People v. A.F. (In re A.F.)

• Docket Number: A165504
• Decision Date: 04 August 2023
• Parties: In re A.F., a Person Coming Under the Juvenile Court Law. v. A.F., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
• Court: California Court of Appeals Court of Appeals

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In re A.F., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. A.F., Defendant and Appellant.

A165504

California Court of Appeals, First District, Second Division

August 4, 2023

NOT TO BE PUBLISHED

(Contra Costa County Super. Ct. No. J1800179)

RICHMAN, ACTING P.J.

Minor A.F. challenges the condition of her probation requiring her to pay victim restitution in the amount of $17,028 after she admitted to organized retail theft of merchandise from a Lululemon store. She argues the juvenile court abused its discretion by ordering restitution for claimed economic losses not supported by substantial evidence. Alternatively she contends the juvenile court abused its discretion by ordering her to pay restitution for the retail value of the stolen items, and by allowing Lululemon to retain ownership of the items. We find merit in some of these contentions, and so will reverse the restitution order and remand for a new hearing.

BACKGROUND

According to the probation officer's report, on October 13, 2021 then 16-year-old A.F. and four individuals entered a Lululemon store in Corte Madera, grabbed as much merchandise as they could hold, and ran out of the store. One of the items contained a hidden tracking device, and Lululemon tracked the device to a location in San Francisco. San Francisco Police officers went to the location and found five individuals, including A.F., in a car with the Lululemon merchandise. All five people were arrested.^[1]

On October 14, 2021, the Marin County District Attorney filed a juvenile wardship petition (Welf. &Inst. Code, § 602)^[2], alleging A.F. committed felony burglary (Pen. Code, §§ 459, 460, subd. (b); count one) and misdemeanor organized retail theft (id., § 490.4, subd. (a)(2); count two).^[3]

On November 15, pursuant to a negotiated resolution, A.F admitted to count two, in exchange for the dismissal of count one. The matter was transferred to Contra Costa County A.F.'s county of residence, for disposition.

On January 7, 2022, the juvenile court held a dispositional hearing and placed A.F. on non-wardship formal probation (§ 725) for six months. As a condition of probation, the court ordered A.F. to pay restitution to Lululemon in an amount to be determined at a future hearing.

On April 12, the probation department filed a "Restitution Supplemental Report," recounting its communications with investigators from Lululemon's Asset Protection department. One of its loss prevention officers, Matthew Kell, "reported that while all merchandise stolen in the offense had been recovered, it was unable to be returned to the store for sale, due to smelling heavily of marijuana. Lululemon had agreed to donate the merchandise to a women's shelter in Marin County, however, Mr. Kell had not yet received confirmation for this, as the recovered merchandise is still being held by Central Marin Police Department as evidence.... As Asset Protection is unable to access the recovered stolen merchandise to scan for an itemized list, Mr. Kell was unable to provide . . . any further documentation for their claim."

On May 10, the court authorized A.F.'s attorney to inspect the stolen items held at the police station.

On June 3, the court held a contested restitution hearing. The parties stipulated, in writing, to the following facts, which were based on statements from loss prevention officer Kell:

"Value of the items taken [is] $17,028.

"All stolen items are currently at the Central Marin Police Authority evidence room.

"Items initially smelled of marijuana.

"As of May 2022, items no longer smell like marijuana.

"Lulu states they cannot return items to their shelves due to the smell of marijuana.

"Lulu agreed to donate all items to a women's shelter.

"Lulu gets tax write off and good publicity for donating to women's shelter."

"Lulu would get bad publicity for returning items to shelves that were stolen and smoked around."

The stipulation then concludes with a paragraph quoting an email from the prosecutor to A.F.'s attorney, which in turn quotes statements from loss prevention officer Kell:" 'Technically it could be used and resold, however it wouldn't be a good look for Lululemon as a brand to re sell [sic] items that were taken as part of a theft and smoked around. Lulu does sometimes reshelf items for sale that have been recovered from a theft if they were recovered shortly in time after and have not been smoked around. Given the gap in time between the offense and now, inventory items have cycled through and items get discontinued. Some items go to the outlet store where they are discounted. Ultimately, even if a case where there's no smell of MJ, it would be up to the individual stores to determine what is re-shelved."

