Opinion
No. 1 CA-JV 12-0162
01-03-2013
STATE OF ARIZONA, Appellant/Cross-Appellee, v. ANTONIO B., Appellee/Cross-Appellant.
William G. Montgomery, Maricopa County Attorney's Office By Keli B. Luther, Deputy County Attorney Attorneys for Appellant/Cross-Appellee Christina Phillis, Maricopa County Public Advocate By Suzanne W. Sanchez, Deputy Public Advocate Attorneys for Appellee/Cross-Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
103(G) Ariz. R.P. Juv.
Ct.; Rule 28 ARCAP)
Appeal from the Superior Court in Maricopa County
Cause No. JV557460
The Honorable Peter A. Thompson, Judge
REVERSED AND REMANDED IN PART; AFFIRMED IN PART
William G. Montgomery, Maricopa County Attorney's
Office
By Keli B. Luther, Deputy County Attorney
Attorneys for Appellant/Cross-Appellee
Phoenix Christina Phillis, Maricopa County Public Advocate
By Suzanne W. Sanchez, Deputy Public Advocate
Attorneys for Appellee/Cross-Appellant
Mesa DOWNIE, Judge ¶1 The State appeals from the juvenile court's denial of restitution claims submitted by two insurance companies. Antonio B. ("Juvenile") cross-appeals from the inclusion of attorneys' fees incurred by the victims in the restitution order. We reverse the denial of the insurer's restitution claim and remand for issuance of a restitution order in favor of the insurance carrier. We otherwise affirm the restitution order.
Although two insurance companies are involved, the legal issues relating to them are the same. For ease of reference, we refer to them in the singular.
FACTS AND PROCEDURAL HISTORY
"We consider the facts in the light most favorable to upholding the decision." In re Andrew C., 215 Ariz. 366, 367, ¶ 6, 160 P.3d 687, 688 (App. 2007).
¶2 In March 2012, the victim family left town on vacation. Juvenile and a friend decided to steal alcohol from the home. The friend went inside and obtained the alcohol while Juvenile waited outside. The next evening, Juvenile entered the home by himself and stayed for approximately three hours. He undressed and watched pornography on television, damaged and/or ruined property inside the house, and rummaged through the teen-aged girl's bedroom. He also drove a 2011 Jaguar out of the family's garage, lost control of the vehicle, hit a raised concrete embankment, and vomited in the car. A neighbor called the police, and Juvenile was apprehended. ¶3 Police officers contacted the victim family and suggested obtaining an injunction against harassment against Juvenile because, given the nature of the damage done to the home and car, "this was no ordinary burglary." The family immediately returned from Florida. Victim J.D. sought an injunction to prevent Juvenile from going near the family's residence or to school, where his daughter attended. Juvenile retained counsel to contest the injunction so he could attend school. J.D. also hired a lawyer to represent the family in the justice court proceedings. ¶4 Juvenile pled delinquent to criminal trespass (residential structure), a class 6 felony. Pursuant to his plea agreement, Juvenile agreed to pay:
restitution for all economic loss to the victims [J.D. and M.D.], and/or their insurance company, for all economic loss arising out of Phoenix Police Department Report #2012-00488473, to include restitution for the damage done to the Jaguar, in an amount not to exceed $40,000.00, however no less than $1,000.00, shall be ordered to [J.D. and M.D.] for the payment of their insurance deductible.Before accepting the plea, the juvenile court stated, inter alia, that Juvenile could be ordered to pay restitution "for any damages that are proven to have been caused by [his] actions or others working in concert with [him]." The court further explained that "the claim for restitution could come from either the victim[s] directly or from their insurance company." Juvenile responded that he understood his responsibilities, and the court found he had knowingly, intelligently, and voluntarily entered into the plea agreement. ¶5 M.D. filed a Verified Victim Statement claiming approximately $14,000 in restitution, which included $2696.20 in attorneys' fees incurred by the family in connection with the injunction proceedings. One insurance carrier filed a Verified Victim Statement, claiming approximately $1300 for damages to the home ("residential claim"). At the restitution hearing, the other insurer claimed $20,406 for damages to the Jaguar ("auto claim"). ¶6 Juvenile admitted being in the victims' home and driving the Jaguar, but he denied responsibility for the full amount of the claimed damages. He contested the attorneys' fees arising from the injunction proceedings, the entire residential claim, and certain aspects of the auto claim. M.D., J.D., and an employee of the insurance carrier testified at the restitution hearing and were cross-examined. ¶7 The court ordered Juvenile to pay $4,293.22 to J.D. and M.D., which included the full amount of their attorneys' fees, a $1000 insurance deductible, and $597.22 for out-of-pocket expenses. The court did not award restitution to the insurance company. ¶8 The State timely appealed, and Juvenile timely cross-appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 8-235.
