In re N.D. CA6 ( 2014 )

Filed 4/1/14 In re N.D. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
IN RE N.D., a Person Coming Under the H039775
Juvenile Court Law. (Santa Clara County
Superior. Ct. No. JV37225)
THE PEOPLE,
Plaintiff and Respondent,
v.
N.D.,
Defendant and Appellant.
In a juvenile wardship petition filed on June 4, 2010, the Santa Clara County
District Attorney alleged that N.D. committed a lewd or lascivious act on a child less than
14 years of age (Pen. Code, § 288, subd. (a), count one) and that he had unlawful sexual
intercourse with a minor more than three years younger than him. (Pen. Code, § 261.5,
subd. (c), count two.)
Subsequently, on September 10, 2010, N.D. admitted the lewd and lascivious act
in count one and the prosecution moved the court to dismiss count two.1 N.D. signed and
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According to the probation officer's report, "on June 3, 2010, [N.D.] had
consensual sexual intercourse with the victim, a twelve-year-old female. The intercourse
initialed a waiver form in which he was advised of and waived his constitutional rights.
The court declared N.D. to be a ward of the court and informed N.D. that his maximum
term of confinement for count one was eight years. However, the court placed N.D. on
probation on various terms and conditions including 75 days of electronic monitoring,
completion of a drug and alcohol program, a family counseling program, a sexual
offender program and completion of a victim awareness workshop. The court ordered
that N.D. pay victim restitution for losses sustained by the victim.
Ultimately, on April 11, 2013, following a contested restitution hearing, the court
ordered N.D. to pay $11,394 in restitution based on documentation submitted by the
California Victim Compensation and Government Claims Board (the VCGCB). The
VCGCB's documentation showed that payments had been made to the victim in the
amount of $3,069, to the victim's mother in the amount of $2,385, to one of the victim's
sisters in the amount of $972, and to another of the victim's sisters in the amount of
$2,538, and to the victim's father in the amount of $2,430. The payments were for mental
health services. In a written motion, N.D.'s public defender objected to the restitution
requested by the VCGCB on the ground that Welfare and Institutions Code section 730.6
did not include derivative victims and, therefore, did not authorize payments made on
behalf of the victim's family members. At the restitution hearing, N.D.'s counsel argued
that restitution should be limited to the "actual victim in this case." The court explained
that it "believe[d] the authority of the court rest[ed] in the broad powers of discretion
when it comes to victim restitution. [¶] And I don't think it's appropriate . . . to try to
determine what was appropriate given what the family sought and obtained through the
victim compensation board. [¶] I will order the full amount of restitution at $11,394."
At the same time, the court terminated N.D.'s probation and converted the restitution
order to a civil judgment.
took place at the Rose Garden library bathroom . . . ." At the time, N.D. was 16 years
old.
2
N.D. has appealed from the restitution order that the court imposed following the
contested restitution hearing. We appointed counsel to represent N.D. in this court.
Counsel has briefed no issues, but requests that we review the record of the proceedings.
(People v. Wende (1979) 25 Cal. 3d 436.) Counsel attests that N.D. was advised of his
right to file a supplemental brief in a timely manner. Furthermore, on December 13,
2013, we notified N.D. of his right to submit written argument on his own behalf within
30 days. N.D. has not filed a supplemental brief. We have reviewed the record and
affirm the juvenile court's restitution order.
In defining who is entitled to restitution, Welfare and Institutions Code section
730.6, subdivision (j), provides, "For purposes of this section, 'victim' shall include: [¶]
(1) The immediate surviving family of the actual victim. [¶] (2) Any governmental
entity that is responsible for repairing, replacing, or restoring public or privately owned
property that has been defaced with graffiti or other inscribed material . . . and that has
sustained an economic loss as the result of a violation" of specified provisions. (Italics
added.) On its face, Welfare and Institutions Code section 730.6 does not appear to
provide for a restitution award to compensate derivative victims, as in the victim's family
members, except in the circumstance when the surviving family members of the victim
are being compensated for the victim's losses. Nevertheless, "Article I, section 28 of the
Constitution, as amended by Proposition 9, the Victim's Bill of Rights of 2008, known as
'Marsy's Law,' provides for a broad spectrum of victim's rights, including restitution. It
defines ' "victim" ' as 'a person who suffers direct or threatened physical, psychological,
or financial harm as a result of the commission or attempted commission of a crime or
delinquent act. The term "victim" also includes the person's spouse, parents, children,
siblings, or guardian, and includes a lawful representative of a crime victim who is
deceased, a minor, or physically or psychologically incapacitated. The term "victim"
does not include a person in custody for an offense, the accused, or a person whom the
court finds would not act in the best interests of a minor victim.' [Citation.]" (In re
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Scott H. (2013) 221 Cal. App. 4th 515, 522.) Thus, in this case, the victim's family
members fall within this constitutional definition of victim, which specifies that it applies
to a crime or delinquent act. The constitutional definition of victim applies in juvenile
delinquency proceedings, despite the more restrictive language in Welfare and
Institutions Code section 730.6, subdivision (j); simply put, the constitutional language
prevails. (Delaney v. Superior Court (1990) 50 Cal. 3d 785, 800–801, fn. 11 [to the
extent statutory language conflicts with that in the Constitution, the constitutional
provision controls].)
Our review of the record pursuant to People v. Wende, supra, 25 Cal. 3d 436 has
disclosed no reasonably arguable issues on appeal. At all proceedings N.D. was
represented by competent counsel and competent counsel has represented N.D in this
appeal.
Disposition
The court's April 11, 2013 restitution order is affirmed.
____________________________
ELIA, J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
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