In re Nicholas G.

Filed 10/29/07 In re Nicholas G. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Nicholas G., a minor, appeals from a dispositional order placing him in juvenile hall for six months, and also ordering him to pay $27,886.57 restitution to the victim. Appellate counsel has raised no issues and asks this court for an independent review of the record to determine if it discloses the presence of any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief. We have conducted the requested review, and finding no arguable issues, affirm the order.

Background

Defendant was arrested on September 27, 2006, after he and two of his friends were involved in an altercation with two other minors. Defendant, or one of his companions, punched the victim in the head, possibly with some kind of a metal object. The victim apparently lost consciousness immediately and dropped to the ground. Defendant and/or his companions then kicked the victim several times. The victim sustained severe facial injuries and bleeding to the brain that required him to be airlifted to Santa Rosa. His medical bills totaled $27,886.57. One of the witnesses at first stated defendant had been the one who punched the victim in the head. She later stated she had not actually seen defendant punch the victim, but assumed he had been the one who threw the punch because defendant appeared to be the person standing closest to the victim just before the victim fell. She explained that other witnesses told her someone else had thrown the punch. The other witnesses confirmed that it was one of defendants companions, and not defendant himself, who punched the victim. Defendant adamantly insisted he had not touched the victim at all, although he admitted having been present.

Defendant was detained. A petition was filed against him on September 28, 2006, charging him with battery with serious bodily injury. (Pen. Code, 243, subd. (d).) On November 13, 2006, defendant signed a waiver form, representing he had reviewed his rights with his attorney and was advised of his rights by a judge at his arraignment. Defendant admitted to a lesser charge of misdemeanor battery. (Pen. Code, 242.) The transcript of a hearing held that day confirms the minor, represented by his attorney, admitted to that charge. Counsel joined in the admission. The court granted counsels request that defendant be released pending disposition, imposing the conditions that defendant stay away from the victim and the witnesses.

The dispositional hearing was held on January 8, 2007. Defendant was present and again was represented by counsel. The court stated it had reviewed defendants disposition brief and supplemental disposition brief, and also the report and recommendation of the probation officer. The probation report noted defendant had a criminal history stretching back to October 2002, and had been seen and counseled by a probation officer at two informal hearings. Defendant had abused both marijuana and alcohol. School records indicated he had been suspended four times during the first four weeks of school and frequently demonstrated disruptive, defiant and/or aggressive behaviors at school, beginning in September 2003, resulting in 69 citations for school violations. Although defendant has a supportive father and stepmother, and had been participating in counseling programs, his probation officer was concerned about his history and apparent lack of remorse. Defendants probation officer therefore recommended defendant be adjudicated a ward of the court until his 21st birthday and that he be confined in juvenile hall for the maximum period of six months, less credit for 48 days of confinement. The probation officer made other recommendations, including that defendant be ordered to pay restitution to the victim of $27,886.57 and that defendants parents be adjudicated jointly and severally liable for restitution.

Defendants parents were at the hearing. Defendants stepmother testified, explaining what defendant was doing to turn his life around and her reasons for believing it would be better for him to remain out of custody. Defendant testified on his own behalf, speaking about a program he was attending and about his desire to complete it and to change his life. Defendants attorney argued vigorously that defendant was, in fact, turning his life around, pointing out defendant and his parents had been taking an active role in his rehabilitation and had themselves enrolled him in a program. Counsel disagreed defendant felt no remorse for the crime, asserting there was ample evidence to the contrary. Counsel also argued against the recommendation defendant pay restitution to the victim, claiming that although defendant had admitted to a battery, the evidence was that defendant had not personally caused the injuries to the victim that required the medical treatment.

Before making the order, the court also reviewed documents submitted by defendant concerning the success he currently was having in school and in the program in which he had enrolled, plus character references. The court then adopted the recommendations of defendants probation officer, ordering defendant be confined in juvenile hall until the day after his 18th birthday, that he pay a restitution fine of $25, that he pay restitution to the victim in the amount of $27,886.57 and comply with various additional conditions.

Discussion

The record discloses no violation of any of defendants rights. It appears that he freely and voluntarily admitted to a battery with full knowledge of the rights he was waiving by his admission. His attorney was present and acquiesced in the admission. The record provides factual support for the admission, first because there was evidence from which it could be concluded defendant personally committed at least a simple battery, and second because even if defendant did not personally strike or kick the victim, he was liable as an aider and abettor for the acts of his companions. (See Pen. Code,  27, subd. (a)(3); 31.) Defendant was represented throughout by competent counsel who ensured the court was made aware of evidence favorable to defendant, and who argued vigorously on defendants behalf, filing two briefs and arguing orally at the dispositional hearing. The court issued the dispositional order only after considering all the evidence, including the reports of defendants probation officer. The dispositional order, although harsher than defendant desired, was well within the juvenile courts discretion and the period of confinement ordered by the court did not exceed the maximum period authorized by law. (Welf. & Inst. Code, 726, subds. (a) & (c); 730, subd. (a); Pen. Code, 243.) Defendant was given credit for all the days he already had been confined.

The restitution order was authorized. (Welf. & Inst. Code, 730.6, subds. (a)(1), (a)(2)(B), & (h).) That defendant may not personally have caused the harm to the victim that required medical treatment does not excuse him from responsibility for restitution as he was guilty as an aider and abettor and therefore liable for the consequences of his companions criminal actions. (People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117; People v. Morante (1999) 20 Cal.4th 403, 433.) In addition, 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. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; and see In re I. M. (2005) 125 Cal.App.4th 1195, 1209-1210.) The court also correctly ordered that defendants parents be jointly and severally liable for restitution. (Welf. & Inst. Code, 730.7, subd. (a).)[1] A separate restitution fine properly was imposed, as was an administrative fee for collections. (Welf. & Inst. Code, 730.6, subds. (a)(2)(A) & (q).) The other conditions imposed by the court were reasonable in scope and reasonably related to defendants conduct and history and to the crime to which he admitted. Defendant properly was ordered to pay an amount not to exceed $60 towards the costs of any tests for drugs or alcohol required by his probation officer. (Welf. & Inst. Code,  729.9.)

Conclusion

In conclusion, we have thoroughly reviewed the record and find no arguable issues. There are no issues requiring further briefing.

The order is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

MARGULIES, J.

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[1] The extent of that liability is limited by Civil Code section 1714.1 to $25,000.