In Re TC

173 Cal. App. 4th 837
CourtCalifornia Court of Appeal
DecidedMay 15, 2009
DocketC058834
StatusPublished

This text of 173 Cal. App. 4th 837 (In Re TC) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re TC, 173 Cal. App. 4th 837 (Cal. Ct. App. 2009).

Opinion

173 Cal.App.4th 837 (2009)
___ Cal.Rptr.3d ___

In re T.C., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
T.C., Defendant and Appellant.

No. C058834.

Court of Appeals of California, Third District.

April 30, 2009.
As modified May 15, 2009.

*840 Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Michael A. Canzoneri and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SIMS, J.—

In this case arising under Welfare and Institutions Code section 602,[1] the parties dispute whether the juvenile court lawfully ordered as a probation condition that appellant, T.C., pay victim restitution on a count of the petition that had been dismissed. Appellant contends the restitution order was invalid because appellant had not entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396], allowing the court to consider the circumstances of the dismissed count in ordering restitution. For reasons that follow, we conclude a Harvey waiver was not required. We shall therefore affirm the order for restitution.

PROCEDURAL BACKGROUND

On November 22, 2006, the district attorney filed a wardship petition against T.C. in Yolo County.

As pertinent, Count Five alleged that on or about May 16, 2006, in Yolo County, appellant violated section 10851, subdivision (a), of the Vehicle Code in that appellant did willfully and unlawfully drive and take a vehicle, to wit, a Maxima from Fairfield Nissan.

As pertinent, Count Eight alleged that on or about April 17, 2006, to May 9, 2006, in Sacramento and Yolo Counties, appellant violated section 10851, subdivision (a), of the Vehicle Code in that appellant did willfully and unlawfully drive and take a vehicle, to wit, a Dodge Charger.

*841 A probation report indicated the Dodge Charger in Count Eight was stolen from a Swift Dodge dealership.

The probation report said appellant and others were apprehended fleeing the scene of the theft of the Nissan Maxima on May 16, 2006. Appellant admitted to police being involved in the theft of the Nissan Maxima and admitted having possessed a stolen Dodge Charger that was recently recovered by Sacramento police.

The probation report also recited that appellant was already a ward of the court for prior offenses of receiving stolen property, related to vehicle theft and driving without a license. He was the subject of five prior juvenile wardship petitions for automobile theft and related offenses, filed between March 2004 and July 2006. The probation report said, "It is obvious the subject does not abide by the conditions of probation ...." The report recommended that appellant be continued a ward of the court, committed to Juvenile Hall for 60 days, and that previous conditions of probation remain in effect.

On August 13, 2007, pursuant to a plea agreement, appellant admitted Count Five (theft of the Nissan Maxima). Before accepting appellant's admission to Count Five, the Yolo County court stated: "There may be restitution. If you enter this admission, you would be obligated to pay restitution, any damages or loss that the victim incurred. You would have to pay what loss they incurred, if there was an agreement, and if there isn't, whether or not that is the right number, [there would be] an evidentiary hearing [and] [t]he amount would have to be determined." Appellant said he understood. Appellant then admitted the Count Five offense. The court said, "Then I would dismiss all other counts outright, although they may be considered for purposes of disposition."

Because appellant lives in Sacramento and had other matters pending there, the case was transferred to Sacramento County for final disposition.

On September 13, 2007, the Sacramento County Juvenile Court vacated all previous dispositional orders, continued appellant as a ward of the Juvenile Court of Sacramento County, and set forth conditions of probation, including payment of restitution in an amount to be determined by the court.

At a contested hearing to determine the amount of restitution, appellant's counsel argued that "there being no Harvey waiver, the restitution on Count 5 should not be ordered."

*842 At the restitution hearing, much was made of People v. Harvey, supra, 25 Cal.3d 754, which held in the context of an adult defendant that, in the absence of an agreement to the contrary, an implicit part of a plea bargain is the understanding that the accused will suffer no adverse sentencing consequence by reason of the facts underlying, and solely pertaining to, dismissed counts (unless they are transactionally related to the admitted charge). (Id. at pp. 757-759.)

At the contested restitution hearing, the parties agreed (and the Sacramento County Juvenile Court found) no Harvey waivers had been entered.

The court considered whether to order the minor to pay restitution to two claimants—the Nissan dealer that was the victim in Count Five (the admitted offense) and Swift Dodge, the alleged victim in Count Eight, which was dismissed. Appellant objected to restitution on the dismissed count, on the ground there had been no admission or adjudication, hence no victim. The deputy district attorney, representing the Department of Health and Human Services, argued appellant had a "pattern of behavior" of prior vehicle theft violations and should be held accountable for that pattern of behavior.

On March 19, 2008, the court issued an order on contested restitution, ordering appellant (and his parents by joint and several liability) to pay restitution to Fairfield Nissan in the amount of $8,819.83 relating to the theft of the Nissan Maxima (Count Five), and $6,890 to Swift Dodge relating to the theft of the Dodge Charger in the dismissed Count Eight (which was recovered but was damaged). The restitutionary orders were conditions of probation. The order acknowledged Count Eight was "dismissed outright, i.e., without a so-called `Harvey waiver.'" The order said, "The issue presented for resolution here is whether the court, in the absence of a Harvey waiver, can lawfully order the minor to pay restitution to the alleged victim named in one of the dismissed auto theft counts, specifically Swift Dodge, the owner of a stolen Dodge Charger. The court concludes that it can make such a restitution order, even in the absence of a so-called Harvey waiver. That is because the rule announced by the court in People v. Harvey is inapplicable in juvenile court. In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1683 [58 Cal.Rptr.2d 632].[2] Thus, a `Harvey waiver' is not required when using dismissed allegations in determining an appropriate juvenile disposition. (Id. at p. 1681.)

*843 "In addition to the foregoing, and after a full review of relevant documents contained in the court file, including documentary evidence contained in the Yolo County file, the court finds that the theft of the Charger is transactionally related to the admitted offense herein so as to justify a restitution order with regard to the taking of that vehicle, notwithstanding the fact that, as noted, the charge relating to the theft of the Charger was dismissed. In re Gary B.

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Bluebook (online)
173 Cal. App. 4th 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tc-calctapp-2009.