In re Aaron R.

Filed 4/5/07 In re Aaron R. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.

Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Respondent.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Appellant.

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Following a contested jurisdiction hearing, the juvenile court found true an allegation that respondent Aaron R. (Aaron), a minor, committed violations of Vehicle Code section 10851, subdivision (a) (unlawfully driving or taking a vehicle) and Penal Code section 594, subdivision (b)(1) (vandalism causing damages of $400 or more). Following the subsequent disposition hearing, the court, inter alia, declared the latter offense a felony and former offense a misdemeanor; adjudged appellant a ward of the juvenile court; and placed him on probation with various terms and conditions, including that he pay restitution, for which he is jointly and severally liable with his mother, in the amount of $143.01. The court refused the Peoples request to order restitution in the amount of $14,498.44.

The People appeal. The Peoples sole contention on appeal is that the court erred in failing to order appellant and his mother to pay restitution in the amount of $14,498.44. We will reverse the restitution order and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

At the jurisdiction hearing on May 16, 2006, the People presented evidence of the following. During the early morning hours of July 30, 2003, Corey H. (Corey) drove in his truck to Mount Provo. He got out of the truck, leaving his keys inside, and two persons assaulted him. Shortly thereafter, Aaron and another person, Caleb R., took the truck without Coreys permission, drove off in it and returned approximately 30 to 45 minutes later. Before it was taken, the truck was in good condition, but when it was returned it had suffered extensive damage. At the time of these events, Aaron was 17 years old.

The report of the probation officer (RPO) indicates that according to a report prepared by the Tuolumne County Sheriffs Department, Caleb told an investigating deputy the following. He and Aaron got in Coreys truck and, with Caleb driving and Aaron in the passenger seat, drove off. Caleb was hot rodding [the truck] pretty bad. He drove the truck over some small trees, in an effort to knock the bumper off the truck. At one point, he got out of the truck and struck it repeatedly with a tire iron. He also poured a gallon of anti-freeze inside the truck.

In two letters, copies of which are attached to the RPO, Amica Mutual Insurance Company (Amica) indicated the following: Amica insured a vehicle belonging to Corey; as a result of an incident on July 29, 2003, the vehicle was deemed a total loss; Amica paid a claim in the amount of $14,355.43; Coreys deductible was $100; and his out-of-pocket rental was $43.01.

In the RPO and later at the disposition hearing, the probation officer noted that Aaron was employed as a heavy equipment operator, earning approximately $1,100 per month, and his earnings were the sole source of income for himself, his wife and the couples 10-month old child. The officer opined that Aarons role in this matter was significantly less involved than that of his co-offender, Caleb, and recommended that the court order that Aaron pay restitution of $143.01, an amount apparently reflecting the victims $100 insurance deductible and the rental-vehicle cost of $43.01.

At the disposition hearing the prosecutor stated: The petitioner would ask the court [to] order the full amount of restitution. That is the restitution amount that would make this victim whole. The fact that he had insurance does not benefit the minor who committed the crime and caused the damage. The court ordered that Aaron . . . and [his mother] shall pay restitution jointly and severally in the amount of [$143.01]. The court, after noting that Aaron was married, had a child and was employed, also ordered that appellant be given a restricted license and be able to drive to and from work and any educational classes he may be taking. Shortly thereafter, the following exchange took place:

[Prosecutor] . . . For the record, petitioner objects to the order of restitution being less than the amount of $14,455.43 [sic]. There is case law specifically on point --

THE COURT: Im aware of the law. Ive been around and around with your office. The court record notes your objection and the court is going to deny the request. . . . Thats all.

DISCUSSION

The People argue that the courts award of direct victim restitution in the amount of $143.01 did not fully compensate the victim for losses caused by Aarons conduct, and therefore the restitution order must be reversed. Specifically, the People argue that the court erred in failing to order restitution in the amount of $14,498.44, reflecting the total of the following sums: $100, the amount of the victims deducible; $43.01, the cost of a rental vehicle paid by the victim; and $14,355.43, the amount representing the damage to the victims truck, as determined by the victims insurer.

