In re K.D. CA3

Filed 2/18/21 In re K.D. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
In re K.D., a Person Coming Under the Juvenile Court C087645
Law.
THE PEOPLE, (Super. Ct. No. JDSQ17413)
Plaintiff and Respondent,
v.
K.D.,
Defendant and Appellant.
The minor appeals from the juvenile court’s victim restitution order for
$18,872.71 entered pursuant to wardship proceedings (Welf. & Inst. Code, §§ 602,
730.6).1 She contends the Yolo County Health and Human Services Agency (DHHS)
1 Undesignated statutory references are to the Welfare and Institutions Code.
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should be jointly and severally liable for the restitution, failure to do so violates her right
to equal protection, and the order is not supported by substantial evidence. We shall
affirm.
BACKGROUND
On July 4, 2017, the minor was a resident at the Advent Group Home in Morgan
Hill. At around 1:00 p.m., she and two other female residents, S.M. and L.N., entered an
office and confronted three staff members who were having a meeting. S.M., with the
minor and L.N. standing behind her and holding pool cues, entered the office and
demanded her cell phone. S.M. started throwing items around, and then took staff
member E. Sanchez’s cell phone from a desk. Sanchez told staff member S. Taylor to
call 911; S.M. grabbed Taylor’s phone from her. Sanchez took her cell phone from
S.M.’s pocket, handed it to Taylor, and told Taylor and another staff member to leave and
call the police. Taylor and the other counselor left the office, but S.M. prevented
Sanchez from leaving.
After the other staff members left the office, S.M. continued to demand her phone
from Sanchez while throwing items about the room. The minor handed a baseball bat to
S.M., who used it to strike objects. S.M. also made numerous threats to beat Sanchez.
Sanchez was eventually allowed to open the safe and get S.M.’s phone. S.M. then
used the bat to break a hole in the pantry door, which was then unlocked by reaching
through the hole. L.N. opened the pantry door and took numerous contraband items.
Sanchez tried to leave the room but was blocked by the minor, who still held a
pool cue. S.M. went to Sanchez with a raised bat and demanded the keys to the group
home’s van. S.M. struck Sanchez several times in the arm and shoulder as the minor
encouraged her, telling her to “just fucking beat” Sanchez. The minor approached
Sanchez, telling her they were not kidding about the keys, and struck Sanchez
approximately three times in the knee with the pool cue. L.N. slapped Sanchez several
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times after she still refused to surrender the keys. Sanchez eventually gave the key to
S.M. The minor said they should “check this bitch” before they left, but S.M. said they
should just go because the police were on the way.
As they left the home, the three girls were confronted by police officers, who
ordered them to drop the weapons and get on the ground. L.N. complied. S.M. yelled at
the officers, “Get back bitch! I have a gun too!” She got into the van on the driver’s side
and the minor entered on the passenger side. Driving the van, S.M. backed into the
fence, drove over the group home’s lawn, through bushes lining the property, and onto
the street. She hit numerous vehicles and a home before she and the minor where taken
into custody.
The following day, the minor executed a Miranda waiver and spoke to a police
officer about the incident. She immediately expressed remorse for what happened. The
minor admitted her involvement, including assaulting Sanchez with the pool cue. She
and the other participants had stolen a bottle of vodka from a nearby store, emptied the
vodka into water bottles, and then drank them before the crimes. She was afraid of S.M.
and felt obligated to assault Sanchez after S.M. directed her to strike Sanchez with a pool
cue.
The minor was a juvenile court dependent since December 2016. She had not
spoken to her mother in over a year, and believed her father was a transient. The minor’s
social worker was in disbelief about the incident, as the minor never had prior law
enforcement contact or had been a behavioral problem. She was one of the most well-
behaved children in the social worker’s caseload.
In Santa Clara County Juvenile Court, the minor admitted allegations in a section
602 petition that she committed assault with a deadly weapon and false imprisonment.
(Pen. Code, §§ 245, subd. (a)(1), 236.) The matter was subsequently transferred to Yuba
County, the minor’s county of residence and the venue of her dependency case.
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Yolo County Juvenile Court accepted the transfer on August 8, 2017. Following
the probation department’s recommendation, the juvenile court ruled the matter would
proceed under section 241.1 for dual dependency and delinquency jurisdiction.
