People v. J.G. (In Re J.G.)

IN THE SUPREME COURT OF

CALIFORNIA

IN RE J.G., a Person Coming

Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

J.G.,

Defendant and Appellant.

S240397

Third Appellate District

C077056

Shasta County Superior Court

JDSQ122933901

February 25, 2019

Justice Chin authored the opinion of the court, in which Chief

Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,

Kruger, and McKinster* concurred.

*

Associate Justice of the Court of Appeal, Fourth Appellate

District, Division Two, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

IN RE J.G.

S240397

Opinion of the Court by Chin, J.

Under California’s deferred entry of judgment procedure,

an eligible minor, after admitting the charges in a petition

alleging a violation of law and successfully completing

probation, may have the charges dismissed and the juvenile

court records sealed. (Welf. & Inst. Code, § 790.)1 A minor

granted deferred entry of judgment “may . . . be required to pay

restitution to the victim or victims pursuant to the provisions

of” the Welfare and Institutions Code. (§ 794.) In this case, the

juvenile court granted deferred entry of judgment to J.G., who

was charged by petition with trespassing and vandalism, on

condition that he pay restitution in the total amount of $36,381,

at the rate of $25 per month. It later found that J.G. had

successfully completed all terms of his probation other than the

restitution requirement, dismissed the petition, and ordered

that the restitution award may be enforced as a civil judgment.

On appeal, J.G. challenged the restitution order, arguing that

the juvenile court erred by: (1) converting the unpaid restitution

to a civil judgment; (2) considering, in determining his ability to

pay restitution, the benefits he received from the federal

Supplemental Security Income Program (SSI); (3) finding, based

on his receipt of SSI benefits, that he had the ability to pay

restitution; and (4) imposing an amount that exceeded the

1

All further unlabeled statutory references are to the

Welfare and Institutions Code.

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Opinion of the Court by Chin, J.

$20,000 per-tort-cap set forth in section 742.16, subdivision (n).

The Court of Appeal rejected these arguments and affirmed the

juvenile court’s judgment. For reasons explained below, we

likewise reject J.G.’s first and second arguments. However,

based on concessions by the People with respect to the third

argument, we remand the matter for a new hearing regarding

J.G.’s ability to pay restitution. In light of this disposition, we

do not address J.G.’s fourth argument.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 6, 2012, the Shasta County District Attorney filed

a petition under section 602 alleging that J.G. was within the

jurisdiction of the juvenile court because he had committed the

following offenses: (1) vandalism (Pen. Code, § 594, subd. (b)(2));

(2) throwing an object at a vehicle (Veh. Code, § 23110, subd.

(b)); (3) trespass and damage or removal of highway signs (Pen.

Code, § 602, subd. (f)); and (4) trespass by entering and

occupying property (Pen. Code, § 602, subd. (m)). In support of

these charges, the petition alleged that J.G. had entered and

occupied real property and a structure at Shasta State Historic

Park and had defaced, damaged, and destroyed signs, brick

walls, wood railings, skylights, and a roof at the park.

Accompanying the petition was a filing indicating that J.G. was

eligible for deferred entry of judgment. Several months later,

the probation department recommended that the court grant

deferred entry of judgment subject to several conditions,

including J.G.’s payment of restitution in the amount of $30,156.

The court and the parties reached an agreement as to the

matter’s resolution, which was implemented at a hearing in

January 2013. Pursuant to the agreement, J.G. admitted the

allegations of an amended petition containing only the first and

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Opinion of the Court by Chin, J.

fourth counts of the original petition: vandalism and

trespassing. After reviewing the probation department’s

proposed terms and conditions, J.G. acknowledged on the record

that he had read and understood them and he agreed to follow

them. The court then granted deferred entry of judgment and

imposed the proposed conditions. However, consistent with the

statement of J.G.’s counsel at the beginning of the hearing that

J.G. would not waive “a hearing, pursuant to [section] 742.16,

on the ability to pay” restitution, the court stated that

restitution would “be determined” and that the restitution order

would be “held in abeyance until [section] 790 has ended,” at

which time the court would “make the appropriate findings.”

The written conditions, with the court’s handwritten revisions,

direct that J.G. “pay restitution to the California State Park in

the amount to be determined,” and state that the restitution

order (1) is “to remain in effect until paid in full pursuant to . . .

[sections] 730.6/730.7,” (2) is “not discharged upon termination

of probation or deferred entry of judgment,” and (3) is “held in

abeyance until [section] 790 has ended at which time the court

will make the appropriate findings.”

About nine months later, J.G. submitted a written request

for “a bifurcated hearing” on the restitution issue, asserting that

section 742.16 required the court to consider his ability to pay

in determining restitution. He requested that the court first

determine whether he had the ability to pay restitution, and

that it later hold “a full restitution hearing” to consider the

amount of restitution only upon finding he “has the ability to

pay.” The People responded in writing that they had “no

objection to the minor’s request for a bifurcated hearing.”

Consistent with J.G.’s request, the court held a hearing in

December 2013 solely to determine J.G.’s ability to pay

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Opinion of the Court by Chin, J.

restitution. There was testimony at that hearing that J.G.

received a monthly SSI payment in excess of $700 because of

disability. At the end of the hearing, the court did not make a

finding on ability to pay, but instead requested briefing on

whether J.G.’s “SSI disability” benefits could “be used for

restitution purposes.”

The matter again came on for hearing on January 29,

2014. At the beginning of the hearing, the court announced its

finding that J.G. had the ability to pay restitution, explaining:

“[J.G.] receives . . . approximately 750 dollars a month. It’s

between 733 and 766, depending on the testimony and records.

