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Name: In re Scott H.
Case #: B236743
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 11/14/2013

In light of constitutional mandates, a victim’s family members are included within the class of “victims” entitled to restitution under Welfare and Institutions Code section 730.6. Appellant, who was 17 years old when he committed his section 288, subdivision (a) offense, appealed the trial court’s order awarding restitution to the victim and his family for mental health counseling. Held: Affirmed. In the first appeal, the court held the victim’s family members, as derivative victims, were not entitled to restitution under Welfare and Institutions Code section 730.6. The California Supreme Court granted review and transferred the case back to the Court of Appeal to reconsider the opinion in light of the Victim’s Bill of Rights Act of 2008 (“Marsy’s Law”). Section 730.6 governs the issue of restitution in delinquency cases, while Penal Code section 1202.4 applies to adult cases. In 1999 and 2004 the Legislature amended section 1202.4 to include derivative victims and to specify those individuals in subdivision (k)(3). It did not similarly amend section 730.6. Despite this difference in statutory language, the California Constitution requires that section 730.6 be interpreted to include derivative victims. Article I, section 28 of the Constitution, as amended by Proposition 9, outlines victim’s rights, including restitution, and broadly defines “victim.” Here, the victim’s family members fall within the constitutional definition, despite the more restrictive language of section 730.6. To the extent section 730.6 conflicts with the Constitution, the constitutional provisions control.