People v. J.G. (In Re J.G.) , 243 Cal. Rptr. 3d 827 ( 2019 )

IN THE SUPREME COURT OF
CALIFORNIA
IN RE J.G., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.G.,
Defendant and Appellant.
S240397
Third Appellate District
C077056
Shasta County Superior Court
JDSQ122933901
February 25, 2019
Justice Chin authored the opinion of the court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,
Kruger, and McKinster* concurred.
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Two, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
IN RE J.G.
S240397
Opinion of the Court by Chin, J.
Under California’s deferred entry of judgment procedure,
an eligible minor, after admitting the charges in a petition
alleging a violation of law and successfully completing
probation, may have the charges dismissed and the juvenile
court records sealed. (Welf. & Inst. Code, § 790.)1 A minor
granted deferred entry of judgment “may . . . be required to pay
restitution to the victim or victims pursuant to the provisions
of” the Welfare and Institutions Code. (§ 794.) In this case, the
juvenile court granted deferred entry of judgment to J.G., who
was charged by petition with trespassing and vandalism, on
condition that he pay restitution in the total amount of $36,381,
at the rate of $25 per month. It later found that J.G. had
successfully completed all terms of his probation other than the
restitution requirement, dismissed the petition, and ordered
that the restitution award may be enforced as a civil judgment.
On appeal, J.G. challenged the restitution order, arguing that
the juvenile court erred by: (1) converting the unpaid restitution
to a civil judgment; (2) considering, in determining his ability to
pay restitution, the benefits he received from the federal
Supplemental Security Income Program (SSI); (3) finding, based
on his receipt of SSI benefits, that he had the ability to pay
restitution; and (4) imposing an amount that exceeded the
1
All further unlabeled statutory references are to the
Welfare and Institutions Code.
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Opinion of the Court by Chin, J.
$20,000 per-tort-cap set forth in section 742.16, subdivision (n).
The Court of Appeal rejected these arguments and affirmed the
juvenile court’s judgment. For reasons explained below, we
likewise reject J.G.’s first and second arguments. However,
based on concessions by the People with respect to the third
argument, we remand the matter for a new hearing regarding
J.G.’s ability to pay restitution. In light of this disposition, we
do not address J.G.’s fourth argument.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2012, the Shasta County District Attorney filed
a petition under section 602 alleging that J.G. was within the
jurisdiction of the juvenile court because he had committed the
following offenses: (1) vandalism (Pen. Code, § 594, subd. (b)(2));
(2) throwing an object at a vehicle (Veh. Code, § 23110, subd.
(b)); (3) trespass and damage or removal of highway signs (Pen.
Code, § 602, subd. (f)); and (4) trespass by entering and
occupying property (Pen. Code, § 602, subd. (m)). In support of
these charges, the petition alleged that J.G. had entered and
occupied real property and a structure at Shasta State Historic
Park and had defaced, damaged, and destroyed signs, brick
walls, wood railings, skylights, and a roof at the park.
Accompanying the petition was a filing indicating that J.G. was
eligible for deferred entry of judgment. Several months later,
the probation department recommended that the court grant
deferred entry of judgment subject to several conditions,
including J.G.’s payment of restitution in the amount of $30,156.
The court and the parties reached an agreement as to the
matter’s resolution, which was implemented at a hearing in
January 2013. Pursuant to the agreement, J.G. admitted the
allegations of an amended petition containing only the first and
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Opinion of the Court by Chin, J.
fourth counts of the original petition: vandalism and
trespassing. After reviewing the probation department’s
proposed terms and conditions, J.G. acknowledged on the record
that he had read and understood them and he agreed to follow
them. The court then granted deferred entry of judgment and
imposed the proposed conditions. However, consistent with the
statement of J.G.’s counsel at the beginning of the hearing that
J.G. would not waive “a hearing, pursuant to [section] 742.16,
on the ability to pay” restitution, the court stated that
restitution would “be determined” and that the restitution order
would be “held in abeyance until [section] 790 has ended,” at
which time the court would “make the appropriate findings.”
The written conditions, with the court’s handwritten revisions,
direct that J.G. “pay restitution to the California State Park in
the amount to be determined,” and state that the restitution
order (1) is “to remain in effect until paid in full pursuant to . . .
[sections] 730.6/730.7,” (2) is “not discharged upon termination
of probation or deferred entry of judgment,” and (3) is “held in
abeyance until [section] 790 has ended at which time the court
will make the appropriate findings.”
About nine months later, J.G. submitted a written request
for “a bifurcated hearing” on the restitution issue, asserting that
section 742.16 required the court to consider his ability to pay
in determining restitution. He requested that the court first
determine whether he had the ability to pay restitution, and
that it later hold “a full restitution hearing” to consider the
amount of restitution only upon finding he “has the ability to
pay.” The People responded in writing that they had “no
objection to the minor’s request for a bifurcated hearing.”
Consistent with J.G.’s request, the court held a hearing in
December 2013 solely to determine J.G.’s ability to pay
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Opinion of the Court by Chin, J.
restitution. There was testimony at that hearing that J.G.
received a monthly SSI payment in excess of $700 because of
disability. At the end of the hearing, the court did not make a
finding on ability to pay, but instead requested briefing on
whether J.G.’s “SSI disability” benefits could “be used for
restitution purposes.”
The matter again came on for hearing on January 29,
2014. At the beginning of the hearing, the court announced its
finding that J.G. had the ability to pay restitution, explaining:
“[J.G.] receives . . . approximately 750 dollars a month. It’s
between 733 and 766, depending on the testimony and records.