Subsequently, the minor was found to be a ward of the court and placed on probation,
with one of the conditions being payment of victim restitution in an amount to be
determined later.
The August 2017 disposition memorandum noted the minor was attending school
in juvenile hall, where she was considered to be a pleasure to have in class and was
excelling in all assigned work. The report recommended out of home placement and
continued dual supervision.
On January 29, 2018, the People filed a motion for restitution for five victims,
totaling $24,273.21.
On February 21, 2018, the minor admitted violating probation by absconding.
The juvenile court terminated reunification services in the dependency case and
set a selection and implementation hearing at the April 9, 2018, 12-month review hearing.
The minor was present at the May 30, 2018 restitution hearing. Minor’s counsel
contested the minor’s responsibility to pay restitution for damage caused by the van that
she did not drive. The juvenile court ordered the minor to pay $18,872.71, jointly and
severally liable with S.M. and L.N. The minor’s parents were not present at the hearing.
DISCUSSION
I
The minor contends DHHS should be jointly and severally liable for victim
restitution because she was a dependent under its care and protection when she
committed the acts underlying the restitution award.
Section 730.6, subdivision (a)(1) requires a minor to pay restitution for “economic
loss as a result of the minor’s conduct . . . .”
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“In a case in which a minor is ordered to make restitution to the victim or victims,
or the minor is ordered to pay fines and penalty assessments under any provision of this
code, a parent or guardian who has joint or sole legal and physical custody and control of
the minor shall be rebuttably presumed to be jointly and severally liable with the minor in
accordance with Sections 1714.1 and 1714.3 of the Civil Code for the amount of
restitution, fines, and penalty assessments so ordered, up to the limits provided in those
sections, subject to the court’s consideration of the parent’s or guardian’s inability to
pay.” (§ 730.7, subd. (a).)
According to the minor, DHHS was, in effect, her legal guardian for the purposes
of section 730.7, and therefore should be jointly and severally liable for victim restitution
under this statute. The minor acknowledges that DHHS is a public entity (Gov. Code,
§ 811.2 [“ ‘Public entity’ includes . . . a county [and] public agency”]) and therefore
immune “unless otherwise provided by statute.” (Gov. Code, § 815, subd. (a).) She
asserts that DHHS was under a statutory duty to promulgate a case plan to ensure she is
protected and receives appropriate services, and, if placed out of the home, put in an
environment best suited to meet her needs and interests. (§ 16501.1, subds. (b), (d).) The
minor claims there were clearly problems with her placement in the Advent Group Home
where she committed her crimes, as she was there with S.M., the presumed mastermind
of the crimes. She argues her social worker should have been aware of this problem with
her placement. In addition, she notes the record is not clear regarding how often the
social worker visited her when she was in Morgan Hill. From this, she concludes DHHS
and its employee violated its mandatory statutory duty and therefore was not immune
from liability. (See Gov. Code, § 815.6.)
“[A] reviewing court ordinarily will not consider a challenge to a ruling if an
objection could have been but was not made in the trial court. [Citation.] The purpose of
this rule is to encourage parties to bring errors to the attention of the trial court, so that
they may be corrected. [Citation.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn.
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omitted.) A party who fails to raise an issue in the trial court generally forfeits the right
to challenge the ruling on that basis on appeal. (Id. at p. 1293, fn. 2.)
This is especially true where, as here, the new issues raise questions of fact. The
minor’s claim turns on multiple unresolved factual issues such as whether S.M. was
present when the minor was placed in Morgan Hill, whether S.M. induced or threatened
the minor to participate in the crime, and, if so, could this have been discovered by
DHHS through reasonable means, and how often did the social worker visit the minor.
The exception to the forfeiture rule for issues of law raised for the first time on appeal
does not apply to unresolved factual issues. (Araiza v. Younkin (2010) 188 Cal.App.4th
1120, 1127.) Her contention is therefore forfeited.
