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In Re E.R., A Person Coming Under the Juvenile Court Law. v. E.R

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


September 7, 2011

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

(Super. Ct. No. JD10247)

The opinion of the court was delivered by: Mauro J

In re E.R. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

E.R. was adjudicated to be a ward of the court under Welfare and Institutions Code section 602 after he pleaded no contest to assaulting a homeless man.*fn1 He contends the juvenile court's order that he pay victim restitution to the hospital that treated his assault victim must be stricken because the hospital was not a direct victim under section 730.6, subdivision (k). E.R. also contends that two of his conditions of probation, which limit with whom he may associate, must be modified to add a knowledge element. Both of his contentions have merit and we will modify the judgment accordingly.

FACTS

On the night of June 6, 2010, police officers were dispatched to investigate a report that a group of juveniles were assaulting an adult male near the Tower Bridge in West Sacramento. The victim, Robert Francis, reported that a group of six minors punched him and then kicked him when he fell to the ground. During the assault, they called him derogatory names. The victim sustained facial lacerations and bruising on his face and body, but declined medical attention.

While the officers were interviewing Francis, a bloodied male staggered toward them and stated he needed an ambulance. The second victim, Dale Louisiana, reported that he too was assaulted by a group of six minors who surrounded him, threw him to the ground and then punched and kicked him. During the assault, the juveniles demanded money and shouted "Broderick!" The juveniles took some of Louisiana's possessions with them when they left the scene. Louisiana described the juveniles, and the police located two of them, one of whom was E.R. Both victims identified E.R. as one of their assailants.

A juvenile petition was filed charging the minor with multiple counts relating to the two assaults. The minor pleaded no contest to assaulting Louisiana by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) on the condition that the remaining counts be dismissed.

The juvenile court adjudged the minor to be a ward of the court, ordered him to remain in the custody of his parents, and imposed various terms and conditions of probation, including restitution in an amount to be determined at a later date.

Thereafter, the minor admitted violating the conditions of his probation. The juvenile court reinstated probation and ordered that the minor serve 45 days in the juvenile hall; that he be released to the custody of his father with electronic monitoring; and that he pay $805.86 in victim restitution to the hospital that treated Mr. Louisiana. The order for victim restitution was made over the minor's objection.

DISCUSSION

I

When a minor is adjudged a ward of the court, the juvenile court must order restitution to reimburse a victim for "any economic loss" resulting from the minor's conduct bringing him within the court's jurisdiction. (§ 730.6, subds. (a)(1) & (j).) The juvenile court may order restitution to any legal or commercial entity that is a "direct victim" of an offense. (§ 730.6, subd. (k).)*fn2

The minor challenges the juvenile court's order directing him to pay $805.86 in victim restitution to the hospital that treated Louisiana. Relying on this court's decision in People v. Slattery (2008) 167 Cal.App.4th 1091 (Slattery), the minor contends the juvenile court erred because the hospital was not a direct victim of the crime.

In Slattery, this court observed that for purposes of victim restitution to a business entity under Penal Code section 1202.4, the California Supreme Court defined "direct victim" as an entity that is the immediate object of the offense or an entity against which the crime was committed. (Slattery, supra, 167 Cal.App.4th at p. 1095, quoting People v. Martinez (2005) 36 Cal.4th 384, 393 (Martinez).) This court held that the treating hospital was not a direct victim of the defendant's crime of inflicting injury on an elder adult, even though the hospital incurred an economic loss when the injured adult failed to pay for her medical expenses. (Id. at pp. 1096-1097.) Although Slattery involved a different statute, the analysis supports the minor's contention in this case. The hospital was not a direct victim of the minor's assault.

The People respond "there is a dearth of directly pertinent authority as to whether the meaning of 'direct victim' as used in the Welfare and Institutions Code parallels the working definition found in Penal Code section 1202.4." The People argue that the words "direct victim" should not be interpreted the same way in the juvenile context "[i]n view of the broad rehabilitative purpose contemplated for conditions of juvenile court probation." We disagree.

In People v. Martinez, supra, 36 Cal.4th 384, the California Supreme Court said that section 730.6, which is applicable to juvenile offenders, parallels Penal Code section 1202.4, which governs adult restitution. (People v. Martinez, supra, 36 Cal.4th at p. 394, fn. 2, quoting In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) Accordingly, the Supreme Court disapproved In re Brian N. (2004) 120 Cal.App.4th 591 to the extent it held that a fire department that had incurred labor costs in fighting a fire was a direct victim within the meaning of section 730.6. (Martinez, supra, 36 Cal.4th at p. 394, fn. 2.)

We will strike the victim restitution order because the hospital is not a direct victim of the offense. (Martinez, supra, 36 Cal.4th at p. 394, fn. 2; Slattery, supra, 167 Cal.App.4th at pp. 1096-1097.)

II

As a condition of the minor's probation, the juvenile court ordered that he "not be in any privately owned vehicle with more than one person who is under the age of eighteen" unless accompanied by a parent or guardian, or unless authorized by the probation officer. (Gang-related condition No. 6.) The juvenile court also ordered that the minor not "associate with nor remain in the presence of any person who has firearms, firearm replicas or other weapons in their possession or under their control." (Gang-related condition No. 7.)

The minor contends that these conditions are unconstitutionally vague pursuant to In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), which held that a probationary condition prohibiting the probationer from associating with anyone who is a member of a specified class of persons, without a requirement that the probationer know the person is a member of the class, is unconstitutionally vague. (Id. at pp. 889-892.) The minor contends that the conditions must be modified to state that he cannot be in a vehicle with more than one person who he knows is under the age of 18, and that he cannot be in the presence of any person he knows has firearms.

The People agree, and so do we. (Sheena K., supra, 40 Cal.4th at p. 892 [an acceptable remedy when such a condition is challenged on appeal is for the appellate court to insert the qualification that defendant have knowledge].)*fn3

DISPOSITION

The portion of the juvenile court order directing E.R. to pay restitution of $805.86 is stricken. The first sentence of gang-related condition of probation No. 6 is modified to read: "You shall not be in any privately owned vehicle with more than one person who you know is under the age of eighteen (18) unless you are accompanied by a parent or guardian or you have the permission of the Probation Officer." Gang-related condition of probation No. 7 is modified to read: "You are not to own, possess, transport or sell any firearms, firearm replica, ammunition or other weapon or be involved in activities with, associate with nor remain in the presence of any person who you know has firearms, firearm replicas or other weapons in their

possession or under their control." As modified, the order of probation is affirmed.

We concur: RAYE P. J. NICHOLSON J.


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