In re A.Z. CA6

Filed 12/12/14 In re A.Z. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re A.Z., a Person Coming Under the H040414
Juvenile Court Law. (Santa Clara County
Superior. Ct. No. JV37926D)

THE PEOPLE,

Plaintiff and Respondent,

v.

A.Z.,

Defendant and Appellant.

A.Z., a minor, appeals from a restitution order. He contends that the juvenile court
abused its discretion in ordering restitution in the amount of $3,755, because there was
insufficient evidence tying him to the burglary that was the basis for the restitution order.
We affirm the order.
Facts and Proceedings Below
On January 4, 2011, the Santa Clara County District Attorney filed a petition
pursuant to Welfare and Institutions Code section 602, subdivision (a)1 (Petition A) in
which the district attorney alleged that A.Z. committed first degree burglary of an
inhabited residence (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd. (c)(21)). On

1
All further statutory references are to the Welfare and Institutions Code.
March 22, 2011, A.Z. admitted the charge. The juvenile court found A.Z. eligible and
suitable for deferred entry of judgment (DEJ).
Subsequently, A.Z. failed DEJ due to his “non-compliance.” The juvenile court
sustained Petition A and placed A.Z. in the community release program (CRP). At the
disposition hearing held on November 28, 2011, the juvenile court declared A.Z. a ward
of the court, placed him on the electronic monitoring program (EMP) for 60 days, and
placed him on probation in his parents’ home.
On January 20, 2012, the probation officer filed a petition pursuant to section 777
(Petition B) in which he alleged that A.Z. had violated his probation by failing to abide
by the terms of the EMP contract, by failing to abide by his parents’ directives, and by
violating an alcohol and drug prohibition condition. A.Z. was arrested and placed in
juvenile hall. Thereafter, he admitted violating his probation. On March 15, 2012, A.Z.
was continued as a ward of the court; the juvenile court placed A.Z. in the juvenile
treatment program (JTP).
On November 13, 2012, the probation officer filed a petition pursuant to
section 777 (Petition C). This time, the probation officer alleged that A.Z. violated his
probation by failing to appear for a JTP court review, by failing to report for scheduled
office appointments, by failing to attend school regularly, by failing to begin public
service work as required, by testing positive for marijuana on two occasions, and by
failing to attend substance abuse treatment on four occasions. On November 14, 2012,
A.Z. admitted violating his probation. Subsequently, the court ordered a county
individualized treatment for adolescents (CITA) evaluation and continued the disposition
hearing.
On December 13, 2012, the Santa Clara County District Attorney filed a petition
pursuant to section 602, subdivision (a) (Petition D) in which the district attorney charged
A.Z. with receiving stolen property (Pen. Code, § 496, subd. (a)). The same day, the
juvenile court found that A.Z. had failed the JTP.

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 On December 18, 2012, A.Z. admitted the allegation in Petition D. On
January 14, 2013, the juvenile court continued A.Z. as a ward of the court, declared that
all orders not in conflict remain in force and effect, and again placed A.Z. on probation in
his parents’ home.2 As one of the conditions of his probation the juvenile court ordered
that A.Z. “pay Mrs. C. Lee $4,255.00 restitution for losses sustained . . . .” At a contested
restitution hearing related to Petition D held on November 15, 2013, the juvenile court
amended the amount of victim restitution and ordered that A.Z. pay Mrs. C. Lee $3,755.
To give context to A.Z.’s argument on appeal, we recite the following facts from
the probation officer’s report that was filed on January 14, 2013, for the disposition
hearing on Petition D.
“According to Palo Alto Police report #12-3993, on August 9, 2012, a residential
burglary occurred at Manuela Avenue in Palo Alto, California. Reports indicate the
victim’s family returned home from vacation and found a ransacked house with drawers
that have been rummaged through. The suspects took video game consoles, jewelry, and
several air-soft guns. Officers located several footprints from the point of entry through
the house. In addition, a piece of chewed gum was located attached to a lock box in one
of the bedrooms. The victim, Mr. Lee[,] spoke to Officers about a Facebook message he
had received. Mr. Lee stated he had received information from an associate that Robert
Ozols and Jack Stinson, both past students of Gunn High School[,] were bragging about
stealing property from Mr. Lee’s residence. It should be noted that on September 7,
2012, suspects [A.Z.], Jack Stinson, Joseph Alexander, and Skyler Larson were all
contacted by Palo Alto Police after park hours (report # 12-4609). At this time, Officers
seized marijuana, alcoholic beverages, and two air soft guns from the suspects. [A.Z.]
admitted to taking his father’s automobile without his permission. [A.Z.] also claimed
ownership of both air soft guns, the marijuana, and the open container of alcohol found