II
The minor contends failure to hold DHHS jointly and severally liable violates her
right to equal protection. She claims section 730.7 draws an unreasonable distinction
between minors who have parents or guardians equally responsible for restitution and
those like the minor who do not.2 The minor argues the two are similarly situated, but
are treated unequally, as those with parents held liable for restitution have another means
of satisfying the restitution award. She finds this disparate treatment prejudices her by
making her solely responsible for paying a large restitution amount. Since probation can
be revoked if a minor “willfully failed to pay or failed to make sufficient bona fide efforts
to legally acquire the resources to pay” (§ 730.6, subd. (m)), the minor claims the
2 The Attorney General claims the minor’s parents could be found jointly and severally
liable for restitution. Section 730.7 presumes a parent or legal guardian who has “joint or
sole legal and physical custody and control of the minor” is rebuttably presumed to be
liable for restitution imposed on the minor. (§ 730.7, subd. (a).) While their parental
rights were intact when she committed her crimes, the minor was then a dependent of the
juvenile court who was placed out of her parents’ home, and her parents had neither legal
nor physical custody of the minor when she committed the acts underlying the restitution
award. Accordingly, the parents could not and were not liable for the victim restitution.
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disparate treatment involves the fundamental right of personal liberty, and should
therefore be subject to the strict scrutiny test. Finding section 730.7 does not withstand
strict scrutiny analysis, she concludes DHHS should be jointly liable for the restitution
award.
Since this claim, unlike the statutory claim, does not raise unresolved factual
issues, we address it in spite of the minor’s failure to raise it below.
“ ‘The equal protection guarantees of the Fourteenth Amendment and the
California Constitution are substantially equivalent and analyzed in a similar fashion.
[Citations.]’ [Citation.] We first ask whether the two classes are similarly situated with
respect to the purpose of the law in question, but are treated differently. [Citation.] If
groups are similarly situated but treated differently, the state must then provide a rational
justification for the disparity. [Citation.] However, a law that interferes with a
fundamental constitutional right or involves a suspect classification, such as race or
national origin, is subject to strict scrutiny requiring a compelling state interest.
[Citation.]” (People v. Lynch (2012) 209 Cal.App.4th 353, 358.)
We reject the minor’s claim that a liberty interest is involved here. A minor
cannot have her probation terminated because of a simple inability to pay victim
restitution; revocation requires a court finding that the minor willfully failed to pay or did
not make sufficient bona fide efforts to do so. There is no fundamental liberty interest
implicated by terminating probation based on the willful failure to comply with a
probation condition. Accordingly, we employ the rational basis test.
“Where, as here, a disputed statutory disparity implicates no suspect class or
fundamental right, ‘equal protection of the law is denied only where there is no “rational
relationship between the disparity of treatment and some legitimate governmental
purpose.” ’ [Citations.] ‘This standard of rationality does not depend upon whether
lawmakers ever actually articulated the purpose they sought to achieve. Nor must the
underlying rationale be empirically substantiated. [Citation.] While the realities of the
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subject matter cannot be completely ignored [citation], a court may engage in “ ‘rational
speculation’ ” as to the justifications for the legislative choice [citation]. It is immaterial
for rational basis review “whether or not” any such speculation has “a foundation in the
record.” ’ [Citation.] To mount a successful rational basis challenge, a party must
‘ “negative every conceivable basis” ’ that might support the disputed statutory disparity.
[Citations.] If a plausible basis exists for the disparity, courts may not second-guess its
‘ “wisdom, fairness, or logic.” ’ [Citations.]” (Johnson v. Dept. of Justice (2015)
60 Cal.4th 871, 881.)
Victim restitution in delinquency cases serves the purposes of helping the minor’s
rehabilitation, deterring future misconduct, and making the victim whole. (In re
Anthony M. (2007) 156 Cal.App.4th 1010, 1017.) Making the minor the primary person
responsible for paying victim restitution has the rational basis of advancing those first
two purposes. Not holding liable parents who are unable to pay or those who did not
have custody or control of the minor is a reasonable way of focusing responsibility on the
cause of the harm, the minor. DHHS’ sovereign immunity is also supported by a rational
interest, allowing government entities and their employees to perform their duties without
fear of subsequently being found liable. (See O’Hagan v. Bd. of Zoning Adjustment
(1974) 38 Cal.App.3d 722, 730 [“[t]o provide the utmost public protection, governmental
entities should not be dissuaded from engaging in such activities by the fear that liability
may be imposed if an employee performs his duties inadequately. Moreover, if liability
existed for this type of activity, the risk exposure to which a public entity would be subject
would include virtually all activities going on within the community”].) Failing to hold
DHHS jointly liable for restitution does not violate due equal protection.
