Opinion
2d Juv. No. B232511 Super. Ct. No. JV47978
12-28-2011
In re ROBERT K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROBERT K., Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Luis Obispo County)
Robert K. (the minor) appeals an order of the juvenile court requiring him to pay $8,332.78 in victim restitution jointly and severally with three co-offenders, plus a 10 percent restitution collection fee. We strike the restitution collection fee, but otherwise affirm.
FACTS AND PROCEDURAL HISTORY
On February 18, 2009, the San Luis Obispo County prosecutor filed a juvenile wardship petition against the minor alleging that he committed four counts of burglary against residences on Flyrod Avenue in Paso Robles. (Welf. & Inst. Code, § 602, subd. (a) ; Pen. Code, § 459.) The minor later admitted committing the burglaries alleged in counts 1 and 2, and agreed that the juvenile court could order him to pay fines and victim restitution. On April 1, 2009, the court declared the minor a ward of the court, placed him on probation, required him to serve 29 days confinement in juvenile hall (with credit for time served), and ordered him to pay victim restitution in an amount to be determined. The court dismissed the remaining burglary counts.
All statutory references are to the Welfare and Institutions Code unless stated otherwise.
The residential burglaries were committed by the minor, a second minor, and two adults. The minor admitted to the probation officer that he committed the burglaries, including burglarizing the Brewster residence located at 9908 Flyrod Avenue. He stated that all co-offenders played an equal part in committing the burglaries.
The Brewsters compiled a list of items taken during the burglary and submitted it to the probation officer. The stolen items that were not recovered included a computer, flat-screen television, wakeboard, collector knives, computer games, the contents of the liquor bar, and cowboy boots, among other things. The Brewsters also requested recompense to repair the damage done to their garage door during the burglary.
The minor violated the terms of probation over the next five months by using and possessing illegal drugs, and possessing street gang attire and a weapon. On September 28, 2009, the juvenile court placed him in a residential drug treatment program. On February 5, 2010, the court ordered the minor removed from the program and returned to his home on probation. Later that year, the minor again violated the terms of probation by using illegal drugs and failing to report to probation.
On January 7, 2011, the juvenile court held a contested restitution hearing. The minor did not challenge the value of the Brewsters' loss ($8,332.78), but argued that imposition of joint and several liability is unfair and does not serve the rehabilitative purposes of probation. The minor also asserted that the juvenile law does not provide for imposition of a 10 percent restitution collection fee. Following argument by the parties, the court ordered the minor to pay $8,332.78 in victim restitution jointly and severally with two of the co-offenders, as well as a 10 percent collection fee. On August 11, 2011, the court modified the restitution order to include the third co-offender, dismissed the petition, and terminated the wardship.
The minor became 18 years old in July 2010. In December 2010, he was arrested for stealing items from a vehicle. Following his conviction of theft, the trial court placed him on adult probation.
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The minor appeals and contends that the juvenile court: 1) abused its discretion by ordering restitution to be jointly and severally paid, and 2) erred by imposing a 10 percent restitution collection fee.
DISCUSSION
I.
The minor argues that the juvenile court abused its discretion by imposing joint and several liability, rather than apportioning payment of the victims' losses among the co-offenders. He asserts that the order is unfair because if he fully compensates the victims, the remaining co-offenders will abstain. The minor contends that this unfairness impairs the statutory objective of rehabilitation. (§ 730, subd. (b) ["The court may 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"].)
Section 731, subdivision (a)(1) authorizes the juvenile court to order restitution as part of a ward's rehabilitation. In section 730.6, subdivision (a)(1), the Legislature has declared its intent that a victim suffering economic loss shall receive restitution from a ward. "Restitution imposed in a proper case and in an appropriate manner serves the salutary purpose of making the offender understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole." (In re Brian S. (1982) 130 Cal.App.3d 523, 529 [affirming restitution order requiring ward to pay one-half of victim's losses].)
The law does not impose "rigid guidelines" for apportionment of restitution. (In re Brian S., supra, 130 Cal.App.3d 523, 533.) In exercising its discretion, the juvenile court should consider the responsibility of co-offenders. (§ 730.6, subd. (h)(4) ["When feasible, the court shall also identify on the court order, any cooffenders who are jointly and severally liable for victim restitution"]; Brian S., at p. 533.) The underlying principle, however, is that "the juvenile court is vested with discretion to apportion restitution in a manner which will effectuate the legislative objectives of making the victim whole and rehabilitating the minor." (In re S.S. (1995) 37 Cal.App.4th 543, 549.)
The juvenile court did not abuse its discretion by holding the minor responsible for the entire amount of the victims' losses, but allowing him credit for sums paid by his co-offenders. (In re S.S., supra, 37 Cal.App.4th 543, 550.) The salutary purpose of a restitution order would be undermined by a rule that each participant in a criminal act is responsible for only a portion of the overall harm. (Ibid. [rejecting argument that juvenile court abused its discretion by ordering joint and several restitution rather than per capita apportionment].)
The co-offenders here were not limited partners in a lawful business transaction. The minor admitted to the probation officer that all co-offenders played an equal part in committing the Flyrod Avenue burglaries. The joint and several restitution order neither offends statutory law nor underlying principles of rehabilitation.
II.
The minor contends that the juvenile court did not have statutory authority to impose a 10 percent restitution collection fee payable to the probation department. He points out that the collection fee is an administrative cost that is not part of the victim's economic loss. The minor adds that Penal Code section 1203.1, subdivision (l) authorizes a restitution collection fee for adult offenders, but no comparable statute exists for juvenile offenders. (Ibid. ["If the court orders restitution to be made to the victim, the entity collecting the restitution may add a fee to cover the actual administrative cost of collection"].)
The minor is correct that no statute specifically permits a restitution collection fee in juvenile cases. Section 730.6, subdivision (a)(2) requires the juvenile court to order a restitution fine and victim restitution. Section 730.6 is a specific statute governing restitution and restitution fines, but it does not provide for a restitution collection fee. Section 730.6, subdivision (q) provides for "a fee to cover the actual administrative cost of collecting the restitution fine, not to exceed 10 percent of the amount ordered to be paid, to be added to the restitution fine. . . ." (Italics added.) Had the Legislature intended for a restitution collection fee in juvenile cases, it would have expressly so stated as it did in Penal Code section 1203.1, regarding adult offenders.
The People assert that the juvenile court properly imposed the restitution collection fee as an exercise of its discretion regarding victim restitution and rehabilitation of the minor. (§ 730, subd. (b).) The People rely on In re Imran Q. (2008) 158 Cal.App.4th 1316, 1320-1321 [juvenile court may order minor to pay victim's legal fees incurred to collect restitution] and In re M.W. (2008) 169 Cal.App.4th 1, 6-7 [juvenile court may order minor to pay for victim's mental health treatment as part of victim restitution]. The challenged fee here, however, is a collection fee payable to the probation department and not a victim restitution cost.
We modify the order to strike the restitution collection fee, but otherwise affirm.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
PERREN, J.
Ginger E. Garrett, Judge
Superior Court County of San Luis Obispo
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David E. Madeo, Deputy Attorney General, for Plaintiff and Respondent.