Filed 8/3/16 In re D.H. CA1/4

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                 DIVISION FOUR


In re D.H., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
         Plaintiff and Respondent,                                   A145212
v.
                                                                     (Alameda County
D.H.,                                                                Super. Ct. No. HJ06334702)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         D.H. appeals from a victim restitution order imposed as part of the disposition of a
juvenile delinquency wardship petition filed against him by the Alameda County District
Attorney. Appellant contends the order that he pay $1,374.99 in victim restitution was an
abuse of discretion because it was not reasonably related to his wrongful conduct, or to
his rehabilitation. We disagree and affirm the order.




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                                              II.
                            PROCEDURAL BACKGROUND
       On June 4, 2014, the Alameda County District Attorney filed a petition under
Welfare and Institutions Code1 section 602, subdivision (a) alleging that appellant
committed an assault with a deadly weapon in violation of Penal Code section 245,
subdivision (a)(1). On June 23, an amended petition was filed in which the assault
charge was alleged as a misdemeanor rather than a felony. That same day, appellant
admitted the reduced assault charge.
       In an August 2014 disposition report, the Alameda County Probation Department
recommended that appellant be declared a ward of the court, placed on probation, and
ordered to pay restitution to Sabrina Finister (Finister), the victim of appellant’s assault.
Finister had submitted a claim for restitution in the amount of $2,835.47 to repair damage
to her vehicle and replace property that was taken from her during the commission of the
assault. The probation department recommended that the court hold appellant and a
coparticipant named J.P. jointly and severally liable for Finister’s losses.
       A disposition hearing was held on August 28, 2014. Finister appeared and was
questioned about her restitution claim. Appellant objected that he was not legally
responsible for Finister’s losses because while he was engaged in the conduct which
resulted in the assault charge, a “completely separate group” took property from
Finister’s car and damaged her vehicle. After further discussion, the hearing was
continued.
       On September 5, 2014, the court issued a disposition order declaring appellant a
ward of the court, and ordering him to be placed in a suitable family or group home.
Conditions of probation also were ordered. The restitution matter was continued several
additional times.




       1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.


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       On March 6, 2015, the juvenile court held a restitution hearing in connection with
the disposition of appellant’s petition as well as a petition that had been filed against J.P.
arising out of the same June 2014 incident. After the “evidentiary” portion of the hearing
concluded, the matter was continued so appellant could file a legal brief. In that brief,
appellant argued that J.P. and others were solely responsible for Finister’s damages, and
therefore appellant could not be required to pay any restitution as a matter of law.
       At the continued restitution hearing on March 27, 2015, appellant maintained that
he was not liable for Finister’s damages, but argued in the alternative that if he was
required to pay restitution along with J.P., then $1,374.99 was an “appropriate” amount
for the court to order them to pay. At the conclusion of the hearing, the court ordered
appellant to pay restitution to Finister in the amount of $1,374.99, jointly and severally
with J.P.
                                             III.
                                       DISCUSSION
       We review the restitution order for abuse of discretion. (In re Dina V. (2007) 151
Cal.App.4th 486, 490; see In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
       A. Acts Relating to the Admitted Assault Charge2
       In May and June of 2014, the San Leandro Police Department responded to
several reports that a large group of individuals was walking through different parts of the
city creating disturbances and committing crimes, including battery and robbery. Such
disturbances had also been reported in nearby communities.
       On June 2, 2014, at about 4:15 p.m., officers were dispatched to Blossom Way and
East 14th Street, where it was reported that someone had been hit in the face with a pistol
and robbed, and that the assailant was part of a group that fled towards East 14th and
Estabrook Streets. Police suspected this same group had been engaged in a “large fight”



       2  The facts are taken from the evidence admitted by the court during the March
2015 restitution hearings, which included three police reports, and the testimony Finister
gave at the August 28, 2014 disposition hearing.


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earlier that day in the vicinity of the San Leandro High School Library. Approximately
30 minutes later, police sergeant Jose Delgado broadcast a request for officer assistance
to detain appellant and others at East 14th and Estabrook Streets. Officer Anthony
Pantoja responded to Delgado’s request, found appellant walking away from the scene,
and placed him in handcuffs.
       Delgado subsequently reported that he had been patrolling the area when someone
pointed him in the direction of a fight in the middle of the street. Delgado observed
appellant, another minor later identified as J.P., and about 10 to 15 additional males and
females engaged in a fight with Finister and another female. When Delgado activated his
emergency light and siren, the group began to splinter into smaller groups. After
requesting backup, Delgado got out of his car with the intention of breaking up the fight.
He then saw appellant “aggressing” toward Finister and her daughter. Appellant pulled
off his shirt, shouted derogatory names at Finister, and challenged her to a fight. At the
same time, J.P. approached from another direction, and raised a metal chair over his head
as if to throw it at Finister or Delgado. When Delgado told J.P. to put the chair down, he
threw it in the roadway, and the entire group began to walk away while continuing to
verbally taunt Finister and her family. By that time, additional units were arriving at the
scene and Delgado broadcasted to them that appellant and J.P. needed to be detained.
Officer Pantoja detained and handcuffed appellant without incident. Other officers
detained J.P. and numerous additional suspects, some in handcuffs and others not. J.P.
continued to taunt the victims and attempted to incite the large group of detained
individuals to create a further disturbance with police.
       Finister gave a statement at the scene. She reported that she was trying to pull her
car into a parking lot but there was a large group of people blocking her entry. She asked
them to move and the group became belligerent, surrounding her car, cursing at her and
kicking her car. Finister and her daughter got out of the car and began yelling back at the
crowd. The group became hostile and threatening toward Finister and her family.
Appellant picked up a metal chair, raised it over his head, directed it toward Finister and
ultimately threw it at Finister’s daughter. While Finister was dealing with appellant and


