Opinion
A155451
11-08-2019
In re J.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00424)
Minor J.M., who was committed to the Division of Juvenile Justice after the juvenile court found he committed murder and attempted murder, challenges a restitution order awarding $35,663.50 in lost wages to the murder victim's mother. He asserts two arguments. First, he contends the claim for lost wages is unsupported by substantial evidence. Second, he argues the holding of People v. Dueñas (2019) 30 Cal.App.5th 1157—that a trial court's imposition of certain fees and fines without first determining a defendant's ability to pay constitutes a due process violation—should be extended to the victim restitution order. Both arguments fail, and we affirm.
BACKGROUND
Because J.M. appeals a victim restitution order, the facts relating to his crimes are of minimal relevance. It suffices to note that on March 5, 2018, the juvenile court found true allegations that then-13-year-old J.M. murdered Jibril Abubakar and attempted to murder Dylan Williams, both charges accompanied by firearm enhancements. The court adjudged J.M. a ward of the juvenile court and committed him to the Division of Juvenile Justice with a maximum time of confinement of 10 years. We affirmed the jurisdictional determination and the commitment. (People v. J.M. (June 13, 2019, A154577) [nonpub. opn.].)
We refer to Jibril by his first name to avoid confusion with his father, with whom he shared a surname.
As to the restitution order that brings J.M. back before us, on February 27, 2018, the Contra Costa District Attorney's office submitted a request for victim restitution on behalf of Jibril's father, Abdallah Abubakar, and mother, Patience Emmanuel. In a restitution request form certified "to be true and accurate," Abubakar sought $3,515.41 for a plane ticket he purchased to return to the United States upon learning of his son's death. Emmanuel submitted a separate restitution request form, also certified "to be true and accurate," seeking $4,900 for cemetery expenses and $1,712.60 for mortuary expenses. J.M. did not object to those items below and does not challenge them here.
In addition to the above expenses, Emmanuel also sought $39,540.03 in lost wages. In support, she submitted a July 24, 2017 letter addressed "To Whom It May Concern" from Daisy Johnson, "the administrative assistant of the Tele/Oncology Unit" of Emmanuel's unidentified employer. Johnson represented that Emmanuel typically worked four 10-hour days per week, but had missed 51 days between March 24 and June 15, 2017 "due to the sudden and violent murder of her son . . . ." Johnson then listed 51 dates, with five weeks identifying five days of work missed each of those weeks.
Also attached to the district attorney's request for victim restitution were victim impact statements. In one, Emmanuel described the way in which her son's murder affected her physically ("continuous anxiety, insomnia and daily chest pain, stress") and emotionally ("ruin[] of our lives, constant thinking about him, traumatized, dreaming about him, emotionally drained, lost, shock[], lost appetite, lack of sense of belonging and inability to concentrate or complete a given task"). In another, Emmanuel detailed at length the grief the family suffered following the murder, including this: "The pain of burying my son runs through me like a wild fire. This pain despite our efforts, it will never stop until we die." And this: "Killing our son is like taking away the air we are breathing. Killing our son is taking away everything meaningful to me; no more happiness." And this: "To my son: I am deeply broken and in shock. Last time I saw you was over a year ago. I am in a complete state of confusion and pain. My heart races in excitement hoping to hear from you. The lack of sleep, appetite, loss of concentration and I cry for every day son. I love you. You will always be in my heart unconditionally. I will never be the same again, until eternity joins us again."
The restitution request came on for hearing on August 27, 2018. Counsel for J.M. objected that the records submitted in support of Emmanuel's claim for lost wages were inadequate because the Johnson letter was not authenticated. Specifically: "you don't know where this document is coming from," "it's not on letterhead," "[i]t's not signed by anyone," "somebody typed up a bunch of dates on plain white paper . . . ."
The prosecutor responded that the document was enough to satisfy the People's initial burden because Emmanuel signed the restitution request form under penalty of perjury, which shifted the burden to defendant to "do an investigation and reveal that, in fact, there is no such place of employment—in fact, this person doesn't work there—in fact, that's not her rate of pay . . . ." Because the Johnson letter did not identify Emmanuel's place of employment, the prosecutor offered to provide that information to defense counsel so she could look into Emmanuel's lost wages claim. Objecting that evidence supporting the restitution request was to have been submitted prior to that hearing, defense counsel argued the Johnson letter should be excluded as unauthenticated and lacking in foundation. The court offered to grant counsel time to look into the claim, but rather than responding to that offer, counsel noted "there's also errors in this report." She explained that the letter stated Emmanuel worked four 10-hour days per week, but five of the weeks showed her missing five days of work. The prosecutor had no objection to subtracting five days from the number of days missed, which reduced the lost wages claim to $35,663.50.