He receives from SSI for his [attention deficit hyperactivity

disorder (ADHD)] and this sum is received monthly. [¶] After

hearing the testimony, it revealed that the money was not

provided with any restrictions on how it was to be spent. There

is no requirement that he spend this money as the result of his

ADHD for educational purposes, for treatment, whether it be

psychological or medical, no requirement that he take any

medications. And as a matter of fact, there is no requirement

that this money be spent at all to alleviate the problems that he

suffers from, from his ADHD. In fact, the testimony was that

the money was spent by the parents for general household

expenses. Some of it [is] spent on him, but basically whatever

was necessary, it was spent on. And after having read and

considered the briefs and arguments, I find that he does have

the ability to pay.”

J.G.’s counsel asked to “be heard” regarding the ruling, but

the court denied the request and announced, “Now, we need to

set a restitution hearing.” J.G.’s counsel responded that she

wanted to challenge the court’s ruling on J.G.’s ability to pay

through “an immediate writ” because she believed that federal

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Opinion of the Court by Chin, J.

law precluded using SSI payments to pay restitution. She then

explained, “What I would like to do is provisionally agree to

whatever amount, reserving the right to have a restitution

hearing.” She later added: “What I would like to do is get some

kind of provisional agreement. Obviously, we’re not going to

agree to the whole amount but because of the urgency of the

situation now, it’s more important at this point I think that we

get this to [an appellate court] so that a decision can be made as

to what [J.G.’s] mother as the payee [of the SSI money] is

supposed to do.” The court then discussed the repair estimate

with the prosecution, commenting that the amount requested —

in excess of $30,000 — seemed “enormous” and “somewhat

excessive.” Ultimately, the court announced it would set “an

ability to pay amount today” with “restitution reserved.” J.G.’s

counsel stated that the court’s proposal was acceptable “[a]s long

as we’re reserving our right to a hearing.” The court responded,

“Oh, yes. I wouldn’t do otherwise.” It then stated, “I’m going to

set the amount of restitution at this time in the amount of 25

dollars a month. That can change based on ability to pay.” The

clerk interjected that the court needed to make a finding

regarding the total amount “that is ordered to be paid back.” J.G

proposed $300, and the prosecutor proposed the amount of the

“original request,” noting that the original repair estimate was

$36,381. When asked to comment on the prosecutor’s proposal,

J.G.’s counsel stated, “Reserve.” The court then stated, “We can

adjust that after hearing,” to which the prosecutor added, “And

that would be my thought. That it’s a tentative and it starts the

ball rolling and if we need a hearing down the road, we can do

that.” Consistent with these proceedings, in written findings

and orders, the court found that J.G. had the ability to pay

restitution, set the monthly amount at $25 per month and the

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Opinion of the Court by Chin, J.

total amount at $36,381, and granted the prosecutor’s

“request[]” that “restitution be reserved once [the amount] is

determined.”

At the end of the January hearing, the court also set a date

to review J.G.’s performance on probation. Shortly before the

January hearing, the probation department had requested a one

year extension of J.G.’s probationary term so he could satisfy

several unfulfilled probation conditions and the court could

“determine a restitution amount.” At a review hearing in July,

the probation department reported that J.G. had satisfied all

terms of probation other than payment of restitution. The court

then asked, “How would you like to proceed with the restitution

portion?” The prosecutor replied, “Convert to a civil judgment.”

When asked if she had “[a]ny objection to that,” J.G.’s counsel

responded: “None, Your Honor, with the understanding that we

will be appealing . . . . I had discussed earlier filing a writ and

changed my mind because I think this is the cleaner way to do

it. It is with that understanding that we’re going to go ahead

and agree that [deferred entry of judgment] should be

successfully completed, my client taken off probation, and then

we’ll appeal the decision about the ability to pay.” The court

responded: “All right. So at this point in time the previous

restitution order for $36,381 will be converted to a civil

judgment. We’ll find that [J.G.] has otherwise successfully

completed the terms of his Deferred Entry of Judgment, the

petition will be dismissed, and his records will be automatically

sealed.” Consistent with these proceedings, the court’s written

findings and orders state: “The minor having successfully

completed [his] grant of probation pursuant to [section] 793, the

court orders probation terminated, the petition dismissed, and

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Opinion of the Court by Chin, J.

the record sealed. . . . [The] balance of restitution if any is

converted to a civil judgment.”

J.G. filed an appeal, arguing in relevant part that the

juvenile court had erred by (1) converting the unpaid balance of

restitution to a civil judgment, (2) considering his SSI benefits

in determining his ability to pay restitution, (3) finding, based

on his receipt of SSI benefits, that he had the ability to pay

restitution, and (4) setting the total amount of restitution at

over $36,000 notwithstanding section 742.16, subdivision (n),

which limits the amount of restitution that may be ordered for

a violation of Penal Code section 594 to $20,000 “for each tort of

the minor.” The Court of Appeal rejected these arguments —

some for procedural reasons and some on the merits — and

affirmed the judgment.

We granted J.G.’s petition for review.

II. DISCUSSION

A. The Court Did Not Err in Ordering Conversion

of the Unpaid Restitution Balance to a Civil

Judgment.

In 2000, California voters enacted the deferred entry of

judgment procedure (§ 790 et seq.) as part of Proposition 21, the

Gang Violence and Juvenile Crime Prevention Act of 1998 (Act).

Pursuant to this procedure, as to minors charged with criminal

offenses in a section 602 petition who meet specified eligibility

criteria, juvenile courts may, “in lieu of jurisdictional and

disposition hearings,” “grant a deferred entry of judgment with

respect to any offense charged in the petition, provided that the

minor admits each allegation contained in the petition and

waives time for the pronouncement of judgment.” (§ 791, subd.

(a)(3).) A minor granted deferred entry of judgment is subject to

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Opinion of the Court by Chin, J.

mandatory probation for one to three years. (§§ 791, subd.

(a)(3), 794.) If the minor “perform[s] satisfactorily” during that

period, “the charge or charges in the wardship petition shall be

dismissed and the arrest upon which the judgment was deferred

shall be deemed never to have occurred and any records in the

possession of the juvenile court shall be sealed . . . .” (§ 793,

subd. (c).)