He receives from SSI for his [attention deficit hyperactivity
disorder (ADHD)] and this sum is received monthly. [¶] After
hearing the testimony, it revealed that the money was not
provided with any restrictions on how it was to be spent. There
is no requirement that he spend this money as the result of his
ADHD for educational purposes, for treatment, whether it be
psychological or medical, no requirement that he take any
medications. And as a matter of fact, there is no requirement
that this money be spent at all to alleviate the problems that he
suffers from, from his ADHD. In fact, the testimony was that
the money was spent by the parents for general household
expenses. Some of it [is] spent on him, but basically whatever
was necessary, it was spent on. And after having read and
considered the briefs and arguments, I find that he does have
the ability to pay.”
J.G.’s counsel asked to “be heard” regarding the ruling, but
the court denied the request and announced, “Now, we need to
set a restitution hearing.” J.G.’s counsel responded that she
wanted to challenge the court’s ruling on J.G.’s ability to pay
through “an immediate writ” because she believed that federal
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Opinion of the Court by Chin, J.
law precluded using SSI payments to pay restitution. She then
explained, “What I would like to do is provisionally agree to
whatever amount, reserving the right to have a restitution
hearing.” She later added: “What I would like to do is get some
kind of provisional agreement. Obviously, we’re not going to
agree to the whole amount but because of the urgency of the
situation now, it’s more important at this point I think that we
get this to [an appellate court] so that a decision can be made as
to what [J.G.’s] mother as the payee [of the SSI money] is
supposed to do.” The court then discussed the repair estimate
with the prosecution, commenting that the amount requested —
in excess of $30,000 — seemed “enormous” and “somewhat
excessive.” Ultimately, the court announced it would set “an
ability to pay amount today” with “restitution reserved.” J.G.’s
counsel stated that the court’s proposal was acceptable “[a]s long
as we’re reserving our right to a hearing.” The court responded,
“Oh, yes. I wouldn’t do otherwise.” It then stated, “I’m going to
set the amount of restitution at this time in the amount of 25
dollars a month. That can change based on ability to pay.” The
clerk interjected that the court needed to make a finding
regarding the total amount “that is ordered to be paid back.” J.G
proposed $300, and the prosecutor proposed the amount of the
“original request,” noting that the original repair estimate was
$36,381. When asked to comment on the prosecutor’s proposal,
J.G.’s counsel stated, “Reserve.” The court then stated, “We can
adjust that after hearing,” to which the prosecutor added, “And
that would be my thought. That it’s a tentative and it starts the
ball rolling and if we need a hearing down the road, we can do
that.” Consistent with these proceedings, in written findings
and orders, the court found that J.G. had the ability to pay
restitution, set the monthly amount at $25 per month and the
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Opinion of the Court by Chin, J.
total amount at $36,381, and granted the prosecutor’s
“request[]” that “restitution be reserved once [the amount] is
determined.”
At the end of the January hearing, the court also set a date
to review J.G.’s performance on probation. Shortly before the
January hearing, the probation department had requested a one
year extension of J.G.’s probationary term so he could satisfy
several unfulfilled probation conditions and the court could
“determine a restitution amount.” At a review hearing in July,
the probation department reported that J.G. had satisfied all
terms of probation other than payment of restitution. The court
then asked, “How would you like to proceed with the restitution
portion?” The prosecutor replied, “Convert to a civil judgment.”
When asked if she had “[a]ny objection to that,” J.G.’s counsel
responded: “None, Your Honor, with the understanding that we
will be appealing . . . . I had discussed earlier filing a writ and
changed my mind because I think this is the cleaner way to do
it. It is with that understanding that we’re going to go ahead
and agree that [deferred entry of judgment] should be
successfully completed, my client taken off probation, and then
we’ll appeal the decision about the ability to pay.” The court
responded: “All right. So at this point in time the previous
restitution order for $36,381 will be converted to a civil
judgment. We’ll find that [J.G.] has otherwise successfully
completed the terms of his Deferred Entry of Judgment, the
petition will be dismissed, and his records will be automatically
sealed.” Consistent with these proceedings, the court’s written
findings and orders state: “The minor having successfully
completed [his] grant of probation pursuant to [section] 793, the
court orders probation terminated, the petition dismissed, and
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Opinion of the Court by Chin, J.
the record sealed. . . . [The] balance of restitution if any is
converted to a civil judgment.”
J.G. filed an appeal, arguing in relevant part that the
juvenile court had erred by (1) converting the unpaid balance of
restitution to a civil judgment, (2) considering his SSI benefits
in determining his ability to pay restitution, (3) finding, based
on his receipt of SSI benefits, that he had the ability to pay
restitution, and (4) setting the total amount of restitution at
over $36,000 notwithstanding section 742.16, subdivision (n),
which limits the amount of restitution that may be ordered for
a violation of Penal Code section 594 to $20,000 “for each tort of
the minor.” The Court of Appeal rejected these arguments —
some for procedural reasons and some on the merits — and
affirmed the judgment.
We granted J.G.’s petition for review.
II. DISCUSSION
A. The Court Did Not Err in Ordering Conversion
of the Unpaid Restitution Balance to a Civil
Judgment.
In 2000, California voters enacted the deferred entry of
judgment procedure (§ 790 et seq.) as part of Proposition 21, the
Gang Violence and Juvenile Crime Prevention Act of 1998 (Act).
Pursuant to this procedure, as to minors charged with criminal
offenses in a section 602 petition who meet specified eligibility
criteria, juvenile courts may, “in lieu of jurisdictional and
disposition hearings,” “grant a deferred entry of judgment with
respect to any offense charged in the petition, provided that the
minor admits each allegation contained in the petition and
waives time for the pronouncement of judgment.” (§ 791, subd.
(a)(3).) A minor granted deferred entry of judgment is subject to
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Opinion of the Court by Chin, J.
mandatory probation for one to three years. (§§ 791, subd.
(a)(3), 794.) If the minor “perform[s] satisfactorily” during that
period, “the charge or charges in the wardship petition shall be
dismissed and the arrest upon which the judgment was deferred
shall be deemed never to have occurred and any records in the
possession of the juvenile court shall be sealed . . . .” (§ 793,
subd. (c).)
