Opinion
A157543
05-05-2020
In re TYLER L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TYLER L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1900228)
Defendant Tyler L. (Minor) pleaded no contest to one charge of possessing a weapon on school grounds and was sentenced to two days in juvenile hall and 60 days of home supervision.
On appeal, Minor's appointed counsel has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende) to determine if there are any arguable issues that require briefing. Minor was informed of his right to file a supplemental brief, and did not do so. After reviewing the record, we asked the parties to brief the issue of whether the juvenile court erred in failing to consider Minor's ability to pay the $25 restitution fine imposed at disposition, and we conclude it did. We will modify the amount of the restitution fine, but otherwise affirm.
BACKGROUND
The factual background is drawn from the hearing on Minor's motion to suppress, at which Assistant Principal Beede was the only witness.
On February 7, 2019, Freedom High School Assistant Principal Frank Beede was approached by campus supervisor Kevin Bowles. Bowles told Beede that he and another campus supervisor "had identified a group of boys in the 'E' building bathroom," and "an odor of marijuana was coming from the bathroom." Bowles and the other campus supervisor then escorted three boys, including Minor, from the bathroom to Beede's office. Minor was brought into Beede's office while the other two boys waited in the lobby. Beede "explained to [Minor], as a result of what was observed by campus supervisor Bowles, that I had a reasonable suspicion to conduct a search of him." Beede asked Minor if he "had anything on him," to which Minor responded "No," and if there was "anything in [his] backpack," to which Minor again responded "No." Beede then searched Minor's backpack, where he found a vape pen, a charger, a marijuana grinder, and a knife.
On March 7, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), charging Minor with one felony count of possessing a weapon on school grounds (Pen. Code, § 626.10, subd. (a)).
Further undesignated statutory references are to the Welfare and Institutions Code.
Minor was then 15 years old. --------
On April 22, Minor moved pursuant to section 700.1 to suppress the knife and other evidence recovered from his backpack. At a hearing on the petition held May 6, the juvenile court denied the motion. Minor then entered a plea of no contest to the charge as a misdemeanor.
At the disposition hearing held on June 10, the juvenile court adjudged Minor a ward of the court with no termination date and ordered Minor detained in juvenile hall for two days and placed on home supervision for a period of 60 days. The court ordered Minor to pay a restitution fine of $25. Minor's counsel objected to the fine:
"MS. SABA: And, Your Honor, I am objecting to that. There hasn't been an ability to pay hearing.
"THE COURT: It is not necessary for a minimum fine. It's a 'K.B.' case.
"MR. SCHUCK: You are to attend
"THE COURT: 'K.B.' or 'K.D.' 'K.B.' or 'K.D.' case. I forget."
The court imposed various other standard probation conditions.
Minor filed a timely notice of appeal.
DISCUSSION
After reviewing the entire record in accordance with our Wende obligations, we ordered the parties to brief the question of "whether the juvenile court should have considered defendant's ability to pay in imposing and setting the amount of the restitution fine of $25 pursuant to Welfare and Institutions Code, section 730.6, subdivision (b)."
Section 730.6 requires the juvenile court to impose a restitution fine, the amount of which "shall not exceed one hundred dollars ($100)" for a juvenile who commits a misdemeanor. (§ 730.6, subd. (b)(2).) "A separate hearing for the fine shall not be required." (Ibid.)
The restitution fine must be imposed "regardless of the minor's ability to pay." (§ 730.6, subd. (c).) However, in determining the amount of the fine, the juvenile court "shall consider any relevant factors including, but not limited to, the minor's ability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the minor as a result of the offense, and the extent to which others suffered losses as a result of the offense." (§ 730.6, subd. (d)(1).)
In her supplemental brief, Minor's appointed counsel contends that the juvenile court intended to impose the minimum fine of one cent, but that we should simply strike the fine rather than remand for the juvenile court to impose the one cent minimum. In the alternative, she argues a remand is appropriate to permit the juvenile court to hold a hearing on Minor's ability to pay.
Because Minor's counsel objected that "there hasn't been an ability pay hearing," the Attorney General reads the juvenile court's statement that "[i]t is not necessary" to refer to such a hearing, and not to consideration of ability to pay in setting the amount of the fine. However, the Attorney General concedes that if the court did not consider Minor's ability to pay in setting the amount of the fine, this was error and a remand is appropriate. We read the juvenile court's comment, together with the court's apparent belief that the $25 was the "minimum fine," to mean that the court did not consider ability to pay in setting the fine amount.
In support of his argument, the Attorney General cites In re M.B. (2020) 44 Cal.App.5th 281. In that case, 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 § 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.) But In re M.B. is distinguishable. There, the juvenile court imposed the statutory minimum fine—a fine that must be imposed "regardless of the minor's ability to pay"—meaning express findings regarding ability to pay would have made no difference. (§ 730.6, subd. (c); see In re M.B., supra, 44 Cal.App.5th at p. 283; 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"].) And any presumption that the juvenile court considered the statutory factors in setting the amount of the fine is not warranted here, where the record affirmatively suggests the opposite.
We conclude that the juvenile court erred in failing to make findings regarding Minor's ability to pay before setting a restitution fine in excess of the statutory minimum under section 730.6, subdivision (b)(2). However, given the small amount of money at issue, a remand would be an inefficient use of judicial resources. Accordingly, we will modify the restitution fine to the statutory minimum of one cent. (See People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316 ["We recognize we could remand for the trial court to determine an appropriate restitution fine . . . . However . . . this is judicially uneconomical"]; People v. Walker (1991) 54 Cal.3d 1013, 1029; People v. Blankenship (1989) 213 Cal.App.3d 992, 1000, fn. 10.)
DISPOSITION
The juvenile court's order is modified to impose a restitution fine of one cent pursuant to Welfare and Institutions Code section 730.6, subdivision (b)(2). As so modified, the order is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.