally we’re supposed to
order the full amount of the damage. [¶] Now, in this case it’s further complicated by
the fact that they plead to accessory.
And in accessories they have to have a certain factual connection, which
we haven’t had a hearing on. But the
court just looking at the amount and the family background of these two minors,
it does not appear to the court that there is any hope that they could ever pay
the kind of money we’re talking about . . . . [¶]
The law does provide that the court can set the full amount of the
restitution, and then for unusual and extraordinary circumstances stated on the
record order a lesser amount. And the
court’s inclination in this matter is to order the full amount, to determine
what the full amount of the restitution is.
And because I know the parents are responsible up to $25,000 each, and
they’re probably in the near future the only hope of any money being received,
and, actually, their financial situation is quite poor also, I still will order
25,000. I will make an order that each
of the minors is jointly and severally liable along with their parents for the
25,000 amount. [¶] . . .
So that’s the court’s intent, but to do that we do need those other two
amounts, the Yermo [church] and the community center. So we’ll direct probation to look into those
amounts. Then the court would add the
three amounts together and determine the percentage and divide the restitution
according to that percentage. [¶] Any objection to that procedure?†The prosecutor responded, “No, your Honor.†Counsel for K.G. and counsel for W.W. both
submitted. The court then set another
attorneys only restitution hearing for February 16, 2012.
At
the hearing on February 16, 2012, the court stated that, at the last hearing,
it indicated it would set the restitution amount at $25,000 for the minors,
joint and several. The court
acknowledged that the amount it was setting was “far below the damage
done.†The court stated the reason it
was ordering less than full restitution was “because these are families that
have no resources.†The court explained
that “[t]here really is no expectation of payment. We will go with the amount the parents are
legally responsible for is [sic]
$25,000. Our problem was we only had an
amount for Silver Valley Church. We did
not have an amount for the Yermo Church or the community center.†The court ordered $25,000 in restitution to
Silver Valley Church, and reserved restitution for the other two victims,
stating that if it received information on their claims, it would determine the
percentage of the $25,000 that each would receive.
ANALYSIS
No Reversal of the
Restitution Order Is Required
The
People contend that the juvenile court’s restitution order was unauthorized by
law and in excess of jurisdiction, since juvenile courts “are commanded to
order full restitution [for victims], and are prohibited from considering a
minor’s ability to pay.†We conclude
that the People are estopped from complaining that the court erred by not
ordering full restitution since the prosecutor agreed to the lesser amount that
the court ordered. Furthermore, the law
does not support the People’s claim that “full victim restitution must be
ordered in juvenile delinquency cases.â€
In addition, the record does not clearly support the People’s claim that
the court based its order on the minors’ ability to pay.
A. Relevant
Law
“[I]n
1982, the voters passed Proposition 8 making entitlement to
restitution the constitutional right of every crime victim. (Cal. Const., art. I, § 28, subd. (b).) This constitutional provision also directed the
Legislature to enact laws empowering trial courts to order restitution when
sentencing convicted criminals. (Ibid.)†(People
v. Ortiz (1997) 53 Cal.App.4th 791, 796.)
The California Constitution, article I, section 28, subdivision (b),
provides: “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 seek and secure
restitution from the persons convicted of the crimes causing the losses they
suffer.â€
The
Legislature adopted section 730.6 to implement the constitutional right to
restitution. (In re Tommy A. (2005) 131 Cal.App.4th 1580, 1587;
1128, 1132, fn. 4.) Section 730.6,
subdivision (a)(1), provides that, “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.†Subdivision (h), provides that: “Restitution
ordered pursuant to subparagraph (B) of paragraph (2) of subdivision (a) shall
be imposed in the amount of the losses, as
determined. . . . The
court shall order full restitution
extraordinary reasons for not doing so, and states them on the record. A minor’s inability to pay
compelling or extraordinary reason not to impose a restitution order, nor shall
inability to pay be a consideration in determining the amount of the
restitution order. A restitution order
. . . to the extent possible . . . 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
. . . .†(Italics added.)