Defense counsel reiterated her objection to the adequacy of the Johnson letter but declined the court's repeated offer to continue the matter so she could investigate the lost wages claim, stating, "I don't think that's my obligation." To which the court responded, "Okay. Then it's my obligation to accept what I have."
J.M. filed a timely appeal.
DISCUSSION
The Juvenile Court's Restitution Order Is Supported By Substantial Evidence
Welfare and Institutions Code section 730.6 governs restitution in cases in which a minor is adjudicated a ward of the court pursuant to Welfare and Institutions Code section 602. It confirms the Legislature's intent "that a victim of conduct for which a minor is found to be a person described in Section 602 who incurs an economic loss as a result of the minor's conduct shall receive restitution directly from that minor." (Welf. & Inst. Code, § 730.6, subd. (a)(1); see also id., subd. (a)(2)(B).) To prevail on a claim for restitution, the People must make a prima facie case of economic loss, which then shifts the burden to " '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; accord, People v. Superior Court (Lauren M.) (2011) 196 Cal.App.4th 1221, 1226.)
J.M. claims the prosecutor failed to make a prima facie showing of lost wages, reiterating his counsel's objection to the sufficiency of the Johnson letter. As he would have it, "It is not unreasonable to expect a mother whose adult son is murdered to take some time off work in the immediate aftermath to deal with burial, funeral, and related arrangements, and if necessary with any physical and emotional effects of that tragedy, and an order compensating her for lost wages for that time would likely be appropriate. It is also not unreasonable to expect that she might attend some of the court proceedings, and to the extent she did, compensating her for lost wages for that purpose might also be appropriate. [Citation.] Had Ms. Emmanuel claimed she took a short time off from work, and missed work on other specific days to attend court hearings, there would likely be little, if anything, to dispute. [¶] But when someone claims to have missed work for more than two and a half months, more than just a list of dates typed on a sheet of paper is needed to provide substantial evidence that such a lengthy absence was both necessary, and directly related to [J.M.'s] acts."
Typically, we review restitution awards for an abuse of discretion. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1173; In re K.F. (2009) 173 Cal.App.4th 655, 661.) But where, as here, an appeal argues that the evidence was insufficient to establish the amount awarded, we apply the substantial evidence standard of review. (In re Travis J. (2013) 222 Cal.App.4th 187, 203.) We conclude substantial evidence supports the award to Emmanuel of $35,663.50 in lost wages.
In support of her claim, Emmanuel submitted a letter from an administrative assistant at her employer that listed the dates she missed work following J.M.'s murder of her son. The letter confirmed she typically worked four ten-hour days per week at an hourly rate of $77.53. Admittedly, the letter was not perfect, as it did not identify Emmanuel's employer, apparently misidentified five dates as days Emmanuel missed work when they would not have been part of her regular work schedule, and was unsigned. But the standard at this stage is not perfection but rather proof by a preponderance of the evidence. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542; People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) We believe the Johnson letter satisfied this standard.
J.M. complains that there was no "evidence regarding [Emmanuel's] mental or physical health during this period, or that she sought any therapy, treatment, or counsel." He provides no authority that Emmanuel was required to produce evidence of "therapy, treatment, or counsel" in order to justify her work absences over the two and a half months following Jibril's murder. And, in fact, there was evidence of her debilitated mental and physical state: her victim impact statements palpably detailing the trauma she suffered as a result of her son's death. These provided ample justification for her work absences. For J.M. to assert that she "did not provide any evidence to support a claim that it was necessary or reasonable for her to stay home for two and a half months" is callously dismissive of the pain and trauma this mother clearly suffered as a direct result of J.M.'s conduct.
J.M. also claims the court relied on "nonexistent evidence, or perhaps a complete misunderstanding of the evidence, in making its order," pointing to a statement by the court that Emmanuel "was not in this country at this time and had to make many, many trips—airplane trips—take time off to do this." It appears the court was confusing Emmanuel, who offered no evidence she was out of the country, with Abubakar, who sought restitution for a plane ticket he purchased to return to the United States upon learning of his son's murder. We do not construe this minor misstatement as undermining the showing the prosecutor made in support of Emmanuel's claim for lost wages.
