People v. Scott H.

Filed 11/14/13 (on remand from Supreme Court)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re SCOTT H., a Person Coming Under B236743
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. MJ19972)

THE PEOPLE,

Plaintiff and Respondent,

v.

SCOTT H.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Robin R.
Kesler, Temporary Judge. Affirmed.
______
Law Office of Anthony D. Zinnanti and Anthony D. Zinnanti for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey, Mary
Sanchez and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
______
 Scott H.‟s appeal from the order of restitution for the victim and his family
members entered after the juvenile court adjudged him a ward of the court under
Welfare and Institutions Code section 6021 again is before us after transfer from the
Supreme Court. In our original opinion, we held that, although the direct victim of
Scott‟s conduct was entitled under section 730.6 to restitution from Scott, the direct
victim‟s family members, as derivative victims, were not because the statute did not
include derivative victims in its definition of victim. We, therefore, reversed the order
awarding restitution with directions for the juvenile court to enter a new order awarding
restitution only to the direct victim. In the appeal, the People did not defend the
restitution award on constitutional grounds, but merely argued that section 730.6,
governing restitution in juvenile delinquency cases, should be interpreted to include
derivative victims as in Penal Code section 1202.4, governing restitution in criminal
cases, even though Penal Code section 1202.4 contains derivative victims in its definition
of victim and section 730.6 does not.
The Supreme Court on its own motion granted review of our opinion, after a
nonparty had filed a request for depublication, and transferred Scott‟s appeal back to us
“with directions to vacate [our] decision and reconsider the cause in light of article I,
section 28 of the California Constitution (as amended by Proposition 9, the Victim‟s Bill
of Rights Act of 2008, known as „Marsy‟s Law‟) and People v. Runyan (2012) 54 Cal.4th
849, 858-859 [(Runyan)].” We asked Scott and the People to brief the impact, if any, of
the Constitution and Runyan on the definition of victim in section 730.6. Following the
direction of the Supreme Court, and after considering the parties‟ briefing, we conclude
that section 730.6, in light of constitutional mandates, must be interpreted to include
derivative victims and thus that the restitution award to the direct victim‟s family
members was proper. We, therefore, affirm the order awarding restitution to the direct
victim and his family members.

1
Statutory references are to the Welfare and Institutions Code unless otherwise
noted.

2
 FACTUAL AND PROCEDURAL BACKGROUND
A petition under section 602, dated October 5, 2010, alleged that, on or between
December 1, 2009 and January 30, 2010, Scott committed a lewd act upon a child in
violation of Penal Code section 288, subdivision (a). According to the probation
report, the charge stemmed from an incident where Scott, then 17 years old and an
instructor at the Tao Kwon Do studio owned by the victim‟s mother and stepfather,
followed the 12-year-old victim into a bathroom stall at a restaurant, locked the door,
pulled down the victim‟s pants and underwear, touched the victim‟s penis and put it in his
mouth. The victim told his father about the incident after the father found numerous
texts of a sexual nature from Scott to the victim on the victim‟s cellular telephone.
On October 21, Scott admitted the charge, and the juvenile court declared him a ward of
the court and placed him home on probation for six months with various terms and
conditions.
On July 14, 2011, the People moved under Penal Code section 1202.4 for an order
of $9,060 in restitution on behalf of the victim and his mother, stepfather and siblings for
fees incurred for mental health services to address the “turmoil and stress” suffered by the
family as a result of Scott‟s conduct. As supporting evidence, the People presented a
declaration from the victim‟s mother, two letters from the treating therapist, one
explaining the need for treatment of the victim and his family members and one detailing
the treatment provided, and a report from the therapist listing the number of sessions
attended and therapy expenses incurred by each family member.
At a September 6 hearing on the motion, Scott objected to a restitution award on
the ground that the family sought mental health services only once the juvenile court had
stated on the record that reimbursement would be available for such services and 90 days
following the victim‟s disclosure of Scott‟s conduct, rather than immediately after the
disclosure. Scott‟s counsel argued, “[I]t‟s clear that the actual incident in this case
occurred on December 9th . . . . The incident didn‟t come to light, according to the
moving papers, until July 28th of ‟10. It‟s also clear . . . that when the victim goes to
counseling is October the 25th of ‟10. So we‟re talking about 90 days from the July 28th

