Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV33416.
Premo, J.
The juvenile court found that its ward, defendant E. S., had committed new offenses, to wit, assault with force likely to cause great bodily injury, resisting arrest, and violating a protective order. It placed defendant on probation with conditions, among others, that he pay a restitution fine of $110 and a general fund fine of $140. On appeal, defendant contends that the juvenile court erred by (1) requiring payment of the fines before the end of probation, and (2) imposing the general fund fine without sufficient evidence of his ability to pay. We disagree and affirm the judgment.
BACKGROUND
As recommended in the probation officer’s report and incorporated into the judgment, the juvenile court ordered the following.
“16. That said minor be ordered to pay a [r]estitution [f]ine $110; said fine to be paid in full on or before the end of Probation;
“17. That said minor be ordered to pay to the General Fund a fine and Penalty Assessments totaling $140.00; said fine and penalty assessments to be paid in full by the end of Probation and that it be found that said minor has the financial ability to pay.”
Defendant failed to object to the orders.
PAYMENT CONDITIONS
Defendant contends that the conditions requiring payment of the fines on or before the end of probation transgress his rights to due process and equal protection because those provisions of the federal and state Constitutions forbid revoking probation based on a failure to pay a fine unless the failure was willful. (See Bearden v. Georgia (1983) 461 U.S. 660, 672-673 [state may not imprison defendant for failure to pay fines or restitution without hearing as to reason for failure to pay].) He claims that the conditions are “overbroad in implying that [he] will be barred from the successful completion of probation by any failure to pay those fines in full by the termination of a probation term, even if the failure to satisfy these orders is non-willful and even if bona fide efforts to legally acquire the resources to pay have been made.” He asks us to strike the portion of the order requiring payment on or before the end of probation.
The People argue that defendant has forfeited his right to appeal the constitutionality of the probation conditions because he failed to object in the trial court. We disagree.
Defendant’s argument is that the challenged probation conditions are unconstitutional on their face. This issue is a pure question of constitutional law that does not depend on the facts of the particular case for resolution. Pursuant to the Supreme Court’s decision in the case of In re Sheena K. (2007) 40 Cal.4th 875, 888-889, such an issue is not forfeited by a failure to object in the trial court.
Defendant’s argument, however, fails on the merits.
“The juvenile court has wide discretion to select appropriate conditions and may impose ‘ “any reasonable condition that is ‘fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’ ” ’ ” (In re Sheena K., supra, 40 Cal.4th at p. 889.) Courts nevertheless have modified or stricken probation conditions that restrict a probationer’s exercise of his or her constitutional rights when the probation conditions are not narrowly drawn to serve the important interests of public safety and rehabilitation. (People v. Keller (1978) 76 Cal.App.3d 827, 839, overruled on other grounds by People v. Welch (1993) 5 Cal.4th 228, 237.)
Here, however, the conditions do not restrict defendant’s exercise of his constitutional rights. They simply require that defendant pay the fines within his probation period. They only imply that probation will be extended by any failure to pay if one presumes that the juvenile court would unconstitutionally extend probation for a nonwillful failure to pay. We, however, presume that the juvenile court would not unconstitutionally extend defendant’s probation. (Evid. Code, § 664; People v. Coddington (2000) 23 Cal.4th 529, 645.) We presume that defendant will receive due process and equal protection in the event proceedings are instituted to extend his probation should he fail to pay the fines as ordered. Defendant will be able to present evidence to the juvenile court, at that time, establishing his inability to pay. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394.)
GENERAL FUND FINE
Defendant and the People agree that the juvenile court imposed the $140 fine under Welfare and Institutions Code section 730.5. That section states: “When a minor is adjudged a ward of the court on the ground that he or she is a person described in Section 602, . . . the court may levy a fine against the minor up to the amount that could be imposed on an adult for the same offense, if the court finds that the minor has the financial ability to pay the fine.” (Italics added.) A fine may not be imposed under this section without a finding of ability to pay. (See In re Steven F. (1994) 21 Cal.App.4th 1070, 1078 [if a fine is imposed under § 730.5, that section by its terms requires the court to first find the minor has the ability to pay the fine].)
Further unspecified statutory references are to the Welfare and Institutions Code.
Defendant contends that the fine in this case must be stricken because the evidence was insufficient to support the juvenile court’s finding that he had the ability to pay.
The People urge that defendant has forfeited the issue by not objecting to the fine at the disposition hearing. We disagree.
The general rule is that only those claims raised in the court below and preserved by the parties are reviewable on appeal; however, a narrow exception applies in this case. (See People v. Scott (1994) 9 Cal.4th 331, 354.)
In People v. Butler (2003) 31 Cal.4th 1119, 1123 (Butler), the defendant challenged an order for HIV testing pursuant to Penal Code section 1202.1, claiming that there was insufficient evidence to support the prerequisite finding of probable cause. The Supreme Court held that the defendant may contest, for the first time on appeal, the sufficiency of the record to support the HIV testing order: “ ‘Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception.’ ” (Butler, supra, at p. 1126.) Relying on Butler, this court recently held that “no predicate objection in the trial court” is required to challenge the sufficiency of the evidence regarding the defendant’s ability to pay attorney fees. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217; see also People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [“In the absence of a guilty plea, the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal”].) The attorney fees order in Viray was made pursuant to Penal Code section 987.8, which, like section 730.5, instructs the court to find that the defendant has the ability to pay as a prerequisite to imposition of the order. (See Pen. Code, § 987.8, subd. (b).) Consistent with Viray, we conclude that a failure to object below does not forfeit a minor’s right to challenge the sufficiency of the evidence supporting a finding of the minor’s ability to pay a section 730.5 fine.
Defendant’s argument, however, fails on the merits.
A finding of ability to pay must be supported by substantial evidence--that is, evidence that is reasonable, credible and of solid value, such that a rational trier of fact could have found the minor had the financial ability to pay the fine. (People v. Johnson (1980) 26 Cal.3d 557, 578; cf. People v. Phillips (1994) 25 Cal.App.4th 62, 71 [a finding of ability to pay an attorney fees order may be explicit or implicit, provided it is supported by substantial evidence].)
“ ‘Ability to pay does not necessarily require existing employment or cash on hand.’ [Citation.] ‘[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant’s present ability but may consider a defendant’s ability to pay in the future.’ ” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.)
According to the probation report, at a previous court appearance to review defendant’s existing wardship, defendant was “working full time with his father.” And, at the dispositional hearing, defendant unsuccessfully asked to be sent home on electronic monitoring rather than to juvenile hall by arguing that he would be at his father’s home and “working five days a week.” He urged the juvenile court to consider allowing him to go home and prove himself by getting “back to work and put[ting] this behind him.”
This is substantial evidence to support a conclusion that defendant had the ability to earn wages during his probation after being released from juvenile hall. Defendant was free to argue that he did not have a present or future ability to pay. We add that defendant’s father addressed the juvenile court and supported defendant’s point as follows: “He can come work with me. I own my own business. I have a construction company. I have a hundred employees. I can keep him busy.”
DISPOSITION
The judgment of wardship is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.