In re Brittany L.

• Decision Date: 10 June 2002
• Docket Number: No. B154167.,B154167.
• Citation: 122 Cal.Rptr.2d 376,99 Cal.App.4th 1381
• Court: California Court of Appeals Court of Appeals
• Parties: In re BRITTANY L., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Brittany L., Defendant and Appellant.

122 Cal.Rptr.2d 376

99 Cal.App.4th 1381

In re BRITTANY L., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. Brittany L., Defendant and Appellant.

No. B154167.

Court of Appeal, Second District, Division 7.

June 10, 2002.

As Modified July 10, 2002.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Stephanie A. Mitchell, Deputy Attorney General, for Plaintiff and Respondent.

JOHNSON, Acting P.J.

In this case we hold the trial court erred in failing to order victim restitution without regard to potential third party reimbursement, as well as in failing to consider the defendant's evidence challenging the necessity and amount of the victims' claimed repair costs. Accordingly, we vacate the restitution order and remand to the trial court with directions to determine the amount of economic loss suffered by the victims in this case.

FACTS AND PROCEEDINGS BELOW

Mr. Steven Pastore and his wife decided not to pass out candy to Trick or Treaters on Halloween night 2000. They turned off the lights outside and inside the home except for reading lights in the upstairs bedroom.

Around 7:30 p.m. Pastore heard pounding on his front door. He also heard his doorbell ringing continuously. He looked out the upstairs bedroom window and saw two boys in his next-door neighbor's driveway. Appellant Brittany L. lives next door to the Pastores with her sisters and mother.

An hour or so later Pastore looked out his window and saw appellant and four boys standing on appellant's driveway. A pizza deliveryman arrived and the juveniles went inside appellant's house.

Around 9:00 p.m. Pastore and his wife heard loud popping sounds. The juveniles had thrown eggs at the Pastores' house. Pastore went downstairs to investigate. When he turned on the porch light the boys fled. Pastore called the police.

Police detained appellant the next day. The district attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging appellant had committed felony vandalism with damages in excess of $400.¹

At the conclusion of the adjudication hearing the court declared appellant a ward of the court, sustained the petition and found the vandalism offense to be a felony. The court ordered appellant placed on home probation with physical confinement not to exceed three years. The court set a date for a contested restitution hearing.

The initial report prepared by the probation department recommended appellant pay victim restitution of $500, the amount of the Pastores' insurance deductible from the $3,500 it cost to clean and repaint the exterior of the Pastores' home. In a supplemental report prepared for the restitution hearing the probation department recommended victim restitution in the amount of $4,300, which included the Pastores' $500 insurance deductible, plus $3,800, representing the amount it cost to resurface the driveway when the Pastores learned power washing did not remove the egg stains from the driveway.

At the restitution hearing Pastore testified his insurance paid all but his $500 deductible for the cleanup and painting of the exterior of his home. He testified he sought reimbursement for this amount plus the $3,800 he paid to resurface the driveway with epoxy and pebble stones. Pastore presented documentation to substantiate these amounts. He explained he needed to resurface the driveway because power washing did not remove the egg stains and contractors had informed him the damaged portions of his concrete driveway could not be successfully replaced. Pastore stated he did not submit a claim to his insurance company for the cost of resurfacing his driveway because he believed the additional claim would increase his insurance premium.

Appellant challenged the amount to resurface the driveway as both unnecessary and excessively expensive. Prior to the hearing appellant's mother had obtained estimates from other contracting companies for the cost of resurfacing the Pastores' driveway.

The court, however, did not permit appellant to put on her defense. Nor did it order restitution in the full amount claimed by the Pastores. Instead, the court ordered victim restitution of $500, the amount of the Pastores' insurance deductible. The court reasoned: "Mr. Pastore's damages were covered by insurance. I almost think it's a violation of the insurance code, ... to raise somebody's home-owner's or even automobile or automobile insurance when an incident happens that is not the policy holder's fault, to raise your insurance.

"I find the amount of damages evidenced by Mrs. [L.] directly to Mr. Pastore for $500, and then under the Civil Code Mr. Pastore can go into a civil court for the remaining $3800 unless he wants to turn that over to his insurance company. And that will be the amount of restitution at this point. [¶] I cannot tell by the testimony which is hearsay whether or not somebody actually told him they were going to raise his insurance, whether his insurance has actually been raised. I can't tell.

"And I think it deserves a full hearing from both parties, so he can take Mrs. [L.] to court over the $3800. And we are limiting her restitution to $500 plus whatever the insurance company is going to get from her because they are going to take her to court. [¶] So she will be going to civil court with the insurance company for their subrogation, and then you can take her to court for the $3800 or $2500 or whatever the amount is in small claims court. From the evidence here, I just can't make a decision on this testimony."

Appellant filed a notice of appeal from the judgment. Appointed counsel found no arguable issues to raise on appeal within the meaning of People v Wende.² Accordingly, the People chose not to file a brief in the matter. After our independent review of the record this court asked counsel to brief the issue whether the court conducted the restitution hearing in accordance with the mandates of section 730.6. We also asked counsel to brief the issue whether this court should "vacate the order of disposition and remand for a new restitution hearing in which the court can make the required findings as to the victim's entitlement to direct restitution."

Having received both sides' briefs on these issues we now vacate the disposition order and remand for a new restitution hearing.

DISCUSSION

I. THE COURT ERRED IN FAILING TO ORDER RESTITUTION IN AN AMOUNT NECESSARY TO FULLY REIMBURSE THE VICTIMS WITHOUT REGARD TO THE VICTIMS' REIMBURSEMENT FROM OTHER SOURCES.

In 1982 the voters passed Proposition 8, making entitlement to restitution the constitutional right of every crime victim. California Constitution, article I, section 28, subdivision (b) states: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section."

The Legislature thereafter enacted amendments to the restitution statutes applicable to adult offenders. At the same time the Legislature amended the Welfare and Institutions Code to provide "parallel restitutionary requirements for juvenile offenders."³ In enacting Welfare and Institutions Code section 730.6 the Legislature declared: "It is the intent of the Legislature that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs any economic loss as a result of the minor's conduct shall receive restitution directly from that minor."⁴

The Legislature also mandated victim restitution should be imposed "in the amount of the losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. A minor's inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of the restitution order. A [victim] restitution order ..., to the extent possible, shall identify each victim, ..., and shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct for which the minor was found to be a person described in Section 602, including all of the following: [¶] (1) Full or partial payment of 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...."⁵

Finally, section 730.6 makes clear the only person or entity entitled to lien or subrogation rights when ordering restitution is the state's own Restitution Fund. "Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained against the minor or the minor's parent or guardian arising out of the offense for which the minor was found to be a person described in Section 602. Restitution imposed shall be ordered to be made to the Restitution Fund to the extent that...