In California, Darren Chaker notes, Welfare and Institutions Code section 742.16, requires courts to consider ability to pay when ordering restitution for graffiti abatement, applies even in the context where a delinquent minor has been granted deferred entry of judgment (Welf. & Inst. Code, sec. 790, et seq.) for an offense of felony vandalism by graffiti.
A young tagger was alleged to have committed a single felony count of vandalism by graffiti and there was a request for restitution by the City of San Jose for $516 to clean up the graffiti. He was granted deferred entry of judgment (DEJ) which included community service, participation in the graffiti abatement program, and payment of $516, noting his mother was jointly and severally liable for the amount. He satisfied all conditions except the restitution, made a showing that he and his parents lacked ability to pay, and sought a modification.
The prosecution opposed and argued that section 742.16 only applies, by its terms, to a minor found to be a person described by section 602 and adjudicated a ward of the court. The trial court found it lacked jurisdiction to make such an order. A writ of mandate issued for it to rule on the merits of the motion and in consideration of the ability to pay.
The appellate court reasoned that the general restitution statute applicable in section 602 cases provides that the court must order restitution to victims, unless there is an compelling and extraordinary reason not to impose restitution, and the inability to pay is not considered a compelling or extraordinary reason. (Welf. & Inst. Code, sec. 730.6, subd. (h).) However, there is a more specific provision when the property defaced by the minor's graffiti has been repaired or replaced by a public entity. The court is to determine the total cost incurred by the public entity and order the minor or his estate to pay those costs to the extent the court determines the minor or his estate has the ability to pay. There are other provisions providing for the minor to repair, replace, or clean up damaged property. The court found that DEJ is in lieu of jurisdictional and dispositional findings. It provides that the minor "may" also be required to pay restitution to the victim or victims. (Welf. & Inst. Code, sec. 794.) The ability to pay provisions of section 742.16 may be relied on by the juvenile court in ordering victim restitution in a DEJ case.© 2013 Darren Chaker. All Rights Reserved.