In re Jorge M.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Merced County.  Thomas S. Burr, Commissioner.

            Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

            This is an appeal from a judgment imposed after appellant Jorge M., a minor, admitted, pursuant to a plea agreement, possessing a deadly weapon (Pen. Code, §  12020, subd.  (a)) and committing the offense for the benefit of, at the direction of, or in association with a criminal street gang (Pen. Code, §  186.22, subd.(b)(1)(A)).  Appellant complains on appeal that the restitution ordered by the juvenile court in the amount of $1,145 is not supported by sufficient evidence.  We agree and will reverse the restitution order.

            The facts related to the offenses are not relevant to the issue on appeal.

Discussion

            Initially, appellant was charged with possession of stolen property, a DVD/VCR player taken during the burglary of Karen Shomber's residence.  Evidence was presented that numerous items, valued at $1,145, were taken from the residence.  The only evidence linking appellant to the burglary was the statements of Tina Montanez, a neighbor of Shomber, who said appellant came to her house and offered to sell her a DVD/VCR player and a television.  Montanez bought the DVD/VCR player for $15 and ultimately returned it to Shomber.  She did not see the television.

            The possession-of-stolen-property count was dismissed pursuant to the plea agreement with a Harvey^[1]/Robert H.^[2] waiver.  The juvenile court ordered appellant to pay restitution equal to the value of all the items taken in the burglary.  This was error. 

            A defendant may not be ordered to pay restitution for all items stolen in a burglary when the defendant has not been charged with the burglary and cannot be held criminally responsible for the burglary.  (See In re Maxwell C. (1984) 159 Cal.App.3d 263, 265; People v. Scroggins (1987) 191 Cal.App.3d 502, 505-507.)  Appellant was only charged with possession of the DVD/VCR player.  (In re Maxwell C., supra, at p.  266 [a minor cannot be found to have committed an offense neither specifically alleged nor necessarily included in the alleged offense without his consent].)  Furthermore, the only item connected to appellant's possession by the evidence was the DVD/VCR player, which Shomber recovered.  She thus suffered no loss.  (See People v. Rivera (1989) 212 Cal.App.3d 1153, 1162 [when victim recovers item without loss, restitution is improper].) 

            Although Montanez told investigative officers that appellant offered to sell her a television, no evidence was presented to show that the television offered was the same television stolen from Shomber, and appellant was never charged with possession of the stolen television.  Therefore, it was error for the trial court to order appellant to pay restitution for the items taken in the burglary.  The restitution order must be stricken.  An unauthorized restitution order is subject to correction on appeal.  (People v. Rivera, supra, 212 Cal.App.3d at pp.  1163-1164.)

Disposition

            The restitution order of the juvenile court in the amount of $1,145 is reversed.  In all other respects the judgment is affirmed.  The juvenile court is directed to prepare a new order of restitution and abstract of judgment and distribute it to the appropriate authorities, as well as provide notice to the victim that the previous order has been reversed.

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            ^*Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.

            ^[1]People v. Harvey (1979) 25 Cal.3d 754.

            ^[2]In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.