In re Johnny M.

• Citation: 123 Cal.Rptr.2d 316,100 Cal.App.4th 1128
• Decision Date: 05 August 2002
• Docket Number: No. B154810.,B154810.
• Court: California Court of Appeals
• Parties: In re JOHNNY M., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Johnny M., Defendant and Appellant.

123 Cal.Rptr.2d 316

100 Cal.App.4th 1128

In re JOHNNY M., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. Johnny M., Defendant and Appellant.

No. B154810.

Court of Appeal, Second District, Division 8.

August 5, 2002.

Review Denied October 30, 2002.

Jan B. Norman, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.

RUBIN, J.

Johnny M. ("minor"), a ward of the juvenile court, appeals from an order that he pay restitution to the Downey Unified School District following minor's admission that he damaged school property. The court ordered minor to reimburse the district for, among other things, labor costs of salaried employees who repaired the damage. Minor contends that part of the order not associated with out-of-pocket expenses is not authorized by Welfare and Institutions Code section 730.6.¹ After review, we conclude that the statute's mandate that restitution be ordered for all "economic losses" permits reimbursement for such labor costs. Hence, we affirm.

PROCEDURAL AND FACTUAL HISTORY

In a petition filed May 21, 2001, it was alleged that minor, then 16, came within the provisions of Welfare and Institutions Code section 602 in that he entered the South Middle School on two occasions, March 11 and 18, 2001, with the intent to commit larceny.² At the dispositional hearing, minor admitted the allegations in order to participate in the Deferred Entry of Judgment program. He was declared a ward of the court pursuant to section 602 and ordered confined for a period not to exceed three years, eight months. Entry of judgment was deferred, and minor was placed on probation during which time he was allowed to remain living at home. The terms of probation included a provision that he "[m]ake reparation on all related losses as determined by the Probation Officer...." According to the probation officer's report dated several days before the hearing, minor had been expelled from school because his mother could not afford to pay $1,745, that sum being minor's prorated portion of the restitution being requested by the school district. At minor's request, a restitution hearing was set.

At that hearing, Robert Weinfurter, director of maintenance and related operations for the school district, testified he had investigated the two burglaries. He submitted an itemized list detailing the hours worked by various people to make the affected classrooms operational. The $3,071 total sought included $1,201.56 for custodial cleanup, plus 31 percent benefit payments. It did not include the cost of broken items or items stolen from the classrooms.

Weinfurter testified the costs associated with the first incident included cleanup, the maintenance supervisor changing the locks and making a new keying system for the classrooms, and overtime payments to custodians and grounds men required for additional security to avoid a repeat breakin. After the second incident, no custodians were immediately available, so the school principal herself spent two hours cleaning the rooms until support personnel became available. An outside locksmith was hired to replace all the hardware on the doors. Weinfurter and the school district's operation supervisor also spent time remedying the break-ins. Weinfurter, the maintenance supervisor and the principal were all salaried employees.

Dealing with the aftermath of a burglary is not a part of these employees' normal duties.

The juvenile court found the school's loss to be at least $3,071.14, observing: "It appears to me that all of the damages that have been testified to by Mr. Weinfurter indicate that over $3,000 in just man-hour labor and part costs were involved. And regardless of the fact that some of the people were salaried and some of them were not makes no difference to this court as to loss." The court found the school to be entitled to restitution in the amount of $3,071.14, plus any additional amounts for damaged or stolen items as determined by the probation officer. The court also directed the probation officer to determine minor's prorated share of this amount.

DISCUSSION

Minor contends the restitution order must be reversed and the matter remanded for another restitution hearing because the order improperly includes costs other than out-of-pocket expenses incurred by the district. Specifically, he argues that payments based on the number of hours worked on cleanup by salaried employees and the pro rata share of the benefits to which those employees are entitled were improperly included in the restitution order. We disagree.

Section 730.6 governs restitution in cases where a minor is adjudicated a ward of the court pursuant to section 602. In pertinent part, that statute provides: "(a)(1) 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. [¶] (2)[T]he court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, both of the following: [¶] ... [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (h)." In relevant part, section 730.6, subdivision (h) provides: "A restitution order pursuant to subparagraph (B) of paragraph (2) of subdivision (a), to the extent possible, shall identify ... the amount of each victim's loss to which it pertains, 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. [¶] ... [¶] (3) Wages or profits lost due to injury incurred by the victim.... (4) Wages or profits lost by the victim ... due to time spent as a witness or in assisting the police or prosecution." (Italics added.) A court may order restitution to any legal entity that is a direct victim of an offense. (§ 730.6, subd. (k).)

The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed." (People v. Mearns (2002) 97 Cal.App.4th 493, 499, 118 Cal.Rptr.2d 511.) "men 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.'" (Ibid.; People v. Dalvito (1997) 56 Cal.App.4th 557, 562, 65 Cal.Rptr.2d 679 (Dalvito.))

We begin our analysis, of course, with the statute itself. The plain meaning of the statute defeats the minor's argument that restitution is limited to out-of-pocket expenses. Section 730.6 expressly states that "economic losses," not monies expended is the governing test. Although our research has not uncovered any discussion of the term "economic losses" in the context of the type of juvenile restitution orders at issue here, nor do the parties cite any direct authority, we observe that Section 730.6 parallels Penal Code section 1202.4, which governs adult restitution.³ In that context, both the People of this state when then passed Proposition 8, and extensive case authority express that restitution statutes are to be interpreted broadly and liberally.⁴ (People v. Mearns, supra, 97 Cal.App.4th at p. 499, 118 Cal.Rptr.2d 511.) Any interpretation that limits a victim's rights to restitution "would be in derogation of the expressed intent and purposes of Proposition 8 and the provisions adopted by the Legislature to implement this measure.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1122, 43 Cal.Rptr.2d 681, 899 P.2d 67.) The term "economic losses" is thus entitled to an expansive interpretation.

Particularly in light of restitution being available to "any legal entity" (§ 730.6, subd. (k)), courts must remain mindful of real world business considerations in calculating loss. A review of adult restitution awards confirms that the appellate courts have upheld such vigilance. For example, in addition to profits lost due to time spent as a witness (§ 730.6, subd. (h)(4); see also Pen.Code, § 1202.4, subd. (f)(3)(E); People v. Nguyen (1994) 23 Cal.App.4th 32, 44, 28 Cal.Rptr.2d 140 [restitution award pursuant to Gov.Code, § 13967, former subd. (c) properly included economic loss due to robbery victim having to close her store while she testified]) and the replacement cost of stolen property (§ 730.6, subd. (h)(1); see also Pen.Code, § 1202.4, subd. (f)(3)(A)), courts have affirmed restitution awards of lost business profits resulting from various forms of theft (see, e.g., People v. Thygesen (1999) 69 Cal.App.4th 988, 81 Cal.Rptr.2d 886 [amount of restitution for loss of use of stolen cement mixer should be calculated by number of days reasonably required to replace mixer multiplied by reasonable rental rate]; People v. Ortiz (1997) 53 Cal.App.4th 791, 798, 62 Cal.Rptr.2d 66 [restitution award to nonprofit trade organization properly calculated as the number of counterfeit tapes defendant sold multiplied by the price at which those tapes were sold]; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1390, 44 Cal.Rptr.2d 501 [restitution award properly included compensation for the loss of use of embezzled funds by an award of interest from the time of the embezzlement to the restitution hearing]; People v. Tucker (1995) 37 Cal.App.4th 1, 5, 44 Cal. Rptr.2d 1 [...