                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                                 IN RE JESUS C.


                              No. 1 CA-JV 18-0321
                                FILED 5-9-2019


            Appeal from the Superior Court in Maricopa County
                              No. JV601433
           The Honorable Veronica W. Brame, Judge Pro Tempore

                         AFFIRMED AS MODIFIED


                                    COUNSEL

Law Offices of Kevin Breger, Scottsdale
By Kevin Breger
Counsel for Appellant

Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Appellee
                               In re JESUS C.
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James P. Beene joined.


C A T T A N I, Judge:

¶1              Jesus C. appeals from the $102,259.91 restitution order
entered after Jesus was adjudicated delinquent for the offense of criminal
damage. The State concedes error as to $8,688.52 of the award.
Accordingly, and for reasons that follow, we modify the restitution order
to reflect a corrected award of $93,571.39, but in all other respects we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            On May 1, 2017, Jesus and a few other juveniles broke onto
the corporate victim’s property and drove a backhoe into a dump truck.
Jesus later pleaded delinquent to one count of criminal damage, with
restitution capped at $120,000.1

¶3            At the restitution hearing, a representative of the victim
testified about the costs incurred as a result of the offense. She explained
that the damaged dump truck was a rental, and the rental company had
demanded $93,571.39 for the loss. Although the victim had disputed the
amount of the rental company’s demand based on a significantly lower
preliminary repair estimate, the rental company had determined the dump
truck was totaled (and reported that no vendor would perform repairs “due
to the extensive damage”), so the demand was based on the truck’s
replacement value ($77,500.00), plus three months’ lost use for May, June,
and July 2017 ($6,516.39) and associated expenses. Despite some initial
ambiguity about whether the victim would be entitled to keep the dump
truck after paying for its replacement, the representative clarified that the
rental company (not the victim) retained possession and ownership of the
truck.



1      As part of the plea agreement, the State also dismissed one count of
criminal trespass committed on a different occasion against a different
victim, and Jesus agreed to pay a specified amount of restitution to the
victim of that offense. That portion of the case is not at issue on appeal.


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                             Decision of the Court

¶4            Despite the victim’s opposition, the rental company’s
demand for $93,571.39 remained unchanged from the initial letter in July
2017 through the time of the restitution hearing in August 2018. Because
the victim’s insurance company had denied coverage, the victim owed the
full amount. The victim representative further testified that the rental
company had continued to charge (and the victim continued to pay)
monthly rental charges for the dump truck ($2,172.13 per month) through
July 2017. In all, the victim sought $102,259.91 in restitution: the $93,571.39
demanded plus $8,688.52 for four months’ (April, May, June, July)
separately invoiced rental charges.2

¶5            Jesus’s father also testified at the restitution hearing. He
described his experience repairing similar trucks and heavy equipment,
and he estimated that the total repair cost should not exceed $10,000. He
acknowledged, however, that he had not personally seen the damaged
vehicle but rather had relied on photographs of the dump truck and the
damage listed in a preliminary repair estimate.

¶6          The superior court ordered restitution to the victim in the full
amount sought—$102,259.91—and further ordered that Jesus’s father
would be responsible for $10,000 of that amount. Jesus timely appealed.

                                DISCUSSION

¶7            Once a juvenile is adjudicated delinquent, the superior court
must, after considering the juvenile’s age, mental and physical condition,
and earning capacity as well as the nature of the offense, order the juvenile
to make “full or partial restitution” to the victim of the offense. Ariz. Rev.
Stat. (“A.R.S.”) § 8-344(A); see also Ariz. Const. art. 2, § 2.1(A)(8) (granting
crime victim a right “[t]o receive prompt restitution” from the perpetrator).
The award of restitution provides the victim compensation for economic
loss that would not have been incurred but for and was directly caused by
the juvenile’s delinquent conduct. In re Andrew C., 215 Ariz. 366, 368, ¶ 9
(App. 2007) (citing State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7 (2002)); see also In
re Erika V., 194 Ariz. 399, 400, ¶ 4 (App. 1999) (applying relevant legal
principles of adult restitution to analysis of juvenile restitution).



2       The victim’s original restitution request included repair costs for two
other pieces of equipment that were damaged on a different occasion.
Because that damage was not attributable to the offense of which Jesus was
adjudicated delinquent, those claims (totaling $1,353.16) were not included
in the final restitution award.


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                                In re JESUS C.
                             Decision of the Court

¶8             The superior court has discretion to fashion an award, in light
of the circumstances presented and proven by a preponderance of the
evidence, in an amount sufficient “to make the victim whole.” In re Ryan
A., 202 Ariz. 19, 24, ¶ 20 (App. 2002); see also In re Stephanie B., 204 Ariz. 466,
470, ¶ 15 (App. 2003). The award should “restor[e] the victim to [the]
economic status quo that existed before the crime occurred” without
providing a windfall beyond the loss actually suffered. Andrew C., 215 Ariz.
at 368, ¶ 10 (citation omitted); Ryan A., 202 Ariz. at 25, ¶ 27. The award
may, however, include the victim’s anticipated future costs (those the
victim has not yet incurred by the date of the restitution hearing) if such
costs are reasonably anticipated and result directly from the offense. See
State v. Howard, 168 Ariz. 458, 460 (App. 1991).

¶9            Jesus does not dispute that the victim’s loss was economic,
would not have been incurred but for the offense, and was directly caused
by his delinquent conduct. He argues instead that the amount of restitution
awarded was excessive. We review the superior court’s restitution order
for an abuse of discretion and will uphold the award as long as it bears a
“reasonable relationship” to the victim’s loss. Andrew C., 215 Ariz. at 367,
¶ 6; Ryan A., 202 Ariz. at 24, ¶ 20.