Welfare
and Institutions Code section 730.7, subdivision (a), provides: “In a case in which a minor is ordered to
make restitution to the victim or victims, or the minor is ordered to pay fines
and penalty assessments under any provision of this code, a parent or guardian
who has joint or sole legal and physical
custody and control of the minor shall be rebuttably presumed to be jointly
and severally liable with the minor in accordance with Sections 1714.1 and
1714.3 of the Civil Code for the amount of restitution, fines, and penalty
assessments so ordered, up to the limits provided in those sections,
parent’s or guardian’s inability to pay.â€
(Italics added.) Welfare and
Institutions Code section 730.7 “is a procedural
variation on the theme of vicarious civil tort parental liability
articulated in Civil Code section 1714.1.†(In re
Michael S. (2007) 147 Cal.App.4th 1443, 1451.) Civil Code section 1714.1, subdivision (a),
provides that “[a]ny act of willful misconduct of a minor that results in
injury or death to another person or in any injury to the property of another
shall be imputed to the parent or guardian having custody and control of the
minor for all purposes of civil damages, and the parent or guardian having
custody and control shall be jointly and severally liable with the minor for
any damages resulting from the willful misconduct.†The joint and several liability of the parent
or guardian is limited to $25,000. (
B. The
Parties Agreed on the Amount of Restitution
The
People claim that the court was required to order full restitution, and that it
“act[ed] contrary to law†when it set restitution at $25,000, based on the
minors’ inability to pay. Assuming
arguendo that the court was not authorized to set the order at $25,000, we
nonetheless conclude that the People are estopped from complaining about the
order since the prosecutor agreed to the lesser amount.
“When,
as here, the court has jurisdiction of the subject, a party who seeks or
consents to action beyond the court’s power as defined by statute or decisional
rule may be estopped to complain of the ensuing action in excess of
jurisdiction. [Citations.]†(In re
Griffin (1967) 67 Cal.2d 343, 347-348 (Griffin).) “A litigant who has stipulated to a procedure
in excess of jurisdiction may be estopped to question it when ‘[t]o hold
otherwise would permit the parties to trifle with the courts.’ [Citation.]â€
(Id. at p. 348.)
The
record here clearly demonstrates that the parties discussed the issue of victim
restitution and came to an agreement concerning the amount the court should
order. At the outset of the
the prosecutor expressly acknowledged that the parties had a conference in the
courtroom (although the conference was unreported). The prosecutor addressed the court and said
that, “[y]our intention pursuant to our conference in the courtroom [was] to
set a maximum of 25,000 on each kid or 25,000 for three [victims] to
split.†The court said, “Well, that’s
going to be joint and several on the $25,000,†and it added that they had
neglected to discuss how they would allocate the money to the three
victims. The court then explained that
in a civil case, they would normally add up all the claims and figure out the
percentage owed to each victim. Counsel
for K.G. agreed to the procedure. The
prosecutor also agreed, as shown in her response that now that she and minors’
counsel “[had] come to an agreement†and “[knew] what [they were] doing,†they
just needed to get the amounts claimed from the victims. The court acknowledged that the total amount
of the claims would “come close to half a million dollars,†and went on to
state the reason why it was not ordering full restitution. It then ordered the parents and minors to be
jointly and severally liable for the $25,000 amount and explained that it would
determine the percentage of the $25,000 for each of the victims upon receipt of
the claims. When the court asked if
there were any objections, the prosecutor said no. The People clearly consented to the
restitution amount and process of dividing the $25,000 among the victims.
The
People do not dispute that they agreed to the victim restitution order of
$25,000. Nonetheless, they urge this
court to reverse the order and direct the juvenile court to order full
restitution. Based on this record, we
conclude that the People are estopped
from challenging the restitution
order. Although we recognize that the
restitution order is well below the amount of the victims’ claims, as did the
juvenile court, we will not permit the People to trifle with the courts. (Griffin,
supra, 67 Cal.2d at p. 348.)
We
further note that the court held two restitution hearings, and the People,
represented by the prosecutor, could have objected to the restitution order at
any time. She did not. Thus, aside from being estopped from
challenging the restitution order, the People have waived their argument on
appeal. (People v. Tillman (2000) 22 Cal.4th 300, 303.)
was not waived since the restitution order was “unauthorized and in excess of
jurisdiction, as the court has no authority to set the award at less than full
restitution, based on inability to pay,†we disagree. (See post,
§ C.)
C. The
People’s Claims Are Unsupported
The
law and the record do not clearly support the People’s claims of error. The People claim that “full victim
restitution must be ordered in juvenile delinquency cases.†The minors cite section 730.6, subdivision
(h), which provides: “The court shall
order full restitution
extraordinary reasons for not doing so, and states them on the record.†The People respond that the California Constitution “has
clearly been amended to remove the ‘compelling and extraordinary’ language
still found in the statutes,†and that, consequently, “[c]ourts no longer have
the power to withhold victim restitution based on ‘compelling and
extraordinary’ reasons.†The People
specifically assert that Article I, section 28, which provides for victim
restitution, was amended by the Victims’ Bill of Rights Act of 2008: Marsy’s Law (Marsy’s Law). The People state that, in enacting Marsy’s
Law, “[t]he electorate, acting as legislators, has removed the ‘compelling and
extraordinary’ language from the California Constitution, with the goal of
ensuring that restitution be ordered ‘without exception’ in all cases where
victims suffer a loss.†The People
conclude that “[t]o the extent that section 730.6 retains the ‘compelling and
extraordinary’ language, it is in contradiction to the higher authority of the
State constitution.†We disagree.