A minor granted deferred entry of judgment “may . . . be
required to pay restitution to the victim or victims pursuant to
the provisions of” the Welfare and Institutions Code. (§ 794.)
Given the facts of J.G.’s offenses, two restitution provisions of
the Welfare and Institutions Code are potentially relevant:
sections 730.6 and 742.16. The former, which we have called the
“general” restitution statute (Luis M. v. Superior Court (2014)
59 Cal. 4th 300, 307 (Luis M.)), requires courts to order minors
“found to be a person described in Section 602” to, among other
things, pay “[r]estitution to the victim or victims.” (§ 730.6,
subd. (a)(2)(B).) It also mandates that a restitution order issued
pursuant to the section “shall be enforceable as a civil judgment”
(id., subd. (i)) and “may be enforced in the manner provided in
Section 1214 of the Penal Code” (§ 730.6, subd. (r)).
The second potentially relevant restitution provision is
section 742.16, subdivision (a), which provides in relevant part:
“If a minor is found to be a person described in Section 602 of
this code by reason of the commission of an act prohibited by
Section 594 . . . of the Penal Code, and the court does not remove
the minor from the physical custody of the parent or guardian,
the court as a condition of probation, except in any case in which
the court makes a finding and states on the record its reasons
why that condition would be inappropriate, shall require the
minor to wash, paint, repair, or replace the property defaced,
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Opinion of the Court by Chin, J.
damaged, or destroyed by the minor or otherwise pay restitution
to the probation officer of the county for disbursement to the
owner or possessor of the property or both.” Subdivision (j) of
section 742.16 specifies that “[e]xecution may be issued on” a
restitution order “issued by the court pursuant to” section
742.16 “in the same manner as on a judgment in a civil action,
including any balance unpaid at the termination of the court’s
jurisdiction over the minor.”
J.G. concedes that section 794 “incorporates sections
730.6 and 742.16 for purposes of imposing restitution as a
condition of [deferred entry of judgment] probation.” Indeed, we
have recognized that, by virtue of section 794, restitution may
be ordered under sections 730.6 and 742.16 in the deferred entry
of judgment context. (Luis M., supra, 59 Cal.4th at p. 303, fn.
3.) J.G. also concedes that sections 730.6 and 742.16 “contain
provisions that allow unpaid restitution to be converted to a civil
judgment.” He asserts, however, that these conversion
provisions do not apply in the deferred entry of judgment context
in light of section 793, subdivision (c), which provides, “If the
minor has performed satisfactorily during the period in which
deferred entry of judgment was granted, at the end of that
period the charge or charges in the wardship petition shall be
dismissed and the arrest upon which the judgment was deferred
shall be deemed never to have occurred and any records in the
possession of the juvenile court shall be sealed.” This language,
J.G. asserts, “unambiguously prohibits conversion of unpaid
restitution to a civil judgment,” because “[d]eeming the
underlying arrest never to have occurred and sealing all the
related records — as section 793 commands — and converting
unpaid restitution to a civil judgment, are mutually exclusive.”
For these actions “to coexist there would need to be some type of
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Opinion of the Court by Chin, J.
exception to the arrest deeming and record sealing language,”
but the statute lists “only one exception,” and it applies to
determining whether the minor is eligible for a future grant of
deferred entry of judgment. “Listing that exception, but not
another that allows unpaid restitution to be converted to a civil
judgment, is [a] strong indicator that unpaid restitution cannot
be converted to a civil judgment.”
J.G.’s argument fails in light of section 794. As already
explained, that section specifies that minors granted deferred
entry of judgment “may . . . be required to pay restitution . . .
pursuant to the provisions of” the Welfare and Institutions Code.
(§ 794, italics added.) As also already explained, the Welfare
and Institutions Code further provides that “[e]xecution may be
issued on” a restitution order issued pursuant to section 742.16
“in the same manner as on a judgment in a civil action,
including any balance unpaid at the termination of the court’s
jurisdiction over the minor.” (§ 742.16, subd. (j), italics added.)
It also mandates that a restitution order issued pursuant to
section 730.6 “shall be enforceable as a civil judgment” (id.,
subd. (i)) and “may be enforced in the manner provided in
Section 1214 of the Penal Code” (§ 730.6, subd. (r)). In turn,
Penal Code section 1214, subdivision (b), states, among other
things, that “[a]ny portion of a restitution order that remains
unsatisfied after a defendant is no longer on probation . . . is
enforceable by the victim pursuant to this section,” and that the
court, upon request, “shall provide the victim in whose favor the
order of restitution is entered” and the California Victim
Compensation Board “with a certified copy of” the restitution
order. “In common understanding, the phrase ‘pursuant to’
means ‘in conformance to or agreement with’ and ‘according to.’
[Citation.]” (Rodriguez v. American Technologies, Inc. (2006)
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Opinion of the Court by Chin, J.
136 Cal. App. 4th 1110, 1122; see Samarkand of Santa Barbara,
Inc. v. County of Santa Barbara (1963) 216 Cal. App. 2d 341, 360
[“phrase ‘pursuant to’ means in ordinary connotation ‘in
conformity with’ ”].) Thus, notwithstanding the language of
section 793, by providing in section 794 that minors granted
deferred entry of judgment may be required to pay restitution
“pursuant to” — i.e., in conformity with and according to — the
provisions of the Welfare and Institutions Code, the Legislature
expressly authorized unpaid restitution in the deferred entry of
judgment context to be converted to an enforceable civil
judgment. (Cf. People v. Superior Court (Romero) (1996) 13
Cal. 4th 497, 520 [statute’s reference to dismissals “pursuant to”
Pen. Code, § 1385 both confirms courts’ power to dismiss under
that section and requires strict compliance with its provisions].)