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other members of the group, she heard someone say “They’re taking the car.” Finister
then saw that three people were in her car where her two-year-old grandson was still in
his car seat. J.P. began to drive as the other two ransacked the car for property. When
Finister ran toward them, the intruders exited her car, dropping her daughter’s purse on
the ground. Then J.P. picked up the chair that appellant had thrown and advanced toward
Finister. At that point, the police intervened. Finister’s daughter noticed that her tablet
computer and cell phone were gone from her purse.
       An officer canvassing the scene interviewed a female witness. While sitting in her
own car, this witness saw a group of juveniles attempt to stop Finister’s car as she was
driving in the parking lot. The witness also saw appellant pick up a chair to hit Finister,
and J.P enter the driver’s seat of Finister’s car. The witness also reported that she saw
individuals remove a purse from the car.3
       After appellant was arrested and waived his Miranda rights, he gave a statement to
police. Appellant reported that he was walking through a parking lot with his friends
when a woman told them to get out of the way. A verbal altercation ensued which made
appellant so angry that he grabbed a nearby chair and threw it at the woman with the
intent of striking her with it. Appellant also admitted that he had taken off his shirt and
was challenging the woman to a fight when police arrived.
       B. The Juvenile Court Order
       As our procedural summary reflects, appellant opposed the probation department’s
recommendation that he pay victim restitution to Finister on two grounds: first, that he
was not “liable” for the financial harm that Finister suffered; and second that Finister’s
claim should be reduced to $1,374.99, which was a more “appropriate” amount. Since
the juvenile court ruled in favor of appellant (and J.P.) with respect to the amount of



       3 Apparently the female witness was subsequently interviewed by a defense
investigator. That subsequent statement does not appear in the record on appeal.
Nevertheless, appellant’s summary of appellant’s role in the event is consistent with the
information from the police report which we recount above.


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restitution, we limit our review to the order holding appellant jointly and severally liable
for Finister’s damages. The court offered the following explanation for that ruling:
       “It does appear to me [appellant] was part of a larger group on that day. He was
with [J.P.] not only at the time of the incident, but he is also identified as being with [J.P.]
earlier in another group, in another incident; not that he’s responsible for the assault that
happened at that time, but that he was part of a group and was identified with [J.P.]. So
it’s not just a coincidence that he was later identified with [J.P.] as far as this incident.
       “As far as the specifics of this incident—even though to the Court as the cases
show, an uncharged theft certainly doesn’t mean that the Court doesn’t have the ability to
see if there’s a connection between criminal acts and loss that resulted from those
criminal acts. It appears that both [J.P. and appellant] at the same time approached the
victim, Ms. Finister, while she was in her car and attacked her. They attacked her
physically. They attacked her property by damaging her vehicle, by taking things out of
her car.
       “As [counsel for J.P.] indicated, although [appellant] didn’t get in the car and drive
it like [J.P.], . . . he certainly engaged in Ms. Finister’s attack. He at least distracted her
allowing [J.P.] and some other individuals—I think one was a female—as part of that
group who actually took items from the vehicle. Somebody else, maybe another
individual, damaged the vehicle. But this is all part of a group attack on the victim. And
for [appellant] to be able to be exonerated from responsibility for restitution as part of a
group attack—because he didn’t do—he wasn’t identified specifically as having done
each and every act that we forgot to go and see what act he did and can’t specifically
identify as having done an act done by other members of the same group in order to find
him liable—then we can’t properly rehabilitate him.
       “This is part of a dynamic that the Court recognizes is recurring. And I do see that
so many of my cases here, particularly involving juveniles, it becomes [a] group-peer
dynamic where they do criminal offenses together with their peers. It doesn’t have to be
a huge group of 200. It doesn’t have to be a group of 10 or 15. It could be two or three,
and that seems to be the situation here. When there’s group activity, peer activity like