Here,
there is no conflict between Marsy’s
Law and section 730.6. The
restitution was established in the California Constitution when Proposition 8
was enacted by the voters in 1982. (People
v. Birkett (1999) 21 Cal.4th 226, 230.)
Marsy’s Law merely
reaffirmed a victim’s right to “seek and secure†restitution, and established
certain victims’ rights (e.g., the rights to be notified of and to be present
at all public proceedings, to be heard at any proceeding, and to receive a copy
of the presentence report upon request.)
(See Cal. Const., art. I, § 28, subds. (b)(7), (8), (11), &
(b)(13)(A); People v. Smith (2011)
198 Cal.App.4th 415, 439.) The general
affirmance of a victim’s right to seek and secure restitution articulated in Marsy’s Law in no way conflicts with
the Legislature’s implementation of victims’ right to restitution through
existing statutory provisions, such as section 730.6.
The
People then argue that the court violated Welfare and Institutions Code section
730.6, subdivision (h)’s prohibition on considering a minor’s ability to pay
when it set the restitution amount at $25,000.
The People claim that the court “declined to order full restitution,
based on the minors’ inability to pay†and, as such, its restitution order “was
unauthorized and in excess of the court’s jurisdiction.†We note that Welfare and Institutions Code
section 730.6 imposes direct liability for restitution on a minor, and it
states that “[a] minor’s inability to pay
shall not be considered a
compelling or extraordinary reason not to impose a restitution order,
consideration in determining the amount of the restitution order.†(Welf. & Inst. Code, § 730.6, subd.
(h), italics added.) In contrast,
Welfare and Institutions Code section 730.7 imposes joint and several liability
on the parents of the minor for the economic damages arising out of the
Jeffrey M. (2006) 141 Cal.App.4th 1017, 1025.) Welfare and Institutions Code section 730.7
limits a parent’s liability to $25,000, and it expressly permits a court to consider a parent’s inability to pay. (Welf. & Inst. Code, § 730.7, subd. (a);
Civ. Code, § 1714.1.)
The
court here was aware of its discretion to order less than the full amount of
restitution, if it stated compelling and extraordinary factors for doing so on
the record. The minors assert that the
court found the extraordinary circumstances to be: (1) the plea to accessory after the fact
without a hearing regarding the factual connection; (2) the inability of
the minors to pay full restitution; and (3) the $25,000 maximum liability
for restitution of the minors’ parents.
The minors state that, of these factors, only the minors’ inability to
pay was unauthorized. The court did
mention that the minors’ pleaded to being accessories after the fact, and then
said it “look[ed] at the amount and the family background of these two minors,â€
and determined that there was no apparent hope “they could ever pay the kind of
money we’re talking about.†The court
added that it knew the parents were responsible for up to $25,000 each and
opined that “they [were] probably in the near future the only hope of any money
being received.†After noting that the
parents’ financial situation was “quite poor also,†the court ordered that
“each of the minors is jointly and severally liable along with their parents for
the $25,000 amount.†Similarly, at the
following restitution hearing, the court stated that it was ordering less than
full restitution “because these are families that have no resources.†On this record, it is difficult to
affirmatively say that the court declined to order full victim restitution
based only on the minors’ inability to pay, as the People claim. The court appeared to be referring to the
ability to pay of the minors and the parents interchangeably, and/or together. Moreover, the court was permitted to consider
the parents’ inability to pay in setting the amount of restitution. (§ 730.7, subd. (a).)
Ultimately,
in light of the People’s agreement to the amount of the restitution order, the
failure to object to the restitution amount, and the lack of support for the
People’s claims, we affirm the court’s order.
DISPOSITION
The
order is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] K.G. turned 18 in September 2011. Although he is legally an adult, he is under
the continuing jurisdiction of the juvenile court. (Welf. & Inst. Code, § 607.) For the sake of consistency, we will refer to
him as a minor in this opinion.
name="_ftn2" title=""> [2] All further statutory references will be to
the Welfare and Institutions Code, unless otherwise noted.
