In re A.R.

Filed 5/2/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.R., a Person Coming B312476
Under the Juvenile Court Law.
______________________________ (Los Angeles County
THE PEOPLE, Super. Ct. No. MJ23162)
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mario Barrera, Judge. Affirmed.
Gerald Peters, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
On February 5, 2016, minor A.R. (appellant) admitted
certain counts of four petitions filed against him for theft-related
offenses committed in 2014 and 2015. The juvenile court found
appellant was a person described by Welfare and Institutions
Code section 602 1, declared him a ward of the court, and ordered
him placed in the camp-community placement program for a
period of seven to nine months, with a maximum confinement
term of 24 years. Appellant continued to engage in theft-related
offenses from 2016 to 2019. In February and April 2021, while
appellant was still on probation for the offenses he admitted in
2016 and later, the juvenile court held a restitution hearing for
five victims and, on April 13, 2021, awarded them all restitution.
Appellant appeals from the juvenile court’s April 13, 2021
order awarding restitution. He contends the juvenile court
lacked authority to hold a restitution hearing five years after his
sentencing hearing, and the delay was prejudicial. He also
claims parts of the restitution awards to two sets of victims were
erroneous. We affirm the restitution order.
BACKGROUND
On February 5, 2016, as part of a plea agreement,
appellant admitted one count of residential burglary (Krishonda
Newsome) as alleged in a petition filed May 12, 2015; one count
of robbery (Pablo Garcia) as alleged in a petition filed July 28,
2015; and 12 counts of burglary as alleged in an amended
petition filed February 3, 2016. The victims of these 12
burglaries were Ricky Bell, Rhina Hassan, Audrey Anderson,
Maria Miranda, Tiffany Lee, Ramiro Gomez, Dorla Anderson,
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
Elba Duarte, Keven Stephens, Ana Evans, LaKeisha Render and
Jorge Estelles. The remaining counts were dismissed and
appellant entered a Harvey waiver. 2 As part of this agreement,
appellant was placed in the Camp Community Placement
program for seven to nine months and agreed to certain
conditions of probation.
The minute order for February 5, 2016 contains a form list
of the conditions of probation. Condition No. 23 provides: “You
must pay to the victim for any damages to him/her or his/her
property that you or your companions caused by committing this
crime. The amount you owe, if any, will be determined by your
Probation Officer, subject to court approval.” Condition No. 23 is
checked. A box at the bottom of the form states: “I have read and
understand the above conditions of probation.” (Some
capitalization omitted.) Underneath this sentence, the form
states: “MINOR:______” Appellant’s name is written in cursive
on this line.
On June 11, 2019, a petition was filed alleging appellant
committed one count of robbery against victim Ines E. The
record on appeal does not directly show that appellant admitted
the allegation of this petition or that the juvenile court found
them true. A September 16, 2019, minute order shows the June
11, 2019 petition was before the court for disposition. The court
ordered appellant to be placed in the Camp Community
Placement Program for a seven-to-nine month term. The court
also ordered: “All the previous terms and conditions of probation
previously imposed remain in full force and effect with the
following modifications: . . . #15A – Christina A., Ines E., and
2 People v. Harvey (1979) 25 Cal.3d 754.
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Zachariah Schrader.” Condition 15A is a no contact condition
which lists the victims of appellant’s offenses.
On February 22 and April 13, 2021, while appellant was
still on probation, the juvenile court held a restitution hearing
and awarded restitution to Elba Duarte, Gloria (and Ramiro)
Gomez, Kevin Stephens, Krishonda Newsome and Ines Leon
Villafana.
DISCUSSION
A. The Juvenile Court Had Authority to Hold the Restitution
Hearing.
Appellant contends section 730.6 requires that a restitution
order be made at the time of the sentencing hearing, unless the
amount of the loss cannot be ascertained at the time of that
hearing. He claims the amounts of the victims’ losses could be
ascertained at the time of the sentencing hearing through
incident reports, and so the juvenile court lacked authority to
enter a restitution hearing at a later date.
Section 730.6, subdivision (h)(1) provides in pertinent 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.”
Here, as part of his initial plea agreement to the petition
involving four of the five victims who testified at the restitution
hearing, appellant accepted certain probation conditions. One of
those conditions was: “The amount you owe, if any, will be
determined by your Probation Officer, subject to court approval.”