J.G. finds fault with this analysis. It is “illogical,” he
asserts, to conclude that “section 794’s oblique reference to
‘other provisions of this code’ somehow incorporated a
restitution conversion provision that provides an additional
exception to section 793’s broad protections. When the drafters
want[] to allow unpaid restitution to survive the dismissal of the
602 petition, they know how to say so clearly.” J.G. points in
particular to section 786, which provides in subdivision (a) that
when “a person who has been alleged or found to be a ward of
the juvenile court satisfactorily completes (1) an informal
program of supervision pursuant to Section 654.2, (2) probation
under Section 725, or (3) a term of probation for any offense, the
court shall order the petition dismissed” and “shall order sealed
all records pertaining to the dismissed petition.” Elsewhere in
the section, J.G. emphasizes, the Legislature specified that a
sealing order “does not prohibit a court from enforcing a civil
judgment for an unfulfilled order of restitution ordered
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Opinion of the Court by Chin, J.
pursuant to Section 730.6” and does “not relieve[]” a minor “from
the obligation to pay victim restitution.” (§ 786, subd. (h)(1).) It
also specifies that “[a] victim or a local collection program may
continue to enforce victim restitution orders . . . after a record is
sealed,” and that “[t]he juvenile court shall have access to
records sealed pursuant to this section for the limited purpose
of enforcing a civil judgment or restitution order.” (Id., subd.
(h)(2).) “As a matter of statutory construction,” J.G. argues, “the
existence of an express exception in section 786 that allows
unpaid restitution to be converted to a civil judgment is a strong
indication that such an exception should not be read into section
793.”
J.G.’s arguments are unpersuasive. To begin with, unlike
J.G., we find nothing “oblique” about section 794’s reference to
“other provisions of” the Welfare and Institutions Code, and
nothing “illogical” about concluding, for reasons already
explained, that by providing in section 794 that minors granted
deferred entry of judgment may be required to pay restitution
“pursuant to” — i.e., in conformity with and according to — the
provisions of the Welfare and Institutions Code, the Legislature
expressly authorized unpaid restitution in the deferred entry of
judgment context to be converted to an enforceable civil
judgment, as specified in sections 730.6 and 742.16. What we
do find illogical — and unpersuasive — is J.G.’s argument that
section 793, which does not address restitution, somehow limits
section 794’s express incorporation, without limitation, of the
other sections in the Welfare and Institutions Code regarding
restitution.
Regarding J.G.’s reliance on the absence in the deferred
entry of judgment statutes of the “express exception in section
786 that allows unpaid restitution to be converted to a civil
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judgment,” we note first J.G.’s failure to respond to the People’s
argument that, contrary to the premise underlying J.G.’s
argument, section 786 in fact applies in the deferred entry of
judgment context. In this regard, the People observe that
section 786, subdivision (a), applies by its terms, not just to a
person “found to be a ward of the juvenile court” who
“satisfactorily completes . . . a term of probation for any offense,”
but also to a person “alleged . . . to be a ward of the juvenile
court” who “satisfactorily completes” such “a term of probation.”
(Italics added.) But we need not, and do not, express an opinion
regarding this threshold issue because J.G.’s argument fails for
an independent reason: the language in section 786 on which
J.G. relies was added by the Legislature in 2015 (Stats. 2015,
ch. 368, § 1), about 15 years after California voters added
sections 793 and 794 by approving the Act in 2000. This fact
renders the principle of statutory construction J.G. invokes
inapplicable. (Traverso v. People ex rel. Dept. of Transportation
(1993) 6 Cal. 4th 1152, 1166 [principle “is inapplicable when . . .
the ‘given provision’ contained in a related statute was added by
amendment many years after the enactment of the statute
containing no such provision”].)
J.G. next argues that allowing conversion of unpaid
restitution to an enforceable civil judgment would be contrary to
the voters’ intent in establishing the deferred entry of judgment
procedure. He focuses on one of the measure’s uncodified
findings and declarations, which states that the Act expands
rehabilitative options for “first time, non-violent juvenile felons”
by requiring them “to appear in court, admit guilt for their
offenses, and be held accountable, but also be given a non-
custodial opportunity to demonstrate through good conduct and
compliance with a court-monitored treatment and supervision
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Opinion of the Court by Chin, J.
program that the record of the juvenile’s offense should justly be
expunged.” (Voter Information Guide, Primary Elec. (Mar. 7,
2000) text of Prop. 21, § 2, subd. (j), p. 119.) Based on this
statement, he asserts that the voters intended the deferred
entry of judgment program “to be a ‘carrot-and-stick’ approach
to juvenile crime,” and that “[r]eading section 793 to authorize
conversion of unpaid restitution to a civil judgment makes the
carrot of expungement less rewarding than was intended.”
J.G.’s argument is unpersuasive because reading section
793 to incorporate the conversion provisions of section 730.6 and
742.16 is fully consistent with the voters’ intent, as disclosed by
the statement on which J.G. relies, to further rehabilitation by
holding minors “accountable” for their offenses. (Voter
Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop.
21, § 2, subd. (j), p. 119.) As we have explained, “[a]n order of
direct victim restitution” under these provisions “acts to make
the victim whole, rehabilitate the minor, and deter future
delinquent behavior.” (Luis M., supra, 59 Cal.4th at p. 305; see
People v. Anderson (2010) 50 Cal. 4th 19, 34 [requiring payment
of restitution “renders defendant accountable for the financial
harm he caused and contributes to his reformation and
rehabilitation”]; Charles S. v. Superior Court (1982) 32 Cal. 3d
741, 747 (Charles S.) [“a requirement of restitution may serve a
rehabilitative function consistent with the purposes of Juvenile
Court Law”].) “[R]estitution serves valid . . . rehabilitative
objectives by . . . helping [offenders] appreciate the harm done
to the victim” (People v. Cookson (1991) 54 Cal. 3d 1091, 1097)
and “holding [them] accountable for [their] actions” (In re J.S.
