In re J.C.
Filed 5/13/13 In re J.C. CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
IN RE J.C., a Person Coming
Under the Juvenile Court Law.
H038359
(Santa Clara
County
Super. Ct.
No. JV38442)
THE PEOPLE,
Plaintiff and
Respondent,
v.
J.C.,
Defendant and
Appellant.
The minor,
J.C., appeals from the juvenile court’s dispositional order placing him on
probation after finding that the minor committed vandalism (Pen. Code, § 594,
subds. (a) & (b)(1))
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and that he resisted, delayed, or
obstructed a peace officer (§ 148, subd. (a)(1)).
On appeal,
the minor contends: (1) there was
juvenile court’s finding that he resisted, delayed, or obstructed a peace
officer; (2) the juvenile court’s oral findings reflect it misunderstood the
law; (3) the juvenile court failed to exercise its discretion to declare the
vandalism count a felony or misdemeanor; and (4) there was insufficient
evidence to sustain the juvenile court’s finding that the minor had the ability
to pay a $154 fine imposed pursuant to Welfare and Institutions Code section
730.5.
We will
remand the matter for a determination of whether the vandalism count is a
felony or a misdemeanor and whether the minor has the ability to pay the $154
fine. In all other respects, we will
affirm the judgment.
Background
A. Prosecution Witnesses
On May 4, 2011, at about 6:30 p.m., Michael McAvoy was driving back to
work at Safeway after a lunch break. He
was stopped at an intersection, waiting to make a left turn. The light changed to green, but the the minor
and his friend Nathan were walking in the crosswalk, so McAvoy had to continue
waiting. McAvoy signaled for the teens
to keep going, but they responded by “walking really slow.†Through his open window, McAvoy told the
minor and Nathan to “hurry up.â€
The minor
and Nathan cursed at McAvoy and flipped him off. After McAvoy began making the turn, the minor
turned back toward him and “whacked†his truck with a skateboard. McAvoy pulled over, and the minor hit his
truck two more times.
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McAvoy got
out of his truck and confronted the minor, who held up his skateboard. McAvoy said, “[Y]ou better not hit me with
that skateboard.†A man riding a
motorcycle came up, told the minor and McAvoy to stop arguing, and instructed
McAvoy to get back into his truck.
McAvoy did as instructed but told the minor, “Don’t worry. You will be sorry. You’ll get what is coming to you.†McAvoy then drove to Safeway and began
working.
Following
the incident, the minor went in to Safeway and told the store manager that
McAvoy had tried to run him over. Gilroy
Police Officer Randy Bentson received a call for service and responded to
Safeway, where he spoke to the minor and McAvoy and saw damage to the truck.
Officer
Bentson then went to Nathan’s residence.
The minor arrived at Nathan’s residence while Officer Bentson was
interviewing Nathan. Officer Bentson
told the minor he was going to “cite him.â€
The minor swore and became “quite verbally abusive.†When Officer Bentson asked the minor to “step
to the back of the patrol car,†the minor threw his hat on the ground and ran
into Nathan’s residence.
Officer
Bentson called the minor’s mother. He
told her that he was going to issue a citation and asked her to come to
Nathan’s residence. When she arrived, he
spoke to her and gave her a copy of the citation. During the conversation, the minor came out
of the residence and interrupted Officer Bentson. The minor was saying things such as “This is
bullshit. Why am I being arrested. This guy tried to run me over. And this is wrong.†Officer Bentson asked the minor to stop
interrupting, but the minor persisted.
After asking him two times, Officer Bentson said that if the minor did
not stop interrupting, he would be arrested for obstruction of justice.
The minor
continued interrupting Officer Bentson, so Officer Bentson told him to turn
around and put his hands behind his back.
The minor “took off running†towards the residence. Officer Bentson chased him, caught him, and
wrestled him to the ground. Officer
Bentson got on top of the minor, holding one of the minor’s arms. He ordered the minor to put his other hand
behind his back, but the minor tried to pull away. Officer Bentson eventually pulled the minor’s
hand out from underneath his body and arrested him.
B. Defense Witnesses
The minor’s
friend, Nathan, testified that McAvoy began yelling, using “cuss words,†when
he and the minor were in the crosswalk.
McAvoy threatened them, saying, “If you don’t move[,] I’m going [to] hit
you.†When the minor said, “Do it,â€
McAvoy tapped the gas pedal, moving the truck forward so the minor had to move
out of the way. Nathan thought McAvoy’s
truck was going to hit the minor.
