Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ08010338-01
Pollak, J.
Following his admission to one count of vandalism, the minor was ordered to pay $12,104.50 in restitution to the victim. He contends that the restitution order violates the terms of his plea bargain, is contrary to the law and reflects an abuse of discretion by the trial court. While we conclude that the restitution order does not violate the terms of the plea bargain and is authorized by law, the order must be reversed and remanded because the court failed to exercise its discretion in calculating the amount of the award.
Background
On July 10, 2008, a petition was filed alleging that the minor came within the provisions of Welfare and Institutions Code section 602 based on allegations that on four separate occasions between November 2007 and March 2008 he broke windows at a local business. (Pen. Code, § 594, subd. (b)(1).) The petition identifies a co-participant in the vandalism. In a written statement made to the police on April 28, the minor admitted that he broke a total of five windows over a period of a couple of months.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
On July 29, 2008, the minor pled guilty to one count of vandalism occurring on March 21. At the plea hearing, the minor’s attorney indicated that the minor would be admitting one count of vandalism and “the remaining counts would be dismissed with facts and restitution open.” At that time, the court observed that they were “talking about a lot of potential restitution” and confirmed with the minor that he had “a chance to go over this matter with [his] attorney.” After obtaining valid waivers of his constitutional rights and advising the minor of his maximum sentencing exposure, the court advised the minor with regard to restitution as follows: “Here’s some bad news. You may be ordered to pay money, both a fine to the court and possible restitution, not only you but your mother, for whatever damage was caused here as a result of this admission.” The minor’s attorney informed the court that she had advised the minor “that any restitution would be joint and several with the co-part[icipant].” The court acknowledged that this was correct, noting that it “[s]ounds like you advised him well.” The court added, “You probably also told him if the co-part[icipant] didn’t pay anything, he and his family would be stuck with the whole bill and they could go after him civilly to cover their part.”
On August 27, 2008, the minor was declared a ward of the court and placed on probation. At that time, the court again advised the minor that they were “talking about a whole lot of damages that [he] and [his] mother... possibly could be responsible for” and the court confirmed that the minor was aware that the amount could be “$12,000 plus.” At the restitution hearing on May 1, 2009, the minor was ordered to pay the victim $12,104.50 in restitution. Noting that in separate proceedings the co-participant had been ordered to pay only $428.60 in restitution, the court ordered that the minor and co-participant be held jointly and severally liable for $428.60 of the total amount that the minor was ordered to pay. At the conclusion of the hearing, when the minor’s mother told the court that she was not working, the court replied, “Inability to pay is not something you consider in determining whether you have to pay restitution.” The minor filed a timely notice of appeal.
Discussion
The restitution order does not violate the terms of the minor’s plea bargain.
“Upon the acceptance of a plea specifying the punishment available to the sentencing court, the court may not impose a punishment more severe than that specified in the plea bargain.” (In re Jermaine B. (1999) 69 Cal.App.4th 634, 639.) “Although the purpose of a restitution fine is not punitive, ... its consequences to the defendant are severe enough that it qualifies as punishment for this purpose... [and] should generally be considered in plea negotiations.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.) Generally, “the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing” (id. at p. 1025) and “[a] violation of a plea bargain is not subject to harmless error analysis” (id. at p. 1026).
The minor contends that the restitution order violates the terms of his plea agreement insofar as it holds him solely liable for more than $11,000 in restitution whereas the terms of his plea agreement entitled him to joint and several liability with his co-participant. He asserts that the proper remedy for this error is to reduce the restitution order to $428.60 or, alternatively, to give him the opportunity to withdraw his plea.
The minor’s suggestion that he should be required to pay only $428.60 because that is the amount his co-participant was ordered to pay overstates his position considerably. If the minor were correct that his plea bargain included a limitation on the amount of restitution, his 50 percent share would still be approximately $6,000. However, minor is not correct because nothing in the plea agreement placed any limitation on the amount of restitution that could be ordered. Nor did the agreement limit restitution to the amount that the co-participant was ordered to pay.
