Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J217702 George W. Clarke, Judge. Affirmed.
BENKE, Acting P. J.
Both in adult criminal proceedings and juvenile delinquency proceedings the trial court is required to order that adult probationers and delinquent juveniles reimburse the victims of their crimes for the victims' economic losses. Our courts have consistently held the amount of such restitution is not limited to the amount of the victim's out-of-pocket losses and hence may not be reduced by the amount victims recover from insurers or other third parties. Thus the trial court did not err in declining to give the juvenile appellant in this case a credit for insurance recovered by the victim of his burglary, the City of Vista (the city).
FACTUAL AND PROCEDURAL BACKGROUND
On August 5, 2007, Rudy N. and five companions scaled a fence at the Wave Water Park, which is owned by the city. Rudy and his companions then wrote graffiti at nine different places within the water park. The city spent $46,455.92 repairing the damage Rudy and his companions committed.
By way of a delinquency petition, Rudy was charged with, among other offenses, felony vandalism (Pen. Code, § 594, subds. (a), (b)), felony burglary (§ 459) and public drunkenness (§ 647, subd. (f)), growing out of an earlier incident involving an argument with his girlfriend. Rudy admitted the burglary and public drunkenness allegations and the juvenile court dismissed the balance of the petition. Rudy waived his rights under People v. Harvey (1979) 25 Cal.3d 754, 758-759.
All further statutory references are to the Penal Code unless otherwise specified.
At a February 21, 2008, disposition hearing, the juvenile court placed Rudy on probation and ordered that he pay the city $46,455.92 in restitution. Rudy did not contest the juvenile court's restitution order.
The juvenile court conducted a review hearing on February 24, 2009. At the review hearing, Rudy's counsel argued Rudy's restitution should be limited to the amount of the city's out-of-pocket loss of $5,000, the deductible or self-insured amount under the terms of the city's insurance policy. The juvenile court ordered briefing on the issue and conducted a separate hearing on counsel's contention. At the hearing on counsel's contention, the trial court declined to limit the amount of restitution: "I will note it's the court's belief that operative law indicates that restitution to the victim is appropriate, and that if there is any indemnification required, that's a process between the victims and the carrier as opposed to the court's specific involvement in that."
After entering a judgment against Rudy in the amount of the unpaid restitution, $45,900, the trial court terminated jurisdiction over Rudy. Rudy filed a timely notice of appeal.
DISCUSSION
On appeal, Rudy contends the trial court should have limited his restitution obligation to the amount of the city's insurance deductible. This and similar contentions have been consistently rejected by our courts. (See In re Brittany L. (2002) 99 Cal.App.4th 1381, 1386-1389; see also In re Tommy A. (2005) 131 Cal.App.4th 1580, 1592; In re Johnny M. (2002) 100 Cal.App.4th 1128, 1133-1134.)
In In re Brittany L. a juvenile threw eggs at her neighbor's house and caused $7,300 in damage. The trial court limited the restitution order to $500, the amount of the neighbor's insurance deductible. In reversing and directing that restitution be made without regard to what the victim could recover from any third parties, the court stated: "The purpose behind requiring a minor to pay victim restitution is for its deterrent as well as rehabilitative effect. 'Requiring the [minor] to make complete reparation to her victims for the harm done to them is more likely to make an impression on the [minor] than simply imposing a statutory fine. [Citation.]' These purposes would be thwarted if a minor was relieved from responsibility for making her victims whole simply because the victim had been farsighted enough to purchase insurance for this type of damage to their home." (Id. at p. 1387, fns. omitted.)
In rejecting the juvenile's argument, the court in In re Brittany L. relied on the terms of Welfare and Institutions Code section 730.6, subdivision (h), which in pertinent part, states: "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. A minor's inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of the restitution order. A [victim] restitution order... to the extent possible, shall identify each victim, ... and shall be a dollar 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...:... the actual cost of repairing the property when repair is possible." The court also noted the terms of section 730.6, subdivision (a)(1), which state: "It is the intent of the Legislature that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs any economic loss as a result of the minor's conduct shall receive restitution directly from that minor."