Roberto
Gonzalez saw the two boys in the crosswalk and saw McAvoy’s truck “cut them
off.†He called 911 after seeing McAvoy
stop the truck and “go after†the minor.
The minor
testified that while he and Nathan were in the crosswalk, McAvoy yelled at them
to “[g]et out of the fucking way†and told them he was in a hurry to get to
work. The minor told him, “It is our
right of way. You can wait.†McAvoy then drove the truck towards the
minor, and he had to jump out of the way.
He hit the truck with his skateboard because he was “defending
[him]self.â€
The minor
went to Safeway because he noticed that McAvoy was wearing a Safeway hat. While speaking to the manager, McAvoy came up
and confronted him. The manager told
McAvoy to leave and offered to call the police.
The minor waited for the police in the manager’s office. When Officer Bentson arrived, he did not seem
to believe the minor. The minor provided
Nathan’s address so the officer could confirm his story.
When the
minor arrived at Nathan’s residence, he saw Officer Bentson talking to
Nathan. Officer Bentson then approached
the minor and said he was going to cite him for vandalism. The minor became upset, because he was the
one asking for police assistance.
Officer Bentson did not tell him to go to the back of the patrol
car. He did not run into the house; he
walked inside and called his mother.
When the
minor saw his mother talking to Officer Bentson, he went outside. He believed Officer Bentson was saying things
that were not true, so he interrupted.
Officer Bentson told him to stop interrupting and said that if he kept it
up he would be arrested. The minor
muttered “go for it†and stuck his hand out.
Officer Bentson grabbed his arm and told him to turn around. The minor took a few steps, but Officer
Bentson threw him on the ground. He
could not give Officer Bentson his second arm because the officer’s weight was
on top of him.
The minor’s
mother testified that she went to Nathan’s house and spoke to Officer
Bentson. The minor came out during the
conversation. He was upset and tried to
explain what had happened, but Officer Bentson did not let him speak. Officer Bentson and the minor were
interrupting each other, and it escalated to a shouting match. The minor did not try to run away, but after
Officer Bentson warned that he could be placed under arrest, the minor turned
toward the house. At that point, Officer
Bentson jumped on top of the minor and pushed his face into the sidewalk.
C. Procedural Background
On November
4, 2011, the District Attorney filed an amended Welfare and Institutions Code
section 602 petition alleging that the minor committed felony vandalism (count
1; § 594, subds. (a) & (b)(1)) and resisted, delayed, or obstructed a peace
officer (count 2; § 148, subd. (a)(1)).
After a
contested jurisdictional hearing, the juvenile court sustained both counts of
the petition. At the dispositional
hearing on April 12, 2012,
the juvenile court placed the minor on probation, ordered him to spend 10 days
in the Community Release Program, and ordered him to pay a $110 restitution
fine (Welf. & Inst. Code, § 730.6, subd. (b)) and a $154 general fund fine
(Welf. & Inst. Code, § 730.5).
Discussion
A. Sufficiency of the Evidence
of Violating Section 148
The minor
contends there was insufficient evidence to sustain count 2, the allegation
that he violated section 148.
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1. Standard of Review
“ ‘The
standard of proof in juvenile proceedings
involving criminal acts is the same as the standard in adult criminal trials.’
[Citation.]†(In re Cesar V. (2011) 192 Cal.App.4th 989, 994.) “ ‘ “This court must view the evidence in a
light most favorable to respondent and presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]
If the circumstances reasonably justify the trial court’s findings,
reversal is not warranted merely because the circumstances might also be
reasonably reconciled with a contrary finding.
[Citations.] The test on appeal
is whether there is substantial evidence to support the conclusion of the trier
of fact.†’ †(
2. Proceedings Below
At the
jurisdictional hearing, the prosecutor argued that the minor “engaged in
numerous acts that could constitute a [violation of section] 148.†He specified that the violation could be based
on the minor’s acts of (1) interrupting when Officer Bentson was talking to
Nathan, (2) defying Officer Bentson’s order to stand at the end of the patrol
car, (3) interrupting when Officer Bentson was talking to the minor’s mother,
and (4) trying to escape when Officer Bentson attempted to place him under
arrest.
