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In re Cristian S.

California Court of Appeals, Sixth District

March 9, 2017

In re CRISTIAN S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
CRISTIAN S., Defendant and Appellant.


         Santa Clara County Super. Ct. No. 313JV40341A The Honorable Leslie C. Nichols (Ret.) Judge

          Attorney for Defendant and Appellant Cristian S.: Sidney S. Hollar under appointment by the Court of Appeal for Appellant

          Attorneys for Plaintiff and Respondent The People: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General

          RUSHING, P.J.

         Pursuant to a negotiated agreement in this Welfare and Institutions Code section 602[1] proceeding, the minor Cristian S. admitted one count of conduct that if committed by an adult would constitute lewd or lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a)), and two other counts were dismissed. The same judge, the Honorable Margaret Johnson, handled both the jurisdiction and disposition hearings. The amount of victim restitution could not be determined at the disposition hearing and the parties appeared several times thereafter for “restitution setting.” The case was ultimately set for a contested hearing on victim restitution six months after the disposition hearing. On the day of the contested restitution hearing, the minor's counsel made a motion to continue the hearing because Judge Johnson was away at a judicial training conference. The visiting judge who had been assigned the restitution hearing denied the continuance request, conducted the hearing, and ordered the minor to pay $12, 501.39 in victim restitution.

         On appeal, the minor argues the juvenile court violated his rights under People v. Arbuckle (1978) 22 Cal.3d 749 (Arbuckle) when it denied his request to have Judge Johnson preside over the restitution hearing. We conclude in the published portion of this opinion that the Arbuckle right does not apply to victim restitution hearings in juvenile court. We also hold that even if Arbuckle applied, any error was harmless because the minor received a fair hearing on the restitution issue, and the minor did not meet his evidentiary burden of demonstrating that the amounts ordered as victim restitution were excessive. In the unpublished portion of this opinion, we reject the minor's arguments that the court abused its discretion in ordering restitution for the male victim's bedroom furniture, clothing, and for costs associated with a therapy dog. Accordingly, we will affirm the restitution order.


         In the fall of 2013, the minor was 13 years old. At that time, the minor's neighbor (Victims' Mother) occasionally had the minor watch her four-year-old son (sometimes Male Victim) while Victims' Mother picked up her seven-year-old daughter (sometimes Female Victim) from school. Victims' Mother left her son with the minor on October 2, 2013. She did not lock her front door when she left.

         When Victims' Mother returned, her front door was locked. She knocked several times. When the minor opened the door, Victims' Mother noticed he was very sweaty. The minor said they had been playing hide and seek and her house was very warm. Victims' Mother noticed her son's shirt was tucked into his underwear and “his pants were not straight.” She had never before seen him tuck his shirt in this way. When the minor asked if the boys could continue playing, Victims' Mother sent him home.

         Victims' Mother went into her son's room and “had a feeling something wrong had occurred.” She asked her son what happened and he said the minor had touched his anus with his “wee wee, ” meaning the minor's penis. Later that evening, Female Victim told her mother she had previously “seen and heard [the minor] ask [Male Victim] to touch his ‘wee wee.' ” Female Victim also said the minor had also asked “her to touch his ‘wee wee' on various occasions” and that the minor had touched her vagina.

         Victims' Mother asked the minor to come to her house. She told him she had a teddy bear with a camera in her children's bedroom that had recorded everything, but wanted to hear from him. She said if he told her the truth, she would not tell his parents. The minor told Victims' Mother he put his penis between Male Victim's legs, admitted he had touched Female Victim, and said he had been “ ‘touching them for a couple of weeks.' ” Victims' Mother then asked the minor's parents to come over and the minor admitted in front of his parents that he had touched both victims in a sexual way.

         The following day, Victims' Mother took her children to Santa Clara Valley Medical Center for a medical examination and reported that they had been molested by the minor. Later that day, the police interviewed both victims. Female Victim told the officer the minor “had touched her vagina over her clothing once and about 4 times underneath her clothing skin to skin.” She said she saw the minor touch Male Victim's penis once. Once, through her bedroom window, she saw the minor, who was sitting on her bed, tell Male Victim to touch the minor's penis. Female Victim reported that the minor had “told her that her mother would go to jail if she told on him.” The minor also said he would get in trouble if she told anyone. Male Victim said the minor touched his penis and sodomized him (the officer's words) and that it occurred more than once. Victims' Mother reported that three or four weeks prior to October 2, Male Victim (who was potty-trained) began having accidents, had lost his appetite, and had lost a lot of weight.

         The minor was detained on October 4, 2013. He was released from custody to his parents on the Community Release Program the following day. Since the minor has two younger siblings, the probation department and his parents arranged for him to live with his aunt.

         Procedural History

         I. Wardship Petition & Proceedings Regarding Competency

         The prosecution filed a juvenile wardship petition pursuant to section 602, which alleged conduct that if committed by an adult would constitute two felony counts of lewd or lascivious conduct on a child under the age of 14 (Pen. Code, § 288, subd. (a)): one count for each victim.

         At the detention hearing in October 2013, the court found that the minor was a person described by section 602, continued him on the Community Release Program in his aunt's home, and ordered no contact with the victims. The court granted the minor's counsel's request for a psychological evaluation to assist the minor's counsel in determining whether to enter a plea based on insanity or present a defense based on the minor's mental or emotional condition (Evid. Code, § 1017).