Juvenile and his friend attended the same school as the teen-aged girl who lived in the home.
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DISCUSSION
¶9 We review a restitution order for an abuse of discretion; we will uphold the award if it bears a reasonable relationship to the victim's loss. In re William L., 211 Ariz. 236, 239, ¶ 10, 119 P.3d 1039, 1042 (App. 2005) (citations omitted). A court "abuses its discretion if it misapplies the law or exercises its discretion based on incorrect legal principles." State v. Slover, 220 Ariz. 239, 242, ¶ 4, 204 P.3d 1088, 1091 (App. 2009).
I. State's Appeal
¶10 "The juvenile court has an obligation to impose restitution to compensate victims for economic loss." In re Joe S., 193 Ariz. 559, 560, ¶ 5, 975 P.2d 149, 150 (App. 1999); see also A.R.S. § 8-344(A), (B) (after considering certain factors, the court "shall" order restitution to the victim to compensate for "injury to or loss of property"). Section 8-416(C) allows the State to "assert any right to which the victim is entitled." ¶11 Juvenile agreed to pay "all economic loss" arising from his delinquent acts to the "victims[] and/or their insurance company" in an amount not to exceed $40,000. The combined restitution requests were less than $40,000. ¶12 The court specifically found that Juvenile caused $20,406 in damages to the Jaguar, stating:
[Juvenile] also admitted taking the Jaguar for a joy ride and causing extensive damage to the vehicle when he lost control and struck a median barrier before returning the car to the garage. However, he was careful to explain that only certain parts of the damage could have been caused by the joyride as he didn't think the damage to the driver's side of the vehicle was his fault. The explanation was stuttering, presented quickly via leading questions and frankly unconvincing. The amount of damage to the 2011 Jaguar was $20,406.00.¶13 Regarding the residential claim, M.D. and J.D. testified about the state of their home and its contents upon their return. An insurance company employee testified regarding replacement costs for damaged items. The court specifically rejected Juvenile's defenses to the damage claims, stating:
[Juvenile] was carefully led through a rendition of what items he may have touched and where he might have gone in the home so as to avoid any connection to certain claims for damage and reimbursement. Upon their return, the [victims] folded up the soiled sheets together with the matching comforter, pillows and pillow cases and threw them in the trash. The juvenile claims he is not responsible for those items as the [victims'] actions were unreasonable. The court disagrees.The court also found Juvenile's testimony about other items, including a missing laptop computer and iPhone, to be "self-serving and obviously well-rehearsed," calling it "poorly executed and not credible." ¶14 Despite finding that the auto and residential restitution claims had been proven, the court declined to award restitution to the insurer, stating it had "a right of subrogation which may be explored separate from this proceeding. Further, counsel for both the juvenile and his parents have stipulated on the record that the restitution proceeding does not bar any subrogation or separate civil lawsuit" by the insurance company. ¶15 The court erred by not awarding some amount of restitution to the insurance company. See Maricopa County Juv. Action No. JV-503009, 171 Ariz. 272, 274, 830 P.2d 484, 486 (App. 1992) ("After considering the specified criteria, a juvenile court is statutorily obligated to order a juvenile who has been adjudicated delinquent to pay either full or partial restitution to the victim of the offense."). A victim is a "person against whom the delinquent act was committed." A.R.S. § 8-382(20). "When an insurer has reimbursed a victim for an economic loss, the statutory mandate of restitution to the 'victim' is best served if the restitution order includes the insurer as a 'victim' suffering economic loss from defendant's crime." State v. Steffy, 173 Ariz. 90, 94, 839 P.2d 1135, 1139 (App. 1992); see also In re Erika V. , 194 Ariz. 399, 400-01, ¶¶ 5-6, 983 P.2d 768, 769-70 (App. 1999) (restitution to third party appropriate when third party "stands in the shoes of the victim" and "suffer[s] the victim's own precise loss"); cf. Pima County Juv. Action No. 45363-3, 151 Ariz. 541, 541-42, 729 P.2d 345, 345-46 (App. 1986) (no abuse of discretion in defining "actual damage" to include restitution for "actual out-of-pocket loss" to an insurance company that compensated victim). ¶16 The availability of civil remedies does not negate the duty to consider and adjudicate an insurer's restitution claim. "[T]he goals and methods of restitution in a criminal case differ from those of damages in a civil action." State v. Iniguez, 169 Ariz. 533, 536, 821 P.2d 194, 197 (App. 1991). Nor is this a case, as Juvenile suggests, where the court weighed the relevant factors and determined that Juvenile should be required to pay only partial restitution to the insurer. See A.R.S. § 8-344(A) (once State proves economic loss, juvenile court may award full or partial restitution). Rather, based on what we can determine from the record, the court denied the insurer's claims solely because it had available civil remedies. ¶17 Victims, including insurance companies with proven claims, are entitled to "receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury." Ariz. Const. art. 2, § 2.1(A)(8). Here, a two-day restitution hearing was held during which the insurer devoted significant time and effort to proving the damages caused by Juvenile's criminal conduct. Requiring the carrier to spend additional time and money to once again prove those same losses in a different forum is inconsistent with the constitutional mandate of "prompt" restitution.