Thus, appellant agreed the amount of restitution could be
determined at a future date by the probation officer. Although
the record is somewhat ambiguous about the adjudication of the
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later petition related to Ines E., the fifth victim at the restitution
hearing, appellant does not provide a record cite showing that he
contended at the restitution hearing that the allegation involving
Ines E. had not been adjudicated or admitted, or that he argued
she was not a proper person to receive restitution. Accordingly,
he has forfeited any claim that she was not a proper person to
receive restitution. 3
Puzzlingly, neither party mentions the February 5, 2016
probation order and restitution condition in its briefing. We are
aware of nothing in the language of the statute that prevents a
juvenile from agreeing to a later determination of restitution. It
appears to have been routine in 2016. The probation condition
form in use at that time contains a condition permitting
restitution to be determined by the probation officer, and uses the
future tense, indicating the determination would be made in the
future. The prosecutor represented at the 2021 restitution
hearing that “It had been, at least commonplace, previously in
juvenile court, that either because the parties could not agree, or
for really any reason, that restitution would go per probation.
When that occurs, of course, as we all know, the minor would
admit certain counts, and enter a Harvey waiver as to other
3 We note the record for the petition involving Ines E., as set
forth in the Background section of this opinion, provides a very
strong indication that the allegation concerning Ines E. was
found true or admitted. However, even in the absence of a true
finding, admission, or plea agreement involving a Harvey waiver,
it is well settled the court “ ‘may impose a victim restitution order
as a condition of probation regardless of whether or not the
defendant has been convicted of the underlying crime.’ ” (People
v. Snow (2012) 205 Cal.App.4th 932, 940.)
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counts. And then my understanding would be that the probation
department would contact all of the victims.”
Assuming for the sake of argument that the February 5,
2016 order did not constitute an agreement that the amount of
restitution could be determined later or was invalid for some
reason, we would find no merit to appellant’s argument that
section 730.6 prohibits a later restitution hearing.
Appellant relies on two cases which address a court’s lack
of jurisdiction to impose restitution after the end of an adult
offender’s probationary period. (Hilton v. Superior Court (2014)
239 Cal.App.4th 766, 775 [“a trial court loses jurisdiction to
impose restitution once a probationary term has expired”]; accord
People v. Waters (2015) 241 Cal.App.4th 822, 829 [agreeing with
Hilton that a trial court’s authority to modify the conditions of a
defendant’s probation, including the defendant's restitution
obligations, is limited to the probationary period].) Assuming that
the reasoning of Hilton and Waters applies to juvenile restitution
orders, 4 appellant was still on probation when the restitution
orders at issue were made. Thus, Hilton and Waters do not
appear to be useful to appellant.
Appellant also relies on a brief reference to a “mandatory
statutory framework” in People v. Bufford (2007) 146 Cal.App.4th
966, 971–972. The statutory framework in that case was Penal
Code section 1202.4, which applies to adult offenders and so is
part of an entirely different sentencing scheme. Even so, we do
not believe that this phrase compels, as a jurisdictional
4 Both cases involve former Penal Code section 1203.3, which
applies to adult offenders given probation, and is part of an
entirely different sentencing scheme than applies to juvenile
offenders.
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requirement, that restitution be determined at the sentencing
hearing in adult cases. 5 Penal Code section 1202.4, subdivision
(f) provides: “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 of Appeal in Bufford read Penal Code section
1202.4 broadly, holding: “The trial court read section 1202.4 to
allow deferral of an order fixing the amount of restitution only
when the amount cannot be economically determined, and not for
other reasons. We do not read section 1202.4 so narrowly.” (Id.
at p. 971.) The Court of Appeal found the statutory language did
not create “a limitation on the permissible reasons that may
prevent fixing the amount of restitution.” (Ibid.) Bufford, at a
minimum, refutes appellant’s argument that the amounts of loss
in this case must be considered ascertainable as a matter of law
because there were incident reports showing the loss amounts
first claimed by the victims. Appellant has not met his burden of
showing error on appeal, that is, of showing that there was no
permissible reason to defer determination of the amount of
restitution until after the sentencing hearing.
