Filed 3/28/14 In re A.P. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



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

THE PEOPLE,
                                                                         E059493
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. J244175)
v.
                                                                         OPINION
A.P.,

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Brian D. Saunders,

Judge. The order is reversed.

         Frank J. Torrano, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Amanda E.

Casillas, Deputy Attorneys General, for Plaintiff and Respondent.


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       The minor appeals from the juvenile court’s order setting the amount of victim

restitution. The minor argues the order is invalid because it was entered after the court

terminated his probation and discharged his wardship. As discussed below, we conclude

that the order setting the amount of victim restitution must be vacated. This is because

the plain language of Welfare and Institutions Code section 730.6, subdivision (h), limits

the juvenile court’s authority to determine the amount of victim restitution to the “term of

the commitment or probation.” We also hold that the minor did not invite the error.

                                    FACTS AND PROCEDURE

       In late April and early May of 2012, the minor, who was then 15 years old,

repeatedly vandalized the home of a neighbor who was away taking care of her elderly

mother. The minor initially used a brick to break a side window. The minor returned to

the house three more times and “tore it up.” The minor spray painted graffiti and a racial

slur on the inside walls and on artwork and punched holes in the walls using a

sledgehammer and a garden pick. The minor used a shovel to peel up linoleum and

carpet. The minor relieved himself on a bathroom floor, stole various items from the

home and destroyed furniture. He invited his sister, his girlfriend and her mother to steal

items from the home, including collectible items. The minor also used illegal drugs in

the home and left lighter fluid in one of the bathrooms. The minor tore down the

backyard fence. On May 8, the victim and her elderly mother discovered the damage

when they returned to the home.




                                             2
       The minor was arrested on May 10, 2012, and placed in juvenile hall. On May 14,

2012, the People filed a Welfare and Institutions Code section 6021 petition alleging the

minor committed first degree residential burglary (Pen. Code, § 459) and felony

vandalism (Pen. Code, § 594, subd. (b)(1)).

       At the detention hearing held on May 15, 2012, the minor admitted the burglary

count and the court dismissed the vandalism count. The court found the minor came

within section 602 and ordered him to remain in juvenile hall. The maximum period of

confinement for the burglary count was six years. Disposition was set for May 30. The

minor was retained in juvenile hall.

       On May 30, 2012, the probation officer told the court that a subsequent petition

was filed on May 29 regarding “vandalism and receiving,” for which the minor had been

cited prior to the crimes in the current case. The detention hearing was continued to June

4 because of the new charges. The minor was detained in juvenile hall.

       The disposition hearing was held on June 4, 2012. On the subsequent petition, the

minor admitted to having committed felony vandalism by defacing “walls, sidewalk, post

signs, utility boxes, benches” belonging to the City of Chino. The court ordered the

minor to be released on probation to his mother from juvenile hall on July 23, 2012, after

75 days in custody. Among the probation terms was number 22: the minor was to make

restitution to the owner of the vandalized home in an amount to be recommended by the


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


                                              3
probation officer and determined by the court. Probation was set to expire on June 3,

2013.

        On April 29, 2013, the Probation Department filed a Request for Special Hearing.

Probation asked the court to set a restitution hearing for May 7, 2013, to modify term 22

of the minor’s probation to show a restitution amount of $44,614.30.

        On May 7, 2013, after an off-the-record bench conference defense counsel asked

for a continuance so the court could order a supplemental memo to clarify and document

the restitution amount. Defense counsel was going to check on an accompanying adult

case. The court continued the restitution hearing to June 3, 2013.

        On May 30, 2013, the Probation Department filed a supplemental memo

documenting and requesting restitution in the amount of $54,302.41.

        The minutes of the attorney-only hearing on June 3, 2013 show that the matter was

continued to June 27, 2013 for the “parties to discuss and go over figures for the amounts

requested for restitution.”

        Later in the day on June 3, 2013, the court held a non-appearance review hearing.

The court adopted the probation officer’s recommendation that it dismiss the original

petition, discharge the minor as a ward of the court, and terminate the minor’s probation.

The court signed the order on June 13, 2013.

        The continued attorney-only restitution hearing was held on June 27, 2013. The

court modified probation term 22 to reflect $29,766.27 for victim restitution. This

amount included most of the victim’s claim, minus her claim for temporary housing and



                                             4
depreciation that was withheld by the victim’s homeowner’s insurance company. The

minor was to be jointly and severally liable with his three co-participants. The court

reserved jurisdiction over victim restitution and indicated the victim could claim $10 to

$15 per hour for time spent cleaning up the vandalized home.