2
Later, A.Z. again violated his probation.

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inside his father’s vehicle. The air soft guns were booked into police evidence at this
time by Officer Schmidt #6385. [¶] Palo Alto Police Officer Fino #6381, believed the
two air soft guns may have belonged to the same victim in the residential burglary that
occurred on Manuela Avenue. Mr. Lee[] was contacted by Officers and asked to view
the two air soft guns in police evidence in order to positively identify them as being his.
On November 28, 2012, a search warrant was conducted at suspect Robert Ozols’ and
Alec Bite’s residence at 3821 Ross Road in Palo Alto. Officers located stolen property
from the residential burglary and arrested suspect Ozols for possession of stolen property
and Alec Bite for illegal possession of prescription medication. Robert Ozols later
confessed to participating in the residential burglary along with Jack Stinson, [A.Z.], and
Peter Legenhausen. Jack Stinson would also later confess and would return property
stolen from the residential burglary to investigating Officers. [¶] It should be noted, on
November 13, 2012, [A.Z.] self-surrendered on an outstanding Bench Warrant to
Juvenile Hall. [A.Z.] was interviewed in Juvenile Hall regarding his involvement in the
above residential burglary . . . and denied any involvement.”
At the contested restitution hearing, defense counsel maintained that the court did
not have the power to expand the restitution amount beyond the items that A.Z.
possessed, which had formed the basis for his admission that he had received stolen
property. Counsel asserted that A.Z. had never been interviewed and never made any
statements or admissions regarding the burglary of the Lees’ residence. Counsel argued
that to expand restitution to all the property stolen would serve no rehabilitative purpose.
With respect to the amount of restitution, counsel argued that the two guns A.Z.
possessed were returned to the victim in the same condition as when they were taken and
therefore “the restitution number should be zero.”
The court ordered that A.Z. pay restitution for the Airsoft guns taken in the
burglary. Specifically, the court stated that it would “affirm that the restitution in this
matter for the remainder of the Airsoft guns that the victims are claiming is reasonably

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related and connected to the possession of the stolen weapons, and will order restitution
accordingly. I believe it accomplishes several things that are consistent with the goals of
restitution, that is: The rehabilitation of the Minor; the compensation of . . . the victims
for their losses; it makes amends, in a general sense, to society for the breach of the law;
holds the minor accountable and does deter future criminality. [¶] So for all those
reasons, I believe restitution in this matter is appropriate.”
As to the amount of restitution the court stated that it “had previously made a
prima facie finding based on the information that was provided by the victims to
probation in the amount of $4,255. Since that time, there’s been a recovery of two of the
handguns, which are assessed at a value of $500 but that would reduce the Court’s
previous prima facie finding by that amount, so the court will order restitution in this case
to [Mrs. Lee] in the amount of $3,755.”
A.Z. filed a timely notice of appeal from the restitution order.
Discussion
A.Z. argues that there was insufficient evidence tying him to the burglary of the
Lees’ residence. He asserts that the only evidence linking him to the burglary were the
“self-serving hearsay statements—contained in a police report as retold in a probation
report—of the adult defendants who named [him] as a participant in the burglary at the
time they admitted their own involvement with the burglary. Absent sufficient evidence
linking [him] to the burglary, the [juvenile] court lacked the ‘discretion to order . . .
probationer to pay restitution for losses due to criminal conduct [that] was neither
charged and found to be true nor admitted.’ ” A.Z. contends that this court must strike
the restitution order. As we shall explain, we are not persuaded in a case such as this,
where restitution was a condition of A.Z.’s probation.
Section 730.6, subdivision (a)(1) provides in pertinent part, “It is the intent of the
Legislature that a victim of conduct for which a minor is found to be a person described