Trial
counsel argued that while the minor’s interruptions “probably [were] rude,â€
they were “not illegal†because they did not “really obstruct[] the officer in
his duty.â€
The trial
court explained why it was finding that the minor had violated
section 148: “[T]he charge is that
anytime that you interfere with a[n] officer who is lawfully conducting
business – and I don’t think there’s any question that he lawfully was
conducting business when he was having a conversation with mom. That’s part of his job. [¶]
And, unfortunately, [the minor] was told to be quiet. That’s the end of it. That’s what a 148 is. When you’re told, ‘Be quiet,’ that’s the end
of the story. That’s – if you don’t be
quiet at that point, you committed a misdemeanor.â€
3. First Amendment
The minor
contends his verbal interruptions of Officer Bentson were protected by the
First Amendment and thus did not violate section 148. Respondent contends the minor’s verbal interruptions
fell outside the scope of First Amendment protection.
“Although
section 148 proscribes resisting, delaying, or obstructing a police officer,
‘the First Amendment protects a significant amount of verbal criticism and
challenge directed at police officers.’
[Citation.] In fact, ‘[t]he
freedom of individuals verbally to oppose or challenge police action without
thereby risking arrest is one of the principal characteristics by which we
distinguish a free nation from a police state.’
[Citations.] Even though the
police may dislike being the object of abusive language, they are not allowed
to use the awesome power which they possess to punish individuals for conduct
that is not only lawful, but which is protected by the First Amendment. [Citation.]
For this reason, section 148 must be applied with great care to speech.
[Citation.] Although fighting words or
disorderly conduct may lie outside the protection of the First Amendment, the
areas of unprotected speech are very narrow.
[Citation.]†(
1325, 1330-1331 (Muhammed C.).)
As this
court recognized in Muhammed C.,
“verbal conduct†may fall outside the parameters of First Amendment
protection. (Muhammed C., supra, 95 Cal.App.4th at p. 1331.) In Muhammed
C., the verbal conduct was Muhammed’s act of “speaking to a detained
suspected criminal in police custody when ordered to stop.†(Ibid.) The suspect was sitting in the back of a
police vehicle while his own car was being processed across the street. Muhammed ignored three officers’ orders for
him to step away from the vehicle, and he continued talking to the
suspect. He also “extended his right
hand out to the back, raising his palm towards the officers,†in a gesture of
apparent defiance. (Id. at p. 1328.) This court
upheld the finding that Muhammed had violated section 148 by willfully delaying
the officers’ processing of the suspect’s vehicle “by refusing the officers’
repeated requests that he step away from the patrol car.†(Id.
at p. 1330.) This court also held that
Muhammed’s verbal conduct was not “akin to a mere verbal challenge to police
officers†and thus lacked First Amendment protection. (Id.
at p. 1331.)
The minor
asserts his case is akin to People v.
Quiroga (1993) 16 Cal.App.4th 961 (Quiroga). In Quiroga,
the police entered an apartment where the defendant was attending a party. When an officer told the defendant to sit
down, he “argued before complying with the order.†(Id.
at p. 964.) As the officer questioned
another subject, the defendant told him that the police had no right to be in
the apartment and that they should leave.
The defendant was generally uncooperative with the officer’s other
orders, but he eventually complied each time.
The court found nothing in this conduct to “justify a charge of
violating Penal Code section 148.†(
person’s failure to respond with alacrity to police orders,†and the defendant
“possessed the right under the First Amendment to dispute [the officer’s]
actions.†(Ibid.)
The
Attorney General asserts that the minor’s interruptions of Officer Bentson may
not be deemed the mere exercise of free speech, because his conduct was so
disruptive that it prevented the officer from performing his duties. We agree.
The United
States Supreme Court has recognized that a person may be criminally prosecuted,
without running afoul of the First Amendment, for verbally interrupting an
officer who is performing his duties. (
The
it unlawful for a person to, inter alia, “ ‘interrupt any policeman in the
execution of his duty.’ †(
p. 455.) The defendant had
interrupted officers by shouting at them while they were speaking with a third
party. The defendant was arrested for
violating the ordinance but acquitted.
He later filed a lawsuit seeking a declaratory judgment as to the
constitutionality of the ordinance, “both on its face and as it had been applied
to him.†(Ibid.)
The lower
courts upheld the Hill ordinance
insofar as it had been applied to the defendant (Hill, supra, 482 U.S. at p. 457), and the high court addressed only
the question whether the ordinance was unconstitutional on its face. The high court concluded that the ordinance
was substantially overbroad under the First Amendment, because it
“criminalize[d] a substantial amount of constitutionally protected speech, and
accords the police unconstitutional discretion in enforcement.†(Id.
at p. 466.)
