Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. JV34159
Duffy, J.
Defendant Adrian R., a minor, appeals a victim restitution order of the juvenile court directing him to pay $51.96 to A.J. Singh, the manager of a 7-11 store in San Jose. This amount represented the loss the store or its owner sustained as a result of Adrian R. having stolen beer from it, for which the court adjudged that he had committed burglary in violation of Penal Code section 459-460, subdivision (b). Adrian R. challenges the order on the basis that the victim, the 7-11 store or its owner, did not pursue a restitution claim against him, electing instead to recover its loss through insurance coverage it had purchased. The minor also challenges the order to the extent it directed payment to A.J. Singh, whom the record shows is the store manager, and not its actual owner. Concluding that the victim restitution order serves a proper statutory purpose-rehabilitation of the minor-we affirm, but modify the order to direct payment to the actual victim who sustained the loss, the 7-11 store or its owner.
STATEMENT OF THE CASE
I. Factual Background
On August 23, 2009, Adrian R., then 14 years old, and another teenage boy entered a 7-11 store located at 5152 Monterey Road in San Jose. They grabbed four packs of beer, while two other boys waited for them outside. The clerk of the store tried to stop the theft but one of the boys punched him, causing a cut to the inside of the clerk’s mouth. The boys left the store without paying for the beer, the retail cost of which was $12.99 per 12-pack, for a total retail loss of $51.96, exclusive of sales tax.
The clerk reported the burglary and video surveillance of the store was obtained. A short time later, police spotted Adrian R., who resembled one of the boys who had entered the store, in the area. As police approached, Adrian R. ran, but an officer used a taser and placed him under arrest. Adrian R. resisted arrest, causing one of the officers to sustain a minor injury to his hand. Adrian R. later told police that he had given in to peer pressure and had participated in stealing the beer. But he said that his friend was the one who had punched the clerk.
II. Procedural Background
On September 30, 2008, the juvenile court had adjudged Adrian R. a ward of the court under Welfare and Institutions Code section 602 because of a misdemeanor violation of Penal Code section 594, subdivision (b)(2)(A)-vandalism-and he was placed on probation, subject to certain conditions. (Petition A) He came before the juvenile court again for allegedly violating probation (Notice B) and for an alleged misdemeanor violation of Penal Code section 148.9-making a false representation of identity to a peace officer. (Petition C) On February 17, 2009, the juvenile court sustained both the notice and the petition and ordered Adrian R. to serve 75 days on the electronic monitoring program. Adrian R. again returned to court for allegedly violating probation (Notice D) and for an alleged misdemeanor violation of Penal Code section 242-243.4, subdivision (e)(1)-sexual battery (Petition E). On May 7, 2009, the court sustained the notice and petition and ordered Adrian R. to serve 120 days in Juvenile Hall, with the commitment stayed pending his successful completion of a substance abuse treatment program.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
That brings us to the instant case. In August 2009, Adrian R. once again returned to court for allegedly violating probation, committing burglary in violation of Penal Code section 459 (count 1), and resisting a peace officer in violation of Penal Code section 148, subdivision (a)(1), a misdemeanor (count 2). He admitted the violations and the court found them to be true. On September 10, 2009, the court continued the wardship for a maximum confinement time of four years, with credit for time served of 176 days, and ordered Adrian R. placed in the Enhanced Ranch Program for a period of six to eight months. The court further ordered Adrian R. to pay victim restitution for “losses sustained” in an amount to be determined at a restitution hearing on December 10, 2009.
III. The Restitution Hearing
On September 1, 2009, A.J. Singh, the 7-11 store manager, had indicated to probation that the four stolen 12-packs of beer were worth $12.99 each, exclusive of sales tax, for a total loss to the store of $51.96, and that the store would be seeking restitution. On December 2, 2009, Singh confirmed the amount of the loss but indicated that “the store owner [had] decided not to request restitution [because] they will be reimbursed through their insurance company.” Singh was advised that even with insurance coverage, the store had a right to request victim restitution but he again expressed that the owner was declining to pursue it.
At the restitution hearing, Adrian R. objected to the payment of victim restitution because the 7-11 store was not claiming it. The court acknowledged that the victim was not asking for restitution because the loss was being reimbursed through insurance coverage. But the court expressed its understanding that it was not to take into account insurance coverage or other compensation to a victim received from a third party by contract when considering victim restitution. The court noted a distinction between the situation in which a victim was not claiming restitution because there was no actual loss and one in which there was a loss but the victim was being reimbursed through insurance. The court observed that notwithstanding the existence of insurance to cover a loss, “[r]estitution is a part of the rehabilitation of the minor” such that the court was “required to order it.” In response to inquiry about to whom payment of victim restitution should be made, the court assumed that “Mr. Singh probably is the owner of that 7-11, ” so that payment should be ordered directly to him. The court then directed payment of victim restitution in the amount of “$51.96 to A.J. Singh, ” such liability to be borne jointly and severally by Adrian R. and his “parents/guardian(s).”