       On August 21, 2013, the court held a further hearing to determine the amount of

victim restitution. The court granted the minor’s motion to waive $1027.69 in restitution

to the City of Chino. The court granted additional amounts of restitution to the victim of

the home vandalism, for a total of $43,394.38, and set a hearing for October 21 to

consider landscaping costs. Defense counsel objected to the current and June 27, 2013

restitution orders because the court lost jurisdiction to determine the amount of restitution

when it terminated the minor’s probation on June 13, 2013. Defense counsel stated that it

would have objected to the June 27 hearing had it known then that the juvenile court had

already terminated the minor’s probation. The court noted the objection but overruled it.

The court reasoned that ending the court’s ability to determine victim restitution on

termination of juvenile probation would be contrary to the Legislature’s intent regarding

victim restitution.

       This appeal followed.




                                              5
                                            DISCUSSION

       1.     The Juvenile Court Lost Jurisdiction to Determine the Amount of Victim

Restitution

       The minor argues the juvenile court lost jurisdiction to determine the amount of

restitution when it terminated his probation and discharged the wardship on June 13,

2013. The court entered the restitution order on June 27, 2013, and modified that order

on August 21, 2013.

       The statute that governs the ordering of victim restitution in juvenile court is

section 730.6, subdivision (h), which provides in part: “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.”

(Italics added.)

       We begin, as in any case of statutory construction, with the language of the statute

itself. “Generally, a reviewing court’s ‘fundamental task in construing a statute is to

ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.

[Citation.]’ The analysis starts with an examination of the actual words of the statute,

giving them their usual, ordinary meaning. [Citation.]” (Leavitt v. County of Madera

(2004) 123 Cal.App.4th 1502, 1513-1514.)




                                              6
       Giving the words of the statute their “usual, ordinary meaning,” we can only

conclude that the Legislature intended for the juvenile court’s jurisdiction to determine

the amount of restitution to exist only “during the term of the commitment or probation.”

Neither the parties nor this court have found any published case law directly addressing

the statutory interpretation of this provision.

       The People’s argument is consistent with the juvenile court’s reasoning when it

ruled on minor’s counsel’s objection to the court’s jurisdiction at the August 21, 2013,

hearing. The People argue that, because victims have a constitutional right to restitution,

any juvenile disposition lacking an order of full restitution to a crime victim who has

suffered an economic loss is invalid. The People point to the language of section 730.6,

subdivision (h) itself, quoted above, that the juvenile court “shall order full restitution

unless it finds compelling and extraordinary reasons for not doing so, and states them on

the record.” The People cite the text of The Victims’ Bill of Rights Initiative

(Proposition 8), passed by the voters on June 8, 1982, which amended the California

Constitution to convey: “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.”

(Cal.Const., art. I, § 28, subd. (b)(13)(A)&(B).) The People also point to the Supreme

Court’s statement on this subject that: “[s]ection 28, subdivision (b), is added to the

Constitution to assure generally that persons who ‘suffer losses as a result of criminal

activity shall have the right to restitution’ from the persons convicted of those crimes.”



                                                  7
(Brosnahan v. Brown (1982) 32 Cal.3d 236, 242.) The People argue, with substantial

backing from case law, that both Proposition 8 and the implementing restitution statutes

should be interpreted broadly and liberally.2 We have no problem with these general

statements regarding the intent of the voters when they enacted Proposition 8 and of the

Legislature when it enacted the implementing restitution statutes. However, we do not

accompany the People on the logical leap to the conclusion that a juvenile court’s order

terminating probation is invalid when the court does not first determine the amount of

victim restitution. There is simply no statute or case law to support this inference. We

again quote the plain language of section 730.6, subdivision (h), that the juvenile court

must determine the amount of victim restitution “at any time during the term of the

commitment or probation.”

       Finally, the People point to People v. Bufford (2007) 146 Cal.App.4th 966, which

examines Penal Code section 1202.4, the victim restitution statute applicable to adult

criminals, and the accompanying Penal Code section 1202.46. In that case, the appellate

court held that the trial court did not lose jurisdiction to determine the amount of victim

restitution when the defendant completed her sentence. This is because “Under a reading

       2  “Both the adult and juvenile restitution statutes were modified following the
passage in 1982 of Proposition 8 . . . . [Citation.] In 1983, the Legislature adopted
implementing legislation, including former Penal Code section 1203.04, requiring trial
courts to order restitution from defendants convicted of crimes and placed on probation,
and former . . . section 729.6, imposing a similar requirement in all juvenile delinquency
matters. [Citations.] After Penal Code section 1203.04 was repealed, Penal Code section
1202.4 governed restitution in cases where probation was granted. [Citation.] After
section 729.6 was repealed, section 730.6 governed victim restitution in juvenile
delinquency matters.” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132, fn. 4.)


