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In re Ashlie M.

April 29, 2009

IN RE ASHLIE M., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ASHLIE M., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sacramento County, Raoul M. Thorbourne, Judge. Affirmed as modified. (Super. Ct. No. JV125897).

The opinion of the court was delivered by: Sims, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Appellant Ashlie M. was adjudicated a ward of the juvenile court under Welfare and Institutions Code section 602*fn2 for driving without a license (Veh. Code, § 12500, subd. (a)). On appeal, she challenges probation conditions, including payment of restitution (§ 730.6) for a victim's burial/cremation expenses, which she contends were not caused by her conduct and cannot be attributed to her without a civil jury trial. Appellant separately appeals from the orders directing payment of restitution and setting the amount of restitution, though she does not dispute the amount. We consolidated the appeals. In the unpublished portion of the opinion, we shall conclude (1) the probation condition that appellant not be in places where drugs are present is overbroad and must be modified to "places where [appellant] knows drugs are present;" and (2) appellant forfeited her challenge to the search and seizure condition by failing to raise it in the juvenile court. In the published portion of the opinion, we shall explain why the restitution order is valid.

FACTUAL AND PROCEDURAL BACKGROUND

A juvenile wardship petition filed in August 2007 charged appellant with one misdemeanor count of driving without a license on May 2, 2007. In September 2007, based on appellant's admission, the court found the allegation true, on the factual basis that appellant was driving a car without the proper license. The probation report said appellant hit a pedestrian, who later died from his injuries. Appellant was cited for vehicular manslaughter, unlicensed driver, and failure to provide proof of insurance, but the District Attorney's office chose to file only one count of driving without a license.

The case was set for disposition, contingent upon a contested matter of restitution. The court stated that, although a hearing was unnecessary in order to impose restitution, it would be helpful to hear what happened.

The following evidence was adduced at the hearing on January 17, 2008:

On May 2, 2007, around 9:00 p.m., appellant, who was then a high school student, was driving home from work, alone. She was not licensed to drive. She had only a permit (obtained six weeks earlier), which on its face prohibited her from driving alone. She testified this was the first time she drove alone. She claimed that, when she got the permit, someone at the Department of Motor Vehicles (DMV) verbally told her she could drive alone to go to work, with a parent's permission.

As appellant drove southbound on Howe Avenue in the right hand lane, traveling about 37 miles per hour in a 35 miles per hour zone, she saw a bicyclist "kind of in my lane so I went to swerve away from him. Went to the left, but I saw there was a car there on my left and I had to go back into my lane before I got hit. I went back into my lane, and then after that I just remember there was like a fence right before me and I hit a fence." She lost consciousness for a moment and "awoke" in time to see the bicyclist riding away. A fence pole had pierced her windshield. She drove to a nearby gas station and called 911.

At the crash site, first responders found the pedestrian, Pedro Beliz, lying injured in a driveway. He later died from his injuries. Appellant did not remember seeing or hitting any pedestrian.

The accident site is dark at night, with no overhanging street lights. The pedestrian wore dark-colored clothing. There is no sidewalk on that side of the street at that location, where the pedestrian lived.

The highway patrol officer wrote in his report "P2 was walking in the roadway for an undetermined amount of time. He had established himself as a hazard in the roadway. P1 failed to see P2 and struck P2 in the roadway." The officer determined the pedestrian was a factor in causing the accident, because he was walking with, rather than against the flow of traffic. The court sustained an objection to the officer's opinion that the cause of the collision was appellant's inexperience. He testified the party's lack of familiarity with the roadway and the lack of lighting would contribute to the accident, and the speed for these road conditions was the cause of the accident.

The juvenile court decided to impose restitution as a condition of probation, stating in part:

"But in terms of fault, it's hard to say that the minor was at fault. It's hard to say that the pedestrian was at fault. And given that situation, I believe that where the evidence leads me is to conclude that the minor was at the very least a ...


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