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in Section 602 who incurs any economic loss as a result of the minor’s conduct shall
receive restitution directly from that minor.”
If section 730.6 were the exclusive authority for the restitution order at issue here,
we would conclude the order was invalid. This is because subdivision (a)(1) of
section 730.6 requires restitution for “economic loss as a result of the minor’s
conduct . . . .” “However, the reference to ‘the minor’s conduct’ refers to the precedent
phrase defining the conduct: ‘conduct for which a minor is found to be a person
described in section 602 . . . .’ ([citation], italics added.) Thus, subdivision (a)(1) of
section 730.6 mandates that a minor must pay restitution where conduct for which the
minor is declared a ward of the court under section 602 results in economic loss to the
victim.” (In re T.C. (2009) 173 Cal.App.4th 837, 844.) Here, A.Z. was not “found to be
a person described in section 602” with respect to the burglary of the Lees’ residence.
Nevertheless, section 7303 “grants courts broad discretion in establishing
conditions of probation in juvenile cases. [Citation.] ‘[T]he power of the juvenile court
is even broader than that of a criminal court.’ [Citation.] The juvenile court’s exercise of
discretion in establishing conditions of probation in juvenile cases ‘will not be disturbed
in the absence of manifest abuse.’ [Citation.]” (In re Christopher M. (2005) 127
Cal.App.4th 684, 692, overruled on other grounds in People v. Gonzales (2013) 56
Cal.4th 353, 375.)4 Section 730.6, did not “displace[] the well-recognized authority of a

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Section 730, subdivision (b) provides in relevant part: “When a ward described in
subdivision (a) is placed under the supervision of the probation officer . . . , the court may
make any and all reasonable orders for the conduct of the ward . . . . 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.”
4
“The juvenile court’s broad discretion to fashion appropriate conditions of
probation is distinguishable from that exercised by an adult court when sentencing an
adult offender to probation. Although the goal of both types of probation is the
rehabilitation of the offender, ‘[j]uvenile probation is not, as with an adult, an act of
(continued)

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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).” (In re
T.C., supra, 173 Cal.App.4th at pp. 844-845.) “Restitution has long been considered a
valid condition of probation.” (Id. at p. 847; People v. Carbajal (1995) 10 Cal.4th 1114,
1121 (Carbajal).)
“ ‘A condition of probation will not be held invalid unless it “(1) has no
relationship to the crime of which the offender was convicted, (2) relates to conduct
which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably
related to future criminality. . . .” ’ [Citation.]” (People v. Anderson (2010) 50 Cal.4th
19, 32.) “[R]estitution has been found proper where the loss was caused by related
conduct not resulting in a conviction [citation], by conduct underlying dismissed and
uncharged counts [citation], and by conduct resulting in an acquittal [citation].”
(Carbajal, supra, 10 Cal.4th at p. 1121.)
Here, the condition requiring A.Z. to pay restitution for the losses sustained by the
victim was related to A.Z’s crime of receiving stolen property. The police found A.Z. in
possession of some of the property stolen from the victims less than one month after the
burglary. “Catching a defendant with the goods in possession shortly after a theft
rationally suggests a connection to and knowledge of the crime . . . .” (People v.
Anderson (1989) 210 Cal.App.3d 414, 421.) More importantly, Penal Code section 496,
subdivision (a), which criminalizes the receipt of stolen property, “is directed at those
who knowingly deal with thieves and with their stolen goods after the theft has been
committed . . . in order to provide the thieves with a . . . depository for their loot.”

leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor’s
reformation and rehabilitation.’ [Citation.]” (In re Tyrell J. (1994) 8 Cal.4th 68, 81,
overruled on other grounds in In re Jaime P. (2006) 40 Cal.4th 128, 130.)

