Opinion
D075393
04-10-2020
In re U.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. U.C., Defendant and Appellant.
Cherise Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Teresa Torreblanca, Deputy Attorneys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J241818) APPEAL from an order of the Superior Court of San Diego County, Ana L., España, Judge. Affirmed in part; reversed in part and remanded with directions. Cherise Bacalski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Following an adjudication hearing, the juvenile court found that U.C. possessed a knife on school grounds (Pen. Code, § 626.10, subd. (a)(2)) (count 2). After a disposition hearing, the court declared U.C. a ward of the court, placed him on probation for one year subject to various conditions, and imposed two fines totaling $110.
On appeal from the disposition order, U.C. claims that a probation condition requiring that he report "all law enforcement contacts" to his probation officer is unconstitutionally vague under the reasoning of People v. Relkin (2016) 6 Cal.App.5th 1188 (Relkin). (See id. at p. 1197 [concluding that "portion of [probation] condition requiring that defendant report 'any contacts with . . . any peace officer' is [unconstitutionally] vague"].) In addition, U.C. contends that the trial court erred in imposing a $60 fine pursuant to Welfare and Institutions Code section 730.5 and a $50 fine pursuant to section 730.6, subdivision (a)(2)(A) because he lacks the ability to pay these fines. In the alternative, U.C. claims that trial counsel provided ineffective assistance in failing to object to the fines.
Unless otherwise specified all subsequent statutory references are to the Welfare and Institutions Code.
We agree with U.C. that the challenged probation condition is impermissibly vague under Relkin. We conclude that U.C. forfeited his challenges to the juvenile court's imposition of the fines and that he has not established that trial counsel provided ineffective assistance in failing to object to the court's imposition of the fines. Accordingly, we remand the matter to the trial court to allow it to modify or strike the challenged probation condition, but otherwise affirm.
II.
FACTUAL BACKGROUND
In November 2017, U.C. possessed a knife while at high school.
III.
DISCUSSION
A. The probation condition requiring that U.C. report all law enforcement contacts to his probation officer is unconstitutionally vague
U.C. claims that the juvenile court's imposition of a probation condition that requires him to report all law enforcement contacts to his probation officer is unconstitutionally vague under Relkin. We review the claim de novo. (See, e.g., People v. Martinez (2014) 226 Cal.App.4th 759, 765 ["Whether a term of probation is unconstitutionally vague or overbroad presents a question of law, which we review de novo"].)
Although it is undisputed that U.C. did not object to the juvenile court's imposition of the probation condition, the People concede that we may consider U.C.'s claim on the merits. We agree with the People that we may consider U.C.'s facial challenge to the probation condition on vagueness grounds notwithstanding the lack of an objection. (See, e.g., In re Sheena K. (2007) 40 Cal.4th 875, 899 ["we conclude defendant's claim that her probation condition was unconstitutionally vague . . . was not forfeited by her failure to raise it in juvenile court"].)
1. The challenged condition
The juvenile court imposed the following probation condition:
"The minor shall follow the rules and instructions of the Probation Officer, and report all law enforcement contacts to the Probation Officer within three calendar days."
2. Governing law
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' [Citation.]" (In re Sheena K., supra, 40 Cal.4th at p. 890.) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (Ibid.) However, probation conditions are given " ' "the meaning that would appear to a reasonable, objective reader." ' " (In re I.V. (2017) 11 Cal.App.5th 249, 261.)
In Relkin, the Court of Appeal considered a probation condition that required the defendant "to 'report to the probation officer, no later than the next working day, any arrests or any contacts with or incidents involving any peace officer.' " (Relkin, supra, 6 Cal.App.5th at p. 1196.) The defendant argued that the phrases " 'contacts with' and 'incidents involving' peace officers are uncertain because one cannot determine whether those terms include occasional conversation with a police officer who lives down the street, answering an officer's questions as a witness to a crime, or participation in a demonstration where officers are present." (Id. at pp. 1196-1197.) The defendant also contended that the condition suffered from vagueness "because it is subject to the ' "whim of any police or probation officer," ' and unconstitutionally infringes on [the defendant's] rights under the First Amendment of the United States Constitution." (Id. at p. 1197.)