The terms of the plea agreement, as stated on the record at the hearing, were that the minor would plead guilty to one count of vandalism and the remaining counts would be dismissed, but that restitution for damages caused by the misconduct alleged in the dismissed counts would be subject to later consideration by the court. The minor was asked whether anyone had promised him anything else in exchange for his plea and he said “no.” Contrary to the minor’s suggestion, the subsequent conversation between counsel and the court regarding the minor’s joint and several liability for restitution did not add any terms or conditions to the plea agreement. (See In re Moser (1993) 6 Cal.4th 342, 356.)
In Moser, the petitioner’s challenge to the sentence concerned the imposition of lifetime parole although the trial court, prior to accepting his guilty plea, had incorrectly advised him that his potential parole term would be 36 to 48 months. (In re Moser, supra, 6 Cal.4th at pp. 347-349.) The court concluded that the parole term was not a subject of the plea agreement: “Based solely upon the record of the plea proceedings, it would appear that the indicated length of the parole term was not a part of the plea agreement, but simply constituted a misadvisement by the trial court.... [P]rior to accepting petitioner’s plea of guilty, the trial court recited on the record the terms of the parties’ plea agreement, noting that petitioner had agreed to plead guilty to the lesser charge of second degree murder in exchange for the People’s agreement to forego a trial on the first degree murder charge and to dismiss the firearm-use allegation. The trial court inquired of petitioner whether the court’s statement was an accurate recitation of the plea agreement, and he responded affirmatively. Nothing in the record indicates that the length of the parole term, improperly described by the trial court, was an element of the parties’ plea negotiations and resulting agreement so as to render imposition of the lifetime period of parole mandated by statute a violation of the plea agreement.” (Id. at p. 356.) Likewise, in this case the court’s statement suggests at most that the minor was incorrectly advised regarding his shared liability for the full amount of restitution. Because the plea agreement did not include any limitation on restitution, the court’s order did not violate the terms of the agreement.
While the minor’s claim that the restitution order violated the terms of his plea bargain cannot be waived, any claim that he was given incorrect advice regarding the consequences of his plea is subject to waiver based on his failure to assert it at the restitution hearing. (People v. Walker, supra, 54 Cal.3d at p. 1023.) In light of our conclusion post that the restitution order must be reversed and remanded, we need not consider whether counsel’s failure to raise the incorrect advisement at the restitution hearing amounted to ineffective assistance of counsel. On remand, counsel will be able to argue the merits of his claim, including whether the minor should be permitted to withdraw his plea based on any incorrect advice he received. (In re Moser, supra, 6 Cal.4th at p. 352 [“a defendant... is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement, i.e., that the defendant would not have entered the plea of guilty had the trial court given a proper advisement”]; Walker, at pp. 1022-1023.)
People v. Walker, supra, 54 Cal.3d 1013, People v. Mancheno (1982) 32 Cal.3d 855, People v. Flores (1971) 6 Cal.3d 305, and People v. Olea (1997) 59 Cal.App.4th 1289, cited by the minor and stressed by counsel at oral argument, are all distinguishable. In Mancheno, the court held that the trial court’s failure to conduct a diagnostic study of the defendant prior to sentencing violated an express provision of his plea agreement. (Mancheno, at p. 859.) In the remaining cases, plea agreements were found to have been violated by the imposition of significant punishment that was either contrary to an express term of the plea bargain or not included in the agreement. (See Flores, at p. 309 [imposition of an additional five-year enhancement not mentioned in the agreed term of five years to life]; Walker, at p. 1024 [imposition of a substantial restitution fine not mentioned in the plea agreement]; Olea, at pp. 1295-1296 [imposition of a registration requirement not mentioned in the plea agreement].) As explained in Olea, the failure to mention the additional punishment in stating the terms of the plea agreement led to a reasonable understanding by the defendant that by entering the plea he had avoided that punishment. (Olea, at p. 1297.) In contrast, in this case the minor was clearly advised that significant restitution could be imposed under the terms of the agreement. The minor could not reasonably have understood that by entering his plea he had avoided the possibility that such restitution would be imposed.