Importantly, in In re Brittany L. the court also relied on the Supreme Court's holding in People v. Birkett (1999) 21 Cal.4th 226, 246 (Birkett). In Birkett the court held that under the 1994 version of former section 1203.04, which was virtually identical to the provisions of Welfare and Institutions Code section 730.6, insurers are not entitled to restitution of amounts they pay crime victims. "It appears clear from this language that the Legislature intended to require a probationary offender, for rehabilitative and deterrent purposes, to make full restitution for all 'losses' his crime had caused, and that such reparation should go entirely to the individual or entity the offender had directly wronged, regardless of that victim's reimbursement from other sources. Only the Restitution Fund was eligible to receive any part of the full restitutionary amount otherwise due to the immediate victim.
"Thus, except as against the Restitution Fund, the immediate victim was entitled to receive from the probationer the full amount of the loss caused by the crime, regardless of whether, in the exercise of prudence, the victim had purchased private insurance that covered some or all of the same losses. Third parties other than the Fund, such as private insurers, who had already reimbursed the victim were thus left to their separate civil remedies, if any, to recover any such prior indemnification either from the victim or from the probationer. [Citations.]
"Again, this result is neither absurd nor contrary to Proposition 8. As noted above, the Legislature could rationally conclude that the criminal restitution scheme should always require the offender to pay the full cost of his crime, receiving no windfall from the fortuity that the victim was otherwise reimbursed, but that the rights of reimbursing third parties, aside from the state's own Restitution Fund, should be resolved in other contexts." (Birkett, supra, 21 Cal.4th at p. 246.)
In In re Tommy A. a juvenile drove a car owned by one of his mother's friends without the owner's permission and was involved in a hit and run accident. The insurer for the owner of the car reached a settlement with the victim which released both the owner and the juvenile from all civil liability to the victim. The court in In re Tommy A. held the release did not diminish or relieve the juvenile of his obligations under Welfare and Institutions Code section 730.6. "[N]either Tommy nor anyone legally responsible for his care or support... procured or maintained the insurance that covered the economic losses that [the victim] sustained as a result of Tommy's criminal conduct. Thus... Tommy cannot use the settlement payment made by [the owner's insurer] to offset his victim restitution obligation under section 730.6 (a)(1)." (In re Tommy A, supra, 131 Cal.App.4th at p. 1592.) The court further held any agreement reached by the victim's insurer did not supersede the juvenile's implied agreement with the state that he would pay restitution. (Id. at pp. 1590-1591.)
In In re Johnny M. a juvenile broke into a school and damaged two classrooms. The school district used salaried employees to perform cleanup and repair of the classrooms and obtained restitution from the juvenile court based on the employees' hourly wage rate plus benefits. Because these items did not involve any additional "out-of-pocket" expenses for the district, on appeal the juvenile argued the employees' hourly wages and benefits should not have been part of the juvenile's restitution order. In rejecting the juvenile's argument, the court stated: "The plain meaning of the statute defeats minor's argument that restitution is limited to out-of-pocket expenses. Section 730.6 expressly states that 'economic losses, ' not monies expended, is the governing test." (In re Johnny M., supra, 100 Cal.App.4th at p. 1132.)
In sum, as in In re Brittany L., In re Tommy A. and In re Johnny M., the juvenile court here had no discretion to limit Rudy's restitution to the amount of the district's out-of-pocket losses. We recognize that currently section 1202.4, subdivision (f)(2), expressly provides that in adult criminal proceedings restitution may not be affected by "the indemnification or subrogation rights of any third party." (Italics added.) On its face this provision does not in any fashion define the amount of restitution required in adult criminal proceedings, but rather appears to simply codify the holding in Birkett and prevent third parties from using the criminal proceedings as a forum for asserting their indemnification or subrogation rights. The fact that similar express protection is not provided the victims of juvenile crimes under Welfare and Institutions Code section 730.6 does not imply any limitation on the amount of restitution otherwise required of juvenile delinquents.
The judgment is affirmed.
WE CONCUR: McDONALD, J.IRION, J.