Adrian R. timely appealed, challenging only the victim restitution order.
DISCUSSION
I. Applicable Law and Standard of Review
Section 730.6 governs restitution in cases in which a minor is adjudicated a ward of the court under section 602. It is parallel to Penal Code section 1202.4 governing restitution generally. (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1386-1387 (Brittany L.); In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016 (Anthony M.).) Section 730.6, subdivision (a)(1) provides that it “is the intent of the Legislature that a victim... who incurs any economic loss as a result of the minor’s conduct shall receive restitution directly from that minor.” Subdivision (h) provides in relevant part that “[r]estitution... shall be imposed in the amount of the losses, as determined.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.... A restitution order... shall identify... the amount of each victim’s loss to which it pertains, and 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... including.... [¶] (1) Full or partial payment for the value of stolen... property. The value of stolen... property shall be the replacement cost of like property....” A “ ‘victim’ ” includes “the immediate surviving family of the actual victim” and nothing prevents a court from ordering restitution to any “corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of an offense.” (§ 730.6, subd. (j)(1) & (k).)
The Victims’ Bill of Rights, enacted by the voters in 2008 as part of the State Constitution also provides that a crime “ ‘victim’ is 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.” (Cal. Const., art. 1, § 28, subd. (e).)
“Generally, an order of restitution will not be overturned in the absence of an abuse of discretion. [Citation.] The court abuses its discretion when it acts contrary to law [citation] or fails to ‘use a rational method that could reasonably be said to make the victim whole, and [it] may not make an order which is arbitrary or capricious’ [Citation].” (Anthony M, supra, 156 Cal.App.4th at p. 1016.) Any rational method may be used, “provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation.” (Brittany L., supra, 99 Cal.App.4th at pp. 1391-1392, fn. omitted.) These purposes are “three-fold, to rehabilitate the defendant, deter future delinquent behavior, and make the victim whole by compensating him [or her] for his [or her] economic losses.” (Anthony M., supra, 156 Cal.App.4th at p. 1017.) And “ ‘[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, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action....” ’ ” (Brittany L., supra, 99 Cal.App.4th at p. 1391, fn. omitted.) Moreover, a victim’s right to restitution is to be “ ‘broadly and liberally construed.’ ” (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132 (Johnny M.).)
An appellate court generally reviews the court’s findings imposing direct victim restitution for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) “ ‘ “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.” ’ ” (Johnny M., supra, 100 Cal.App.4th at p. 1132; accord, People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409 [reviewing court “will not disturb the trial court’s determination [of restitution] unless it is arbitrary, capricious and exceeds the bounds of reason”].) But where the relevant facts are undisputed and the reviewing court’s primary concern is the interpretation of the controlling restitution statute, we review the claim de novo. (In re Eric S. (2010) 183 Cal.App.4th 1560, 1564 (Eric S.).) Accordingly, “[t]he standard of review therefore depends on the nature of the question presented” and where the issue is one of law, we will consider it without deference to the trial court’s action. (In re K.F. (2009) 173 Cal.App.4th 655, 661.)
The question here is essentially one of statutory construction-does section 730.6 require the victim of the minor’s offense to claim restitution in the proceeding in order for the court to make a victim restitution order in the amount of the loss, which, in this case, is covered by insurance? The second issue-must the order direct payment to the actual victim who sustained the loss?-is also a legal question. We will therefore consider these questions independently.
II. The Trial Court Did Not Err in Awarding Victim Restitution in the Amount of the Loss
Adrian R. contends that the court erred by awarding restitution to a victim who elected not to pursue a restitution claim in the proceeding due to the loss being covered by insurance. We first observe that section 730.6, the operative restitution statute in this case, does not require a victim to make a claim in the proceeding in order for the trial court to consider or order victim restitution. Instead, the court must order direct victim restitution in the amount of the losses determined, without regard to whether the victim affirmatively pursues a claim, unless it finds compelling and extraordinary reasons not do to so. (§ 730.6, subd. (h).)
Adrian R. suggests that the victim’s decision not to pursue direct restitution is a compelling and extraordinary reason for the trial court to have declined to order it, and that the court’s understanding that it was required to order restitution anyway led to an erroneous failure to exercise discretion. But this is not so. The court determined that the victim’s decision not to pursue a claim due to its receipt of insurance proceeds to compensate for the loss was not a compelling reason to decline to order restitution. And the court did so because of the legal principle that a victim’s insurance reimbursement for the loss caused by a minor’s criminal offense does not relieve the minor of victim-restitution responsibility. (Brittany L., supra, 99 Cal.App.4th at pp. 1381, 1383, 1389-1390; In re Tommy A. (2005) 131 Cal.App.4th 1580, 1592 (Tommy A.).) The court’s determination in this regard was thus not an erroneous failure to have exercised discretion. It was instead a correct conclusion that victim restitution was mandated by statute under these circumstances, the victim’s election to pursue insurance proceeds in lieu of a restitution claim failing to constitute an extraordinary or compelling reason not to order restitution.