Governing Principles

In 1982, by initiative, the voters of California added a provision to the state Constitution establishing a new constitutional right: the right of every crime victim to obtain restitution from the perpetrator of the crime for losses suffered. (People v. Crow (1993) 6 Cal.4th 952, 956.) This constitutional provision directed the Legislature to enact implementing legislation. (Ibid.)

Welfare and Institutions Code section 730.6^[1]is one of the implementing statutes. (In re Tommy A. (2005) 131 Cal.App.4th 1580, 1587.) Section 730.6 governs restitution in cases where a minor is adjudicated a ward of the court pursuant to section 602. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1131.)

Subdivision (a)(2) of section 730.6 provides, in relevant part, that the court, upon finding a minor to be a person described in section 602, shall order the minor to pay, in addition to any other penalty provided or imposed under the law, . . . the following: . . . [] (B) Restitution to the victim or victims, if any, in accordance with subdivision (h). Subdivision (h) of section 730.6 (section 730.6(h)) provides in relevant part: The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. . . . A restitution order pursuant to [subdivision (a)(2)(B) of section 730.6] . . . 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 minors conduct for which the minor was found to be a person described in Section 602, including . . . the following: [] (1) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.

A minor shall have the right to a hearing before a judge to dispute the determination of the amount of restitution. ( 730.6(h)(4).) A juvenile courts restitution order is reviewable for abuse of discretion. (In re Johnny M., supra, 100 Cal.App.4th at p. 1132.)

Analysis

There is no dispute the victims truck suffered extensive damage, and that the amount of restitution ordered by the court was not sufficient to cover the replacement cost of like property, or the actual cost of repairing the property when repair is possible. ( 730.6(h).) Therefore, the court did not order restitution sufficient to fully reimburse the victim. (Ibid.) Moreover, the court did not make an on-the-record finding of compelling and extraordinary reasons for not ordering full reimbursement. (Ibid.) Accordingly, the courts restitution order cannot stand.

Aaron argues, in effect, as follows: Any restitution order in excess of $143.01 for damage to the victims truck would constitute an order that he pay restitution to Amica. Amica, however, is not a direct victim within the meaning of section 730.6, subdivision (k) (section 730(k)). Therefore, the court did not err in limiting its restitution order to the out-of-pocket losses of the actual victim, viz. Corey. There is no merit to this claim.

Section 730.6(k) provides, in relevant part: Nothing in [section 730.6] shall prevent a court from ordering restitution to any corporation . . . or any other . . . commercial entity when that entity is a direct victim of an offense. (Emphasis added.) Section 730(k) has no bearing on the instant case. The court did not order that Aaron make restitution to Amica; therefore, it is beside the point whether Amica is a direct victim within the meaning of section 730.6(k).

Moreover, there is no bar to ordering Aaron to pay restitution for losses covered by the victims insurer. In In re Brittany L. (2002) 99 Cal.App.4th 1381, in upholding a restitution order under section 730.6 where the victims losses due to the minors misconduct were covered by homeowners insurance, the court stated: The purpose behind requiring a minor to pay victim restitution is for its deterrent as well as rehabilitative effect. Requiring the [minor] to make complete reparation to her victims for the harm done to them is more likely to make an impression on the [minor] than simply imposing a statutory fine. [Citation.] These purposes would be thwarted if a minor was relieved from responsibility for making her victims whole simply because the victims had been farsighted enough to purchase insurance for this type of damage to their home. (Id. at p. 1387, fns. omitted.)

Having concluded the courts restitution order was erroneous, we turn now to the question of the proper disposition. The People argue the matter should be remanded with directions that the court order restitution in the amount of $14,498.44. We disagree. Here, because section 730.6 authorizes a court to order less than full restitution provided it complies with the procedural requirements of section 730.6(h) and acts within the scope of its discretion, and because appellant has not had the opportunity to challenge the Peoples claim that he pay more than $143.01 in restitution, an order directing appellant to pay the full amount would be inappropriate. Rather, the matter should be remanded, with the direction that the court proceed in compliance with section 730.6. We express no opinion on whether extraordinary and compelling reasons exist for ordering less than full restitution. We also express no opinion on what amount would constitute full restitution.

DISPOSITION

The order of restitution is reversed. The matter is remanded and the juvenile court is directed to proceed in accord with section 730.6, consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.

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

^[1] All further statutory references are to the Welfare and Institutions Code.