III
The minor’s final contention is that the restitution award is not supported by
substantial evidence. The minor’s crimes were related to the attack and false
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imprisonment of Sanchez, who did not seek restitution. She asserts the damages
underlying the restitution order were caused by S.M. when she drove the van. The minor
claims S.M. was the ringleader and she was a mere passenger in the van. Finding
insufficient evidence that her conduct was a substantial factor in the victims’ losses, she
concludes the restitution order should be stricken.
As explained in In re Alexander A. (2011) 192 Cal.App.4th 847, 853: “The
California Constitution gives trial courts broad power to impose restitution on offenders
for losses caused by their criminal conduct. (Cal. Const., art. I, § 28, subd. (b)(13)(A) [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 those losses] [citation].) A victim’s right to
restitution is broadly and liberally construed. [Citations.] [¶] In proceedings involving
minors, the juvenile court is vested with discretion to order restitution consistent with the
goals of the juvenile justice system. [Citation.] The goal of the juvenile justice system is
to provide minors under the jurisdiction of the court with care, treatment, and guidance
that is consistent with their best interests and to hold them accountable for their behavior
as appropriate under the circumstances, consistent with the interests of public safety and
protection. (§ 202, subd. (b).) In enforcing, interpreting and administering the juvenile
court law, the trial court also is to consider the safety and protection of the public, the
importance of redressing injuries to victims and the best interests of the minor. (Id.,
subd. (d).)”
The requirement of section 730.6, subdivision (a)(1) that a minor to pay restitution
for “economic loss as a result of the minor’s conduct” sets a floor, not a ceiling for the
restitution that may be properly ordered by a juvenile court. (In re T.C. (2009)
173 Cal.App.4th 837, 844.) Thus: “ ‘The juvenile court has wide discretion to select
appropriate conditions [of probation] and may impose “ ‘any reasonable condition that is
“fitting and proper to the end that justice may be done and the reformation and
rehabilitation of the ward enhanced.” ’ ” [Citations.]’ [Citation.] In determining how
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best to rehabilitate a minor, the juvenile court should consider the broadest range of
information. [Citation.] Consistent with section 730, the juvenile court ‘enjoys broad
discretion to fashion conditions of probation for the purpose of rehabilitation and may
even impose a condition of probation that would be unconstitutional or otherwise
improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.]
That discretion will not be disturbed in the absence of manifest abuse. [Citation.]’
[Citation.]” (Id. at p. 845.)
“ ‘ “[A] condition of probation which requires or forbids conduct which is not in
itself criminal, and is for that reason most vulnerable to challenge, is nonetheless valid if
the conduct required or forbidden either (a) has a relationship to the crime of which the
offender was convicted, or (b) is reasonably related to future criminality.” ’ [Citations.]”
(In re T.C., supra, 173 Cal.App.4th at p. 847.) A probation condition requiring the
payment of restitution is subject to this rule. (Ibid.)
“That a defendant was not personally or immediately responsible for the victim’s
loss does not render an order of restitution improper. To the contrary, ‘California courts
have long interpreted the trial courts’ discretion to encompass the ordering of restitution
as a condition of probation even when the loss was not necessarily caused by the criminal
conduct underlying the conviction. Under certain circumstances, restitution has been
found proper where the loss was caused by related conduct not resulting in a conviction
[citation], by conduct underlying dismissed and uncharged counts [citation], and by
conduct resulting in an acquittal [citation].’ [Citation.] Again, the question simply is
whether the order is reasonably related to the crime of which the defendant was convicted
or to future criminality.” (In re I.M. (2005) 125 Cal.App.4th 1195, 1209.)
Such is the case here. There is substantial evidence showing the minor was a
willing and active person in the attack on the group home staff, and, through her
felonious assault and false imprisonment of Sanchez, helped secure the keys to the van
which she and S.M. used to try to flee from the group home. The damage caused by the
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van is also closely associated with the dismissed allegations of reckless driving (Veh.
Code, § 2800.1) and unauthorized driving or taking of a vehicle (Veh. Code, § 10851).
Substantial evidence supports a finding that the damage caused by the van was closely
related to the minor’s criminal conduct, and ordering the minor to pay victim restitution
for this damage was not an abuse of discretion.
DISPOSITION
The judgment (order) is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
RENNER, J.
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