Opinion
No. 2 CA-JV 2018-0061
08-23-2018
IN RE D.E.
COUNSEL Barbara LaWall, Pima County Attorney By Dale Cardy, Deputy County Attorney, Tucson Counsel for State Joel Feinman, Pima County Public Defender By Susan C. L. Kelly, Assistant Public Defender, Tucson Counsel for Minor
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Juv. Ct. 103(G). Appeal from the Superior Court in Pima County
No. JV20170122
The Honorable Deborah Pratte, Judge Pro Tempore
AFFIRMED IN PART AND VACATED IN PART
COUNSEL Barbara LaWall, Pima County Attorney
By Dale Cardy, Deputy County Attorney, Tucson
Counsel for State Joel Feinman, Pima County Public Defender
By Susan C. L. Kelly, Assistant Public Defender, Tucson
Counsel for Minor
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 D.E., born November 2004, was adjudicated delinquent after he admitted having committed arson of a structure or property. The juvenile court placed him on a twelve-month term of probation and, after an evidentiary hearing, ordered that D.E. pay $8,873.16 in restitution to the only victim named in the delinquency petition. This appeal followed.
¶2 D.E. initially filed in this court a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asking this court to review the record for error. See In re Maricopa Cty. Juv. Action No. JV-117258, 163 Ariz. 484, 485-87 (App. 1989) (affording juveniles adjudicated delinquent Anders-type review on appeal). On our review of the record, we determined there were "arguably meritorious issues warranting further review." We therefore struck the brief filed by counsel and directed her "to file an opening brief addressing, at minimum, the following issues: 1) Whether the [juvenile] court erred by awarding restitution for conduct not encompassed by the juvenile's admissions and, 2) whether the . . . court erred by awarding restitution for damage to property not owned by the victim." D.E., through counsel, filed an opening brief addressing those issues.
¶3 Section 8-344(A), A.R.S., provides that, when "a juvenile is adjudicated delinquent, the court . . . shall order the juvenile to make full or partial restitution to the victim of the offense for which the juvenile was adjudicated delinquent . . . ." The purpose of the statute, like all "restitution statutes generally[,] is to make the victim whole." In re Ryan A., 202 Ariz. 19, ¶ 27 (App. 2002). A victim of a delinquent minor's criminal offenses must be made whole, that is, compensated for any economic loss that would not have occurred but for the juvenile's delinquent conduct that directly caused the victim's loss. In re Andrew C., 215 Ariz. 366, ¶¶ 9-10 (App. 2007). Additionally, the evidence of loss must "provide a basis for setting an amount that is not speculative." In re Alton D., 196 Ariz. 195, ¶ 9 (2000). Economic loss is "any loss incurred by a person as a result of the commission of an offense." A.R.S. § 13-105(16).
¶4 We will not disturb a juvenile court's order of restitution in a delinquency proceeding absent an abuse of discretion. See In re Erika V., 194 Ariz. 399, ¶ 2 (App. 1999). "The court abuses its discretion when it makes an error of law in reaching a discretionary conclusion or 'when the record, viewed in the light most favorable to upholding the trial court's decision, is devoid of competent evidence to support the decision.'" Michaelson v. Garr, 234 Ariz. 542, ¶ 5 (App. 2014), quoting Mahar v. Acuna, 230 Ariz. 530, ¶ 14 (App. 2012).
¶5 Regarding restitution, D.E.'s plea agreement stated only: "Restitution cap: $20,000.00 Counts All, Both admitted and dismissed." At the adjudication hearing, the juvenile court noted "[t]here is a restitution cap of $20,000" and asked D.E., "Do you understand that?" to which D.E. responded, "Yes." There was no further discussion of D.E.'s understanding of restitution. On appeal, the parties agree that D.E. agreed to pay restitution for all charged conduct, not limited to the offense he admitted. See State v. Lewis, 222 Ariz. 321, ¶ 7 (App. 2009) (trial court permitted to "impose restitution only on charges for which a defendant has been found guilty, to which he has admitted, or for which he has agreed to pay"), quoting State v. Garcia, 176 Ariz. 231, 236 (App. 1993). We therefore do not address that question further.
¶6 D.E. additionally argues that a portion of the restitution award was improper because it compensated the victim for damage to property he did not own. The delinquency petition alleged D.E. had damaged vehicles belonging to the victim. The evidence presented at the restitution hearing established the following: In January 2017, D.E. and another juvenile entered the victim's property, a storage lot for vehicles related to the victim's used-car business. They vandalized several vehicles and set a fire, which damaged several more.
¶7 The victim testified about damage to eight vehicles. The victim, however, did not own two of those vehicles, and was instead storing those vehicles for the owner, who abandoned them after the fire. At the end of the hearing, the state requested a restitution award of $8,873.16, including $500 for the two vehicles not owned by the victim. Over D.E.'s objection, the juvenile court awarded the amount requested, reasoning the "vehicles can reasonably be found to be abandoned property, and so that [the victim] can recoup something from this property, and that's probably going to be the salvage value for any parts that he could get for the vehicle[s] and to have [them] hauled away."
¶8 We agree with D.E. that the juvenile court erred by awarding restitution for the two vehicles not owned by the victim. Insofar as the court's ruling could be read to conclude the vehicles had been abandoned by the owner before the fire, no evidence supports that conclusion. Nor is there any evidence suggesting it have would cost the victim $500 to remove the vehicles from his property. Finally, even assuming the victim obtained ownership of the vehicles when the previous owner abandoned them, we have found no authority suggesting a person is entitled to restitution for property obtained after the offender's conduct. Indeed, that result would be inconsistent with the definition of economic loss because any loss in value to the property occurred before the victim obtained it. Thus, it cannot be said the victim suffered any loss to the value of his property due to D.E.'s conduct.
The state asserts in passing that the restitution award could be permitted because "the original owner stopped paying rent to store the vehicles." Nothing in the record suggests the juvenile court awarded restitution for lost rental income, even were we to agree that loss resulted directly from D.E.'s conduct. See State v. Wilkinson, 202 Ariz. 27, ¶ 7 (2002) (restitution not permitted for loss resulting "from the concurrence of some causal event other than the defendant's criminal conduct"); see also Andrew C., 215 Ariz. 366, ¶ 9 (restitution for consequential damages not appropriate). --------
¶9 We vacate the portion of the restitution order awarding $500 in restitution for the vehicles not owned by the victim at the time of D.E.'s offenses. We otherwise affirm the adjudication and disposition.