The court accepted the stipulation and heard arguments from the parties. A.F.'s attorney stated that in the month before the hearing, she went to the Central Marin Police Authority, examined and itemized the Lululemon merchandise, and personally smelled each item.^[4] The stolen items consisted of 153 pairs of leggings, two raincoats, and one puffy vest. Counsel did not smell any marijuana on the items. Nor did she see any physical damage to them. Except for two pairs of leggings, the items still had price tags attached to them.

A.F.'s counsel argued that because the items no longer smelled like marijuana, Lululemon should be able to restock them, and therefore, it "should not get the $17,028 that [it is] requesting." While the loss prevention officer claimed, "that maybe it's not good press if they had been smoked around," counsel argued, "they no longer smell like marijuana, and I don't think there's any sort of notes any time anybody buys [L]ululemon leggings about where they had been before. And, in fact, lots of stores accept returns with the tags on the items. [¶] I can go to [L]ululemon right now, buy a legging, and then eventually return it . . . within the time period, and no one knows what I had done with that legging when it was in my possession." Counsel added that the items were in the possession of A.F. and her coresponsibles for less than one hour. Additionally, counsel attempted to refute the loss prevention officer's suggestion that the items may have been discontinued. Counsel presented screenshots of Lululemon's website, which showed that the same type of leggings that had been stolen were being sold at the same prices as when they were initially seized by police.

The prosecutor argued among other things that Lululemon should not be forced to resell the stolen items: "So [L]ululemon, they have a brand that they have to protect.... [W]hat Mr. Kell has told me, is that it would not be a good look for their brand to resell these items that were part of a theft and smoked around, and that . . . even if they . . . don't smell of marijuana, at one point, did smell of marijuana, if that came out, that would be detrimental to their brand."

The court then stated its initial thoughts, noting that there were unknown factors that remained in this case: "[W]e have no industry representative or anybody who's truly an expert in this area who's looked at the items and . . . tell us that the items are reshelved. [¶] . . . [¶] But assuming . . . the items in evidence-and it's somewhat indefinite as to when they may be returned. And at that time, it's reasonable that somebody would have an opinion as to whether or not they have any value at all." The court continued, "[W]hen these things were taken away, subsequently recovered by police officers in an altered state, albeit a state that doesn't-it appears may not have been-resulted in permanent damage to the items, whether that makes the particular items unmarketable within the industry, given these particular circumstances." The court then stated, "I didn't hear any arguments that, possibly, at this point, I could reserve restitution, since there are certain factors that are things that haven't occurred yet, whether or not, truly, [L]ululemon is not gonna sell these things again."

Counsel for A.F. then requested the court to consider "reserving" the restitution issue "until they figure it out." The prosecutor opposed the request, arguing the court should issue an order that day, in light of the fact that A.F.'s probation term was soon to expire.

The court commented that "it's quite difficult" to discern the loss to the victim in this case and posed the following open-ended questions: "Are they gonna resell? Do they smell of marijuana? Is it practice within the industry to sell a product, perhaps, a year-and-a-half, two years later? Would the styles have changed? Would this be a total loss?" It then stated, "And not to advise anybody, but I wouldn't have rushed to a determination at this point as to the value of the restitution."

A.F.'s counsel again requested a continuance, specifically to the week before A.F.'s probation term was set to expire in early July, so that counsel could obtain more information regarding the status of the items in evidence. Apparently, the items were being held in police custody at the request of a defense attorney in a separate case involving one of A.F.'s co-responsibles. The prosecutor again opposed the continuance request.

Following this argument, the court declined to continue the hearing and ordered A.F. to pay restitution, jointly and severally with her coresponsibles, in the amount of $17,028. The court, however, stated that "if something happens between now and when [A.F.] gets off [section] 725 [probation], . . . we can possibly revisit this."

On June 10, relying on People v. Chappelone (2010) 183 Cal.App.4th 1159 (Chappelone), A.F. requested that the court reconsider its restitution order, and issue a new order...