IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 14, 2010
IN RE J. C., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
J. C., DEFENDANT AND APPELLANT.
(Santa Clara County Super. Ct. No. JV35333)
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
In re J.C.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The minor, J. C.,*fn1 appeals from a restitution order entered after he admitted committing first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). (Welf. & Inst. Code, § 800, subd. (a).)*fn2 On appeal, the minor contends that the juvenile court erred by ordering restitution for an Apple laptop computer that he asserts was returned to the victim. For reasons that we will explain, we will affirm the order.
Section 602 Petitions and Section 777 Notice
In January 2009, the district attorney filed a petition under section 602 alleging that the minor, then age 14, committed an attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), 664; count 1), three counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); counts 2 - 4), and two counts of criminal threats (Pen. Code, § 422; counts 5 & 6). The petition was subsequently amended with respect to certain factual allegations. The minor then admitted the allegations in the three counts of second degree robbery (counts 2 - 4) and one of the counts of criminal threats (count 5). The remaining counts were dismissed on motion by the People. The juvenile court declared the minor a ward of the court and ordered him to serve 75 days in juvenile hall with 75 days credit and to serve 60 days on the electronic monitoring program. He was also ordered, among other things, to attend school regularly without unexcused absences or tardies, to not use any illegal substance, and to not be outside the family home between 9:00 p.m. and 6:00 a.m. "without competent adult supervision unless given permission by the Probation officer to do so."
On July 21, 2009, another petition under section 602 was filed alleging that the minor, then age 15, committed first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) on or about December 1, 2008. According to a probation officer's report, which was based on a San Jose Police Department report, the items taken from the victim's residence included two laptop computers. Latent fingerprints found at the scene led police in May 2009, to one of the perpetrators, who confessed to the burglary. The perpetrator had an Apple laptop computer in his possession and the serial number "matched" one of the laptop computers that had been stolen. Further, the perpetrator admitted that he had taken the laptop computer from the victim's residence. The perpetrator identified the minor as "help[ing] him commit the burglary." The police then contacted the minor, who also confessed to committing the burglary. The minor admitted that he had taken a Dell laptop computer but reported that he had sold it to a family friend. The minor's mother "retrieved it and brought it" to the police. The Dell laptop computer did not match the laptop computer described as missing by the victim's family, but the minor "insisted" he had stolen it from the victim's home.
On July 22, 2009, a notice under section 777 was filed alleging that the minor "failed to abstain from illegal substance use, in that, he submitted positive chemical tests for marijuana," "failed to abide by his . . . curfew," "failed to attend school on a regular basis as directed," and "failed to obey his mother, in that, he often leaves home without permission, and does not inform her of his whereabouts."
The minor admitted the allegations in the July 2009 section 602 petition and the section 777 notice. The juvenile court continued the minor as a ward of the court and ordered, among other things, him committed to the Santa Clara County Juvenile Rehabilitation Facilities' enhanced ranch program for six to eight months. The court also ordered that the minor pay restitution and that his "parent(s)" were "presumed jointly and severally responsible for the payment of restitution." The matter was continued to November 5, 2009, for a restitution setting hearing.
According to a probation officer's report filed on November 5, 2009, the victim was seeking $11,952 in restitution for the items stolen, which included an Apple laptop computer, a Dell laptop computer, a Sony Handycam, jewelry, and cash. Attached to the probation officer's report were a San Jose Police Department "PROPERTY REPORT" and victim loss reports, which indicated that the victim's loss with respect to the Apple laptop computer was $1,100. In a written statement, the victim explained that "the family" had lost a "significant amount of important information regarding work and money on the two laptops." (Capitalization omitted.) The victim also indicated that the lost data was based on "hours of work" and that an "unbelievable amount of family pictures are gone that can never be replaced . . . ." (Capitalization omitted.)
A restitution setting hearing was held on November 5, 2009, and the juvenile court continued the matter to December 3, 2009. In a report filed with the court on December 3, 2009, the probation officer explained that the matter had been continued to that date to allow the officer "time to follow up with the victim, as the police report reflected that some items were returned to the victim," and to "report what items were returned if any." The probation officer reported that he had spoken with the victim's husband, who stated that the Apple and Dell laptop computers "were not returned to him as both laptops did not belong to him as the serial numbers did not match" the numbers that he had provided for the laptop computers. The probation officer also reported that a San Jose police officer "stated both laptops are currently at the police evidence room and an investigation is ongoing to determine to whom they belong." The probation officer "confirmed with [the police officer] that both laptops recovered did not belong to the victim." Thus, according to the probation officer, the victim was "still requesting" $11,952 in restitution for the items stolen. At the hearing on December 3, 2009, the court continued the matter for a contested restitution hearing.
The contested restitution hearing was continued several times. At a March 15, 2010 hearing, the prosecutor indicated that the matter "had been set" for a contested restitution hearing, and that there had been "a question" about "one computer that was recovered by the police, but . . . held in police custody." The prosecutor stated that "at the last hearing, we talked to the police officer, and he did get authorization from the insurance company to release the computer." The prosecutor pointed out, however, that the burglary had occurred in December 2008, and it was now 2010. According to the prosecutor, the victim, who had previously been present and prepared to testify, stated that she "had gotten a new computer a long time ago." The prosecutor argued that the juvenile court should award $11,952 in restitution, which was the total amount requested by the victim.