In re Travis J., supra, 222 Cal.App.4th 187, cited by J.M., is distinguishable. There, the victim told the minor's probation officer that she spent $2,500 repairing damage to her car after defendant shot out one of the tires and she lost $400 in wages getting the repairs done. The juvenile court initially ordered the minor to pay the victim $2,900 in restitution. Subsequently, however, the court stated that it found the victim's statements to the probation officer lacking in credibility. It reduced the award to $850, ordering $800 for repairs based on the court's own " 'reasonable estimate' " of the damages, and $50 for lost wages with this observation: "And in terms of lost wages, I agree that I don't see her here. I have never seen her in court. There is no documentation [supporting] where she works and why she incurred $400, but I do know there is some trouble when you have to take the tire to repair it and to retrieve it, so I will award $50 in terms of lost wages." (Id. at p. 193-194, 203.) The Court of Appeal reversed, noting that there was "no evidence in the record that [the victim] paid $800 to replace a single tire or that she thereby lost $50 in wages." It went on to explain that the "replacement or repair cost of the victim's property cannot be established simply by statements made by the victim to the defendant's probation officer," and the order was based "on nothing more than speculation." (Id. at p. 204.) That is a far cry from what happened here, where Emmanuel submitted a claim certified to be "true and correct," the Johnson letter, and victim impact statements.
We thus conclude Emmanuel's certified restitution form, supported by the Johnson letter and victim impact statements, constituted "an adequate factual basis" for her lost wages claim. (People v. Giordano (2007) 42 Cal.4th 644, 664.) This shifted the burden to J.M. to demonstrate that Emmanuel's actual losses were of a lesser amount. (People v. Millard, supra, 175 Cal.App.4th at p. 26; People v. Superior Court (Lauren M.), supra, 196 Cal.App.4th at p. 1226.) The juvenile court repeatedly offered defense counsel a continuance to investigate Emmanuel's claim, and the prosecutor offered to provide information regarding Emmanuel's place of employment. Counsel simply declined because she did not believe it was her obligation. In fact, it was, if she wanted to refute the prima facie showing of Emmanuel's lost wages claim. She did not, and J.M.'s challenge fails.
J.M. Is Not Entitled to An Ability to Pay Hearing
J.M.'s second argument asserts that the juvenile court deprived him of due process by failing to hold a hearing on his ability to pay the victim restitution award. His argument is premised on People v. Dueñas, supra, 30 Cal.App.5th 1157 (Dueñas), in which the Court of Appeal agreed with defendant that she was deprived of due process by the trial court's imposition of court facilities and operations assessments under Government Code section 70373 and Penal Code section 1465.8 and a restitution fine under Penal Code section 1202.4, subdivision (f), without consideration of her ability to pay. (Dueñas, supra, at pp. 1160, 1165.) J.M. urges us to likewise find a due process violation here, contending Dueñas's "reasoning applies equally" to the juvenile court's imposition of victim restitution. We are unpersuaded.
The statute authorizing victim restitution in a Welfare and Institution Code section 602 proceeding provides in pertinent part: "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. 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." (Welf. & Inst. Code, § 730.6, subd. (h)(1).)
In People v. Kopp (2019) 38 Cal.App.5th 47, 94, the court "urge[d] caution in following [Dueñas] and announcing a significant constitutional rule without regard to the extreme facts Dueñas presented." As the Kopp court summarized those facts:
"In Dueñas, the defendant was an indigent, homeless mother of two, who subsisted on public aid while suffering from cerebral palsy. (Dueñas, supra, 30 Cal.App.5th 1157 at pp. 1160-1161.) As a teenager, the defendant's license was suspended when she could not pay some citations. (Id. at p. 1161.) She then was convicted of a series of misdemeanor offenses for driving with a suspended license, and in each case, she was given the Hobson's choice to pay mandatory fees and fines, which she lacked the means to do, or go to jail. (Id. at p. 1161.) She served jail time in the first three of these cases, but still faced outstanding debt, which increased with each conviction. (Ibid.)
"After her fourth conviction of driving with a suspended license, the defendant was placed on probation and again ordered to pay mandatory fees and fines. (Dueñas, supra, 30 Cal.App.5th at pp. 1161-1162.) To try to stop the cycle of ever enhancing fees and fines, the defendant brought a due process challenge to Penal Code section 1465.8, Government Code section 70373, and Penal Code section 1202.4, the statutes under which the fees and fines were imposed. (Dueñas, at p. 1164.) She argued that '[t]hese statutes . . . are fundamentally unfair because they use the criminal law, which is centrally concerned with identifying and punishing only blameworthy decisions, to punish the blameless failure to pay by a person who cannot pay because of her poverty. The laws, moreover, are irrational: They raise no money because people who cannot pay do not pay.' (Ibid.)" (People v. Kopp, supra, 38 Cal.App.5th at pp. 94-95.)