A minor granted deferred entry of judgment “may . . . be

required to pay restitution to the victim or victims pursuant to

the provisions of” the Welfare and Institutions Code. (§ 794.)

Given the facts of J.G.’s offenses, two restitution provisions of

the Welfare and Institutions Code are potentially relevant:

sections 730.6 and 742.16. The former, which we have called the

“general” restitution statute (Luis M. v. Superior Court (2014)

59 Cal.4th 300, 307 (Luis M.)), requires courts to order minors

“found to be a person described in Section 602” to, among other

things, pay “[r]estitution to the victim or victims.” (§ 730.6,

subd. (a)(2)(B).) It also mandates that a restitution order issued

pursuant to the section “shall be enforceable as a civil judgment”

(id., subd. (i)) and “may be enforced in the manner provided in

Section 1214 of the Penal Code” (§ 730.6, subd. (r)).

The second potentially relevant restitution provision is

section 742.16, subdivision (a), which provides in relevant part:

“If a minor is found to be a person described in Section 602 of

this code by reason of the commission of an act prohibited by

Section 594 . . . of the Penal Code, and the court does not remove

the minor from the physical custody of the parent or guardian,

the court as a condition of probation, except in any case in which

the court makes a finding and states on the record its reasons

why that condition would be inappropriate, shall require the

minor to wash, paint, repair, or replace the property defaced,

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Opinion of the Court by Chin, J.

damaged, or destroyed by the minor or otherwise pay restitution

to the probation officer of the county for disbursement to the

owner or possessor of the property or both.” Subdivision (j) of

section 742.16 specifies that “[e]xecution may be issued on” a

restitution order “issued by the court pursuant to” section

742.16 “in the same manner as on a judgment in a civil action,

including any balance unpaid at the termination of the court’s

jurisdiction over the minor.”

J.G. concedes that section 794 “incorporates sections

730.6 and 742.16 for purposes of imposing restitution as a

condition of [deferred entry of judgment] probation.” Indeed, we

have recognized that, by virtue of section 794, restitution may

be ordered under sections 730.6 and 742.16 in the deferred entry

of judgment context. (Luis M., supra, 59 Cal.4th at p. 303, fn.

3.) J.G. also concedes that sections 730.6 and 742.16 “contain

provisions that allow unpaid restitution to be converted to a civil

judgment.” He asserts, however, that these conversion

provisions do not apply in the deferred entry of judgment context

in light of section 793, subdivision (c), which provides, “If the

minor has performed satisfactorily during the period in which

deferred entry of judgment was granted, at the end of that

period the charge or charges in the wardship petition shall be

dismissed and the arrest upon which the judgment was deferred

shall be deemed never to have occurred and any records in the

possession of the juvenile court shall be sealed.” This language,

J.G. asserts, “unambiguously prohibits conversion of unpaid

restitution to a civil judgment,” because “[d]eeming the

underlying arrest never to have occurred and sealing all the

related records — as section 793 commands — and converting

unpaid restitution to a civil judgment, are mutually exclusive.”

For these actions “to coexist there would need to be some type of

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Opinion of the Court by Chin, J.

exception to the arrest deeming and record sealing language,”

but the statute lists “only one exception,” and it applies to

determining whether the minor is eligible for a future grant of

deferred entry of judgment. “Listing that exception, but not

another that allows unpaid restitution to be converted to a civil

judgment, is [a] strong indicator that unpaid restitution cannot

be converted to a civil judgment.”

J.G.’s argument fails in light of section 794. As already

explained, that section specifies that minors granted deferred

entry of judgment “may . . . be required to pay restitution . . .

pursuant to the provisions of” the Welfare and Institutions Code.

(§ 794, italics added.) As also already explained, the Welfare

and Institutions Code further provides that “[e]xecution may be

issued on” a restitution order issued pursuant to section 742.16

“in the same manner as on a judgment in a civil action,

including any balance unpaid at the termination of the court’s

jurisdiction over the minor.” (§ 742.16, subd. (j), italics added.)

It also mandates that a restitution order issued pursuant to

section 730.6 “shall be enforceable as a civil judgment” (id.,

subd. (i)) and “may be enforced in the manner provided in

Section 1214 of the Penal Code” (§ 730.6, subd. (r)). In turn,

Penal Code section 1214, subdivision (b), states, among other

things, that “[a]ny portion of a restitution order that remains

unsatisfied after a defendant is no longer on probation . . . is

enforceable by the victim pursuant to this section,” and that the

court, upon request, “shall provide the victim in whose favor the

order of restitution is entered” and the California Victim

Compensation Board “with a certified copy of” the restitution

order. “In common understanding, the phrase ‘pursuant to’

means ‘in conformance to or agreement with’ and ‘according to.’

[Citation.]” (Rodriguez v. American Technologies, Inc. (2006)

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136 Cal.App.4th 1110, 1122; see Samarkand of Santa Barbara,

Inc. v. County of Santa Barbara (1963) 216 Cal.App.2d 341, 360

[“phrase ‘pursuant to’ means in ordinary connotation ‘in

conformity with’ ”].) Thus, notwithstanding the language of

section 793, by providing in section 794 that minors granted

deferred entry of judgment may be required to pay restitution

“pursuant to” — i.e., in conformity with and according to — the

provisions of the Welfare and Institutions Code, the Legislature

expressly authorized unpaid restitution in the deferred entry of

judgment context to be converted to an enforceable civil

judgment. (Cf. People v. Superior Court (Romero) (1996) 13

Cal.4th 497, 520 [statute’s reference to dismissals “pursuant to”

Pen. Code, § 1385 both confirms courts’ power to dismiss under

that section and requires strict compliance with its provisions].)

