In re F.M. CA2/6

Filed 2/6/14 In re F.M. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re F.M., a Person Coming Under the 2d Juv. No. B244717 Juvenile Court Law. (Super. Ct. No. 1317502) (Santa Barbara County)

THE PEOPLE,

Plaintiff and Respondent,

v.

F.M.,

Defendant and Appellant.

Pursuant to a sustained wardship petition, the juvenile court found true allegations that minor F.M. raped an unconscious person (Pen. Code, § 261, subd. (a)(4)) and committed sexual battery (§ Pen. Code, § 243.4, subd. (e)(1)). (Welf. & Inst. Code, §§ 602, 730.6.)1 F.M. was sentenced to juvenile hall for 310 days and was given credit for time served. In accordance with the terms and conditions of his probation, F.M. entered a group home and attended a sex offender program. Following a hearing, the court entered a restitution order requiring F.M. to pay $5,032.99 in victim restitution and

1 All further undesignated statutory references are to the Welfare and Institutions Code.

$1,650.96 to the State Victim Compensation Board (VCB). F.M. appeals the restitution order, contending it is unlawful to the extent it requires him to pay restitution to the rape victim's mother for lost wages occasioned by the emotional distress she suffered as a result of the crime, and to reimburse the VCB for payments made to the victim's mother for counseling to treat her distress. He claims the order is unlawful in this regard because the rape victim's mother does not qualify as a "victim" under section 730.6.2 Appellant's parents also appeal to the extent they are jointly and severally liable for the order under Civil Code section 1714.1. (In re Jeffrey M. (2006) 141 Cal.App.4th 1017, 1021.) We affirm. F.M.'s claim is based on In re Scott H. (2012) 209 Cal.App.4th 864 (Scott H.), in which the court held that a victim's family members are not entitled to restitution under section 730.6. The day before F.M. filed his opening brief, however, the Supreme Court granted review of the decision and transferred the matter back to the Court of Appeal "'with directions to vacate [the] decision and reconsider the cause in light of article I, section 28 of the California Constitution (as amended by Proposition 9, the Victim's Bill of Rights Act of 2008, known as "Marsy's Law") and People v. Runyan (2012) 54 Cal.4th 849, 858–859.'" (Scott H., at p. 518.) Upon reconsideration, the court "interpret[ed] section 730.6 to include family members as victims entitled to restitution based on [appellant's] conduct." (Id. at p. 520.) In accordance with this conclusion, the court affirmed the trial court's order awarding restitution to the victim's immediate family members for the cost of mental health services they received to treat the emotional distress they suffered as a result of the defendant's commission of a lewd act upon the victim. (Id. at pp. 522-524.) F.M., like the minor in Scott H., did not contest the restitution order on the grounds asserted here. Because the People defend the award on constitutional grounds, and our resolution of the issue presents a question of law subject to our independent