(2016) 6 Cal.App.5th 414, 421). Thus, contrary to J.G.’s
argument, reading section 793 to incorporate the conversion
provisions of sections 730.6 and 742.16 serves the voters’ intent,
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as reflected by the statement J.G. cites and by the voters’
specification in section 794 that minors granted deferred entry
of judgment “may . . . be required to pay restitution to the victim
or victims pursuant to the provisions of” the Welfare and
Institutions Code.
For the preceding reasons, we reject J.G.’s argument that
the juvenile court erred in converting the amount of unpaid
restitution to a civil judgment.2
B. The Juvenile Court Did Not Violate Federal
Law By Considering J.G.’s SSI Benefits.
J.G.’s second claim is that the juvenile court, in
determining his ability to pay restitution, violated federal law
by considering the SSI benefits he received.3 He relies on 42
2
Our conclusion renders it unnecessary to address the
People’s claim that J.G.’s actions below estop him from arguing
on appeal that the deferred entry of judgment statutes preclude
conversion of unpaid restitution to a civil judgment. It also
necessarily defeats J.G.’s related claim that, because the
restitution obligation “ceases to exist” when the minor
“completes” the deferred entry of judgment procedure, the court
was required to set restitution in an amount that he could repay
during the deferral period. Charles S., which J.G. cites in
support of his argument, is inapposite. There, we held that a
probation officer abused his discretion by ordering restitution in
an amount that rendered the minor ineligible for informal
probation because it was “conceded[ly] . . . beyond the family’s
ability to pay.” (Charles S., supra, 32 Cal.3d at p. 751.) Here,
the total restitution amount the court ordered did not render
J.G. ineligible for the deferred entry of judgment procedure.
3
J.G. also argues in his briefs that the juvenile court erred
by considering the benefits his father received under the Social
Security Disability Insurance Program (SSD). The record shows
that he did not make this argument in the juvenile court. On
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Opinion of the Court by Chin, J.
U.S.C. section 407(a), which provides: “The right of any person
to any future payment under this subchapter shall not be
transferable or assignable, at law or in equity, and none of the
moneys paid or payable or rights existing under this subchapter
shall be subject to execution, levy, attachment, garnishment, or
other legal process, or to the operation of any bankruptcy or
insolvency law.”4 He also relies on the United States Supreme
Court’s statement in Washington State Dept. of Social and
Health Services v. Guardianship Estate of Keffeler (2003) 537
U.S. 371, 385 (Keffeler), that the phrase “other legal process” in
42 U.S.C. section 407(a) would “at a minimum . . . seem to
require utilization of some judicial or quasi-judicial
mechanism . . . by which control over property passes from one
person to another in order to discharge or secure discharge of an
allegedly existing or anticipated liability.” He argues that a
court’s consideration of SSI benefits in determining the ability
to pay restitution qualifies under the high court’s statement as
“other legal process” because “[i]t is undeniably a judicial
mechanism designed to secure discharge, to the maximum
extent possible, of an enforceable liability (restitution) and it is
the contrary, he argued that decisions involving SSD payments,
as opposed to SSI payments, have “only marginal relevance to
[his] case.” Moreover, it was his own counsel who first elicited
testimony regarding his father’s SSD payments. Nor did J.G.
raise the issue in the Court of Appeal, and the Court of Appeal’s
opinion consequently did not address it. We therefore decline to
consider his argument.
4
42 U.S.C. section 407 addresses payments made under
Title II of the Social Security Act, which is the Old–Age,
Survivors, and Disability Insurance plan of benefits. 42 U.S.C.
section 1383(d) makes it applicable to SSI benefits paid under
Title XVI of the Social Security Act.
16
IN RE J.G.
Opinion of the Court by Chin, J.
by no means consistent with providing for the beneficiary’s care
and maintenance as it ultimately diverts funds from the
beneficiary to a third party victim.”
The People disagree, asserting that a court’s
“[c]onsideration of SSI . . . benefits to determine how much total
financial support a minor has is not the same as requiring the
minor to use those benefits to satisfy ‘legal process.’ ” According
to the People, although a court may not “order” a minor to use
SSI benefits “to pay restitution,” it may consider those benefits
“when making the ability to pay determination.” Ignoring those
benefits, the People assert, “would create a distorted picture of
[the minor’s] financial situation.” Here, the juvenile court did
not violate federal law because it “did not order [J.G.] to pay
money from his social security benefits,” but “only considered
that money in determining [his] financial status.”5
5
Section 730.6, subdivision (h)(1), provides in part that “[a]
minor’s inability to pay shall not be considered a compelling or
extraordinary reason not to impose a restitution order, nor shall
inability to pay be a consideration in determining the amount of
the restitution order.” Notwithstanding this provision,
throughout this case, the parties have treated J.G.’s ability to
pay restitution as relevant under section 742.16, subdivision (a),
which directs a court, if it imposes restitution, to (1) “make a
finding of the amount . . . that would be required to fully
compensate the owner and possessor of the property for their
damages,” and (2) “order the minor or the minor’s estate to pay
that restitution . . . to the extent the court determines that the
minor or the minor’s estate have the ability to do so, except in
any case in which the court makes a finding and states on the
record its reasons why full restitution would be inappropriate.”
(Italics added.) For purposes of this opinion, we therefore will
assume that J.G.’s ability to pay restitution is relevant.
17
IN RE J.G.
Opinion of the Court by Chin, J.
The United States Supreme Court has applied the
relevant language of 42 U.S.C. section 407(a), in several cases,
most notably for present purposes in Keffeler. At issue there
was whether the State of Washington had violated 42 U.S.C
section 407(a) by using SSI benefits it had received as a
representative payee on behalf of children in foster care to
reimburse itself for some of its foster care expenditures.