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(People v. Tatum (1962) 209 Cal.App.2d 179, 183, abrogated by statute on another
ground as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1165.) Thus, contrary
to A.Z.’s position, one who receives stolen property assists the thief or thieves. A.Z.’s
association with one admitted burglar and his possession of some of the items taken
during the commission of the burglary establish that the restitution order related to A.Z.’s
offense of receiving stolen property, which he admitted.5 Accordingly, the juvenile court
could properly conclude that A.Z.’s criminal conduct was related to the theft of all the
property taken during the burglary and the imposition of a restitution fine for the loss of
all the guns taken in the burglary would further A.Z.’s rehabilitation and deter his future
criminality.
In addition, at the time A.Z. knowingly possessed stolen property, he was already
on probation from a burglary he committed in late 2010 and had admitted violating
several terms of his probation. Requiring A.Z. to pay restitution for all the AirSoft guns
that were missing from the Lees’ residence was reasonable to foster his rehabilitation and
deter such conduct in the future. The reasonableness and propriety of imposed probation
conditions must be measured not only by the circumstances of the current offense, but by
A.Z.’s entire social history. (In re Walter P. (2009) 170 Cal.App.4th 95, 100 [in
fashioning the conditions of probation, the juvenile court should consider the minor’s
entire social history in addition to the circumstances of the crime].)
A.Z. asserts that “the procedure of the restitution hearing deprived [him] of his
Fourteenth Amendment right to due process.” While a minor’s due process rights at a
restitution hearing are quite limited, the minor must be provided with sufficient
5
There is some indication in the record that A.Z. was well acquainted with more
than one of the admitted burglars. In the prosecutor’s response to A.Z.’s motion
regarding restitution, the prosecutor noted the following. “On September 7, 2013, the
minor [A.Z.], Robert O., Jack S., and two others were spotted by PAPD at a Palo Alto
park. The officer discovered alcohol, marijuana, and two airsoft guns inside the vehicle
the minor was driving.”

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information—whether through detailed information in the probation report, receipts,
testimony, or other means—to provide an adequate factual basis for the claims and to
permit him to meaningfully challenge the amounts requested. (See People v. Cain (2000)
82 Cal.App.4th 81, 86.) That happened in this case. The probation officer’s report
recommended restitution for all the AirSoft guns and accessories that were taken from the
Lees’ residence and had not been recovered. The probation officer received
documentation from the Lees about the value of those guns and accessories. A.Z. did not
contest the value of the lost items. Instead, he maintained that he was not responsible for
anything other than the two guns he possessed, which formed the basis for the receiving
stolen property charge. A.Z. was afforded an opportunity to brief the restitution issue and
to contest the amount of restitution claimed. The restitution hearing, as reflected by the
record, was not fundamentally unfair.6
Finally, A.Z. contends that we must remand this case to the juvenile court because
the court erred when it failed to declare whether his offense of receiving stolen property
(Pen. Code, § 496) was a felony or a misdemeanor.

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We recognize that in In re Maxwell C. (1984) 159 Cal.App.3d 263, 266 (Maxwell
C.), the court, relying on People v. Richards (1976) 17 Cal.3d 614, noted that due process
considerations might prohibit restitution without the requisite connection between the
offense committed and the losses for which restitution is ordered. In Maxwell C., the
court held that the minor, whose offense was receiving stolen property (a car stereo),
could not be required to pay restitution to the owner of an automobile for damage to the
vehicle caused by the stealing of the stereo without evidence that the minor was involved
in the stealing. (Maxwell C., supra, at pp. 265-267.) In People v. Richards, supra, at
page 622, the court had held that for restitution to be imposed it must be directly related
to the crime charged and must relate to acts by the accused which were committed with
the same state of mind as the offense of which the accused had been convicted.
However, in People v. Carbajal, supra, 10 Cal.4th 1114, the Supreme Court stated:
“[I]nsofar as Richards may be read to require that trial courts refrain from conditioning
probation on restitution ‘unless the act for which the defendant is ordered to make
restitution was committed with the same state of mind as the offense which he was
convicted . . .’ [citation], we disapprove it.” Thus, Maxwell C. relies heavily on Richards
for the precise point on which it has since been overruled.