         In November 2013, the prosecution filed an amended petition (§ 602), which retained the original counts and added one count of sodomy by force on a child under the age of 14 (Pen. Code, § 288, subd. (c)(2)(B)).[2] After the minor's counsel declared a doubt as to the minor's competency (Pen. Code, § 1368), the juvenile court suspended proceedings and ordered a psychological evaluation to address competency. In March 2014, Judge Johnson took over the case. In May 2014, after two psychologists opined that the minor was incompetent, Judge Johnson found the minor incompetent, but restorable, and referred him to the County's competency restoration program.

         Between May 2014 and February 2015, Judge Johnson held 14 hearings to review the minor's progress in the competency restoration program and the Community Release Program. After living with his aunt for 10 months and following the development of a safety plan, the court authorized the minor to return to his parents' home on the Community Release Program in August 2014. By that time, the minor's family no longer lived next door to the victims. In February 2015, Judge Johnson found the minor had been restored to competency and reinstated juvenile court proceedings.

         II. Jurisdiction and Disposition

         The parties resolved the case at a jurisdiction hearing on April 6, 2015. The prosecution amended count 1 of the petition (forcible lewd or lascivious act upon children under the age of 14) to add the names of both victims and asked that the remaining counts be dismissed. The minor admitted count 1. Judge Johnson accepted the admission, sustained the petition as to count 1, found that the minor was described by section 602, and dismissed counts 2 and 3. The maximum custody time is 10 years. The court ordered a psychological evaluation for disposition to address risk assessment and the minor's treatment needs. The psychologist concluded the minor's risk for sexual re-offense was low and recommended outpatient sex offender therapy.

         At the disposition hearing in May 2015, the probation officer recommended probation. The minor's participation in the Community Release Program for almost 20 months had been exemplary: he reported to probation as required, there were no discipline problems at home or at school, and each of his chemical tests was negative. The minor had been receiving psychotherapy. The probation officer recommended that the safety plan remain in place while the minor is on probation, that the minor continue his psychotherapy, and that the minor also receive outpatient sex offender treatment. The prosecutor read a victim impact statement written by Female Victim, and Victims' Mother addressed the court.

         Judge Johnson placed the minor on probation with terms and conditions, including 45 additional days on the Community Release Program and ordered the sex offender therapy. She also ordered victim restitution, with the amount to be determined at a future hearing.

         III. Victim Restitution

         A. Restitution Claim and Restitution Setting Hearings

         In August 2015, the probation officer submitted a report to the court, which stated that the victims' parents sought $23, 196.39 in victim restitution for the following: (1) $4, 655.00 in lost wages for the victims' father; (2) $13, 800 for the rental value of Male Victim's unoccupied bedroom after the molestations; (3) $2, 190.45 to replace Male Victim's bedroom furniture, décor and some of his clothing; and (4) $2, 550.94 for a therapy dog. The claim did not include the cost of the victims' medical or therapy appointments.

         At a restitution setting hearing in August 2015, the victims' parents submitted a document in Spanish requesting approximately $2, 000 in expenses. It was not clear whether these were duplicative of or in addition to amounts previously claimed. Judge Johnson continued the restitution setting hearing to clarify the claim and for the parties to explore resolution of the restitution claim. The attorneys appeared six times between September 8 and November 30, 2015 for “restitution setting” to discuss the restitution claim and readiness to proceed with a contested hearing on restitution. On November 3, Judge Johnson set the matter for a contested restitution hearing on the afternoon of December 3, 2015.

         B. Motion to Continue Restitution Hearing

         After she took over the case in March 2014, Judge Johnson presided over every hearing, except for the restitution setting hearing on September 8, 2015. On November 30, 2015, the attorneys appeared for a readiness conference regarding the contested restitution hearing. We do not have a reporter's transcript of that hearing, but the minute order supports the conclusion that the attorneys declared they were ready to proceed, since the contested hearing remained on calendar for December 3. The next day, the minor's counsel asked the clerk to place the matter on calendar for the morning of December 3 to request a continuance.

         A retired visiting judge, the Honorable Leslie Nichols, heard the motion to continue on December 3. The minor's counsel stated, “The reason is simply that... Judge Johnson is familiar with this minor, with the case, with the history of the case. The victim has been here on several occasions and the judge has gotten an opportunity to know the victim because she has spoken out in court before. [¶] And that's my only reason, your Honor. I think it would be in the best interest of the minor if we leave it before Judge Johnson.”[3] The minor's counsel did not mention Arbuckle.

         The prosecutor objected to a continuance, arguing that the victims' parents were prepared to come to court that afternoon and had taken time off work to do so. She said a volunteer attorney in the district attorney's office would be handling the hearing, that the volunteer attorney had prepared for the hearing and would be leaving the district attorney's office at the end of the week. The prosecutor argued that if the court granted a continuance, another attorney would have to prepare for the hearing, and the victims' parents would have to take additional time off work. She asserted: “This is a restitution matter. It's not sentencing” and argued Judge Johnson “certainly set the case in contemplation that another judge might hear it. If she found it necessary to preside herself, she would have set the case on a day that she is here.”

         Judge Nichols denied the motion to continue. He explained that as a visiting judge, it is his practice to ask the court to leave a note on the file if there is a special problem or the file needs special attention. He stated he was there “to work, ” and there was no direction from the court to “do anything other than the work regularly assigned. So balancing all of these ...

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