J.G. finds fault with this analysis. It is “illogical,” he

asserts, to conclude that “section 794’s oblique reference to

‘other provisions of this code’ somehow incorporated a

restitution conversion provision that provides an additional

exception to section 793’s broad protections. When the drafters

want[] to allow unpaid restitution to survive the dismissal of the

602 petition, they know how to say so clearly.” J.G. points in

particular to section 786, which provides in subdivision (a) that

when “a person who has been alleged or found to be a ward of

the juvenile court satisfactorily completes (1) an informal

program of supervision pursuant to Section 654.2, (2) probation

under Section 725, or (3) a term of probation for any offense, the

court shall order the petition dismissed” and “shall order sealed

all records pertaining to the dismissed petition.” Elsewhere in

the section, J.G. emphasizes, the Legislature specified that a

sealing order “does not prohibit a court from enforcing a civil

judgment for an unfulfilled order of restitution ordered

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Opinion of the Court by Chin, J.

pursuant to Section 730.6” and does “not relieve[]” a minor “from

the obligation to pay victim restitution.” (§ 786, subd. (h)(1).) It

also specifies that “[a] victim or a local collection program may

continue to enforce victim restitution orders . . . after a record is

sealed,” and that “[t]he juvenile court shall have access to

records sealed pursuant to this section for the limited purpose

of enforcing a civil judgment or restitution order.” (Id., subd.

(h)(2).) “As a matter of statutory construction,” J.G. argues, “the

existence of an express exception in section 786 that allows

unpaid restitution to be converted to a civil judgment is a strong

indication that such an exception should not be read into section

793.”

J.G.’s arguments are unpersuasive. To begin with, unlike

J.G., we find nothing “oblique” about section 794’s reference to

“other provisions of” the Welfare and Institutions Code, and

nothing “illogical” about concluding, for reasons already

explained, that by providing in section 794 that minors granted

deferred entry of judgment may be required to pay restitution

“pursuant to” — i.e., in conformity with and according to — the

provisions of the Welfare and Institutions Code, the Legislature

expressly authorized unpaid restitution in the deferred entry of

judgment context to be converted to an enforceable civil

judgment, as specified in sections 730.6 and 742.16. What we

do find illogical — and unpersuasive — is J.G.’s argument that

section 793, which does not address restitution, somehow limits

section 794’s express incorporation, without limitation, of the

other sections in the Welfare and Institutions Code regarding

restitution.

Regarding J.G.’s reliance on the absence in the deferred

entry of judgment statutes of the “express exception in section

786 that allows unpaid restitution to be converted to a civil

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judgment,” we note first J.G.’s failure to respond to the People’s

argument that, contrary to the premise underlying J.G.’s

argument, section 786 in fact applies in the deferred entry of

judgment context. In this regard, the People observe that

section 786, subdivision (a), applies by its terms, not just to a

person “found to be a ward of the juvenile court” who

“satisfactorily completes . . . a term of probation for any offense,”

but also to a person “alleged . . . to be a ward of the juvenile

court” who “satisfactorily completes” such “a term of probation.”

(Italics added.) But we need not, and do not, express an opinion

regarding this threshold issue because J.G.’s argument fails for

an independent reason: the language in section 786 on which

J.G. relies was added by the Legislature in 2015 (Stats. 2015,

ch. 368, § 1), about 15 years after California voters added

sections 793 and 794 by approving the Act in 2000. This fact

renders the principle of statutory construction J.G. invokes

inapplicable. (Traverso v. People ex rel. Dept. of Transportation

(1993) 6 Cal.4th 1152, 1166 [principle “is inapplicable when . . .

the ‘given provision’ contained in a related statute was added by

amendment many years after the enactment of the statute

containing no such provision”].)

J.G. next argues that allowing conversion of unpaid

restitution to an enforceable civil judgment would be contrary to

the voters’ intent in establishing the deferred entry of judgment

procedure. He focuses on one of the measure’s uncodified

findings and declarations, which states that the Act expands

rehabilitative options for “first time, non-violent juvenile felons”

by requiring them “to appear in court, admit guilt for their

offenses, and be held accountable, but also be given a non-

custodial opportunity to demonstrate through good conduct and

compliance with a court-monitored treatment and supervision

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Opinion of the Court by Chin, J.

program that the record of the juvenile’s offense should justly be

expunged.” (Voter Information Guide, Primary Elec. (Mar. 7,

2000) text of Prop. 21, § 2, subd. (j), p. 119.) Based on this

statement, he asserts that the voters intended the deferred

entry of judgment program “to be a ‘carrot-and-stick’ approach

to juvenile crime,” and that “[r]eading section 793 to authorize

conversion of unpaid restitution to a civil judgment makes the

carrot of expungement less rewarding than was intended.”

J.G.’s argument is unpersuasive because reading section

793 to incorporate the conversion provisions of section 730.6 and

742.16 is fully consistent with the voters’ intent, as disclosed by

the statement on which J.G. relies, to further rehabilitation by

holding minors “accountable” for their offenses. (Voter

Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop.

21, § 2, subd. (j), p. 119.) As we have explained, “[a]n order of

direct victim restitution” under these provisions “acts to make

the victim whole, rehabilitate the minor, and deter future

delinquent behavior.” (Luis M., supra, 59 Cal.4th at p. 305; see

People v. Anderson (2010) 50 Cal.4th 19, 34 [requiring payment

of restitution “renders defendant accountable for the financial

harm he caused and contributes to his reformation and

rehabilitation”]; Charles S. v. Superior Court (1982) 32 Cal.3d

741, 747 (Charles S.) [“a requirement of restitution may serve a

rehabilitative function consistent with the purposes of Juvenile

Court Law”].) “[R]estitution serves valid . . . rehabilitative

objectives by . . . helping [offenders] appreciate the harm done

to the victim” (People v. Cookson (1991) 54 Cal.3d 1091, 1097)

and “holding [them] accountable for [their] actions” (In re J.S.

