Opinion
D074974
09-09-2019
In re A.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.H., Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Joseph Anagnos, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCM236963) APPEAL from orders of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Joseph Anagnos, Deputy Attorney General, for Plaintiff and Respondent.
This appeal arises from a juvenile wardship proceeding in which it was alleged that A.H. (the Minor) stole personal property, a cell phone, in violation of Penal Code section 211. The Minor was originally committed to the Youthful Offender Unit (YOU) but failed to comply with the terms of his probation upon release and reoffended. As a result, the juvenile court committed him to the Division of Juvenile Justice (DJJ). The juvenile court also ordered that he pay certain previously ordered but unpaid fines.
The Minor filed a timely notice of appeal and appellate counsel filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Based in part on an issue identified in the Wende brief, we asked the parties to submit letter briefs addressing whether the juvenile court erred by ordering the Minor to pay all previously ordered but unpaid fines without making a present ability to pay finding.
After reviewing the additional letters, we conclude the superior court was not required to make an additional ability to pay finding and the Minor forfeited any argument regarding his ability to pay by failing to object in the juvenile court. Finding no other arguable issues on appeal, we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The Minor has a history of juvenile offenses. In June 2015, the juvenile court sustained a petition, pursuant to Welfare and Institutions Code section 602, alleging the Minor committed burglary in violation of Penal Code sections 459 and 460. In July 2015, the juvenile court sustained another petition alleging the Minor committed robbery in violation of Penal Code section 211, related to an incident separate from the June charges. In September 2015, the juvenile court sustained a petition alleging the Minor had committed Assault with a Deadly Weapon in violation of Penal Code section 245, subdivision (a)(1). Thereafter, the Minor committed several probation violations.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified. --------
In September 2017, the People filed the petition that ultimately gives rise to this appeal and alleged the Minor stole a cellular phone by forcefully grabbing it from the victim's hand in violation of Penal Code section 211. The juvenile court ultimately sustained the petition and committed the Minor to YOU for a period of 480 days. At that time, the court imposed a $126 fine pursuant to section 730.5, including both penalty assessments (Pen. Code, § 1464) and surcharges (Pen. Code, § 1465.7), a $100 restitution fine pursuant to section 730.6, subdivision (c), and a $400 victim restitution fine. In addition, the court made a finding the Minor had the ability to pay the $126 section 730.5 fine. The Minor did not make any objection to the fines. He appealed the judgment on grounds unrelated to the fines, and this court affirmed. (See People v. Antoine H. (In re Antoine H.) (July 31, 2018, D073067) [nonpub. opn.].)
The juvenile court released the Minor from YOU in June 2018, but he failed to comply with the terms of his probation and the court recommitted him. In September 2018, just as the Minor was about to be rereleased from YOU, the People informed the juvenile court that they had recently learned the Minor had committed another theft during his previous release. Several weeks later, the Minor admitted he had violated the terms of his probation by failing to remain law abiding. In a written report submitted the same day, the probation department made a number of recommendations, including that the juvenile court commit the Minor to the DJJ and that the court order him to pay all outstanding victim restitution and fines.
At a contested disposition hearing in October, the court adopted the recommendations contained in the probation report and ordered the Minor committed to the custody of the DJJ. Consistent with the recommendations, the court's order also stated, "the minor shall pay all previously ordered unpaid victim restitution and fines. . . . The total still due on the 730.5 fine is $328.00. The total still due on the 730.6 fine is $300.00." In addition, the juvenile court issued a form JV-732, Commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities, which states, "The youth is ordered to pay a restitution fine of: $328.00-wic730.5/$300.00-wic730.6."
The Minor appealed and appointed appellate counsel filed a brief summarizing the facts and proceedings below. She presented no argument for reversal but asked this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Counsel further identified the following issues "to assist the court in conducting its independent review of the record" (Anders, supra, 386 U.S. at p. 744):
"1. Did the juvenile court possess a sufficient factual basis for accepting minor's admission on October 5, 2018? (See People v. Holmes (2004) 32 Cal.4th 432; People v. Alonzo J (In re Alonzo J.) (2014) 58 Cal.4th 924, 931-932.)
"2. Did the juvenile court abuse its discretion by committing minor to the custody of the DJJ? (See People v. Teofilio A. (In re Teofilio A.) (1989) 210 Cal.App.3d 571, 576-579; see also People v. Superior Court of Riverside Cnty (2018) 4 Cal.5th 299, 306 [noting DJJ formerly known as California Youth Authority].)