II. Juvenile's Cross Appeal
¶18 Juvenile contends the court erred by including in the restitution order attorneys' fees the victims incurred in pursuing the injunction against harassment. We disagree. ¶19 Restitution is appropriate when losses are: (1) economic, (2) ones the victim would not have incurred but for the criminal offense, and (3) a direct result of the criminal conduct. In re Stephanie B., 204 Ariz. 466, 469, ¶ 10, 65 P.3d 114, 117 (App. 2003) (citation omitted). "If the loss results from the concurrence of some causal event other than the defendant's criminal conduct, the loss is indirect and consequential and cannot qualify for restitution . . . ." State v. Wilkinson, 202 Ariz. 27, 29, ¶ 7, 39 P.3d 1131, 1133 (2002). A restitution order will be upheld where it bears a reasonable relationship to the victim's loss. In re Ryan A. , 202 Ariz. 19, 24, ¶ 20, 39 P.3d 543, 548 (App. 2002) (citations omitted). The burden of proof for a restitution order is a preponderance of the evidence. William L., 211 Ariz. at 238, ¶ 6, 119 P.3d at 1041 (citation omitted). ¶20 J.D. obtained the injunction against harassment based on the recommendation of police officers, who informed him "this was no ordinary burglary." J.D. believed his daughter was in potential jeopardy. He litigated the injunction "solely to keep [his] daughter in a safe school," i.e., one where Juvenile was not present. ¶21 The juvenile court appropriately distinguished between consequential damages and those subject to a restitution award, noting that the family's "loss from the ruined vacation was $9,447.93," most of which could not be recovered as restitution. Calling the case "disturbingly unique," the court made additional findings relevant to the attorneys' fees, stating:
When [Juvenile] hired private counsel and contested the injunction against harassment, [J.D.] was told by the justice of the peace he needed to hire a lawyer for the return hearing. He did so and incurred $2,696.20 in attorney's fees. At the time of the dispute over the issuance of the injunction, [Juvenile] was released to his parents by the juvenile court. He was ordered to have no contact with the victim.¶22 J.D.'s retention of counsel and pursuit of the injunction proceedings was a direct result of Juvenile's delinquent conduct. See Stephanie B. , 204 Ariz. at 469, ¶ 10, 65 P.3d at 117; cf. State v. Baltzell, 175 Ariz. 437, 439, 857 P.2d 1291, 1293 (App. 1992) (ordering reimbursement for attorneys' fees after noting that courts have defined economic loss for purposes of restitution "quite broad[ly]" and allowed restitution for a "wide variety of expenses caused by the conduct of persons convicted of crimes"); State v. Spears, 184 Ariz. 277, 292, 908 P.2d 1062, 1077 (1996) (upholding restitution award to murder victim's family for attorneys' fees incurred in probate proceedings). The court found J.D.'s conduct to be appropriate under the circumstances. Indeed, but for Juvenile's criminal activities, the victims would have had no need to seek an injunction to keep Juvenile away from their home and their daughter. The juvenile court did not err by including the victims' attorneys' fees in the restitution order.
. . . .
It is very clear from his testimony and demeanor when testifying that [J.D.] inferred an immediate need to return home and procure an injunction against harassment after receiving the description of events
and opinion of assigned investigating officer . . . .
CONCLUSION
¶23 For the reasons stated, we reverse the denial of the insurer's restitution claims. On remand, the juvenile court shall determine an appropriate restitution award for the insurance company. We otherwise affirm the judgment of the juvenile court.
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MARGARET H. DOWNIE, Judge
CONCURRING: _____________
JOHN C. GEMMILL, Presiding Judge
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DIANE M. JOHNSEN, Judge