(Keffeler, supra, 537 U.S. at p. 375.) The key question in
resolving this issue, the court stated, was whether Washington’s
“effort to become a representative payee, or its use of [the
children’s] Social Security benefits when it acts in that capacity,
amounts to employing an ‘execution, levy, attachment,
garnishment, or other legal process’ within the meaning of [42
U.S.C. ]§ 407(a).” (Keffeler, at pp. 382-383.) “For obvious
reasons,” the court reasoned, Washington’s activities do not
“involve any execution, levy, attachment, or garnishment.
These legal terms of art refer to formal procedures by which one
person gains a degree of control over property otherwise subject
to the control of another, and generally involve some form of
judicial authorization. [Citations.] [Washington’s] efforts to
become a representative payee and to use [the children’s]
benefits do not even arguably employ any of these traditional
procedures.” (Id. at p. 383.) Nor, the high court held, do
Washington’s efforts “involve[] ‘other legal process,’ as the
statute uses that term.” (Ibid.) Although Washington does, “in
the abstract . . . use legal process as the avenue to
reimbursement” — in that it is appointed as a representative
payee through “a federal legal process” and “makes claims
against the accounts kept by the state treasurer” through “a
state legal process” — the statute “uses the term ‘other legal
process’ far more restrictively, for under the established
18
IN RE J.G.
Opinion of the Court by Chin, J.
interpretative canons of noscitur a sociis and ejusdem generis,
‘ “[w]here general words follow specific words in a statutory
enumeration, the general words are construed to embrace only
objects similar in nature to those objects enumerated by the
preceding specific words.” ’ [Citations.] Thus, ‘other legal
process’ should be understood to be process much like the
processes of execution, levy, attachment, and garnishment, and
at a minimum, would seem to require utilization of some judicial
or quasi-judicial mechanism, though not necessarily an
elaborate one, by which control over property passes from one
person to another in order to discharge or secure discharge of an
allegedly existing or anticipated liability.” (Id. at pp. 384-385.)
Washington’s efforts to become a representative payee and its
use of the children’s benefits in that capacity “involve nothing of
th[is] sort. Whereas the object of the processes specifically
named is to discharge, or secure discharge of, some enforceable
obligation, the State has no enforceable claim against its foster
children. And although execution, levy, attachment, and
garnishment typically involve the exercise of some sort of
judicial or quasi-judicial authority to gain control over another’s
property, [Washington’s] reimbursement scheme operates on
funds already in [its] possession and control, held on terms that
allow the reimbursement.” (Id. at p. 386, fn. omitted.)
In reaching its conclusion, the Keffeler court distinguished
two prior decisions in which it had found violations of 42 U.S.C.
section 407(a): Philpott v. Essex County Welfare Bd. (1973) 409
U.S. 413, and Bennett v. Arkansas (1988) 485 U.S. 395. (Keffeler,
supra, 537 U.S. at p. 388.) These cases, the court explained,
“involved forms of legal process expressly prohibited by [42
U.S.C.] § 407(a),” i.e., “judicial actions in which a State sought
to attach a beneficiary’s Social Security benefits as
19
IN RE J.G.
Opinion of the Court by Chin, J.
reimbursement for the costs of the beneficiary’s care and
maintenance.” (Ibid., italics added.) Thus, “[i]n each case, . . .
the plain language of [42 U.S.C.] § 407(a) barred the State’s legal
action.” (Keffeler, at p. 388.) “Although it is true that
[Washington] could not directly compel the beneficiary or any
other representative payee to pay Social Security benefits over
to the State, that fact does not render the appointment of a self-
reimbursing representative payee at odds with the
Commissioner’s mandate to find that a beneficiary’s ‘interest . . .
would be served’ by the appointment.” (Id. at p. 389.)
In light of Keffeler, J.G.’s claim that consideration of his
SSI benefits in determining his ability to pay constitutes “legal
process” for purposes of applying 42 U.S.C. section 407(a) is
unpersuasive.6 Although such consideration did, “in the
abstract,” involve “legal process” (Keffeler, supra, 537 U.S. at p.
384) — a judicial proceeding in which a court determined J.G.’s
ability to pay restitution — as Keffeler held, 42 U.S.C. section
407(a) “uses the term ‘other legal process’ far more restrictively”
(Keffeler, at p. 384) — i.e., “process much like the processes of
execution, levy, attachment, and garnishment” (Keffeler, at p.
385) — “and at a minimum, would seem to require utilization of
some judicial or quasi-judicial mechanism . . . by which control
over property passes from one person to another in order to
discharge or secure discharge of an allegedly existing or
anticipated liability” (ibid.). “On this restrictive understanding
6
“For obvious reasons,” J.G. “do[es] not contend” that
considering his SSI benefits in determining his ability to pay
restitution “involve[s] any execution, levy, attachment, or
garnishment.” (Keffeler, supra, 537 U.S. at p. 383.) This act,
like Washington’s efforts in Keffeler, “do[es] not even arguably
employ any of these traditional procedures.” (Ibid.)
20
IN RE J.G.
Opinion of the Court by Chin, J.
of ‘other legal process,’ it is apparent that [mere consideration of
J.G.’s SSI payments in determining his ability to pay
restitution] involve[s] nothing of the sort.” (Id. at p. 386.) “[T]he
object of the processes specifically named” in 42 U.S.C. section
407(a) — “to discharge, or secure discharge of, some enforceable
obligation” (Keffeler, at p. 386, italics added) — is different from
the object of the process at issue here — to determine in the first
instance whether to impose an enforceable obligation, i.e.,
restitution. Nor does considering SSI benefits in making this
determination “involve” an exercise of judicial authority “to gain
control over” those benefits, which is the characteristic of the
processes 42 U.S.C. section 407(a) specifies — execution, levy,
attachment, and garnishment — and on which Keffeler focused.