However,
the high court was careful to note that “under a properly tailored statute,†it
would be constitutional to “ ‘punish an individual who chooses to stand near a
police officer and persistently attempt to engage the officer in conversation
while the officer is directing traffic at a busy intersection.’ [Citation.]â€
(Hill, supra, 482 U.S. at
p. 463, fn. 11; see also Colten v.
Kentucky (1972) 407 U.S. 104, 109 [an officer is entitled to carry out his
or her duties “free from possible interference or interruption from bystanders,
even those claiming a third-party interest in the transactionâ€].)
person’s words go “beyond verbal criticism, into the realm of interference with
[an officer’s performance of his or her] duty,†the First Amendment does not
preclude criminal punishment. (
Cal.App.4th 249, 261; see also People v.
Green (1997) 51 Cal.App.4th 1433, 1438 [defendant’s attempts to intimidate
the suspected victim into denying the commission of the offense impeded the
officer’s investigation and thus were not protected by the First Amendment].)
The case of
King v. Ambs (6th Cir. 2008) 519 F.3d
607 (King), is strikingly similar to
the instant case. While an officer was
questioning a third party, King interrupted the interview. King “ ‘would speak over’ †the officer,
telling the person he did not have to speak to the officer. (Id.
at p. 609.) The officer “advised King
that ‘if he said one more word that he would be arrested.’ †(
After a third interruption, the officer grabbed King’s arm and tried to
arrest him. King broke free, but he was
eventually placed under arrest and charged with violating an ordinance that
criminalized “ ‘[a] person who obstructs, resists, impedes, hinders or opposes
a peace officer in the discharge of his or her duties.’ †(Id.
at p. 610.)
On appeal,
King challenged his arrest as violating his First Amendment rights, but the
Sixth Circuit held that “his statements were not constitutionally protected.†(King,
supra, 519 F.3d at p. 613.) The
court pointed out that “King was arrested for the act of disrupting the
officer’s investigation, and not for the content of his speech.†(Id. at
p. 615.) The court found that
King’s “act of speaking, by virtue of its time and manner, plainly obstructed
ongoing police activity involving a third party.†(Id.
at p. 614.) His “exhortations†to the
third party and “his refusal to be quiet†during the questioning were thus not
“entitled to First Amendment protection.â€
(Ibid.)
Here, the
minor’s repeated interruptions of Officer Bentson were not protected by the
First Amendment. The minor’s conviction
was based on his “act of disrupting the officer’s investigation, and not for
the content of his speech.†(
police activity involving a third party,†and thus were not “entitled to
at p. 614.)
In sum, substantial
evidence supports the juvenile court’s finding that the minor violated section
148 by interrupting Officer Bentson and thereby obstructing or delaying him in
the lawful performance of his duties.
B. Felony/Misdemeanor
Determination
The minor
contends that the juvenile court failed to exercise its discretion to determine whether the offenses were felonies
or misdemeanors pursuant to Welfare and Institutions Code section 702,
and therefore, that the matter must be remanded for clarification.
1. Proceedings Below
The amended
Welfare and Institutions Code section 602 petition alleged, in count 1,
that the minor committed vandalism in violation of section 594, subdivisions
(a) and (b)(1), “a Felony.†In count 2,
it alleged that the minor had resisted, delayed, or obstructed an officer in
violation of section 148, subdivision (a)(1), “a Misdemeanor.†At the end of the jurisdictional hearing, the
trial court found that “both charges have been sustained.â€
The
dispositional order, which was signed by the juvenile court, contains a
check-mark in the box marked “Felony†next to count 1, and a check-mark in the
box marked “Misdemeanor†next to count 2.
2. Analysis
Welfare and
Institutions Code section 702 provides that in a juvenile proceeding, “[i]f the
minor is found to have committed an offense which would in the case of an adult
be punishable alternatively as a felony or a misdemeanor, the court shall
declare the offense to be a misdemeanor or felony.†This language is “unambiguous†and its
“requirement is obligatory . . . .†(
1204 (Manzy W.).) Welfare and Institutions Code
section 702 “requires an explicit declaration by the juvenile court
whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.]â€
(Manzy W., supra, at p. 1204
The
required declaration as to misdemeanor or felony may be made at the contested
jurisdictional hearing or at the dispositional hearing. (Cal.
Rules of Court, rules 5.780(e)(5), 5.790(a)(1), 5.795(a).)
a felony or a misdemeanor, the court must consider which description
applies and expressly declare on the
record that it has made such consideration, and must state its determination as to whether the offense is
a misdemeanor or a felony.â€
(Rule 5.780(e)(5), italics added; see also rules 5.790(a)(1),
5.795(a).) The court’s determination
must also be noted in an order or in the minutes from the hearing. (Rules 5.780(e), 5.795(a).)