(2016) 6 Cal.App.5th 414, 421). Thus, contrary to J.G.’s

argument, reading section 793 to incorporate the conversion

provisions of sections 730.6 and 742.16 serves the voters’ intent,

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as reflected by the statement J.G. cites and by the voters’

specification in section 794 that minors granted deferred entry

of judgment “may . . . be required to pay restitution to the victim

or victims pursuant to the provisions of” the Welfare and

Institutions Code.

For the preceding reasons, we reject J.G.’s argument that

the juvenile court erred in converting the amount of unpaid

restitution to a civil judgment.2

B. The Juvenile Court Did Not Violate Federal

Law By Considering J.G.’s SSI Benefits.

J.G.’s second claim is that the juvenile court, in

determining his ability to pay restitution, violated federal law

by considering the SSI benefits he received.3 He relies on 42

2

Our conclusion renders it unnecessary to address the

People’s claim that J.G.’s actions below estop him from arguing

on appeal that the deferred entry of judgment statutes preclude

conversion of unpaid restitution to a civil judgment. It also

necessarily defeats J.G.’s related claim that, because the

restitution obligation “ceases to exist” when the minor

“completes” the deferred entry of judgment procedure, the court

was required to set restitution in an amount that he could repay

during the deferral period. Charles S., which J.G. cites in

support of his argument, is inapposite. There, we held that a

probation officer abused his discretion by ordering restitution in

an amount that rendered the minor ineligible for informal

probation because it was “conceded[ly] . . . beyond the family’s

ability to pay.” (Charles S., supra, 32 Cal.3d at p. 751.) Here,

the total restitution amount the court ordered did not render

J.G. ineligible for the deferred entry of judgment procedure.

3

J.G. also argues in his briefs that the juvenile court erred

by considering the benefits his father received under the Social

Security Disability Insurance Program (SSD). The record shows

that he did not make this argument in the juvenile court. On

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U.S.C. section 407(a), which provides: “The right of any person

to any future payment under this subchapter shall not be

transferable or assignable, at law or in equity, and none of the

moneys paid or payable or rights existing under this subchapter

shall be subject to execution, levy, attachment, garnishment, or

other legal process, or to the operation of any bankruptcy or

insolvency law.”4 He also relies on the United States Supreme

Court’s statement in Washington State Dept. of Social and

Health Services v. Guardianship Estate of Keffeler (2003) 537

U.S. 371, 385 (Keffeler), that the phrase “other legal process” in

42 U.S.C. section 407(a) would “at a minimum . . . seem to

require utilization of some judicial or quasi-judicial

mechanism . . . by which control over property passes from one

person to another in order to discharge or secure discharge of an

allegedly existing or anticipated liability.” He argues that a

court’s consideration of SSI benefits in determining the ability

to pay restitution qualifies under the high court’s statement as

“other legal process” because “[i]t is undeniably a judicial

mechanism designed to secure discharge, to the maximum

extent possible, of an enforceable liability (restitution) and it is

the contrary, he argued that decisions involving SSD payments,

as opposed to SSI payments, have “only marginal relevance to

[his] case.” Moreover, it was his own counsel who first elicited

testimony regarding his father’s SSD payments. Nor did J.G.

raise the issue in the Court of Appeal, and the Court of Appeal’s

opinion consequently did not address it. We therefore decline to

consider his argument.

4

42 U.S.C. section 407 addresses payments made under

Title II of the Social Security Act, which is the Old–Age,

Survivors, and Disability Insurance plan of benefits. 42 U.S.C.

section 1383(d) makes it applicable to SSI benefits paid under

Title XVI of the Social Security Act.

16

IN RE J.G.

Opinion of the Court by Chin, J.

by no means consistent with providing for the beneficiary’s care

and maintenance as it ultimately diverts funds from the

beneficiary to a third party victim.”

The People disagree, asserting that a court’s

“[c]onsideration of SSI . . . benefits to determine how much total

financial support a minor has is not the same as requiring the

minor to use those benefits to satisfy ‘legal process.’ ” According

to the People, although a court may not “order” a minor to use

SSI benefits “to pay restitution,” it may consider those benefits

“when making the ability to pay determination.” Ignoring those

benefits, the People assert, “would create a distorted picture of

[the minor’s] financial situation.” Here, the juvenile court did

not violate federal law because it “did not order [J.G.] to pay

money from his social security benefits,” but “only considered

that money in determining [his] financial status.”5

5

Section 730.6, subdivision (h)(1), provides in part that “[a]

minor’s inability to pay shall not be considered a compelling or

extraordinary reason not to impose a restitution order, nor shall

inability to pay be a consideration in determining the amount of

the restitution order.” Notwithstanding this provision,

throughout this case, the parties have treated J.G.’s ability to

pay restitution as relevant under section 742.16, subdivision (a),

which directs a court, if it imposes restitution, to (1) “make a

finding of the amount . . . that would be required to fully

compensate the owner and possessor of the property for their

damages,” and (2) “order the minor or the minor’s estate to pay

that restitution . . . to the extent the court determines that the

minor or the minor’s estate have the ability to do so, except in

any case in which the court makes a finding and states on the

record its reasons why full restitution would be inappropriate.”

(Italics added.) For purposes of this opinion, we therefore will

assume that J.G.’s ability to pay restitution is relevant.

17

IN RE J.G.

Opinion of the Court by Chin, J.

The United States Supreme Court has applied the

relevant language of 42 U.S.C. section 407(a), in several cases,

most notably for present purposes in Keffeler. At issue there

was whether the State of Washington had violated 42 U.S.C

section 407(a) by using SSI benefits it had received as a

representative payee on behalf of children in foster care to

reimburse itself for some of its foster care expenditures.