The Relkin court determined that the probation condition was unconstitutionally vague, in part. Specifically, the Relkin court concluded that "the portion of the condition requiring that defendant report 'any contacts with . . . any peace officer' " was vague because it "does indeed leave one to guess what sorts of events and interactions qualify as reportable." (Relkin, supra, 6 Cal.App.5th at p. 1197.) According to the Relkin court, it was not certain that the condition would not be triggered "when defendant says 'hello' to a police officer or attends an event at which police officers are present, but would be triggered if defendant were interviewed as a witness to a crime or if his 'lifestyle were such that he is present when criminal activity occurs,' " as the People had argued on appeal. (Ibid.) "The language does not delineate between such occurrences and thus casts an excessively broad net over what would otherwise be activity not worthy of reporting." (Ibid.)
3. Application
U.C. claims that the probation condition at issue in this case is "on all fours" with the probation condition at issue in Relkin and is therefore unconstitutionally vague since it does not sufficiently describe "which types of [law enforcement] contacts it requires [him] to report."
The People counter that "it is both reasonable and practical to interpret the probation condition at issue as requiring [U.C.] to report to his probation officer only substantive contacts with law enforcement, such as where he is a witness to a crime, suspected of a crime, or asked to produce identification, and not incidental contacts, such as greeting an officer on the streets or attending an event where an officer is present." (Citing People v. Hall (2017) 2 Cal.5th 494, 500-501 [stating that a probation condition should not be invalidated as unconstitutionally vague " ' " 'if any reasonable and practical construction can be given to its language' " ' "].)
We agree with U.C. that the probation condition imposed in this case suffers from the same constitutional defect as the condition in Relkin. As in Relkin, the probation condition in this case does not provide any guidance that would allow U.C. to know whether any particular contact would require reporting. Further, we agree with the court's conclusion in Relkin, supra, 6 Cal.App.5th 1188 that a condition that does not give a probationer sufficient notice as to which types of contacts with law enforcement he is required to report must be modified. The People's interpretation of the condition amounts to little more than a rewriting of that condition. We conclude that the proper course is to remand the matter to the trial court to either clarify the scope of the condition or to strike it. B. U.C. forfeited his challenges to the juvenile court's imposition of fines totaling $110 and he has not established that trial counsel provided ineffective assistance in failing to object to those fines on the basis of his inability to pay
U.C. contends that the trial court erred in imposing a $60 fine pursuant to section 730.5 and a $50 fine pursuant to section 730.6, subdivision (a)(2)(A) because he lacks the ability to pay those fines. In the alternative, U.C. claims that trial counsel provided ineffective assistance in failing to object to the fines on this ground.
1. Factual and procedural background
The probation report recommended that U.C. and his parents pay a fine in the amount of $60 pursuant to section 730.5 and a restitution fine in the amount of $50 pursuant to section 730.6.
The probation officer also stated, "It appears to the Probation Officer there are sufficient financial resources that support imposing a fine pursuant to [section] 730.5."
The juvenile court imposed both fines as recommended by the probation officer without objection at the disposition hearing.
2. Relevant statutes authorizing the fines imposed in this case
Section 730.5 provides in relevant part:
"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."
Section 602 describes the circumstances under which a minor who violates the law may be adjudged to be a ward of the court.
U.C. does not contend that the section 730.5 fine that the trial court imposed violates this limitation.
Section 730.6, provides in relevant part:
"[(a)](2) Upon a minor being found to be a person described in Section 602, the court shall consider levying a fine in accordance with Section 730.5. In addition, the court shall order the minor to pay, in addition to any other penalty provided or imposed under the law, both of the following:
"(A) A restitution fine in accordance with subdivision (b).
"[¶] . . . [¶]
"(b) If a minor is found to be a person described in Section 602, the court shall impose a separate and additional restitution fine. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense as follows:
"[¶] . . . [¶]
"(2) If the minor is found to be a person described in Section 602 by reason of the commission of one or more misdemeanor offenses,[] the restitution fine shall not exceed one hundred dollars ($100). A separate hearing for the fine shall not be required."
The juvenile court found that U.C. violated Penal Code section 626.10, subdivision (a)(2), which is a misdemeanor.