¶10            Jesus first suggests that the superior court’s restitution award
was premature because the victim was challenging the rental company’s
demand. Because the court awarded as restitution the full $93,571.39
demanded, he suggests that the victim might receive a windfall if the victim
were eventually successful in litigating or settling with the rental company
for a lesser amount. But Jesus never asked the superior court to defer
restitution until resolution of the dispute between the victim and the rental
company, and in any event, such delay could undermine both Jesus’s and
the victim’s interest in a speedy disposition. See In re Alton D., 196 Ariz.
195, 197, ¶ 8 (2000).

¶11            Moreover, a restitution award can properly compensate a
victim for “reasonably anticipated” future costs resulting from the offense.
Howard, 168 Ariz. at 460. Here, although the victim had not yet paid the full
$93,571.39 for the damage to the dump truck, the rental company also had
not modified its $93,571.39 demand after its initial letter over one year
before the restitution hearing. The victim representative acknowledged
that, as of the time of the restitution hearing, the victim still owed the full
amount. On this record, any potential favorable settlement between the
victim and the rental company was purely speculative, and the superior
court could properly conclude that the full $93,571.39 was a reasonably
anticipated expense.


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                                In re JESUS C.
                             Decision of the Court

¶12             Jesus next argues that the restitution award was excessive
because it was based on the dump truck’s replacement value ($77,500.00 of
the $93,571.39 demanded by the rental company) instead of the truck’s
presumably lower fair market value. Fair market value at the time of the
loss is generally—but not always—an appropriate metric for measuring
loss, and the court may employ other measures “when fair market value
will not make the victim whole.” State v. Ellis, 172 Ariz. 549, 550 (App.
1992). “[R]ecovery should not be limited to fair market value when that
measure is less than the actual economic loss.” In re William L., 211 Ariz.
236, 240, ¶ 16 (App. 2005). Because the victim did not own the dump truck,
the cost to the victim is not the loss of the truck itself, but rather the victim’s
liability to the rental company directly created by the damage to the truck.
And because the victim owed the rental company $93,571.39 based in part
on the dump truck’s replacement value, a lesser award would not make the
victim whole.

¶13             Jesus also contends that the superior court erred by failing to
discount the restitution award to account for the salvage value of the dump
truck. Ordinarily, the superior court can and should offset the salvage
value of a damaged vehicle retained by the victim from its replacement
value to avoid overcompensation. Cf. Ryan A., 202 Ariz. at 25, ¶ 27. But
here, the record supports a finding that the victim did not retain the truck
and thus did not retain its salvage value. Despite one arguably ambiguous
statement “[t]hat we’re keeping the truck, yes,” the victim representative
later clarified that the rental company (not the victim) retained possession
and ownership of the truck. Moreover, the rental company, which was not
involved in the proceedings, continued to demand—and the victim
remained liable to pay—full replacement value without an offset for the
truck’s salvage value.3 Under these circumstances, the victim had an
incentive to attempt to reduce the amount owed and in fact made such an
attempt, and we will not impose a duty on the victim to do more—e.g.,
initiate litigation. See State v. Reynolds, 171 Ariz. 678, 682 (App. 1992)
(“[C]oncepts such as ‘failure to mitigate’ or ‘not commercially reasonable’
simply do not fit into the [restitution] framework of the criminal law.”).
Accordingly, based on the unique facts of this case, the court did not err by
declining to reduce the restitution award by the truck’s salvage value.

¶14           Beyond the $93,571.39 in restitution for the amount
demanded by the rental company, however, the State concedes, and we
agree, that the superior court erred by awarding the $8,688.52 in separately

3     Whether Jesus might have a claim against the rental company for the
salvage value of the truck is beyond the scope of this appeal.


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                               In re JESUS C.
                            Decision of the Court

invoiced rental charges for April, May, June, and July 2017. The April
charge predated the offense and thus was not caused by Jesus’s delinquent
conduct. See Andrew C., 215 Ariz. at 368, ¶ 9. And the May, June, and July
charges were the same charges for lost use included in the rental company’s
demand letter; awarding restitution for the same charges twice would
overcompensate the victim. See Ryan A., 202 Ariz. at 25, ¶ 27. Accordingly,
we modify the restitution order to subtract the excess amount and reflect a
total award of $93,571.39.

¶15            Finally, Jesus asserts that the superior court erred by assessing
$10,000 of the restitution award against his father. Under A.R.S. § 8-344(C),
the court may order a delinquent juvenile’s custodial parents to make a
limited amount of restitution to the victim. The parents themselves (not
just the juvenile) are entitled to due process in that regard, and the parents
themselves may independently appeal that facet of the award. See In re Kory
L., 194 Ariz. 215, 217, 219, ¶¶ 3, 11 (App. 1999) (as amended). Although
Jesus’s father could have appealed from the restitution order, Jesus himself
(who will have to pay less since his father is obligated to pay a portion of
the award) is not “aggrieved” by that facet of the award as necessary to
maintain an appeal. See A.R.S. § 8-235(A) (authorizing appeal by “[a]ny
aggrieved party”); Ariz. R.P. Juv. Ct. 103(A) (same). Accordingly, we do
not further address this argument.

                               CONCLUSION

¶16          We affirm the restitution order as modified to reflect a
corrected award of $93,571.39.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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