In Re Levon A.

RAKER, Judge,

dissenting.

I respectfully dissent. Levon A. committed a delinquent act and, during or as a result of the commission of that delinquent act, he substantially damaged or decreased the value of the property of another. Accordingly, I would affirm the judgment of restitution against both Levon A. and Mrs. A., his mother.

The majority finds that Levon “did nothing, directly or indirectly, to cause the car to be damaged.” Maj. op. at 629. The majority refers to Levon as “a passive passenger,” maj. op. at 641, implying that he could not have caused the damage to the vehicle — that he did not have anything to do with the collision. This theory of causation, in my opinion, is too narrow.

The power to impose restitution is derived from statutes. In the juvenile context, at the time of this offense, restitution *642could be imposed only for losses in which the court found that a child had committed a delinquent act and, during or as a result of the commission of that act, the child had stolen, damaged, destroyed, converted, unlawfully obtained, or substantially decreased the value of the property of another. See Maryland Code (1957, 1996 RepLVol.) Art. 27, § 808 (current version at Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Art. 27, § 807). Absent a plea agreement, the award of restitution must be based upon a causal relationship between the delinquent act and the victim’s loss or damages. To establish the causal connection, at a minimum, the damages or losses suffered must have been a foreseeable consequence of the juvenile’s acts.

Levon was a passenger in a car driven by Antonio M., a 15-year old who obviously had no driver’s license and no permission to operate the car. The ignition was “popped,” and the window was broken. Antonio M. was driving when the two fled from the police, and the car was damaged when it collided into some shrubbery and a fence. Although, at the delinquency hearing, Levon denied knowing that the car was stolen, he was found to be delinquent as a result of his unauthorized use of a motor vehicle. That finding of delinquency is not before this Court, and the majority assumes, for the purposes of this appeal, that the finding of delinquency is valid. See maj. op. at 631.1

This case is not a situation where restitution was ordered simply because property damage resulted from a delinquent act. Levon A. was enjoying the common use of the stolen car with the driver, Antonio M. Unauthorized use of a vehicle is a high risk activity. Surely, Levon must have been able to *643anticipate the likelihood of detection by law enforcement and a potential chase. Damage to Mr. Edwards’s vehicle was certainly foreseeable, yet Levon continued with the joy ride. A teenager’s shared unauthorized use of the vehicle with the driver supports and contributes to the damage that results. Without question, the damage to the vehicle occurred during the commission of the delinquent act. As a result of Levon’s delinquent act, i.e., the unauthorized use of the motor vehicle, the car was damaged. As such, restitution was properly ordered.

The restitution statute in effect when this matter came before the trial court did not require that the damage or injury to property be caused solely by the hand of the juvenile. See § 808. Rather, the juvenile is responsible for restitution for any loss to the property that he or she causes or that is caused by a co-conspirator, aider, abettor, or other principal, so long as the injury sustained by the victim is of such a nature that a reasonable person could have foreseen or anticipated that the damage was a natural and probable consequence of the delinquent act.

Other jurisdictions similarly have construed the causation factor for the purposes of restitution consistently with the interpretation that I propose here. For example, the Washington Court of Appeals has consistently applied foreseeability and but-for causation analysis in interpreting the Washington Juvenile Justice Act, Wash.Rev.Code § 13.40.190(1) (2000),2 which, like § 808, grants the authority to impose restitution to victims “who have suffered loss or damage as a result of the offense committed by the respondent ” (emphasis added). In *644State v. Barrett, 54 Wash.App. 178, 773 P.2d 420 (1989), the court upheld the imposition of restitution against a juvenile who had pleaded guilty to taking a motor vehicle without permission for voluntarily riding as a passenger in the unlawfully taken car. The court held that there was a sufficient causal link between the conduct committed and the damage that occurred while he was a passenger in the car. Accord State v. Harrington, 56 Wash.App. 176, 782 P.2d 1101 (1989) (holding that a juvenile who had pleaded guilty only to possession of a stolen car, rather than theft, still had caused damage to the car because the damage occurred during, and was a foreseeable result of, his illegal possession of the car). Similarly, in State v. Massey, 106 Or.App. 242, 806 P.2d 193 (1991), sentence rev’d on other grounds, cert. denied, State v. Massey, 311 Or. 643, 815 P.2d 1273 (1991), the court held that it was not error to impose restitution against a defendant who was convicted of unauthorized use of a motor vehicle, where there was no evidence that he had taken the vehicle, because the victim’s pecuniary damages were the result of the defendant’s continued illegal possession of the car. In People v. Rivera, 135 Misc.2d 350, 515 N.Y.S.2d 397 (Dist.Ct.1987), the court held that a passenger in a stolen car, who had pleaded guilty to attempted unauthorized use of a vehicle and knew that the car was stolen, could be held liable to pay restitution for damage that resulted when the vehicle collided with another car, even though he had yelled at the driver to stop the car. See id. at 398 (finding that due care had no bearing on the issue of liability because the damage was still caused by the defendant’s participation in the driver’s unauthorized use of the motor vehicle).

The majority bases its decision, in part, on the case of In Re Jose S., 304 Md. 396, 499 A.2d 936 (1985). See maj. op. at 640. That case, however, is distinguishable from the one at bar. In that case, the two boys were found delinquent for different acts that were separated chronologically — one had been found delinquent of breaking and entering and the other of theft. We held that the two boys could not be made to pay restitu-” tion for the acts that occurred prior and subsequent to their *645respectivé participation in the illegal activity. In this case, Levon was a principal in the unauthorized use at all times after he discovered that the car was stolen, and he is responsible for the reasonably foreseeable damage that occurred. See Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Art. 27, § 349. The parallel to Jose S. in this case, if any, would be that Levon can not be made to pay restitution for damage that occurred to the vehicle prior to his participation in the unauthorized use — precisely the holding of the Court of Special Appeals.

Accordingly, I dissent.

Judge CATHELL has authorized me to state that he joins in the views expressed in this dissenting opinion.

. At the adjudicatory hearing, in finding Levon delinquent of unauthorized use, the master found that Levon "at least ... should have known the car was stolen,” only later indicating, at the restitution hearing, that Levon had actually known that the car was stolen. Clearly, this discrepancy is concerning. Unfortunately, however, Petitioner has not raised the issue of the sufficiency of the basis for the finding of delinquency on appeal, so we must assume that it is valid. Accord maj. • op. at 631 n. 1.

. The Washington restitution statute, unlike § 808, expressly makes all participants "jointly and severally liable.” See Wash.Rev.Code § 13.40.190(1) (2000). Nonetheless, the Washington Court of Appeals’ analysis on the relationship between the causation element of the restitution statute and the foreseeability of the resulting damage is still applicable here. In addition, as the Maryland unauthorized use statute makes aiders and abettors guilty as principles for the purpose of punishment, see Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Art. 27, § 349, Levon is individually responsible for the damage to the vehicle that resulted from its unauthorized use.