IN RE: PAUL D.

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Court of Appeal, Sixth District, California.

IN RE: PAUL D., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. PAUL D., Defendant and Appellant.

No. H008704.

Decided: April 13, 1992

Myra A. Weiher, San Mateo, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Acting, r. Asst. Atty. Gen., and Christopher J. Wei and Joan Killeen Haller, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Paul D. was adjudicated a ward of the Monterey County Juvenile Court and committed to the California Youth Authority (hereafter, CYA) for an assault with a deadly weapon.   He was ordered to pay restitution to the victim in a manner and amount to be determined by the probation officer, but the total was not to exceed $3,145.20.   From this order he appeals.

FACTS

Ronald Nightengale was hospitalized on February 27, 1991, for injuries caused when appellant hit him about the head and upper body with a picket from a fence.   A petition (Welf. & Inst.Code, § 602) 1 alleging felony assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) was filed on April 18, 1991, but was reduced to a misdemeanor on June 21, 1991, when appellant admitted the charge and a violation of probation.2  Appellant was committed to the CYA on July 5, 1991, for a term not to exceed three years and eight months.

The probation report contained a request for restitution based on the statement:  “The victim is requesting restitution in the amount of $3,145.20.   To date, this officer has not received any documentation to support the requested amount.   It is hoped that this information will be available prior to the minor's Dispositional Hearing.”

The information was not available, however.   At the hearing the court stated:  “You're also ordered to pay restitution to the victim in an amount not to exceed three thousand one hundred forty-five dollars and twenty cents.   The exact amount is going to be determined by the probation officer.   That sounds high enough that I want that verified.”

The court then scheduled a review hearing for July 19.  (§ 737.)   On that day, further review was ordered for August 2;  on August 2, review was ordered for August 16.   Appellant filed his notice of appeal on July 26.   The minute orders for the July 19 and August 2 review hearings show only that the court determined that a delay in placement of the minor was reasonable.   There is no indication in the record whether the probation officer made the required determination.

CONTENTION ON APPEAL

Appellant contends that the restitution order is vague and ambiguous because it does not comply with the requirement of section 731.1, subdivision (b), which requires the court to identify the losses to which it pertains.

Respondent asserts that since appellant did not contest the restitution order at the dispositional hearing, he waived the right to challenge the order on the ground of lack of specificity on appeal.

AVAILABILITY OF APPEAL

 First, we disagree that appellant has waived the right to contest the specificity of the order.   Respondents rely on People v. Blankenship (1989) 213 Cal.App.3d 992, 998, 262 Cal.Rptr. 141, which held that although the probation report and the trial court's order recited only a lump sum total value of undefined losses estimated by each victim, and although the order was not in compliance with the statute (Gov.Code, § 13967, subd. (c)), Blankenship's failure to raise the issue at sentencing caused a waiver of his right to challenge the order on appeal.

In the instant case, the probation report and the court's comment at the dispositional hearing make clear that specific information on the loss to Nightengale was not available.   The record contains no indication when the information would become available.   The court directed the probation officer to investigate, and immediately scheduled a review hearing.   An objection at that point would have been useless.   The law does not require idle acts.   (Civ.Code, § 3532.)

 Nevertheless, this appeal is premature.   We recently agreed with People v. Vournazos (1988) 198 Cal.App.3d 948, 953, 244 Cal.Rptr. 82, in considering the issue in relation to wards who are granted probation.  (In re Thomas R. (1991) 2 Cal.App.4th 738, 3 Cal.Rptr.2d 499.)   The Vournazos court stated:  “the [March] judgment in effect was not a final judgment until the details of the restitution were supplied by [the October] order.”  (198 Cal.App.3d at p. 953, 244 Cal.Rptr. 82.)

We requested briefing from the parties on the issue.   As is apparent from the record, the review process was incomplete and restitution had not been determined when the notice of appeal was filed.   As we will discuss below, notwithstanding the fact that appellant was denied probation, we conclude that the court's order regarding restitution was not a final order.

THE ORDER

 Both parties agree that the court ordered restitution to the victim pursuant to the mandate of section 731.1, subdivision (a).   That statute provides that when a minor is committed to the CYA, “the court shall order restitution to be paid to the victim in cases in which the victim has suffered economic loss as a result of the minor's criminal conduct․  ‘[R]estitution’ means payment described in subdivision (d) of Section 729.6.”   It appears likely that, in this case, restitution will cover medical expenses and possibly lost wages.  (§ 729.6, subd. (d).)

Subdivision (b) of Section 731.1 requires the order to “identify the losses to which it pertains[.]”  This language appears also in Government Code section 13967, subdivision (c).3  This court has determined that an order stating that the restitution fine was not to exceed $10,000, but which did not specify the exact amount of the fine or identify the victim's losses violated the requirements of the statute.  (People v. Frey (1989) 209 Cal.App.3d 139, 142, 256 Cal.Rptr. 810.)

However, the individual raising the issue in Frey was an adult defendant who was denied probation.  (Gov.Code, § 13967, subd. (c).)  Section 731.1 applies to minors who are committed to the CYA.  (§ 731.1, subd. (a).)  The distinction is significant.  (See generally In re Charles C. (1991) 232 Cal.App.3d 952, 284 Cal.Rptr. 4.)

Adult criminal defendants who are granted probation remain subject to the supervision of the court (Pen.Code, § 1203.1), unlike adult defendants who are committed to state prison.4  In setting conditions of probation, a court “may, with the consent of the defendant, order the probation officer to set the amount of restitution and the manner in which restitution is to be made to a victim.   The defendant shall have the right to a hearing before the judge to dispute the determinations made by the probation officer․”  (Pen.Code, § 1203.1k.)

This court has recently determined that a juvenile court may make a similar order in a disposition under section 729.6, even though the statute does not explicitly so provide.  (In re Thomas R., supra, 2 Cal.App.4th 738, 3 Cal.Rptr.2d 499.)   The fact that the probationer has a right to withhold consent, and the fact that the court has the power to countermand, provide effective safeguards against arbitrary decision by the probation officer.   We stated:  “The juvenile court is in effect merely delegating to the probation officer the ministerial function of arriving at a stipulated level of restitution with the minor, his parents, and his attorney.   If no agreement is reached, the matter is simply returned to court for adjudication.”  (Id. at p. 743, 3 Cal.Rptr.2d 499.)

The same protections are available to juveniles who are committed to the CYA.   They remain wards of the court and are subject to the court's jurisdiction.   (§§ 607, 726;  In re Charles C., supra, 232 Cal.App.3d at pp. 959–960, 284 Cal.Rptr. 4.)   The court may make “any and all reasonable orders for the care, supervision, custody, conduct ․ of the minor, ․ subject to further order of the court.”  (§ 727, subd. (a).)  Under these circumstances, it is permissible for the court to “delegat[e] to the probation officer the ministerial function of arriving at a stipulated level of restitution with the minor, his parents, and his attorney[, with the right, i]f no agreement is reached, [to return] the matter ․ to court for adjudication.”  (In re Thomas R., supra, 2 Cal.App.4th at p. 743, 3 Cal.Rptr.2d 499.)

Respondent's letter brief informs us that as of February 26, 1992, restitution in this case has not been determined.   Accordingly, the appeal is premature.

DISPOSITION

The appeal is dismissed.

PREMO, Associate Justice.

CAPACCIOLI, Acting P.J., and ELIA, J., concur.

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