Filed 6/28/21 A.G. v. Superior Court CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
A.G., C091830
Petitioner, (Super. Ct. No. JDSQ19347)
v.
THE SUPERIOR COURT OF YOLO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
A.G. petitions this court for a writ of mandate compelling the Superior Court of
Yolo County to vacate its February 19, 2020 order, requiring him to pay restitution in the
amount of $749 to V.P. for a cellphone because V.P. paid only $249 to replace the
cellphone. We will deny the petition.
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FACTUAL AND PROCEDURAL BACKGROUND
On November 12, 2019, A.G. stole a cell phone from V.P. at a park. According to
the probation department’s detention report, A.G. approached V.P. with a couple of
friends and asked to use her cell phone. She did not give it to him, but she told him that
she would put the phone on speaker while she held it. As she held the phone in her right
hand, A.G. grabbed the phone and pushed her in the chest. A.G. and his friends then ran
off with the cell phone.
On November 21, 2019, a first amended petition was filed under Welfare and
Institutions Code1 section 602 alleging that A.G., a minor, committed second degree
robbery (Pen. Code, §§ 211, 212.5, subd. (c)—count 1), conspiracy to commit robbery
(Pen. Code, § 182, subd. (a)(1)—count 2), grand theft from a person (Pen. Code, § 487,
subd. (c)—count 3), battery (Pen. Code, § 242—count 4), and child abuse or
endangerment (Pen. Code, § 273a, subds. (a), (b)—counts 4 & 5). On December 16,
2019, A.G. agreed to, and respondent juvenile court granted, informal probation pursuant
to section 654.2.
The district attorney filed a motion, with accompanying exhibits, seeking victim
restitution for the loss of the cell phone of one of the victims, V.P. A.G. filed an
opposition. A.G. argued that V.P. was entitled to $249 for the “replacement cost” of her
stolen cell phone. The district attorney then filed a supplement to the motion with
additional exhibits, clarifying that $749 was the appropriate restitution award for the cell
phone based on the fair market value.
The juvenile court held a restitution hearing on February 19, 2020. No other
evidence was presented, but both parties presented argument. A.G. argued that the
replacement value of the stolen cell phone should be calculated as the victim’s actual cost
to obtain a replacement phone, which was $249 pursuant to her insurance claim. The
1 Undesignated references are to the Welfare and Institutions Code.
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district attorney acknowledged the insurance claim but argued that the appropriate
restitution award for the cell phone was $749, the fair market value of the phone,
pursuant to In re Brittany L. (2002) 99 Cal.App.4th 1381. The juvenile court cited
People v. Birkett (1999) 21 Cal.4th 226 for the proposition that the victim is entitled to
restitution regardless of whether the loss had been partially or fully reimbursed by his or
her insurance company. According to the juvenile court’s reading of Birkett, the victim
was entitled to “the full amount of the loss including the total amount that the victim’s
insurance company paid out plus the victim’s deductible payments and any other amounts
not covered by the victim’s insurance.” The court awarded $749 in restitution for the cell
phone because, in its view, the evidence before it established that the fair market value of
the phone was $749.
DISCUSSION
A.G. contends that the juvenile court abused its discretion in awarding $749 in
restitution and should have awarded restitution for the loss in the amount of $249, which
is the amount the victim paid to her insurance company as a “service fee/deductible” for a
replacement phone. We disagree.
When a minor is placed on informal supervision pursuant to section 654.2, the
court may order restitution as a condition. (§ 654.6.) However, section 800 does not
authorize an appeal from an order placing a minor on informal supervision under section
654.2. (Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 788-790.) Since there is
no appealable judgment (ibid.), a challenge to a condition of deferred entry of judgment
is by writ of mandate. (See, e.g., G.C. v. Superior Court (2010) 183 Cal.App.4th 371,
374.) We review a restitution order for abuse of discretion. “ ‘A victim’s restitution right
is to be broadly and liberally construed.’ [Citation.] ‘ “When there is a factual and
rational basis for the amount of restitution ordered by the trial court, no abuse of
discretion will be found by the reviewing court.” ’ [Citations.]” (In re Johnny M. (2002)
100 Cal.App.4th 1128, 1132.) A restitution order will be upheld unless the order
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“ ‘ “falls outside the bounds of reason” under the applicable law and the relevant facts.’ ”
(People v. Giordano (2007) 42 Cal.4th 644, 663.)