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date to the October 25th date. . . . [O]n Thursday, October the 10th, that was the court
date where the court specifically put on the record with the mother present that the
mother would be entitled to counseling monies if such counseling was there. So until the
court made that statement to the mother no counseling was had by [the victim] that they
were saying was [necessitated] by this one act[.] . . . They wait for approximately three
months and coincidentally five days after the court makes it known on the record in their
presence that they are entitled to psychological counseling reimbursement and all of a
sudden the damn bursts forth and everybody‟s going to counseling when no one went to
counseling before that date.”
After reviewing the evidence, and hearing argument, the juvenile court awarded
$9,540 in restitution. The court stated, “Having reviewed the evidence and read the cases
as provided [the] court is now satisfied that the documentation as provided from the . . .
therapist, which is notarized[,] [is] sufficient for this court with regards to restitution.
The dates of service with regards to the family is acceptable showing that it occurred at
least sometime after. It‟s not an encounter, it‟s a lewd act on a minor. Let‟s not forget
that there‟s devastation that can be family-wide with regard to Scott‟s actions. . . . So
court orders . . . restitution for therapy in the amount of $9540. That‟s through the dates
as provided. In the event there‟s further therapy that‟s provided for these losses court
will look at additional restitution. . . . So $9540 is the court‟s order for restitution, and
that is as of the dates provided, and if there‟s any further losses that can be attributed to
that[,] court will make the order at that time.”2

2
The People in their motion requested $9,060 in restitution, and the juvenile court
awarded $9,540. Although the record does not contain all of the exhibits admitted at the
restitution hearing, it appears that the discrepancy is due to services rendered after the
filing of the motion but before the time of the hearing. Scott does not contest the
discrepancy, and we, therefore, do not address it further.

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 DISCUSSION
Scott contends the restitution order is erroneous because it includes an award for
mental health services received by the direct victim‟s family members, but the family
members are not victims of his offense for purposes of section 730.6. He maintains that
constitutional provisions covering restitution do not alter the statutory definition of victim
in section 730.6 and that policy reasons exist to limit restitution awards in juvenile
delinquency cases to direct victims, even though family members are victims for
purposes of restitution awards in criminal cases under Penal Code section 1202.4. The
People contend that section 730.6 should be interpreted to include derivative victims,
even though they are not listed in the statute as in Penal Code section 1202.4, and now
argue that constitutional mandates require that family members fall within section 730.6‟s
definition of victim. Although we agree with Scott that certain policy reasons support
limiting restitution awards in juvenile delinquency cases to direct victims, we are
constrained by the Constitution to interpret section 730.6 to include family members as
victims entitled to restitution based on Scott‟s conduct.3
Section 730.6 governs restitution in juvenile delinquency cases. Under the statute,
“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.” (§ 730.6, subd. (a)(1).) As relevant, the juvenile court “shall

3
As noted, Scott, in the juvenile court, contested an award of restitution on the
ground that the family did not seek mental health services until 90 days after the
disclosure of Scott‟s conduct with the victim. On appeal, he does not challenge the
restitution award as it applies to the direct victim but contends it is erroneous to the extent
it compensates the direct victim‟s family members for their mental health services. The
People now defend the award on constitutional grounds. Whether section 730.6 provides
for an award of restitution to the direct victim‟s family members is a question of law,
subject to our independent review (see In re R.D. (2008) 163 Cal.App.4th 679, 686),
which we can address even though the parties did not raise the issue in the juvenile court
(see In re R.L. (2009) 170 Cal.App.4th 1339, 1343, fn. 4). So too is the impact of the
Constitution on section 730.6 a question of law that we can address on appeal even
though the People previously did not rely on it to support an award of restitution to the
direct victim‟s family members. (Runyan, supra, 54 Cal.4th at p. 859, fn. 3.)