3. U.C. forfeited his challenges to both fines by failing to object to their imposition in the trial court
U.C. claims that the trial court erred in imposing a $60 fine pursuant to section 730.5 because there is not sufficient evidence of his ability to pay the fine and the statute contains an express ability to pay requirement. U.C. also argues that the trial court's imposition of a $50 fine pursuant to section 730.6, subdivision (a)(2)(A) in the absence of evidence of his ability to pay the fine violates principles of due process outlined in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
Ordinarily, a party who fails to object to the imposition of a fine or fee in the trial court may not raise a claim pertaining to that charge on appeal. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to probation fines and attorney fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 596-598 (McCullough) [defendant forfeits appellate challenge to the sufficiency of evidence supporting a Government Code section 29550.2, subdivision (a) booking fee if objection not made in the trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 [forfeiture rule applies to defendant's claim that restitution fine amounted to an unauthorized sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th 198, 227 (Nelson) [claim that trial court erroneously failed to consider ability to pay a restitution fine forfeited by the failure to object].)
In McCullough, supra, 56 Cal.4th at pages 596-598, the Supreme Court specifically held that a party forfeits an appellate challenge to the sufficiency of evidence supporting the booking fee at issue in that case if the party fails to object to imposition of the fee in the trial court. (Ibid.; see also People v. Trujillo (2015) 60 Cal.4th 850, 854 (Trujillo) [defendant forfeited challenge to sufficiency of evidence to support imposition of probation supervision and presentence investigation fees imposed pursuant to Penal Code section 1203.1b, notwithstanding that statute required ability to pay determination].)
In this case, despite the fact that section 730.5 contains an express ability to pay requirement, trial counsel raised no objection in the trial court on the ground that there was insufficient evidence of U.C.'s ability to pay the section 730.5 fine. Accordingly, we conclude that U.C. forfeited his claim that there is insufficient evidence in the record of his ability to pay the $60 section 730.5 fine. (See McCullough, supra, 56 Cal.4th at pp. 596-598; Trujillo, supra, 60 Cal.4th at p. 854.)
With respect to U.C.'s claim that the trial court's imposition of a $50 fine pursuant to section 730.6, subdivision (a)(2)(A) violated principles of due process outlined in Dueñas, we reject U.C.'s contention that we should excuse his failure to object on the basis that this "claim . . . was not forseeable." As U.C. acknowledges, Dueñas was decided more than a month before the court imposed the fine and yet U.C. raised no objection under Dueñas in the trial court. Accordingly, we conclude that U.C. forfeited his Dueñas challenge to the $50 section 730.6, subdivision (a)(2)(A) fine.
4. U.C. has not established that his counsel provided ineffective assistance in failing to raise ability to pay challenges to the trial court's imposition of $110 in fines
To establish ineffective assistance of counsel, a defendant must show not only that counsel's performance was deficient and fell below an objective standard of reasonableness, but also that it is reasonably probable that a more favorable result would have been reached absent the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) Without a showing of prejudice, a claim of ineffective assistance of counsel fails and inquiry into the adequacy of counsel's performance is unnecessary. (People v. Sanchez (1995) 12 Cal.4th 1, 40-41.)
In order to establish prejudice from counsel's failure to object to the section 730.5 and 730.6 fines on the basis of U.C.'s purported inability to pay the fines, U.C. is required to demonstrate a reasonable probability that the trial court would not have imposed the fine on the basis of his inability to pay if his counsel had objected to the imposition of the fine. While U.C. asserts, without any citation to the record, that he is indigent, we see nothing in the record that establishes a reasonable probability that the court would have found that U.C. and his parents lacked the ability to pay $110 in fines if an objection on this basis had been raised. Under these circumstances, we conclude that U.C. has failed to establish his claim of ineffective assistance of counsel.
The juvenile court's order makes both U.C. and his parents jointly and severally liable for the fines.
The probation report states:
"[U.C.'s father] is employed in construction and [U.C.'s mother] is a stay-at-home housewife. The family does not receive any financial assistance from the government. [¶] The minor, his parents, and siblings, reside in a two bedroom house that they rent for $1,625 per month."
IV.
DISPOSITION
The case is remanded to the juvenile court with directions to modify or strike the condition of probation requiring U.C. to report all law enforcement contacts to his probation officer, in a manner that is consistent with the views expressed in this opinion. In all other respects, the disposition order is affirmed.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. GUERRERO, J.