Section 730.6, subdivision (a)(1), provides: “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.” Under subdivision (h)(1) of section 730.6, restitution “shall be
imposed in the amount of the losses, as determined.” The restitution award “shall be of a
dollar amount sufficient to fully reimburse the victim . . . 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 . . . [f]ull or partial payment for the value of
stolen or damaged property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing the property when repair
is possible.” (Id., subd. (h)(1).) Once the victim has presented an adequate factual basis
for the claim, the burden shifts to the defendant to demonstrate that the amount of the loss
is other than that claimed by the victim. (People v. Millard (2009) 175 Cal.App.4th 7,
26.)
The purposes of victim restitution under section 730.6 are rehabilitation of the
minor, deterrence of future delinquent behavior, and compensation of the victim for
economic losses. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017.) When
ordering restitution under section 730.6, the juvenile court “ ‘may use any rational
method of fixing the amount of restitution, provided it is reasonably calculated to make
the victim whole, and provided it is consistent with the purpose of rehabilitation.’
[Citation.] . . . ‘ “[W]hile the amount of restitution cannot be arbitrary or capricious,
‘there is no requirement the restitution order be limited to the exact amount of the loss in
which the [minor] is actually found culpable. . . .’ [Citation.]” ’ [Citation.]” (In re Dina
V. (2007) 151 Cal.App.4th 486, 489; see In re Brittany L., supra, 99 Cal.App.4th at
p. 1391.)
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We find In re Brittany L., supra, 99 Cal.App.4th 1381 instructive. In that case, the
minor vandalized the victims’ house by throwing eggs at it. (Id. at p. 1384.) The total
cost to clean and repaint the exterior of the home was $3,500. (Ibid.) The total cost to
resurface the driveway was $3,800. (Ibid.) The victims paid an insurance deductible of
$500 to their insurance company, which covered the remainder of the costs. (Id. at
pp. 1384-1385.) At the restitution hearing, the juvenile court awarded victim restitution
in the amount of $500, the amount of the insurance deductible. (Id. at p. 1385.) The
appellate court held that the juvenile court erred in failing to order restitution in an
amount necessary to fully reimburse the victims without regard to the victims’
reimbursement from other sources. (In re Brittany L., supra, 99 Cal.App.4th at pp. 1386-
1390.) The court explained that the purposes behind requiring a minor to pay victim
restitution “would be thwarted if a minor was relieved from responsibility for making her
victims whole simply because the victims had been farsighted enough to purchase
insurance for this type of damage to their home.” (Id. at p. 1387; see In re Tommy A.
(2005) 131 Cal.App.4th 1580, 1592 [reasoning that a minor challenging an award of
restitution duplicate to insurance coverage could not “use the settlement payment made
by [the victim’s] insurer to offset his victim restitution obligation under section
730.6(a)(1)”].)
We conclude the juvenile court exercised its duty to fashion dispositional orders,
including restitution orders, with the goal of rehabilitating the errant minor. Full
restitution advances that goal by ensuring A.G. understands the full consequences of his
criminal behavior. Nor did the award give the victim a “windfall,” as A.G. asserts. The
purpose of the statutory scheme is to ensure that the perpetrator pay the full losses.
Section 730.6, subdivision (a)(1) states the intent of the Legislature is to require
restitution “directly from” the minor. The fact that the victim in this case was a prudent
person who purchased insurance should not relieve the perpetrator of the duty to pay the
full losses. As stated in the case cited by the juvenile court: “The victim obtains no
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double recovery to the extent his contractual arrangement with his insurer calls for
subrogation or refund of insurance benefits in light of a recovery in tort.” (People v.
Birkett, supra, 21 Cal.4th at p. 247, fn. 19.) Thus, full restitution is not a “windfall”
because if the victim accepts it, she may have a contractual duty to pay it to her insurer,
and if she refuses it, she might face a lawsuit by her insurer. This risk to the victim
provided further support for the juvenile court’s determination that no compelling and
extraordinary reasons existed for declining to require the minor to pay full restitution in
this case.
We conclude the juvenile court acted within its discretion by requiring the minor
to pay the victim’s full losses rather than the amount of the insurance deductible.
DISPOSITION
The petition for writ of mandate is denied.
/s/
BLEASE, Acting P.J.
We concur:
/s/
ROBIE, J.
/s/
MURRAY, J.
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