(Keffeler, supra, 537 U.S. at p. 375.) The key question in

resolving this issue, the court stated, was whether Washington’s

“effort to become a representative payee, or its use of [the

children’s] Social Security benefits when it acts in that capacity,

amounts to employing an ‘execution, levy, attachment,

garnishment, or other legal process’ within the meaning of [42

U.S.C. ]§ 407(a).” (Keffeler, at pp. 382-383.) “For obvious

reasons,” the court reasoned, Washington’s activities do not

“involve any execution, levy, attachment, or garnishment.

These legal terms of art refer to formal procedures by which one

person gains a degree of control over property otherwise subject

to the control of another, and generally involve some form of

judicial authorization. [Citations.] [Washington’s] efforts to

become a representative payee and to use [the children’s]

benefits do not even arguably employ any of these traditional

procedures.” (Id. at p. 383.) Nor, the high court held, do

Washington’s efforts “involve[] ‘other legal process,’ as the

statute uses that term.” (Ibid.) Although Washington does, “in

the abstract . . . use legal process as the avenue to

reimbursement” — in that it is appointed as a representative

payee through “a federal legal process” and “makes claims

against the accounts kept by the state treasurer” through “a

state legal process” — the statute “uses the term ‘other legal

process’ far more restrictively, for under the established

18

IN RE J.G.

Opinion of the Court by Chin, J.

interpretative canons of noscitur a sociis and ejusdem generis,

‘ “[w]here general words follow specific words in a statutory

enumeration, the general words are construed to embrace only

objects similar in nature to those objects enumerated by the

preceding specific words.” ’ [Citations.] Thus, ‘other legal

process’ should be understood to be process much like the

processes of execution, levy, attachment, and garnishment, and

at a minimum, would seem to require utilization of some judicial

or quasi-judicial mechanism, though not necessarily an

elaborate one, by which control over property passes from one

person to another in order to discharge or secure discharge of an

allegedly existing or anticipated liability.” (Id. at pp. 384-385.)

Washington’s efforts to become a representative payee and its

use of the children’s benefits in that capacity “involve nothing of

th[is] sort. Whereas the object of the processes specifically

named is to discharge, or secure discharge of, some enforceable

obligation, the State has no enforceable claim against its foster

children. And although execution, levy, attachment, and

garnishment typically involve the exercise of some sort of

judicial or quasi-judicial authority to gain control over another’s

property, [Washington’s] reimbursement scheme operates on

funds already in [its] possession and control, held on terms that

allow the reimbursement.” (Id. at p. 386, fn. omitted.)

In reaching its conclusion, the Keffeler court distinguished

two prior decisions in which it had found violations of 42 U.S.C.

section 407(a): Philpott v. Essex County Welfare Bd. (1973) 409

U.S. 413, and Bennett v. Arkansas (1988) 485 U.S. 395. (Keffeler,

supra, 537 U.S. at p. 388.) These cases, the court explained,

“involved forms of legal process expressly prohibited by [42

U.S.C.] § 407(a),” i.e., “judicial actions in which a State sought

to attach a beneficiary’s Social Security benefits as

19

IN RE J.G.

Opinion of the Court by Chin, J.

reimbursement for the costs of the beneficiary’s care and

maintenance.” (Ibid., italics added.) Thus, “[i]n each case, . . .

the plain language of [42 U.S.C.] § 407(a) barred the State’s legal

action.” (Keffeler, at p. 388.) “Although it is true that

[Washington] could not directly compel the beneficiary or any

other representative payee to pay Social Security benefits over

to the State, that fact does not render the appointment of a self-

reimbursing representative payee at odds with the

Commissioner’s mandate to find that a beneficiary’s ‘interest . . .

would be served’ by the appointment.” (Id. at p. 389.)

In light of Keffeler, J.G.’s claim that consideration of his

SSI benefits in determining his ability to pay constitutes “legal

process” for purposes of applying 42 U.S.C. section 407(a) is

unpersuasive.6 Although such consideration did, “in the

abstract,” involve “legal process” (Keffeler, supra, 537 U.S. at p.

384) — a judicial proceeding in which a court determined J.G.’s

ability to pay restitution — as Keffeler held, 42 U.S.C. section

407(a) “uses the term ‘other legal process’ far more restrictively”

(Keffeler, at p. 384) — i.e., “process much like the processes of

execution, levy, attachment, and garnishment” (Keffeler, at p.

385) — “and at a minimum, would seem to require utilization of

some judicial or quasi-judicial mechanism . . . by which control

over property passes from one person to another in order to

discharge or secure discharge of an allegedly existing or

anticipated liability” (ibid.). “On this restrictive understanding

6

“For obvious reasons,” J.G. “do[es] not contend” that

considering his SSI benefits in determining his ability to pay

restitution “involve[s] any execution, levy, attachment, or

garnishment.” (Keffeler, supra, 537 U.S. at p. 383.) This act,

like Washington’s efforts in Keffeler, “do[es] not even arguably

employ any of these traditional procedures.” (Ibid.)

20

IN RE J.G.

Opinion of the Court by Chin, J.

of ‘other legal process,’ it is apparent that [mere consideration of

J.G.’s SSI payments in determining his ability to pay

restitution] involve[s] nothing of the sort.” (Id. at p. 386.) “[T]he

object of the processes specifically named” in 42 U.S.C. section

407(a) — “to discharge, or secure discharge of, some enforceable

obligation” (Keffeler, at p. 386, italics added) — is different from

the object of the process at issue here — to determine in the first

instance whether to impose an enforceable obligation, i.e.,

restitution. Nor does considering SSI benefits in making this

determination “involve” an exercise of judicial authority “to gain

control over” those benefits, which is the characteristic of the

processes 42 U.S.C. section 407(a) specifies — execution, levy,

attachment, and garnishment — and on which Keffeler focused.

(Keffeler, at p. 386.) Under Keffeler, 42 U.S.C. section 407(a)

does not preclude a court from considering SSI benefits in

determining the ability to pay restitution.