5 Although not determinative of our decision, we note that, in
context, the reference to mandatory statutory framework most
reasonably is understood as referring to the statute’s mandate
that “the court shall require that the defendant make restitution
to the victim or victims” and “shall order full restitution unless it
finds compelling and extraordinary reasons for not doing so, and
states them on the record” (Pen. Code, §§ 1202.4, subd. (f), 730.6,
subd. (h)(1)) as opposed to requiring strict procedures to follow for
determining the amount of restitution.
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B. Appellant Has Not Shown Prejudice Due to the Delay in
Holding the Restitution Hearing.
Appellant argues his right to due process was violated
because the unjustified delay in holding the restitution hearing
weakened his ability to prepare a defense. He contends the
victims’ memories were clearly affected by the passage of time
because at the hearing they changed their earlier accounts of
what was stolen and the value of the stolen items. He concludes
their testimony was unreliable and therefore inadmissible.
Appellant relies on People v. Nelson (2008) 43 Cal.4th 1242,
1250 to support his due process argument. That case however,
involved a claim that due process was violated by a delay in
charging the defendant with murder. (Ibid.) Due process has a
more limited application in restitution proceedings because a
hearing to establish the amount of restitution does not require
the formalities of other phases of a criminal prosecution. (People
v. Weatherton (2015) 238 Cal.App.4th 676, 684.) Appellant has
not cited any cases finding a violation of due process arising from
a delayed restitution hearing.
Here, while some of the victims did provide testimony
which differed from their earlier written accounts of stolen items,
appellant had the opportunity to cross-examine the witnesses on
all aspects of their testimony, including their memories. The
juvenile court was in the best position to determine the
credibility of the witnesses, including any express or implied
claims that their memories were accurate. We see no basis to
disturb those determinations.
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C. The Juvenile Court Did Not Err in Making the Gomez and
Stephens Restitution Awards.
Appellant contends that even if the witnesses’ memories
are accepted as reliable evidence of their losses, the juvenile court
erred in the specific amounts ordered for the Gomez and
Stephens awards.
1. Gomez Restitution
Appellant contends the juvenile court erred in awarding
the Gomezes $600 to rebuild the transmission of their 1994
Honda Accord and $1,375 to rebuild its engine. In his opening
brief, he argues the car was 21 years old and the evidence does
not establish that the theft of his car caused inoperability or
necessitated a completely rebuilt transmission or engine.
As respondent points out, Gloria Gomez testified the car
was serviced regularly, was in good working order before it was
stolen, and was not operable when it was recovered. The court
found appellant drove the car away, and so it was in working
order at the time he stole it. It is reasonable to infer from this
timing that appellant’s theft caused the damage to the Honda
either directly or indirectly. It is not reasonable to infer that the
Honda simply stopped working due solely to its age after the
theft. There is substantial evidence to support the juvenile
court’s award.
2. Stephens Restitution
Appellant contends the juvenile court erred in awarding
Stephens restitutions for two iPad minis when only one was
taken. Stephens testified at the restitution hearing that one iPad
touch ($199) and one iPad mini were stolen ($215). We do not
9
agree with appellant that Stephens was bound by the statement
in the incident report that one iPad mini worth $400 was stolen.
Appellant also contends the juvenile court erred in
awarding Stephens $405 for a Tec-9 pistol, because that firearm
“[is] illegal in California and cannot be purchased in the State.”
As appellant’s counsel acknowledged at the hearing, there was no
evidence it was illegal to possess a Tec-9 in California, or more
precisely that Stephens could not legally possess the gun.
Appellant further contends there is no evidence of the value
of the Tec-9 because the juvenile court had to hypothesize that it
could be sold in another state. He contends, incorrectly, that
Stephens testified he did not know the value of the Tec-9.
Stephens testified employees at three different gun shops told
him the gun was worth about $900 to $1000. While it is true
Stephens would have to travel outside California to sell the
weapon, the court awarded only $405 for the Tec-9, and the
difference would certainly cover any reduction in the value of the
firearm due to the costs of travel.
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DISPOSITION
The juvenile court’s order is affirmed.
CERTIFIED FOR PUBLICATION
STRATTON, Acting P. J.
We concur:
WILEY, J.
HARUTUNIAN, J. ∗
∗
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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