(Keffeler, at p. 386.) Under Keffeler, 42 U.S.C. section 407(a)
does not preclude a court from considering SSI benefits in
determining the ability to pay restitution.
Our conclusion is consistent with a number of decisions
holding — sometimes based on Keffeler — that 42 U.S.C. section
407(a) or a similar anti-attachment provision does not preclude
consideration of benefits in determining the recipient’s ability to
pay restitution or some other financial obligation. (In re
Lampart (Mich.Ct.App. 2014) 856 N.W.2d 192, 200 [effect of 42
U.S.C. § 407(a) in ordering restitution]; Orange v. White
(Mo.Ct.App. 2016) 502 S.W.3d 773, 776-778 [effect of 42 U.S.C.
§ 407(a) in determining ability to pay maintenance to former
spouse]; Kays v. State (Ind. 2012) 963 N.E.2d 507, 511 [effect of
42 U.S.C. § 407(a) in ordering restitution]; Barnes v. Department
of Human Services (Miss. 2010) 42 So. 3d 10, 17 [effect of 42
U.S.C. § 407(a) in calculating child support payments]; Com. ex
rel. Morris v. Morris (Ky. 1998) 984 S.W.2d 840, 841-842 [effect
of 42 U.S.C. § 407(a) in determining child support]; Gleave v.
21
IN RE J.G.
Opinion of the Court by Chin, J.
Graham (W.D.N.Y. 1997) 954 F. Supp. 599, 610-611 [effect, in
determining criminal fine, of federal statute providing that
veterans’ benefits “ ‘shall not be liable to attachment, levy, or
seizure by or under any legal or equitable process whatever’ ”];
Fredenburg v. Mental Health Div. (Or.Ct.App. 1991) 812 P.2d
432, 428 [effect of 42 U.S.C. § 407(a) in determining liability for
cost of care]; Heuchan v. Heuchan (Wash. 1951) 228 P.2d 470,
476-477 [effect, in determining alimony obligation, of federal
statute providing that railway pension payments shall not be
“ ‘subject to any tax or to garnishment, attachment, or other
legal process under any circumstances’ ”].)
J.G. cites several decisions to support his position, but
they do not persuade us to adopt his view that 42 U.S.C. section
407(a) precludes all consideration of SSI benefits “for purposes
of assessing a defendant’s ability to pay restitution.” In In re
S.M. (2012) 209 Cal. App. 4th 21, 30, the court held that the
juvenile court had erred by considering SSI benefits in
determining a person’s ability to pay legal fees in a dependency
case. However, the court rested its decision entirely on a state
statute and did not even cite 42 U.S.C. section 407(a) in its
opinion. (In re S.M., at p. 570 [“California law is clear that SSI
benefits are not considered income for purposes of determining
child support obligations.”].) Thus, the court in In re S.M. did
not, as J.G. asserts, hold that considering SSI benefits in
determining ability to pay violates “the federal anti-attachment
provisions.”
In In re Cramner (10th Cir. 2012) 697 F.3d 1314, 1315, the
court held that a Chapter 13 bankruptcy debtor, in submitting
a proposed repayment plan, may exclude SSI benefits in
calculating his projected disposable income. However, the court
based its decision on “the plain language of the Bankruptcy
22
IN RE J.G.
Opinion of the Court by Chin, J.
Code” (id. at p. 1318), which, the court stated, “expressly allows
[a debtor] to exclude [SSI benefits] from the disposable income
calculation” (id. at p. 1317). The court went on to add that its
conclusion was “bolstered by” 42 U.S.C. section 407(a), “which
shields [SSI] payments . . . from ‘execution, levy, attachment,
garnishment, or other legal process,’ or from ‘the operation of
any bankruptcy or insolvency law.’ ” (In re Cramner, at p. 1318.)
Contrary to J.G.’s assertion, this brief statement, added merely
to “bolster[]” the court’s conclusion based on “the plain language
of the Bankruptcy Code” (ibid.), hardly constitutes a holding
that 42 U.S.C. section 407(a) “prohibit[s] treating Social
Security benefits as income.” In any event, In re Cramner was
a bankruptcy case, and the part of 42 U.S.C. section 407(a) that
was there relevant — SSI benefits are not “subject to . . . the
operation of any bankruptcy or insolvency law” — is
inapplicable in the nonbankruptcy case now before us.
In State v. Eaton (Mont. 2004) 99 P.3d 661, 666, the court
held that an order requiring the defendant to make restitution
payments equal to 20 percent of his net monthly income
“conflicted with” 42 U.S.C. section 407(a) insofar as it required
his social security benefits to be included in his net income. The
order, the court stated, “improperly burden[ed] [the defendant’s]
social security benefits” and constituted “an improper attempt
to subject” them “to ‘other legal process.’ ” (Eaton, at p. 666.) In
response to the state’s view that the defendant could simply
“raise this defense at the time [the state] would seek a levy,” the
court stated, “it is appropriate to eliminate the offending
condition from the judgment in the first instance.” (Ibid.) Given
this response, it is unclear whether the Eaton court held that a
court may not order a defendant to make payments with social
security benefits — a proposition with which the People here do
23
IN RE J.G.
Opinion of the Court by Chin, J.
not disagree — or that a court may not consider SSI benefits in
determining a defendant’s ability to pay restitution — which is
the proposition for which J.G. cites Eaton. Insofar as it speaks
to the latter issue, its summary analysis is unpersuasive and out
of step with the weight of authority, as set forth above.