The
significance of an express declaration under Welfare and Institutions Code
section 702 was explained by the California Supreme Court in
Among other things, the California Supreme Court pointed out that a
minor may not be held in physical confinement longer than an adult convicted of
the same offense. (
1205; Welf. & Inst. Code, § 731, subd. (c).) Requiring the juvenile court to declare
whether an offense is a misdemeanor or felony “facilitat[es] the determination
of the limits on any present or future commitment to physical confinement for a
so-called ‘wobbler’ offense.†(
“the requirement that the juvenile court declare whether a so-called ‘wobbler’
offense [is] a misdemeanor or felony also serves the purpose of ensuring that
the juvenile court is aware of, and actually exercises, its discretion under
Welfare and Institutions Code section 702.â€
(Manzy W.,
In
a felony-level term of physical confinement in the Youth Authority
for a drug possession offense that would, in the case of an adult, be
punishable either as a misdemeanor or as a felony (a so-called “wobblerâ€), but
the court had failed to declare the offense a felony. (Manzy
W., supra, 14 Cal.4th at p.
1201.) The California Supreme Court
considered whether the failure to make the mandatory express declaration
pursuant to Welfare and Institutions Code section 702 required remand of the
matter. It explained that “neither the
pleading, the minute order, nor the setting of a felony-level period of
physical confinement may substitute for a declaration by the juvenile court as
to whether an offense is a misdemeanor or felony. [Citation.]â€
(Manzy W.,
The
California Supreme Court also refused to apply the Evidence Code presumption
that the juvenile court had performed its official duty. The California Supreme Court stated that it
was “unpersuaded that such a presumption is appropriately applied when the
juvenile court violated its clearly
stated duty under Welfare and Institutions Code section 702 and there is
nothing in the record to indicate that it ever considered whether the . . .
offense was a misdemeanor or a felony.â€
(Manzy W.,
At the same
time, the California Supreme Court refused to hold that remand is required in
every case when the juvenile court fails to make a formal declaration under
Welfare and Institutions Code section 702.
The California Supreme Court explained:
“[S]peaking generally, the record in a given case may show that the
juvenile court, despite its failure to comply with the statute, was aware of,
and exercised its discretion to determine the felony or misdemeanor nature of a
wobbler. In such case, when remand would
be merely redundant, failure to comply with the statute would amount to
harmless error. We reiterate, however,
that setting of a felony-length maximum term period of confinement, by itself,
does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a
whole establishes that the juvenile court was aware of its discretion to treat
the offense as a misdemeanor and to state a misdemeanor-length confinement limit.†(Manzy
W., supra, 14 Cal.4th at p.
1209.)
The
California Supreme Court ultimately concluded that the matter before it should
be remanded to the juvenile court for an express declaration pursuant to
Welfare and Institutions Code section 702 and possible recalculation of the
maximum period of physical confinement.
(Manzy W.,
in the record establish[ing] that the juvenile court was aware of its
discretion to sentence the offense as a misdemeanor rather than a felony,†and
“it would be mere speculation to conclude that the juvenile court was actually
aware of its discretion in sentencing Manzy.â€
(Id. at p. 1210.)
In this
case, the People alleged in count 1 that the minor committed vandalism, which
is punishable either as a misdemeanor or a felony if the amount of damage is
$400 or more. (§§ 17, 594, subd.
(b)(1).) The juvenile court did not
expressly declare on the record during the jurisdictional or dispositional
hearing that it had considered
whether the vandalism count would be a misdemeanor or a felony, nor did it
expressly declare its determination
in this regard. (Manzy W., supra, 14
Cal.4th at p. 1209; Rules 5.780(e)(5), 5.795(a).)
Moreover,
at the dispositional hearing, the juvenile court indicated it did not believe
the vandalism was as extensive as the victim had claimed.
was “very good†and that it was “impressed with†the minor. Its disposition (10 days on the Community
Release Program) was more lenient than the probation officer had
recommended. Under the circumstances, we
cannot say the juvenile court would necessarily declare the vandalism count to
be a felony if directed to exercise its discretion under Welfare and
Institutions Code section 702 upon remand.