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order the minor to pay, in addition to any other penalty provided or imposed under the
law, . . . [¶] . . . [¶] [r]estitution to the victim or victims, if any, in accordance with
subdivision (h).” (Id. at subd. (a)(2).) Subdivision (h) of the statute provides that
economic loss includes: (1) “[f]ull or partial payment for the value of stolen or damaged
property”; (2) “[m]edical expenses”; (3) “[w]ages or profits lost due to injury incurred by
the victim, and if the victim is a minor, wages or profits lost by the minor‟s parent,
parents, guardian, or guardians, while caring for the injured minor”; and (4) “[w]ages or
profits lost by the victim, and if the victim is a minor, wages or profits lost by the minor‟s
parent, parents, guardian, or guardians, due to time spent as a witness or in assisting the
police or prosecution.” (Id. at subd. (h).) In addition to the list in the statute, economic
loss has been interpreted to include the cost of mental health services provided to the
victim as the result of the minor‟s conduct. (In re M.W. (2008) 169 Cal.App.4th 1, 6-7.)
In defining who is entitled to restitution, section 730.6, subdivision (j), provides,
“For purposes of this section, „victim‟ shall include: [¶] (1) The immediate surviving
family of the actual victim. [¶] (2) Any governmental entity that is responsible for
repairing, replacing, or restoring public or privately owned property that has been defaced
with graffiti or other inscribed material . . . and that has sustained an economic loss as the
result of a violation” of specified provisions. Penal Code section 1202.4, in contrast, lists
an additional category of “victim,” namely, “[a] person who has sustained economic loss
as the result of a crime and who satisfies any of the following conditions: [¶] (A) At the
time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of
the victim. [¶] (B) At the time of the crime was living in the household of the victim. [¶]
(C) At the time of the crime was a person who had previously lived in the household of
the victim for a period of not less than two years in a relationship substantially similar to
a relationship listed in subparagraph (A). [¶] (D) Is another family member of the victim,
including, but not limited to, the victim‟s fiancé or fiancée, and who witnessed the crime.
[¶] (E) Is the primary caretaker of a minor victim.” (Pen. Code, § 1202.4, subd. (k)(3).)
The Legislature amended Penal Code section 1202.4 in 1999 to include derivative
victims, and in 2004 further amended the statute to specify those individuals now listed in

6
subdivision (k)(3) as derivative victims. (See People v. Giordano (2007) 42 Cal.4th
644, 653 & fn. 3, citing Stats. 1999, ch. 584, § 4 & Stats. 2004, ch. 223, § 2, eff. Aug. 16,
2004.) But the Legislature did not make such amendments to section 730.6. The two
statutes, therefore, differ in the respect that section 730.6 does not provide for a
restitution award to compensate derivative victims, as in the victim‟s family members, for
economic loss, except in the circumstance when the surviving family members of the
victim are being compensated for the victim‟s losses. (See § 730.6, subd. (j)(1).)
The question thus becomes whether in light of the difference in statutory language
between section 730.6, which governs in juvenile delinquency cases, and Penal Code
section 1202.4, which governs in criminal cases, the Constitution requires us to interpret
section 730.6 to include derivative victims like the family members of the victim of
Scott‟s conduct. We conclude that it does.
Article I, section 28 of the Constitution, as amended by Proposition 9, the Victim‟s
Bill of Rights of 2008, known as “Marsy‟s Law,” provides for a broad spectrum of
victim‟s rights, including restitution. It defines “„victim‟” as “a person who suffers direct
or threatened physical, psychological, or financial harm as a result of the commission or
attempted commission of a crime or delinquent act. The term „victim‟ also includes the
person‟s spouse, parents, children, siblings, or guardian, and includes a lawful
representative of a crime victim who is deceased, a minor, or physically or
psychologically incapacitated. The term „victim‟ does not include a person in custody for
an offense, the accused, or a person whom the court finds would not act in the best
interests of a minor victim.” (Cal. Const., art. I, § 28, subd. (e), emphasis added.)
The family members of the victim of Scott‟s conduct fall within this constitutional
definition of victim, which specifies that it applies to a crime or delinquent act, thus in
both criminal and juvenile delinquency proceedings, despite the more restrictive language
in section 730.6, subdivision (j). The constitutional language must prevail. To the extent
the statutory language conflicts with that in the Constitution, the constitutional provision
controls. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 800-801, fn. 11.) Moreover,
the statutory and constitutional language theoretically can be read in congruence, as