Finally, in City of Richland v. Wakefield (Wn. 2016) 380
P.3d 459, 461-467 (Wakefield), the court vacated an order
requiring a homeless, disabled, and indigent defendant, whose
only income was $710 per month in SSI payments, to pay $15
each month to reimburse the state for the cost of her
prosecution. As J.G. observes, the court relied in part on 42
U.S.C. section 407(a). (Wakefield, at pp. 465-466.) However,
this discussion was dictum because it was preceded by the
court’s conclusion that the order violated state law in numerous
ways (id. at pp. 464-465) and was followed by the court’s
conclusion that substantial evidence did not support the factual
findings on which the order was based (id. at p. 466). Moreover,
the entire opinion was advisory because the parties had agreed
that, as a matter of state law, the order was erroneous and the
defendant’s reimbursement payments should be remitted, and
they had asked the court to remand the case for entry of an order
remitting the payments. (Id. at pp. 461, 463.) The court itself
explained that it was “nonetheless” (id. at p. 463) discussing the
claim’s merits at the “request” of the parties “to provide
guidance . . . in the future” (id. at p. 461).
In any event, the Wakefield court’s dictum regarding 42
U.S.C. section 407(a) does not, as J.G. suggests, state that 42
U.S.C. section 407(a) precludes all consideration of SSI benefits
in determining a recipient’s ability to pay a legal obligation.
Instead, it states that “federal law prohibits courts from
ordering defendants to pay [reimbursement costs] if [their] only
24
IN RE J.G.
Opinion of the Court by Chin, J.
source of income is social security disability” because, under
Keffeler, such an order would constitute “other legal process”
within the meaning of 42 U.S.C. section 407(a). (Wakefield,
supra, 380 P.3d at p. 466.) In this regard, the court’s discussion
notably diverged from one of the authorities on which it
purported to rely: In re Lampart, supra, 856 N.W.2d 192.
(Wakefield, supra, 380 P.3d at p. 466.) There, the court held
that, as to a person whose “only source of income was $730 per
month in [SSD] benefits” (In re Lampart, at p. 194), 42 U.S.C.
section 407(a) did not prohibit either “consider[ation]” of the
benefits “as income for purposes of fashioning a restitution
order” or actual imposition of a restitution obligation (In re
Lampart, at p. 200). Instead, it only precluded using the judicial
contempt power to compel the recipient actually to use benefits
to pay restitution. (Ibid.) Consistent with these holdings, the
court provided the following instructions for further
proceedings: “If it [is] determined [on remand] that [the
recipient’s] only asset, or source of income, is and remains from
[SSD] benefits, 42 U.S.C. § 407(a) prohibits the use of legal
process . . . from reaching those benefits to satisfy the restitution
order. [Citation.] If, however, [she] is found to have income
aside from her [SSD] benefits, or other assets that are derived
from other sources, that income or those assets could be used to
satisfy the restitution award. The restitution order itself
remains valid. Indeed, [her] receipt of [SSD] benefits does not
immunize her from the restitution order; rather, it merely
prohibits the trial court from using legal process to compel
satisfaction of the restitution order from those benefits. Because
it is possible that [she] may have assets or may receive income
from other sources in the future, we affirm the trial court’s
25
IN RE J.G.
Opinion of the Court by Chin, J.
refusal to cancel or modify [the] restitution obligation.” (In re
Lampart, at p. 203.)
Relying on Wakefield while ignoring In re Lampart, J.G.
argues that “where, as here, an individual’s only source of
‘income’ is Social Security benefits,” “a distinction between
treating Social Security benefits as income to assess an
individual’s ability to pay restitution and requiring their use to
pay restitution . . . is a distinction without a difference.” The
People respond that J.G.’s argument “overlooks the fact that,
among other things, a court can consider . . . a minor’s future
earning capacity, i.e., ability to obtain employment, when
determining whether he or she has an ability to pay.”
In light of developments at oral argument, we need not
take a position on these competing views in order to dispose of
this case. Refining their position, the People stated during oral
argument that the ability to pay determination in this case
would be “improper” if the juvenile court “was contemplating the
social security money as the source of the restitution payments,”
i.e., that J.G. could pay “from [his] social security money.” The
People also conceded that (1) it would be “reasonable” to
conclude from the record that this was, in fact, the basis for the
court’s decision, and (2) on this reading of the record, the correct
remedy would be to remand for a new ability to pay hearing,
during which the juvenile court could consider J.G.’s future
earning capacity and the total amount of restitution to be
ordered.
We agree with the People that the record indicates the
juvenile court “was contemplating the social security money as
the source of the restitution payments.” As earlier detailed, in
its prefatory remarks, the court discussed only matters related
26
IN RE J.G.
Opinion of the Court by Chin, J.
to J.G.’s SSI benefits, including the amount he received,
whether there were any “restrictions” or “requirements” as to
“how” the money “was to be spent,” and how the money was “[i]n
fact” being spent. The record reflects no express finding
regarding J.G.’s future earning capacity, no mention of it as a
basis for the juvenile court’s determination, and no reference to
it in the parties’ briefs and arguments. Given our reading of the
record, we accept the People’s concession that the proper
disposition of this case is to reverse the judgment and remand
for a new ability to pay hearing that includes consideration of
J.G.’s future earning capacity, his current financial
circumstances, and the total amount of restitution to be
ordered.7
7
In light of this analysis, we need not, and do not, address
J.G.’s claim that the total amount of restitution violated the
$20,000 per-tort-cap set forth in section 742.16, subdivision (n).
27
IN RE J.G.
Opinion of the Court by Chin, J.
III. DISPOSITION
For the foregoing reasons, the Court of Appeal’s judgment
is reversed and the matter is remanded for further proceedings
consistent with this opinion.
CHIN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
MCKINSTER, J.*
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division Two, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
28
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re J.G.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 7 Cal.App.5th 955
Rehearing Granted
__________________________________________________________________________________
Opinion No. S240397
Date Filed: February 25, 2019
__________________________________________________________________________________
Court: Superior
County: Shasta
Judge: Monique D. McKee
__________________________________________________________________________________
Counsel:
William C. Whaley, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Rachelle A. Newcomb and
Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
William C. Whaley
770 L Street, Suite 1000
Sacramento, CA 95814
(916) 607-6561
Brook A. Bennigson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-7688