"3. Did the re-imposition of previously-ordered fines under Welfare and Institutions Code sections 730.5 and/or 730.6 violate minor's right to due process and equal protection absent a new finding on the record as to minor's ability to pay. (People v. Dueñas (2019) 30 Cal.App.5th 1157.)"
After we received counsel's brief, we gave the Minor an opportunity to file a supplemental brief. He has not responded.
In addition, we asked the parties to submit letter briefs addressing a number of questions related to the third issue, whether the juvenile court's order that the Minor pay all previously ordered but unpaid section 730.5 and section 730.6 fines without a present ability to pay finding violated the Minor's right to due process and equal protection in light of the recent opinion in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
In their letter brief, the People asserted the court's October 22, 2018 minute order contained a clerical error and should have reflected the amounts stated in the November 2, 2017 order of $126 owed pursuant to section 730.5 and $100 owed pursuant to section 730.6. We gave the Minor an opportunity to respond and he asserts, instead, that the order appears to reflect the total amount due in relation to his various juvenile cases, combined, as of the date of the order.
DISCUSSION
I. The October 22, 2018 Order Does Not Contain a Clerical Error
We begin our analysis by addressing the People's contention that the October 22, 2018 order contains a clerical error. We presume the juvenile court's order is correct and accurately reflects the court's intentions. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Any error must be affirmatively shown. (Ibid.) Here, the juvenile court stated that it was adopting the recommendations contained in the probation report and the amounts listed for the fines in the court's written order are consistent with the probation report. The Minor contends there was no clerical error and the People do not point to any support in the record for their contention that there was. Accordingly, we reject the People's assertion and analyze the October 22, 2018 order as written, with the understanding that the amounts listed represent the total amounts due for each fine as of that date, inclusive of all fines imposed on the Minor in each of his prior cases. II. Section 730.5 Did Not Require the Juvenile Court to Make an Ability to Pay Finding with Respect to the October 22, 2018 Order
Next, we consider whether the juvenile court had a statutory obligation to make an ability to pay finding in connection with the October 22, 2018 order. Section 730.5 states, in relevant part, "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." (§ 730.5 [emphasis added].) The Minor contends the juvenile court "reimposed" the fines but the court did not actually impose, or levy, any new fine. (See Howard Jarvis Taxpayers' Assn. v. Fresno Metropolitan Projects Authority (1995) 40 Cal.App.4th 1359, 1373 ["levy" and "impose" are synonymous and may be used interchangeably].) Instead, the court simply stated, "the minor shall pay all previously ordered unpaid victim restitution and fines" (emphasis added) and then listed the total amounts already owed, as reflected in the probation report. Since the juvenile court did not levy a fine, it did not have an affirmative obligation under section 730.5 to make an additional ability to pay finding.
The Minor contends the record does not conclusively establish whether the juvenile court made the appropriate ability to pay findings at the time it originally imposed each of the section 730.5 fines, but that issue is not before us. As discussed, the juvenile court did not levy any new fines. The court's mere statement that the Minor still had an obligation to comply with previous orders of the court does not provide a new opportunity for the Minor to address the merits of those previous, now final, orders. (See In re Shaun R. (2010) 188 Cal.App.4th 1129, 1139-1141 [juvenile court's statement that prior probation conditions remain in effect, without altering the condition or extending the timeline, not sufficient to permit minor to contest the prior orders originally imposing those conditions].)
III. The Minor Forfeited Any Ability to Pay Arguments
Even if such a finding was not required by the statute, the Minor contends in reliance on Dueñas that the juvenile court violated his right to due process by failing to consider whether he had the present ability to pay the aggregated amounts.
A. Dueñas
On January 8, 2019, while the present appeal was pending, the Court of Appeal issued its opinion in Dueñas, supra, 30 Cal.App.5th 1157, in which it pronounced a new constitutional principle regarding a defendant's ability to pay certain court operations and facilities assessments and restitution fines. (Id. at p. 1168; see also People v. Castellano (2019) 33 Cal.App.5th 485, 488-489 (Castellano).) Specifically, the court in Dueñas held that a trial court violated a defendant's right to due process under both the United States and California Constitutions by imposing certain court operations and facilities assessments without first determining that the defendant had an ability to pay. (Dueñas, at p. 1168.) It also concluded that the imposition of restitution fines pursuant to Penal Code section 1202.4, subdivision (b) raises similar constitutional concerns. (Dueñas, at p. 1172.) The court acknowledged that Penal Code section 1202.4, subdivision (c) expressly precludes the trial court from considering a defendant's ability to pay when imposing a restitution fine at the statutory minimum amount, and therefore held the trial court must impose the minimum restitution fine even if the defendant demonstrates an inability to pay, but must stay execution of the fine until such time as it determines that the defendant has the ability to pay. (Dueñas, at p. 1172.)