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section 730.6, subdivision (j), uses the word “includes” in its definition of victim and thus
does not by its express terms exclude the victim‟s family members from restitution.
“„The term “includes” is ordinarily a word of enlargement and not of limitation.‟
[Citation.]” (People v. Avila (2013) 212 Cal.App.4th 819, 827.) We, therefore, conclude
that, in light of constitutional mandates, derivative victims, like the family members
of the victim of Scott‟s conduct, fall within the purview of a restitution award under
section 730.6.4
Scott contends that the constitution does not require such an interpretation because
the restitution provision does not specifically include delinquent acts. The provision
states that victim‟s rights include restitution: “(A) It is the unequivocal intention of the
People of the State of California that all persons who suffer losses as a result of criminal
activity shall have the right to seek and secure restitution from the persons convicted of
the crimes causing the losses they suffer. [¶] (B) Restitution shall be ordered from the
convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in
which a crime victim suffers a loss.” (Cal. Const., art. I, § 28, subd. (b)(13).) According
to Scott, because the restitution provision refers to “criminal activity,” “crimes” and
“convicted wrongdoer,” terms that are not applicable in juvenile delinquency
proceedings, the Constitution‟s definition of victim need not apply in such proceedings.
We recognize that the language of the restitution provision allows for such argument.
But we disagree with Scott that it means a victim in juvenile delinquency proceedings
does not include the direct victim‟s family members. Scott ignores the language in the
Constitution‟s definition of victim, which specifically applies to harm suffered “as a
result of the commission or attempted commission of a crime or delinquent act.”

4
The Fifth District employed a constitutional analysis in In re M.W., supra,
169 Cal.App.4th 1 to affirm a restitution award for the cost of the direct victim‟s mental
health services. The adjudicated minor challenged the award on appeal on the ground
that, although Penal Code section 1202.4, subdivision (f)(3)(C), identifies mental health
services as an economic loss, section 730.6, subdivision (h), does not and thus should not
be interpretated to provide restitution for such services, despite their inclusion in the
criminal statute. The appellate court rejected the adjudicated minor‟s argument. (In re
M.W., at pp. 4-7.)

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(Id. at subd. (e), emphasis added.) Moreover, although the constitutional language in
the restitution provision certainly would avoid any ambiguity if it included the words
delinquent act and adjudicated wrongdoer, no doubt exists, by virtue of section 730.6,
that restitution is a victim‟s right in juvenile delinquency cases. (See In re Alexander A.
(2011) 192 Cal.App.4th 847, 853 [“In proceedings involving minors, the juvenile court is
vested with discretion to order restitution consistent with the goals of the juvenile justice
system”].)
Scott also contends that including derivative victims, like the family members of
his victim, within the purview of section 730.6 conflicts with the protections afforded to
minors through juvenile delinquency proceedings by creating “a sea change in the
accessibility and confidentiality of juvenile proceedings.” “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. [Citation.] 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. [Citation.]” (In re Alexander A., supra, 192 Cal.App.4th
at p. 853.) Expanding restitution in juvenile delinquency cases to derivative victims does
put a greater burden on the adjudicated minor, whom the system seeks to rehabilitate
according to his or her best interests. Nevertheless, section 730.6, subdivision (h),
provides that “[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.” And the Constitution
specifically includes delinquency proceedings in its provision of the rights “[t]o
reasonable notice of all public proceedings” and “[t]o be heard,” while at the same time
including “delinquent act” in its definition of victim. (Cal. Const., art. I, § 28, subds.
(b)(7) & (8), (e).) As a result, although certain policy considerations seem to favor
limiting restitution awards in juvenile delinquency matters to the direct victim, the

9
constitutional provisions support the juvenile court‟s award of restitution to the family
members of the direct victim of Scott‟s conduct.5
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION.

ROTHSCHILD, J.
We concur:

MALLANO, P. J.

CHANEY, J.

5
Scott also challenges the restitution order as “possibl[y] perpetual” based on the
juvenile court‟s statement that it would consider additional restitution for future mental
health services. We do not view the court‟s statement as committing to an award of
restitution for future mental health services. In any case, given no order awarding
restitution for future mental health services is before us, we need not decide whether such
an award would be authorized by section 730.6.

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