(Santa Clara County Super. Ct. No. JV34578) Trial Judge: Hon. Patrick Tondreau
The opinion of the court was delivered by: Premo, Acting P.J.
CERTIFIED FOR PUBLICATION
In this juvenile delinquency case (Welf. & Inst. Code, § 602),*fn1 14- year-old G.C. (minor) was granted deferred entry of judgment (§ 790 et seq.) on a single allegation of felony vandalism by graffiti (Pen. Code, § 594, subds. (a) & (b)(1)). One condition of his participation in the deferred entry of judgment process was that he pay restitution to the City of San Jose for the costs it incurred in cleaning up the graffiti. Several months later the minor filed a motion under section 742.16, subdivision (b), asking the court to reconsider the order because neither he nor his family had the ability to pay it. The juvenile court concluded that section 742.16, which requires the court to consider ability to pay when ordering restitution for graffiti abatement, did not apply in the deferred entry of judgment context. Accordingly, the court did not reach the merits of the motion.
In this petition for writ of mandate the minor contends that section 742.16 is applicable to his case and that the juvenile court erred in refusing to rule on the merits of his motion. After receiving preliminary opposition and the minor's reply we issued an order to show cause why the writ should not issue. To permit further consideration of the issues raised by the petition we stayed the restitution order pending further order of this court. We now conclude that section 742.16 does apply in deferred entry of judgment cases and shall issue the writ as requested.
On June 26, 2008, the prosecution filed a section 602 petition alleging that the minor had committed a single felony count of vandalism by graffiti in or about February 2008. The minor admitted the allegation, which related to six "tags" made with a wide-tipped felt marker on a sound wall located within the City of San Jose.*fn2 The City of San Jose filed a request for restitution indicating that it had cleaned up the minor's graffiti at a cost of $516.
The probation department determined that the minor was suitable for deferred entry of judgment. Referring to the city's restitution request, the probation report stated that the minor's father had the means to pay. The minor and his mother signed the deferred entry of judgment contract, promising that the minor would pay restitution to the victim as determined by the probation officer, perform 66 hours of community service, and participate in the graffiti abatement program. On August 4, 2008, the juvenile court granted deferred entry of judgment and ordered restitution of $516 to the City of San Jose, noting that the minor's mother "is jointly and severally liable."
By January 2009, the minor had completed his community service hours but had not satisfied his restitution obligation. In July 2009, still having failed to satisfy the restitution condition, the minor filed a motion pursuant to section 742.16, subdivision (b), which provides that, where a minor is "found to be a person described in Section 602 by reason of the commission of an act [of graffiti]" and the graffiti has been removed by a public entity, the court shall order the minor to pay the cleanup costs "to the extent the court determines that the minor or the minor's estate have [sic] the ability to do so." The minor stated that he did not have the ability to pay because he was, by then, only 15 years old and could not find a job, his mother was a full- time homemaker, and his father could not work because of health problems. He asked the court to either reduce the amount ordered or order additional community service in lieu of monetary restitution.
The prosecutor opposed the motion, arguing that section 742.16 does not apply when the court has granted deferred entry of judgment. According to the prosecutor, since section 742.16, subdivision (b) applies when the minor is "found to be a person described in Section 602," the subdivision applies only when the minor is adjudicated a ward of the court. Since the minor had not been adjudicated a ward of the court, the subdivision and its ability-to-pay requirement were inapplicable.
The juvenile court held, "None of you have talked about the most important feature of the entire scheme, which is that it's now embedded in the state Constitution that victims have an absolute right to their restitution. So I think if you take that when you're looking at whether someone is suitable for [deferred entry of judgment] at the front end I think you can. And not only can, you probably have to consider their ability to pay the restitution as a condition of getting [deferred entry of judgment] because if you go on [deferred entry of judgment] and we buy your argument the victim ends up with nothing. If he's made a ward of the court the victim gets a ten year abstract of judgment. In ten years the Department of Revenue is sending out a tax intercept to try to make the victim whole. And the victim has ten years and can renew that at the end of ten years and use it as a civil judgment to collect. It seems to me that is much closer to compliance with Proposition 9 than the notion of just saying well, we'll just consider ability to pay today and if the minor can't pay, well, that's not--that's not a factor to consider.
"Having said that, I do not think [section] 742.16 applies in this case. Whether or not you have to be a ward I'm not going that far. I don't think I have to. I think clearly the language of [section] 742.16 the Court has to have jurisdiction. And the Court has not taken jurisdiction in this case [by virtue of the deferred entry of judgment proceedings]. And so the provision of that whole scheme of [section] 742[.10 et seq.] I don't think applies." This petition followed.
Section 730.6 is the general restitution statute applicable in proceedings brought under section 602. It provides that when a minor is "found to be a person described in Section 602" the court must order restitution to the victim or victims unless the court finds a "compelling and extraordinary reason" not to do so. (§ 730.6, subds. (a)(2) & (h).) Inability to pay "shall not be considered a compelling or extraordinary reason" not to order restitution. (§ 730.6, subd. (h).) Section 742.16, on the other hand, requires the court to find that the minor or the minor's estate has the ability to pay before ordering restitution in graffiti and vandalism cases.
Section 742.16 is part of the Graffiti Removal and Damage Recovery Program enacted by the Legislature in 1994. (Stats. 1994, ch. 909, § 11, p. 4603 et seq.) Among other things, it requires minors who have committed acts of vandalism and other malicious mischief to repair or pay for the damage they cause. Subdivision (b) of section 742.16 applies when a public entity repairs or replaces property damaged by the minor. It provides, "If a minor is found to be a person described in Section 602 by reason of the commission of an act prohibited by [Penal Code] Section 594 [among others], and the graffiti or other material inscribed by the minor has been removed, or the property defaced by the minor has been repaired or replaced by a public entity . . . the court shall determine the total cost incurred by the public entity for said removal, repair, or replacement . . . [and] shall order the minor or the minor's estate to pay those costs to the probation officer of the county to the extent the court determines that the minor or the minor's estate have [sic] the ability to do so." (Italics added.) Section 742.16 contains other ...