The court’s failure to consider the minor’s ability to pay constitutes an abuse of discretion.
We review the juvenile court’s restitution order for abuse of discretion. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.) A court abuses its discretion by acting contrary to law or failing to use a rational method that could reasonably be said to make the victim whole, or by making an order that is arbitrary, capricious or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; In re Anthony M., at p. 1016.) Here, the minor contends that the order is contrary to law and alternatively, if authorized by law, the court failed to properly exercise its discretion. As discussed more fully below, we conclude that while the order falls within the scope of the court’s discretion, the court’s erroneous belief that it could not consider the minor’s ability to pay in setting the amount of the order requires that the order be reversed an remanded for further consideration by the court.
First, the minor argues that the court lacked authority to order restitution based on the conduct alleged in the dismissed counts. This argument is both legally and factually incorrect. Under section 730.6, subdivision (h), the court is required to order restitution in an “amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor’s conduct for which the minor was found to be a person described in Section 602, including all of the following: [¶] (1) Full or partial payment for the value of... damaged property....” Section 730.6, however, only “specifies when restitution must be imposed. Section 730 states when restitution may be imposed as a condition of probation.” (In re T.C. (2009) 173 Cal.App.4th 837, 845.) Under section 730, subdivision (b) the court is authorized more broadly to “impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” In In re T.C., the court explained, “[W]e do not think that section 730.6, which was enacted to implement Proposition 8 (Victim’s Bill of Rights), displaced the well-recognized authority of a juvenile court to impose ‘any and all reasonable conditions [of probation] that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced’ pursuant to section 730, subdivision (b). [Citation.] Nothing in the language of section 730.6 compels that conclusion. And, as we shall explain, numerous cases, including those of the California Supreme Court, have held that a court may order restitution, as a condition of probation, even where no conviction has occurred. It would be anomalous to conclude that a statute which was designed to implement the mother of all victims’ rights initiatives would be construed to limit victims’ rights.” (In re T.C., supra, at pp. 844-845.)
Moreover, the terms of the minor’s plea agreement expressly left open the possibility that restitution would be awarded based on the conduct alleged in the dismissed counts. “[P]arties to a criminal prosecution are free, within such parameters as the Legislature may establish, to reach any agreement concerning the amount of restitution (whether by specifying the amount or by leaving it to the sentencing court’s discretion) they find mutually agreeable.” (People v. Crandell (2007) 40 Cal.4th 1301, 1309.) Accordingly, the trial court could properly consider all of the allegations in the petition when calculating the amount of restitution.
Next, the minor argues that the restitution order must be reversed because there is no evidence that he caused all of the damage. A representative of the victim testified at the restitution hearing that the company suffered a total out-of-pocket loss of $12,104.50 as a result of vandalism that occurred between November 2007 and March 2008. The invoices show that seven windows were repaired in November, two windows were repaired in January and five windows were repaired in March. The minor argues that neither his plea to the one count of vandalism in March nor his statement to the police that he broke five windows over a couple of months support his liability for the cost of repairing the windows broken in November or January. Even assuming that the minor is correct that the evidence does not directly connect him with the November and January incidents of vandalism, it was nonetheless within the court’s discretion to order him to pay restitution in the full amount of damages incurred by the victim as a result of conduct of the same nature as the conduct in which minor admittedly engaged.