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 The offense alleged in Petition D and found true in this case, receiving stolen
property (Pen. Code, § 496, subd. (a)), is a “wobbler,” punishable either as a felony or a
misdemeanor.7
Section 702 provides that in a juvenile proceeding if a “minor is found to have
committed an offense which would in the case of an adult be punishable alternatively as a
felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or
felony.” Section 702’s express declaration requirement serves to ensure that the juvenile
court knows whether a particular crime is a wobbler and is aware of its discretion to treat
the offense as a misdemeanor rather than as a felony. (In re Manzy W. (1997) 14 Cal.4th
1199, 1207 (Manzy W.)
In Manzy W., supra, 14 Cal.4th 1199, the California Supreme Court held that a
remand was required where the juvenile court had failed to make an express declaration
as to whether the offense was a felony or a misdemeanor. In Manzy W., the offense had
been alleged as a felony, and Manzy had admitted the allegation. (Id. at p. 1202.) The
juvenile court had committed Manzy to the California Youth Authority and set his
maximum term of physical confinement at three years, a felony-level term. (Id. at
p. 1203.) Nevertheless, the California Supreme Court held that section 702’s requirement
of an express declaration required a remand. The court noted that a reference to the
offense as a felony in the minutes of the disposition hearing would not obviate the need

7
Penal Code section 496, subdivision (a) provides “Every person who buys or
receives any property that has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be so stolen or obtained, or who
conceals, sells, withholds, or aids in concealing, selling, or withholding any property
from the owner, knowing the property to be so stolen or obtained, shall be punished by
imprisonment in a county jail for not more than one year, or imprisonment pursuant to
subdivision (h) of Section 1170.” In turn, Penal Code section 1170, subdivision (h)(1)
provides “Except as provided in paragraph (3), a felony punishable pursuant to this
subdivision where the term is not specified in the underlying offense shall be punishable
by a term of imprisonment in a county jail for 16 months, or two or three years.”

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for an express declaration by the court. (Manzy W., supra, at pp. 1207-1208.)
Furthermore, “neither the pleading[s], the minute order, nor the setting of a felony-level
period of physical confinement may substitute for a declaration by the juvenile court as to
whether an offense is a misdemeanor or felony.” (Id. at p. 1208.) “The key issue is
whether the record as a whole establishes that the juvenile court was aware of its
discretion to treat the offense as a misdemeanor and to state a misdemeanor-length
confinement limit.” (Id. at p. 1209.)
In Manzy W., the California Supreme Court pointed out that a remand was not
“ ‘automatic’ ” whenever the juvenile court failed to make an express declaration.
(Manzy W., supra, 14 Cal.4th at p. 1209.) “[T]he record in a given case may show that
the juvenile court, despite its failure to comply with the statute, was aware of, and
exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In
such case, when remand would be merely redundant, failure to comply with the statute
would amount to harmless error.” (Ibid.)
In this case, in taking A.Z.’s plea, the court informed him, “So you’re charged in
this D petition with a violation of Penal Code Section 496(a), it’s a felony, described as
buying, receiving, concealing or withholding stolen property.” After A.Z. admitted the
allegation, the juvenile court stated, “The disposition [sic] is found to be true and it is
sustained at this time as a felony.” (Italics added.) In addition, in the written findings
and orders of the disposition hearing, which Judge Valencia signed, a check mark appears
in the box next to the following: “The court previously sustained the following counts.
Any charges which may be considered a misdemeanor or a felony for which the court has
not previously specified the level of the offense are now determined to be as follows.”
Thereafter, written in by hand is the following: “cnt. 1 PC 496(a) Felony.”
Given the foregoing, the record as a whole establishes that the juvenile court
understood it had discretion to determine whether the receiving stolen property count was

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a felony or a misdemeanor and determined that it was a felony. Accordingly, “remand
would be merely redundant . . . .” (Manzy W., supra, 14 Cal.4th at p. 1209.)
Disposition
The juvenile court’s victim restitution order is affirmed.

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 _________________________________
ELIA, J.

WE CONCUR:

_______________________________
RUSHING, P. J.

_______________________________
MÁRQUEZ, J.