We are
aware of the general rule that we presume that the trial court was aware of and
exercised its discretion to act, absent evidence to the contrary. (See People
v. Jacobo (1991) 230 Cal.App.3d 1416, 1430; Evid. Code, § 664.) In a case such as this one, however, where
the offense may be treated as a misdemeanor or a felony, the California Rules
of Court require that the juvenile court expressly acknowledge its discretion
by declaring that it considered whether to treat the offense as either a misdemeanor
or a felony. (Rules 5.780(e)(5),
5.790(a)(1), 5.795(a).) In the absence
of an express declaration that the offense would be a misdemeanor or a felony,
we will remand the matter to the juvenile court for clarification.
C. Fine
The minor
contends the $154 fine imposed pursuant to Welfare and Institutions Code
section 730.5 must be stricken because there was insufficient evidence that he
had the ability to pay the fine. The
minor points out that he had no paying job at the time of the dispositional
hearing. He argues that he had no near
future prospects for employment, since he was planning to attend college. He asserts he had mental health issues making
employment unlikely. He also points out
that he had other financial obligations, including payment of up to $2,577.86
in victim restitution.
1. Proceedings Below
At the
dispositional hearing, the juvenile court indicated it was “about to impose
$250 of fines and fees of which [the minor] is responsible.†It noted that the minor’s mother would be
“equally responsible†unless she could prove she did not have the “ability to
pay.†After the minor’s mother provided
some details about her financial situation, the trial court declined to hold
her “jointly and sever[ally] responsib[le].â€
The juvenile court’s dispositional order reflects that the minor was
ordered to pay a $110 restitution fine (Welf. & Inst. Code, § 730.6, subd.
(b)) and a $154 general fund fine (Welf. & Inst. Code, § 730.5).
2. Analysis
Welfare and
Institutions Code section 730.5 provides, in pertinent 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.â€
An
ability-to-pay finding must be supported by substantial evidence. (Cf. People v. Nilsen (1988) 199
Cal.App.3d 344, 347, 351 [trial court’s determination that the defendant had
the ability to pay attorney fees under section 987.8 was not supported by
substantial evidence].)
The
Attorney General contends that the minor forfeited this claim by failing to
object below, whereas the minor claims that an insufficiency of the evidence
claim may be raised at any time. The
California Supreme Court recently held that a defendant forfeits an appellate
claim that he or she is unable to pay a booking fee (Gov. Code, § 29550.2,
subd. (a)) by failing to object below. (People
v. McCullough (Apr. 22, 2013, S192513) __ Cal.4th ___ [2013 Cal.
LEXIS 3330] (McCullough).) In
that “because a court’s imposition of a booking fee is confined to factual
determinations, a defendant who fails to challenge the sufficiency of the
evidence at the proceeding when the fee is imposed may not raise the challenge
on appeal.†(Id. at p. __ [*18].) The
fee and fine statutes, the booking fee statute did not contain any “procedural
requirements or guidelines for the ability-to-pay determination,†which
indicated “that the Legislature considers the financial burden of the booking
fee to be de minimis,†making “the rationale for forfeiture … particularly
strong.†(Id. at pp. __, __, __ [*20, *21, *22].)
It is not
clear whether the reasoning of McCullough
applies to the Welfare and Institutions Code section 730.5 fine, the amount of
which can vary greatly depending on the charged offense. (See Welf. & Inst. Code, § 730.5 [“the court
may levy a fine against the minor up to the amount that could be imposed on an
adult for the same offenseâ€]; § 594, subd. (b)(1) [punishment may include
a fine of “not more than ten thousand dollars ($10,000)â€].)
We have
already determined that this matter must be remanded so the juvenile court can
make an express determination of whether the vandalism count is a felony or a
misdemeanor. Upon remand, the juvenile
court can also consider whether the minor has the ability to pay the Welfare
and Institutions Code section 730.5 fine.
Thus, we do not reach the issue of (1) whether the minor may challenge
the Welfare and Institutions Code section 730.5 fine for the first time on
appeal or (2) whether the record supports an implied ability-to-pay finding by
the juvenile court.
Disposition
The
juvenile court’s dispositional order is reversed, and the matter is remanded to
permit the juvenile court to (1) exercise its discretion to select between
misdemeanor or felony treatment for count 1 and to make the express declaration
required by Welfare and Institutions Code section 702 and rule 5.795(a), and
(2) conduct a hearing on the minor’s ability to pay the Welfare and
Institutions Code section 730.5 fine. In
all other respects, the judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
PREMO, ACTING P.J.
__________________________
GROVER, J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title=""> [2]
Other witnesses saw the minor strike McAvoy’s truck only one or two times
total.