Against this factual background, the Court of Appeal in Dueñas concluded that due process "requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court also held that "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)
We note that at least one case has held that Dueñas was wrongly decided (see People v. Hicks (2019) 40 Cal.App.5th 320, 322), and another has questioned its analysis (see People v. Caceres (2019) 39 Cal.App.5th 917, 927-928). The Supreme Court has not addressed the issue. --------
Unlike J.M. here, the defendant in Dueñas asserted the due process violation in the trial court, and the Court of Appeal thus did not have cause to consider the issue of forfeiture, an issue that has generated many recent opinions, some holding that forfeiture applies (see, e.g., People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155), and some holding it does not (see, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489; People v. Johnson (2019) 35 Cal.App.5th 134, 139). We need not weigh in on the issue, however, as the argument fails on its merits.
In People v. Evans (2019) 39 Cal.App.5th 771, our Division Four colleagues recently considered—and rejected—this same argument. Their opinion hinged primarily on the fundamental differences between court assessments and fines, on the one hand, and victim restitution, on the other. (Id. at pp. 775-777.) We agree this distinction disposes of J.M.'s argument.
In Dueñas, defendant's inability to pay the two assessments and the restitution fine resulted in additional incarceration, which violated the prohibition against inflicting punishment on indigent criminal defendants based solely on their poverty. (Dueñas, supra, 30 Cal.App.5th at p. 1166; see Bearden v. Georgia (1983) 461 U.S. 660, 667-668 [federal Constitution prohibits states from automatically revoking indigent defendant's probation for failure to pay a fine and restitution]; In re Antazo (1970) 3 Cal.3d 100, 103 [invalidating practice of requiring defendants to serve jail time if they were unable to pay a fine and a penalty assessment].) Victim restitution, on the other hand, is paid directly to the victim of defendant's crime and is civil in nature. (Dueñas, supra, 30 Cal.App.5th at p. 1169; People v. Giordano, supra, 42 Cal.4th at pp. 651-652; People v. Kopp, supra, 38 Cal.App.5th at p. 94, fn. 22.) Because it is civil, failure to pay it will not result in increased incarceration, and thus does not inflict additional punishment based on a defendant's financial status.
J.M. complains that nonpayment of the restitution award will still result in additional punishment because it can be converted to a civil judgment that can subject him "to collection proceedings for the rest of his life, interfering with his employment, efforts to obtain housing, and efforts at rehabilitation." And, indeed, Dueñas recognized that unpaid criminal assessments can be converted into a civil judgment, which if unpaid can " 'can damage credit, interfere with a defendant's commitments, such as child support obligations, restrict employment opportunities and otherwise impede reentry and rehabilitation.' " (Dueñas, supra, 30 Cal.App.5th at p. 1168, quoting People v. Neal (2018) 29 Cal.App.5th 820, 827.) According to Dueñas, "These additional, potentially devastating consequences suffered only by indigent persons in effect transform a funding mechanism for the courts into additional punishment for a criminal conviction for those unable to pay." (Dueñas, supra, 30 Cal.App.5th at p. 1168.)
But the fundamental purpose of victim restitution differs from that of the criminal assessments and fine. The Government Code section 70373 and Penal Code section 1465.8 assessments are intended to fund court facilities and operations, while the Penal Code section 1202.4, subdivision (b) restitution fine is intended to be additional punishment for a crime. (Dueñas, supra, 30 Cal.App.5th at pp. 1165, 1169.) Victim restitution, on the other hand, compensates the victim of defendant's crime for economic losses suffered as a result of defendant's conduct, "to make the victim reasonably whole." (People v. Holman (2013) 214 Cal.App.4th 1438, 1451.) It is one thing to conclude due process is violated when an indigent defendant is forced to suffer additional consequences beyond those suffered by his or her wealthier counterpart for the sake of funding the court system. It would be quite another to conclude that J.M.'s right to due process could shift the financial consequences of his conduct to his victims in order to relieve him of the burden of a civil judgment. As the court in People v. Evans observed, "In a civil action for compensatory damages, a defendant's wealth is irrelevant to liability. [Citation.] We conclude similarly that a defendant's ability to pay victim restitution is not a proper factor to consider in setting a restitution award . . . ." (People v. Evans, supra, 39 Cal.App.5th at p. 777.) We likewise reject the notion that J.M.'s ability to pay is relevant to the victim restitution award, and thus conclude that due process does not compel an ability-to-pay hearing under these circumstances.
DISPOSITION
The restitution order is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.