                                              8
of the plain language of [Penal Code] section 1202.4, if the court cannot determine the

amount of restitution at the time of sentencing, there is no limitation upon when the court

must next set a restitution hearing . . . .” (Id. at p. 971.) The language at issue in People

v. Bufford differs materially from that of section 730.6, in that it does not specify that the

amount of restitution must be determined at any particular time. Compare [Penal Code]

section 1202.4, subdivision (f): “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. The court shall order full restitution unless it

finds compelling and extraordinary reasons for not doing so, and states them on the

record” and [Penal Code] section 1202.46: “Notwithstanding Section 1170, when the

economic losses of a victim cannot be ascertained at the time of sentencing pursuant to

subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject

to a restitution order for purposes of imposing or modifying restitution until such time as

the losses may be determined. Nothing in this section shall be construed as prohibiting a

victim, the district attorney, or a court on its own motion from requesting correction, at

any time, of a sentence when the sentence is invalid due to the omission of a restitution

order or fine without a finding of compelling and extraordinary reasons pursuant to

Section 1202.4.” (Italics added.)

       We repeat for emphasis that the text of section 730.6, subdivision (h), is materially

different from the adult restitution statutes in that it provides a chronological window for

determining the amount of victim restitution: “If the amount of loss cannot be ascertained



                                              9
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.”

       Given this specific direction from the Legislature, we have no choice but to vacate

the victim restitution award because it was not made “during the term of the commitment

or probation.”

       The outcome of this case is particularly unfair to the homeowner who was the

victim of the minor’s very disturbing attack on her home and property. However, the

Legislature chose to enact statutes that differ in their treatment of juvenile delinquents

who cause economic damage to their victims versus adult criminals. As the minor points

out in his responsive brief, the victim may still be able to pursue her restitution rights

against the three jointly and severally liable co-offenders, two of whom are adults.

       The minor’s two contentions regarding specific components of the restitution

award are moot.

       2.     No Estoppel

       The People argue the minor is estopped from questioning the juvenile court’s

jurisdiction to determine victim restitution because he invited any error when he sought

to continue the initial restitution hearing set for May 3, 2013, and later consented to

continuing the hearings held on June 3 and June 27, 2013.




                                              10
       The People cite exclusively to In re Griffin (1967) 67 Cal.2d 343. In that case, the

adult criminal defendant appeared at a probation revocation hearing without counsel, and

in front of a judge who had not previously heard the case, to request a one-month

continuance to obtain private counsel. The court granted the defendant’s request. In the

meantime, the defendant’s three-year probation period expired. The defendant did not

mention to anyone, including his new counsel, that his probation had expired. At the

continued revocation hearing, the court ordered probation revoked. Only later did the

defendant call his counsel’s attention to the expiration of the probationary term. The

appellate court held that the defendant was stopped from challenging the revocation for

lack of timeliness because the defendant knowingly sought and obtained the continuance

with full knowledge that it would result in an untimely hearing.

       The current situation is easily distinguishable because it appears from the record

that neither the minor nor his counsel was aware that the court had already terminated his

probation at the time of the June 27, 2013 hearing. Defense counsel established this at

the restitution hearing on August 21, 2013:

        “Q. [DEFENSE COUNSEL]: First, I need to make actually an objection to all
restitution under – pursuant to Welfare & Institutions Code 730.6. In subsection (h) it
talks about restitution and it specifically says, ‘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.’ [¶] And in this case, unbeknownst to me, the Court had
signed the probation officer’s packet that the probation officer submitted on June 3rd
requesting termination of probation.

       “A. [THE COURT]: You’re given notice of those.




                                              11
     “Q. [DEFENSE COUNSEL]: We get notice when we receive it, but we never
know when the Court signs it. And I didn’t know that the Court –

      “A. [THE COURT]: Why would you get notice? We don’t send out notice to
anybody when we’ve signed the NARs.

       “Q. [DEFENSE COUNSEL]: Right. So had I known that the Court had already
signed it and that probation was terminated, I would have objected on the June 27th
hearing to any restitution. [¶] I didn’t learn that the packet was signed until I was
drafting my motion for that graffiti restitution. I was doing a statement of facts, and I had
to go back through JNET to get my dates right. [¶] Had I known that the case was
terminated on June 13th, in court on the 27th, I would have objected, saying the Court
had no jurisdiction.

       “A. [THE COURT]: Okay.”

       For this reason, we cannot say that the minor attempted to “trifle with the courts”

by purposely requesting and consenting to continuing the restitution hearing while

knowing the court had lost jurisdiction. The minor is not estopped from challenging the

restitution order based on its untimeliness.

                                           DISPOSITION

       The order is reversed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                RAMIREZ
                                                                                        P. J.


We concur:

MILLER
                           J.

CODRINGTON
                           J.




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