In re R.E.
Filed 12/17/12 In re R.E. CA1/3
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opinion has not been certified for publication or ordered published for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 CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re R.E.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
R.E.,
Defendant and Appellant.
A135532
(Solano
County
Super. Ct.
No. J38620)
R.E.
(appellant), born in February 1993, challenges the juvenile court’s
restitution order on the ground the court lacked jurisdiction to impose the
order. For the reasons set forth below,
we shall affirm.
Factual and Procedural Background
We
recently resolved appellant’s prior appeal and habeas petition in a
nonpublished opinion (Sept. 25,
2012, A133620, A134936).
There, appellant challenged the juvenile court’s dispositional order
finding that he violated probation, and continuing him as a ward of the
court. We affirmed the order.
underlying the prior appeal are as follows.
On
August 15, 2011, appellant
was on juvenile probation for battery with serious injury (Pen. Code,
§ 243, subd. (d)) when the Solano County District Attorney filed a
petition alleging appellant violated probation by stealing a bicycle (Pen.
Code, § 487). W.M. and J.S. had
ridden their bikes to a 99 Cent Store when someone approached them outside
and had a short conversation with W.M.
W.M. and J.S. went inside the store for about five minutes; when they
came out, their bikes were gone.
The
next day, W.M.’s stepfather, K.M. (Mr. M.), went to the area to search for
the bikes and saw an individual, who he identified in court as appellant,
riding W.M.’s bike. A chase ensued, and
appellant sped away “through the apartments†and got away. Mr. M. recognized the bike because it
was a special “one of a kind†bike for which he and his wife had spent over
$2,000, and which W.M. had custom built by putting together different parts
from different vendors. Mr. M. told
W.M. where he had seen the bike, and J.S. and W.M. went to an apartment complex
to search for their bikes. There, on an
apartment balcony, W.M. saw the person who had approached him and J.S. at the
99 Cent Store. A few days after the
bikes were taken, J.S. saw two people riding bikes “just down the street from
the 99 Cent Store.†The bikes had
been painted different colors, but J.S. knew they were his and W.M.’s because
they had built the bikes themselves out of various “one-of-a-kind†parts, and
he knew “everything†about the bikes.
The police showed J.S. a photo lineup from which he selected appellant’s
photo as the person he thought he saw at the 99 Cent Store the day the
bikes went missing, and the same person he later saw riding one of the
bikes. The court found appellant
violated his probation and continued him as a ward of the court.
Some
time before December 19, 2011, a restitution
claim was filed in the probation violation case.
W.M. testified he built the bike that appellant stole using separate parts that
he purchased and a bike frame his mother bought for him. He provided a list of the parts and their
prices, showing a total price of $1,416.83.
He testified the list did not show the “exact prices†but that the bike
that was stolen cost approximately $1,400 to make. Defense counsel argued the court should not
impose restitution because the testimony was unclear about the actual cost of
the bike. The court ordered appellant to
pay $1,400 in restitution, stating, “Restitution is ordered in the amount of
$1,400. I’m ordering $1,400, because
. . . it was essentially put up as an estimate, and his testimony
. . . was it was around there, which is supported by the evidence of
the list that was put forward.†The
court also stated, “it’s not even taking into account the labor and other
things that probably could have been counted in the bike itself, and [he]
probably could have requested a higher amount, but this amount seems reasonable
to replace a custom bicycle.â€
Discussion
Welfare
and Institutions Code section 730.6
name="_ftnref3" title="">[3] provides in
relevant part: “(a)(1) 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. [¶]
(a)(2) Upon a minor being found to be a person described in
Section 602, the 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).†Subdivision (h) sets forth the
methodology for calculating a victim’s total loss.
Because
section 730.6 “mandates that a minor must pay restitution where conduct
the court under section 602 results in economic loss to the victim,â€
the statute does not authorize the juvenile
court to impose restitution for conduct that was not alleged as part of a
proceeding to declare a juvenile a ward of the court under section 602. (In re
T.C. (2009) 173 Cal.App.4th 837, 844.)
However, a juvenile court does
have the authority to impose restitution for uncharged conduct
at pp. 844-845; § 730, subd. (b) [the court “ ‘may impose
and require any and all reasonable conditions [of probation] that it may
determine fitting and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced’ â€].)
Here,
the parties agree with the legal principles set forth above but disagree on
whether the juvenile court in this case ordered appellant to pay restitution
under section 730.6, or as a condition of probation. Appellant asserts the order was unauthorized
because the court ordered restitution under section 730.6 for conduct that
was charged as a probation violation, not as a violation of section 602;
respondent asserts the order was authorized because the court ordered
restitution as a condition of probation.
We conclude the record supports respondent’s position.
After
the court found appellant in violation of his probation, it stated while
discussing the conditions of probation, “[t]he issue of restitution will be
reserved and determined by Probation. If
there is any dispute as to that, it can be returned to the court for court
hearing.†In its written form order, the
court checked the box for payment of restitution on a document entitled “TERMS
AND CONDITIONS OF PROBATION . . . .â€
restitution as a condition of probation,
with the amount of restitution to be determined by the probation department or
the court at a later date. Accordingly,
the court’s subsequent order setting the amount of restitution was an
authorized restitution order.
Disposition
The
order is affirmed.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
judicial notice of the transcripts from the prior appeal. To obtain context, maintain consistency and
economize judicial resources, we shall take judicial notice of the entire
record in the prior matter, as well as of our prior opinion. (See Evid. Code, § 451, subd. (a);
see In re Luke L. (1996) 44
Cal.App.4th 670, 674, fn. 3.)
2011, hearing states, “DA indicates restitution claim has been filed.†However, the record does not show what date
the claim was filed.
