Opinion
A158576
06-29-2020
In re I.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. I.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J-1900652)
In this appeal from a dispositional order in a juvenile delinquency case, appointed counsel for I.D. (Minor) has filed a brief pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende), reporting that she sees no issues worthy of full briefing and thus leaving to us the task of conducting an independent review of the record. Counsel has also advised Minor of his right to file a supplemental brief, which he has not done. After conducting the required independent review under Wende, we shall affirm the dispositional order.
I.
On July 12, 2019, a wardship petition filed in Contra Costa County alleged that then-16-year-old Minor committed four felony second degree vehicular burglaries on April 22, 2019, in violation of Penal Code sections 459 and 460, subdivision (b).
On August 28, 2019, pursuant to a negotiated agreement, the petition was amended to change the two second degree vehicular burglaries alleged in counts 1 and 2 to misdemeanors, which were then alleged as counts 5 and 6. Minor pled no contest to those two misdemeanors. The court found true the allegations, sustained the petition, and dismissed counts 1 through 4.
On September 30, 2019, the dispositional hearing was held. At the beginning of the hearing, the juvenile court stated that the parties had discussed the probation report's recommendations in chambers. The probation report recommended that Minor be adjudged a ward of the juvenile court with 60 days of home supervision. The probation department noted that "this is the minor's first referral and sustained offense." The report opined that home supervision was needed to monitor Minor's "school attendance, academic performance, behavior at school, in the community and disassociation from negative influences."
With the parties in agreement, the court modified the recommendation that Minor be placed on home supervision for 60 days, by authorizing the probation department to terminate it after 30 days. The court also stayed the probation report's recommendation that Minor be required to "enroll and complete a cognitive behavior program, such as [Thinking For Change], as directed by Probation" until March 2020 and gave the probation department the discretion to determine at that point whether Minor's participation in that program was necessary. The court ordered the applicable written condition be modified "with an asterisk" to read: " 'Number 21 is stayed until March 2020 and probation has authority to excuse compliance with this condition if they deem it appropriate.' "
According to the probation report, Thinking for Change is "an evidence based program, which will provide the minor with ways to look at antisocial thoughts, feelings, attitude and beliefs."
In response to trial counsel's request to impose a curfew later than 8:00 p.m. on non-school nights, the court modified the written probation condition to read: "Minor to be at his legal residence between the hours of 8:00 p.m. and 6:00 a.m., unless accompanied by a parent/guardian or unless attending a scheduled athletic event." The court similarly accommodated Minor's participation in school athletic activities by modifying the written probation condition prohibiting Minor's presence on a school campus unless enrolled there, to read: "Minor not to be on school campus unless enrolled or unless participating in a scheduled sporting event."
After the court imposed a $50 restitution fine, trial counsel asked the juvenile court for a hearing on Minor's ability to pay it and leave to file a brief on her oral motion. The juvenile court understood that trial counsel's request was premised on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Division Seven of the Second District held in Dueñas, supra, at p. 1164, that imposition of the court operations and criminal conviction assessments without first determining an indigent adult defendant's present ability to pay them violates state and federal due process. The appellate court instructed the trial court to stay execution of the restitution fine unless and until the prosecution had proved the defendant's ability to pay it. (Id. at p. 1173.)
The court stated that it did not think that the amount would be financially burdensome or unduly difficult for Minor's family. The court's consideration of Minor's ability to pay may have been based on information in the probation report that both parents are employed, but it made no finding as to Minor himself and, if it did take his parents' financial circumstances into account, it never explained why requiring a payment by Minors' parents would contribute to Minor's rehabilitation.
The juvenile court asked trial counsel if she was aware of two then-recent appellate court decisions that disagreed with Dueñas. The court did not state the case names or citations, but in any event, trial counsel indicated her knowledge of them. The court stated: "So there's no longer binding authority. So the Court is instructed to follow the most persuasive authority on that issue." The court did not elaborate on its conclusion that Dueñas was wrongly decided. It denied trial counsel's "request to refrain from ordering the $50 restitution fine pending an ability-to-pay hearing" without further comment.