Section 730.6 is similar, but not identical, to Penal Code section 1202.4, and requires the juvenile court to impose a restitution fine of not less than $100 and not more than $1,000 on any minor found to be a person described in section 602 by reason of the commission of one or more felony offenses. (§ 730.6, subd. (b)(1).) The juvenile court is required to levy the fine regardless of the minor's ability to pay, but must consider the minor's ability to pay if it imposes a fine above the statutory minimum. (§ 730.6, subds. (b)(1), (d)(1); In re Enrique Z. (1994) 30 Cal.App.4th 464, 469 ["statutory schemes for restitution fines for adults and juveniles are analogous"].)
B. Analysis
The People maintain the Minor forfeited any such argument by failing to raise it in the juvenile court. We agree. Although the Minor was aware of the probation department's recommendation regarding the outstanding fines, including the total amounts owed, he did not make any objection regarding his ability to pay them. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 ["defendant's failure to challenge the fees in the trial court precludes him from doing so on appeal"].)
The Minor concedes that he did not object but asks us to follow Castellano, in which the appellate court excused the defendant's failure to raise a due process challenge based on its conclusion that the opinion in Dueñas effectuated a significant change in the law that was not reasonably foreseeable. (Castellano, supra, 33 Cal.App.5th at p. 489.) While other courts have reached different conclusions, more recent opinions have resolved at least some of the apparent conflict by distinguishing between those cases in which the defendant had at least some statutory basis to raise an inability to pay argument and those cases in which the defendant did not. (See, e.g., People v. Fransden (2019) 33 Cal.App.5th 1126, 1153-1154 [disagreeing with Castellano and finding forfeiture]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033 (Gutierrez) [imposition of restitution fine above statutory minimum permitted consideration of ability to pay and defendant's failure to object also forfeited ability to pay arguments as to other imposed fines and fees].) Here, the Minor had at least some statutory basis to raise an inability to pay argument with respect to the October 22, 2018 order.
Section 730.6, like the adult restitution fine discussed in Gutierrez, requires the juvenile court to impose a minimum restitution fine regardless of the minor's ability to pay, but also indicates that the minor's ability to pay should be considered before imposing a fine above the statutory minimum. (§ 730.6, subds. (c), (d).) The aggregate amount of $300 set forth in the order at issue here is above the statutory minimum, but the record before us is not sufficient to determine the exact basis for the amount and it is at least possible, if not probable, that the total is the result of three individual fines imposed at the statutory minimum amount of $100.
However, a minor's ability to pay was and is relevant to fines imposed pursuant to section 730.5, regardless of the amount. And here, the record contains no indication that the Minor ever objected to any of the fines imposed under section 730.5. In fact, he did not object to the most recent imposition of $126, despite presumably being aware of the other already outstanding section 730.5 fines. Further, although section 730.5 did not require the juvenile court to make an additional affirmative ability to pay finding when it ordered the Minor to pay all outstanding restitution fines, as discussed post, the statute nevertheless provided a sufficient basis to permit the Minor to assert either that the juvenile court had not previously made the requisite ability to pay findings or that the aggregate amount now exceeded his financial resources. The Minor concedes he raised no such objection.
Finally, since the Minor did not object to the $328 due pursuant to section 730.5 on ability to pay grounds—which he was entitled to do even before Dueñas—we can discern no reasonable basis for him to now assert that he was unable to pay the slightly lesser amount of $300 due pursuant to section 730.6. Accordingly, as in Gutierrez, we conclude under the facts of this case the Minor forfeited any challenge based on an ability to pay either amount by failing to object in the juvenile court. (See Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the additional issues suggested by counsel, has disclosed no other reasonably arguable appellate issue.
The Minor has been adequately represented by counsel on this appeal.
DISPOSITION
The orders are affirmed.
DATO, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.