Our conclusion is consistent with a number of decisions

holding — sometimes based on Keffeler — that 42 U.S.C. section

407(a) or a similar anti-attachment provision does not preclude

consideration of benefits in determining the recipient’s ability to

pay restitution or some other financial obligation. (In re

Lampart (Mich.Ct.App. 2014) 856 N.W.2d 192, 200 [effect of 42

U.S.C. § 407(a) in ordering restitution]; Orange v. White

(Mo.Ct.App. 2016) 502 S.W.3d 773, 776-778 [effect of 42 U.S.C.

§ 407(a) in determining ability to pay maintenance to former

spouse]; Kays v. State (Ind. 2012) 963 N.E.2d 507, 511 [effect of

42 U.S.C. § 407(a) in ordering restitution]; Barnes v. Department

of Human Services (Miss. 2010) 42 So.3d 10, 17 [effect of 42

U.S.C. § 407(a) in calculating child support payments]; Com. ex

rel. Morris v. Morris (Ky. 1998) 984 S.W.2d 840, 841-842 [effect

of 42 U.S.C. § 407(a) in determining child support]; Gleave v.

21

IN RE J.G.

Opinion of the Court by Chin, J.

Graham (W.D.N.Y. 1997) 954 F.Supp. 599, 610-611 [effect, in

determining criminal fine, of federal statute providing that

veterans’ benefits “ ‘shall not be liable to attachment, levy, or

seizure by or under any legal or equitable process whatever’ ”];

Fredenburg v. Mental Health Div. (Or.Ct.App. 1991) 812 P.2d

432, 428 [effect of 42 U.S.C. § 407(a) in determining liability for

cost of care]; Heuchan v. Heuchan (Wash. 1951) 228 P.2d 470,

476-477 [effect, in determining alimony obligation, of federal

statute providing that railway pension payments shall not be

“ ‘subject to any tax or to garnishment, attachment, or other

legal process under any circumstances’ ”].)

J.G. cites several decisions to support his position, but

they do not persuade us to adopt his view that 42 U.S.C. section

407(a) precludes all consideration of SSI benefits “for purposes

of assessing a defendant’s ability to pay restitution.” In In re

S.M. (2012) 209 Cal.App.4th 21, 30, the court held that the

juvenile court had erred by considering SSI benefits in

determining a person’s ability to pay legal fees in a dependency

case. However, the court rested its decision entirely on a state

statute and did not even cite 42 U.S.C. section 407(a) in its

opinion. (In re S.M., at p. 570 [“California law is clear that SSI

benefits are not considered income for purposes of determining

child support obligations.”].) Thus, the court in In re S.M. did

not, as J.G. asserts, hold that considering SSI benefits in

determining ability to pay violates “the federal anti-attachment

provisions.”

In In re Cramner (10th Cir. 2012) 697 F.3d 1314, 1315, the

court held that a Chapter 13 bankruptcy debtor, in submitting

a proposed repayment plan, may exclude SSI benefits in

calculating his projected disposable income. However, the court

based its decision on “the plain language of the Bankruptcy

22

IN RE J.G.

Opinion of the Court by Chin, J.

Code” (id. at p. 1318), which, the court stated, “expressly allows

[a debtor] to exclude [SSI benefits] from the disposable income

calculation” (id. at p. 1317). The court went on to add that its

conclusion was “bolstered by” 42 U.S.C. section 407(a), “which

shields [SSI] payments . . . from ‘execution, levy, attachment,

garnishment, or other legal process,’ or from ‘the operation of

any bankruptcy or insolvency law.’ ” (In re Cramner, at p. 1318.)

Contrary to J.G.’s assertion, this brief statement, added merely

to “bolster[]” the court’s conclusion based on “the plain language

of the Bankruptcy Code” (ibid.), hardly constitutes a holding

that 42 U.S.C. section 407(a) “prohibit[s] treating Social

Security benefits as income.” In any event, In re Cramner was

a bankruptcy case, and the part of 42 U.S.C. section 407(a) that

was there relevant — SSI benefits are not “subject to . . . the

operation of any bankruptcy or insolvency law” — is

inapplicable in the nonbankruptcy case now before us.

In State v. Eaton (Mont. 2004) 99 P.3d 661, 666, the court

held that an order requiring the defendant to make restitution

payments equal to 20 percent of his net monthly income

“conflicted with” 42 U.S.C. section 407(a) insofar as it required

his social security benefits to be included in his net income. The

order, the court stated, “improperly burden[ed] [the defendant’s]

social security benefits” and constituted “an improper attempt

to subject” them “to ‘other legal process.’ ” (Eaton, at p. 666.) In

response to the state’s view that the defendant could simply

“raise this defense at the time [the state] would seek a levy,” the

court stated, “it is appropriate to eliminate the offending

condition from the judgment in the first instance.” (Ibid.) Given

this response, it is unclear whether the Eaton court held that a

court may not order a defendant to make payments with social

security benefits — a proposition with which the People here do

23

IN RE J.G.

Opinion of the Court by Chin, J.

not disagree — or that a court may not consider SSI benefits in

determining a defendant’s ability to pay restitution — which is

the proposition for which J.G. cites Eaton. Insofar as it speaks

to the latter issue, its summary analysis is unpersuasive and out

of step with the weight of authority, as set forth above.