Moreover, as we have noted, the purposes of victim restitution in the juvenile context are threefold-to deter future criminality, to rehabilitate the minor, and to compensate the victim for losses incurred as a result of the juvenile’s offense. (Brittany L., supra, 99 Cal.App.4th at p. 1387; Tommy A., supra, 131 Cal.App.4th at p. 1591; Anthony M., supra, 156 Cal.App.4th at p. 1017.) The trial court here specifically cited the rehabilitation of the minor as the primary purpose of its victim restitution order, a purpose served whether or not the victim was affirmatively claiming restitution or had been compensated for the loss by its own insurer.
In addition to his challenge to victim restitution on the basis that the victim was not claiming it, Adrian R. also contends that the reason for the victim’s decision-that the loss was covered by insurance-means that the victim, having been made whole by a third party, suffered no loss for which restitution can properly compensate. But, as the trial court observed and as we have already noted, the law is clear that a victim’s reimbursement through insurance coverage does not relieve a minor of the obligation to directly pay restitution to the victim for a loss caused by the minor’s offense. (Brittany L., supra, 99 Cal.App.4th at pp. 1383, 1389-1390; Tommy A., supra, 131 Cal.App.4th at pp. 1583, 1590, 1592; Eric S., supra, 183 Cal.App.4th at p. 1564.) The rationale for this principle is that a minor engaging in criminal conduct should not fortuitously benefit from having chosen a victim who was farsighted enough to have purchased insurance that covers the particular loss. (Brittany L., supra, at pp. 1387-1389.)
Adrian R. cites People v. Fritchey (1992) 2 Cal.App.4th 829 (Fritchey) in support of his contention that a victim who receives insurance compensation has suffered no loss for which restitution must be ordered. But in that case, which applied former Penal Code section 1203.04 and not section 730.6, the victim had truly suffered no actual economic loss, the theft having been thwarted by the defendant’s detention and subsequent arrest and the victim’s personal property having been returned to him. (Fritchey, at pp. 832-833.) This circumstance is entirely distinct from that presented here in which the victim indeed sustained an actual loss but submitted a claim to its insurer for reimbursement rather than pursue victim restitution. We accordingly reject Fritchey as controlling here. Moreover, to the extent the case may be read as holding that a victim of a crime must pursue a restitution claim in the proceeding as a prerequisite to a victim restitution order (id. at p. 842 [victim restitution not proper under former Penal Code section 1203.04 where victim suffers no loss or “fails to claim any compensable loss”], this proposition imposes a requirement that exceeds the language of the applicable statute, section 730.6.
We thus conclude that contrary to the minor’s contentions, the court did not err by ordering victim restitution notwithstanding that the victim did not pursue a claim in the proceeding and notwithstanding that the victim’s loss was covered by insurance.
II. The Restitution Order Must Direct Payment to the Actual Victim
As noted, the court’s order directed the payment of victim restitution to A.J. Singh based on the court’s misplaced assumption that Singh was the owner of the 7-11 store. But the record makes clear that A.J. Singh was the store manager, not its owner, and the record does not disclose the legal name of the store or its owner. Adrian R. thus challenges the order as erroneously directing payment to one who did not personally or directly sustain loss as a result of his offense.
As we have observed, section 730.6, subdivision (a)(1) provides that “[i]t 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.” We read this section, in conjunction with the Victims’ Bill of Rights at article 1, section 28, subdivision (e) of the California Constitution, as requiring the payment of victim restitution only to the person or entity who has actually incurred the economic loss. Here, that appears to be the 7-11 store or its owner rather than A.J. Singh.
Although we have the power to modify the restitution order to direct payment to the actual victim (People v. Bartell (2009) 170 Cal.App.4th 1258, 1262), the record here does not sufficiently identify the legal name of the 7-11 store or its owner. Thus, it is necessary to remand with directions to modify the order to direct payment of victim restitution to the person or party who sustained the actual loss as a result of the minor’s burglary. In light of the amount involved-$51.96-this hardly serves considerations of judicial economy but we see no way around it.
DISPOSITION
The matter is remanded to the juvenile court with directions to modify its restitution order to direct payment to the actual victim of the minor’s burglary, whether that is the properly named 7-11 store or its owner. The order is otherwise affirmed.
WE CONCUR: Rushing, P.J.Premo, J.