II.
Since the dispositional hearing in this case, the holding in Dueñas has been held not to apply to restitution fines in juvenile delinquency cases in at least one published appellate opinion. (In re M.B. (2020) 44 Cal.App.5th 281.) There, the juvenile court sustained five wardship petitions for, inter alia, first degree residential burglary, and the juvenile court imposed the statutory minimum $100 restitution fine for a felony offense. (Id. at p. 283; see Welf. & Inst. Code, § 730.6, subd. (b)(1).) The court rejected the argument that the juvenile court had erred by not expressly finding that the minor had the ability to pay the fine, concluding that "[t]he presumption is, and we believe, that the juvenile court followed [the] legislative directions" to consider the minor's ability to pay as well as his future earning capacity in setting the amount of the fine. (In re M.B., supra, 44 Cal.App.5th at p. 283.)
All further statutory references are to the Welfare and Institutions Code. --------
Unlike the panel in In re M.B., we tend to think the constitutionality of imposing mandatory minimum restitution fines on children without considering ability to pay may be questionable. (See People v. Cowan (2020) 47 Cal.App.5th 32.) The In re M.B. panel plainly did not. (See In re M.B., supra, 44 Cal.App.5th at p. 284 [observing that the legislative bar on consideration of ability to pay "seems to be pretty straightforward" and questioning Dueñas's "purport[ing] to state" a rule to the contrary]; id. at p. 285 (conc. opn. of Yegan, J.). In that case, the juvenile court imposed the statutory minimum fine for a felony offense, which is $100. (§ 730.6, subd. (c).) Such a fine must be imposed "regardless of the minor's inability to pay"—meaning express findings regarding ability to pay would have made no difference. (§ 730.6, subd. (c); see In re Enrique Z. (1994) 30 Cal.App.4th 464, 470 ["the court need not consider ability to pay or make an ability-to-pay finding in imposing a section 730.6, subdivision (b) fine, unless the fine exceeds the statutory minimum"].)
We have no occasion here to decide the question addressed in In re M.B., however, because this case does not involve a minimum fine. The mandatory minimum fine for misdemeanor offenses is subject to a cap—$100—with no express minimum, which means the court was allowed to set the fine at $100 or any amount below that in the exercise of its discretion. The minimum, effectively, is one cent. In exercising discretion within the range of one cent to $100, juvenile courts are required to take a number of statutory factors into account, including ability to pay. (§ 730.6, subd. (c).) In this case, it is evident the juvenile court exercised that discretion, choosing to set the fine at $50.
The correct response to a Dueñas objection, assuming that is what the objection was here, is that Dueñas does not apply, not that it was wrongly decided. (Cf. People v. Johnson (2019) 35 Cal.App.5th 134, 138 fn. 5 ["For restitution fines above the statutory minimum, the statutory scheme expressly permits sentencing courts to take the defendant's ability to pay into account in setting the fine."].) Thus, the juvenile court was right to reject the request for an ability to pay hearing under Dueñas, but for the wrong reason. While the court engaged with counsel in a discussion of the unsettled state of the case law generated by Dueñas, and expressed the view that it was free to select the "most persuasive authority," the fact is that it nonetheless gave some consideration to the issue of ability to pay.
To be sure, we are troubled that the Dueñas issue appears to have become a distraction and that, as a result, the court did not expressly address Minor's ability to pay the fine—as distinguished from his family's ability to pay—but we must presume the court exercised its discretion properly. Because the only affirmative indication in the record about the issue of ability to pay is that the court was aware there was discretion to exercise and that it could consider ability to pay, as shown by what it did in selecting an amount less than the maximum, and by its reference to $50 not being unduly burdensome, we will apply the presumption of correctness and affirm.
DISPOSITION
The dispositional order is affirmed.
STREETER, J. WE CONCUR: POLLAK, P. J.
TUCHER, J.