Finally, in City of Richland v. Wakefield (Wn. 2016) 380

P.3d 459, 461-467 (Wakefield), the court vacated an order

requiring a homeless, disabled, and indigent defendant, whose

only income was $710 per month in SSI payments, to pay $15

each month to reimburse the state for the cost of her

prosecution. As J.G. observes, the court relied in part on 42

U.S.C. section 407(a). (Wakefield, at pp. 465-466.) However,

this discussion was dictum because it was preceded by the

court’s conclusion that the order violated state law in numerous

ways (id. at pp. 464-465) and was followed by the court’s

conclusion that substantial evidence did not support the factual

findings on which the order was based (id. at p. 466). Moreover,

the entire opinion was advisory because the parties had agreed

that, as a matter of state law, the order was erroneous and the

defendant’s reimbursement payments should be remitted, and

they had asked the court to remand the case for entry of an order

remitting the payments. (Id. at pp. 461, 463.) The court itself

explained that it was “nonetheless” (id. at p. 463) discussing the

claim’s merits at the “request” of the parties “to provide

guidance . . . in the future” (id. at p. 461).

In any event, the Wakefield court’s dictum regarding 42

U.S.C. section 407(a) does not, as J.G. suggests, state that 42

U.S.C. section 407(a) precludes all consideration of SSI benefits

in determining a recipient’s ability to pay a legal obligation.

Instead, it states that “federal law prohibits courts from

ordering defendants to pay [reimbursement costs] if [their] only

24

IN RE J.G.

Opinion of the Court by Chin, J.

source of income is social security disability” because, under

Keffeler, such an order would constitute “other legal process”

within the meaning of 42 U.S.C. section 407(a). (Wakefield,

supra, 380 P.3d at p. 466.) In this regard, the court’s discussion

notably diverged from one of the authorities on which it

purported to rely: In re Lampart, supra, 856 N.W.2d 192.

(Wakefield, supra, 380 P.3d at p. 466.) There, the court held

that, as to a person whose “only source of income was $730 per

month in [SSD] benefits” (In re Lampart, at p. 194), 42 U.S.C.

section 407(a) did not prohibit either “consider[ation]” of the

benefits “as income for purposes of fashioning a restitution

order” or actual imposition of a restitution obligation (In re

Lampart, at p. 200). Instead, it only precluded using the judicial

contempt power to compel the recipient actually to use benefits

to pay restitution. (Ibid.) Consistent with these holdings, the

court provided the following instructions for further

proceedings: “If it [is] determined [on remand] that [the

recipient’s] only asset, or source of income, is and remains from

[SSD] benefits, 42 U.S.C. § 407(a) prohibits the use of legal

process . . . from reaching those benefits to satisfy the restitution

order. [Citation.] If, however, [she] is found to have income

aside from her [SSD] benefits, or other assets that are derived

from other sources, that income or those assets could be used to

satisfy the restitution award. The restitution order itself

remains valid. Indeed, [her] receipt of [SSD] benefits does not

immunize her from the restitution order; rather, it merely

prohibits the trial court from using legal process to compel

satisfaction of the restitution order from those benefits. Because

it is possible that [she] may have assets or may receive income

from other sources in the future, we affirm the trial court’s

25

IN RE J.G.

Opinion of the Court by Chin, J.

refusal to cancel or modify [the] restitution obligation.” (In re

Lampart, at p. 203.)

Relying on Wakefield while ignoring In re Lampart, J.G.

argues that “where, as here, an individual’s only source of

‘income’ is Social Security benefits,” “a distinction between

treating Social Security benefits as income to assess an

individual’s ability to pay restitution and requiring their use to

pay restitution . . . is a distinction without a difference.” The

People respond that J.G.’s argument “overlooks the fact that,

among other things, a court can consider . . . a minor’s future

earning capacity, i.e., ability to obtain employment, when

determining whether he or she has an ability to pay.”

In light of developments at oral argument, we need not

take a position on these competing views in order to dispose of

this case. Refining their position, the People stated during oral

argument that the ability to pay determination in this case

would be “improper” if the juvenile court “was contemplating the

social security money as the source of the restitution payments,”

i.e., that J.G. could pay “from [his] social security money.” The

People also conceded that (1) it would be “reasonable” to

conclude from the record that this was, in fact, the basis for the

court’s decision, and (2) on this reading of the record, the correct

remedy would be to remand for a new ability to pay hearing,

during which the juvenile court could consider J.G.’s future

earning capacity and the total amount of restitution to be

ordered.

We agree with the People that the record indicates the

juvenile court “was contemplating the social security money as

the source of the restitution payments.” As earlier detailed, in

its prefatory remarks, the court discussed only matters related

26

IN RE J.G.

Opinion of the Court by Chin, J.

to J.G.’s SSI benefits, including the amount he received,

whether there were any “restrictions” or “requirements” as to

“how” the money “was to be spent,” and how the money was “[i]n

fact” being spent. The record reflects no express finding

regarding J.G.’s future earning capacity, no mention of it as a

basis for the juvenile court’s determination, and no reference to

it in the parties’ briefs and arguments. Given our reading of the

record, we accept the People’s concession that the proper

disposition of this case is to reverse the judgment and remand

for a new ability to pay hearing that includes consideration of

J.G.’s future earning capacity, his current financial

circumstances, and the total amount of restitution to be

ordered.7

7

In light of this analysis, we need not, and do not, address

J.G.’s claim that the total amount of restitution violated the

$20,000 per-tort-cap set forth in section 742.16, subdivision (n).

27

IN RE J.G.

Opinion of the Court by Chin, J.

III. DISPOSITION

For the foregoing reasons, the Court of Appeal’s judgment

is reversed and the matter is remanded for further proceedings

consistent with this opinion.

CHIN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

MCKINSTER, J.*

*

Associate Justice of the Court of Appeal, Fourth Appellate

District, Division Two, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

28

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re J.G.

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 7 Cal.App.5th 955

Rehearing Granted

__________________________________________________________________________________

Opinion No. S240397

Date Filed: February 25, 2019

__________________________________________________________________________________

Court: Superior

County: Shasta

Judge: Monique D. McKee

__________________________________________________________________________________

Counsel:

William C. Whaley, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Rachelle A. Newcomb and

Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

William C. Whaley

770 L Street, Suite 1000

Sacramento, CA 95814

(916) 607-6561

Brook A. Bennigson

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 210-7688