The minor's counsel disagreed, arguing that the minor should not be "force[d]" to pay "the full amount of the computer when the police had the computer" since "it was removed from the co-part's house in May of 2009 . . . ." The minor's counsel observed that an item, such as a car, "loses value" if held by the police for a period of time. According to the minor's counsel, it was "really up to the department to release property to the complaining witness." The minor's counsel argued that a "portion" of the victim's loss "was created by the San Jose Police Department for holding on to [the computer] for an additional year."
The prosecutor replied that it was "not the victims' fault that they didn't get their computer back from the police department," rather it was the "minor's fault and his co-part's fault . . . by committing the burglary in the first place." The prosecutor further stated: "We're not asking for the computer now to be released to the victim. They have no idea if it still works. We don't know if it worked when the police took it into their custody." The prosecutor contended that the victims were entitled to restitution in the amount of their loss, and that was "what we're asking today."
The juvenile court clarified with the minor's counsel that the "remaining amount" of restitution was "not in controversy." The court then stated that it did not believe there was "any sort of exculpatory part of restitution just because it becomes evidence." The court awarded $11,952, which was the total amount of restitution requested by the victim, and ordered that "both participants" in the burglary be jointly and severally responsible.
After the juvenile court made its order, the minor's counsel further argued that "you have the victim getting their property back and [the minor] paying for the missing property that they're getting back in their possession. . . . [T]hat seems like a double recovery."
The juvenile court responded that it was "only a double recovery if it can be proven that it's been in the same condition. And you have the issue of depreciation and all kinds of other things." The court explained that if the minor's counsel "wanted to present evidence on this issue, we should have gone forward. But with what's before the court now, yes, that's the responsibility of the minor, regardless of whether it was held by the police or not."
The minor's counsel further argued: "There's been no evidence that the property's [been] damaged whatsoever. There's been no evidence shown either way. All we know is that there's a laptop in the police's possession. [¶] In the police reports, the officer seized the co-part using the computer. He takes the serial number off. He takes it and puts it into evidence. The last bit of evidence we have is that the computer is working; he's using it. And that's how the police looked at the computer and identified it as the one suspected in the burglary. [¶] . . . [N]ow it seems like they're getting back their property and they're getting the entire value of the property back. . . . [¶] . . . [T]he victim is now recovering twice the value of what they had before." The juvenile court did not change its restitution order.
On appeal, with respect to the Apple laptop computer, the minor observes that "the victim was fully compensated for the computer when the dollar amount of the replacement cost was calculated and made part of the restitution order." (Fn. omitted.) The minor argues, however, that the juvenile court's restitution award "imposed double payment." According to the minor, "the actual computer was . . . returned to the owner when it was released by the police, who had held it as evidence." The minor contends that the court should have deducted "the fair market value of the returned computer." He asserts that although "the computer was a year older" by the time of the contested restitution hearing, "it still had some market value," and he seeks to have the matter remanded for another hearing to determine that value. The minor does not challenge the restitution award "as to other items for which restitution was ordered."
In response, the People argue that the minor's "premise that the computer had been returned at the time of the restitution hearing lacks a factual basis." The People also contend that the minor had the "burden of establishing that the recovered computer had some residual value," and that the victim "should not now be tasked with selling the old computer and then claiming restitution for the difference."
The minor did not file a reply brief.
If a minor is found to be a person described in section 602, the juvenile court must order the minor to pay restitution to the victim. (§ 730.6, subd. (a)(2)(B); id., subd. (a)(1) [setting forth legislative intent]; see also § 730, subd. (b) [court may impose any reasonable probation condition that is "fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced"]; § 730.6, subd. (l) [court must require as a condition of probation the payment of restitution imposed under section 730.6].) The restitution order "shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as a result of the minor's conduct . . . , including all of 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." (§ 730.6, subd. (h).) The restitution order "shall be imposed in the amount of the losses, as determined," and "full restitution" must be ordered unless the court "finds compelling and extraordinary reasons for not doing so . . . ." (Ibid.) The minor has "the right to a hearing before a judge to dispute the determination of the amount of restitution." (Id., subd. (h)(4).)
"Generally, an order of restitution will not be overturned in the absence of an abuse of discretion. [Citation.] The court abuses its discretion when it acts contrary to law [citation] or fails to 'use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious' [citation]." (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.) " ' "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." ' [Citations.]" (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
In this case, the minor challenges the amount of restitution awarded to the victim for the Apple laptop computer. The minor's challenge is predicated on the assumption that the laptop computer was returned to the victim and that it had some remaining market value. However, at the time of the contested restitution hearing on March 15, 2010, there was no evidence that the Apple laptop computer (or any other stolen property) had been returned to the victim, nor was there any evidence about the condition of any property that may have been recovered. "That [a] stolen item [was] retrieved and booked into evidence does not establish that [it was] ever returned to the victim, much less that [it was] undamaged." (People v. Collins (2003) 111 Cal.App.4th 726, 734.) Although the prosecutor indicated at the restitution hearing that the police had "authorization from the insurance company to release" a computer,*fn3 there was no evidence that an Apple laptop computer had in fact been released to the victim or would be released to the victim. In view of the written statement and loss reports from the victim regarding the items stolen and the amount of the losses, and given that there was no evidence that any of the items had been returned to the victim, we determine that there was a factual and rational basis for the juvenile court to award restitution in the full amount requested by the victim. Accordingly, we conclude that the court's award of $11,952 in restitution to the victim was not an abuse of discretion. (In re Anthony M., supra, 156 Cal.App.4th at p. 1016; In re Johnny M., supra, 100 Cal.App.4th at p. 1132.)
The restitution order of March 15, 2010, is affirmed.
WE CONCUR: MIHARA, J. MCADAMS, J.