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here, they can’t avoid responsibility for restitution when their criminal acts led to
physical injuries, property damage or property loss. And that’s what I see here.
       “So as a result I find foundationally [appellant]’s activities led to the property
damage and property loss of Ms. Finister with regards to her car and the property inside
the car and I find him liable for restitution purposes. And I think it’s very important for
his rehabilitation to understand not only can he [not] assault people, but he also can’t be
part of the group that’s attacking people, that’s damaging their property and taking their
property.”
       C. Analysis
       “ ‘In 1982, by initiative measure, the voters passed Proposition 8 giving all crime
victims the constitutional right to receive restitution from the offender who was convicted
of committing a crime against them. [Citation.] The Legislature implemented this
section by amending the restitution statutes applicable to adult offenders [citation] and
section 730.6, which is the parallel provision applicable to juvenile offenders.’
[Citation.]” (In re T.C. (2009) 173 Cal.App.4th 837, 844, fn. omitted.) Section 730.6
establishes detailed procedures and requirements which “govern[ ] restitution in cases
where a minor is adjudicated a ward of the court pursuant to section 602.” (In re
Johnny M., supra, 100 Cal.App.4th at p. 1131; In re Tommy A. (2005) 131 Cal.App.4th
1580, 1587.)
       The purpose of the statute is set forth in section 730.6, subdivision (a)(1), which
states: “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.” When a minor
comes within the juvenile court’s jurisdiction under section 602, section 730.6 mandates
that the court “order the minor to pay, in addition to any other penalty provided or
imposed under the law,” restitution to the victim or victims of his or her offense.
(§ 730.6, subd. (a)(2)(B).)
       When imposed as a condition of probation, the juvenile court’s broad discretion to
impose restitution is not limited to losses directly caused by the minor’s criminal conduct.


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(People v. Lai (2006) 138 Cal.App.4th 1227, 1247–1248; In re T.C., supra, 173
Cal.App.4th at p. 847; In re I.M. (2005) 125 Cal.App.4th 1195, 1209-1210 (I.M.).) “That
a defendant was not personally or immediately responsible for the victim’s loss does not
render an order of restitution [as a condition of probation] improper. . . . [T]he question
simply is whether the order is reasonably related to the crime of which the defendant was
convicted or to future criminality.” (I.M., supra, at p. 1209; People v. Carbajal (1995) 10
Cal.4th 1114, 1123; People v. Lent (1975) 15 Cal.3d 481, 486-487.)
       For example, in I.M., supra, 125 Cal.App.4th 1195, the minor was present when a
fellow gang member committed murder. He approached the victim along with the
shooter and, after the shooter issued a gang challenge and shot at the victim, the minor
and the shooter ran away together, and the minor held the gun for the shooter. On these
facts, the I.M. court affirmed a restitution order requiring the minor to pay for the
victim’s funeral expenses, finding the order was reasonably related to the minor’s offense
of being an accessory after the fact. (Id. at pp. 1208–1210.) Although that offense took
place after the murder occurred, the minor had been “promoting and assisting gang
conduct” that led to the loss. (Id. at p. 1210.) The restitution order thus served the
rehabilitative purpose of making the minor aware of the consequences of his gang
membership “by compelling him to share responsibility for the gang-related activities in
which he in some way participated.” (Ibid.) It also forced him to face the “emotional
and financial effects of gang-related activity on the family of the victim,” and was
therefore directly related to his future criminality. (Ibid.)
       Applying the principles summarized above, we conclude that the trial court
properly exercised its discretion in this case. The factual evidence regarding the events
of June 2, 2014, including those involving Finister specifically, as well as more broadly
in nearby parts of San Leandro, led the court to reach three important conclusions:
(1) appellant was engaged with a group of youths who were deliberately causing public
disturbances throughout the city as a curtain behind which they committed both assaults
and property crimes on those who happened to be in their path; (2) while appellant did
not take Finister’s property himself, his confrontation and physical attack on Finister


                                               8
distracted her from her car and property, allowing J.P. and others involved with him in
the broader disturbance to damage her car and take personal property from within it; and
(3) imposition of restitution under these circumstances was an important component of
appellant’s rehabilitation in that it stressed his accountability for the indirect, as well as
the direct, consequences of his actions.
       As discussed above, restitution may be imposed where the defendant was not
“personally or immediately” responsible for the loss being compensated, when the order
is “reasonably related to the crime of which the defendant was convicted or to future
criminality.” (I.M., supra, 125 Cal.App.4th at p. 1209; see also People v. Carbajal,
supra, 10 Cal.4th at p. 1123; People v. Lent, supra, 15 Cal.3d at pp. 486-487.) Here, the
loss to Finister was reasonably related to the misconduct of appellant which created the
opportunity for those in his company to damage and take Finister’s property while she
was distracted by appellant’s assaultive conduct. Moreover, appellant’s participation as a
member of a large group of youths misbehaving throughout San Leandro that day
encouraged other members in the group to commit crimes against persons with whom
they had incidental contact as they roamed the neighborhoods. In addition, it was
reasonable for the court to conclude that making appellant responsible for this monetary
loss would impress on him the important lesson that there are indirect consequences for
one’s actions that he cannot avoid—a lesson that will further his rehabilitation.
                                              IV.
                                       DISPOSITION
       The victim restitution fine of $1,374.99 is affirmed.




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                                 _________________________
                                 RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




A145212, In re D.H.


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