The juvenile court has broad discretion to impose restitution as a reasonable condition of probation so long as it 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; In re Daniel R. (2006) 144 Cal.App.4th 1, 6; People v. Carbajal, supra, 10 Cal.4th at p. 1120.) It has long been recognized that restitution “can be a valuable tool of rehabilitation.” (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 748.) Restitution not only compensates crime victims but “impresses upon the offender the gravity of the harm he has inflicted upon another....” (Ibid.) “[R]estitution can, if proper in the circumstances, lead the minor to realize the seriousness of his crime, and to accept the responsibility for it.” (Ibid.) For these reasons, restitution may be proper where the economic loss was not necessarily caused by the defendant’s criminal conduct, and even when the loss is traceable to uncharged or dismissed counts or charges on which a defendant is acquitted. (Carbajal, at pp. 121-1125; In re I. M., at pp. 1208-1209.) Here, the minor admitted that despite knowing that “it was wrong to damage property that belongs to others, ” he threw rocks at the windows on several days over a period of months. Insofar as the order requires the minor to take full responsibility for victim’s damages it is both reasonably related to his criminal conduct and serves to impress on the minor the seriousness of the harm he inflicted on the victim. Accordingly, the order falls within the scope of the court’s discretion.
Finally, the minor contends that “assuming the court may have been authorized to order restitution for more than one window broken on March 21..., any additional amount would require exercise of informed and reasoned discretion, designed to enhance ‘ “the reformation and rehabilitation of the ward” ’ and ‘ “tailored to specifically meet the needs of the juvenile” ’ ” and that the record fails to demonstrate that the court properly recognized and exercised that discretion. He argues that in calculating the amount of restitution, the court should have considered the fact that the minor had no prior criminal record and was performing well on probation. At the hearing, however, the minor’s attorney did not argue that the court should exercise its discretion to impose less than the total amount based on his good behavior. The minor’s failure to raise the issue or object to the court’s order on this basis waives the claim. (See People v. Scott (1994) 9 Cal.4th 331, 353.)
The minor also argues that the court failed to consider his inability to pay in setting the amount of restitution. When the court orders a minor to pay restitution as a condition of probation under section 730, due process requires that the minor be afforded an opportunity to present evidence regarding his ability to pay. (In re I. M., supra, 125 Cal.App.4th at pp. 1210-1211; People v. Campbell (1994) 21 Cal.App.4th 825, 830-831.) The probation officer’s report indicates that the minor’s mother told him that “she understands that the restitution will be costly and there is absolutely no way for the family to pay for the damage.” At the hearing the mother reiterated that she would be unable to pay the ordered amount. Mother’s comments are sufficient to preserve the issue for appeal. The court’s response that “inability to pay is not something you consider in determining whether you have to pay restitution” suggests that the court failed to recognize and exercise its discretion in this respect.
While a minor’s inability to pay may not be considered in determining the amount of restitution under section 730.6, subdivision (h), that provision is not applicable, as the Attorney General acknowledges, to the extent that the restitution order is based on conduct alleged in dismissed counts.
Contrary to the Attorney General’s argument, consideration of a minor’s ability to pay restitution in a vandalism case is entirely consistent with the Legislature’s intended treatment of juveniles who commit acts of vandalism. Section 742.16, subdivision (a) expressly provides that if a minor has been found to have committed vandalism and “the minor’s cleanup, repair, or replacement of the property will not return the property to its condition before it was defaced, damaged, or destroyed, the court shall make a finding of the amount of restitution that would be required to fully compensate the owner and possessor of the property for their damages. The court shall 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.” The Attorney General argues that this provision is inapplicable insofar as the restitution order is based on the dismissed charges. Even if that is correct, there is no compelling reason why a minor’s ability to pay should be ignored simply because restitution is ordered under section 730 rather than section 742.16. Accordingly, the order must be reversed and remanded to permit the court to consider the minor’s financial circumstances and any other matters that properly bear on the exercise of sound discretion in fixing the appropriate amount of restitution.
Disposition
The judgment is reversed and remanded for further proceedings consistent with this opinion.
We concur: McGuiness, P.J., Jenkins, J.