In re M.M.



















Filed 7/13/12 In re M.M. CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
ONE




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In re M.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. M.M., Defendant and Appellant.	A134217 (Contra Costa County Super. Ct. No. J1101079)

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>Introduction

The
propriety of a $50 fine is the sole issue in this appeal. Defendant and appellant M.M. was charged with
battery and stalking, both
misdemeanors. The juvenile court
sustained the petition on both counts, ordered her placed in a court-approved
home or institution, and ordered her to pay a $50 restitution fine. M.M. acknowledges a fine was mandatory under
Welfare and Institutions Codehref="#_ftn1"
name="_ftnref1" title="">[1]
section 730.6, but claims the court abused its discretion in setting that
amount. She also admits her attorney
made no objection to the fine, but claims that constituted ineffective
assistance of counsel. Lastly, M.M.
asserts section 730.6 violated her equal
protection rights because it mandates a fine, albeit with no minimum, for
juvenile misdemeanor offenses, while the fine may be waived for juvenile
felonies and, similarly under Penal Code section 1202.4, for adult misdemeanor
and felony offenses. We affirm.

>Procedural
and Factual Background

We
set forth only those facts necessary to address the single issue on
appeal.

The
Contra
Costa County District Attorney filed a petition alleging M.M., then 14
years old, stalked and battered E.L., a classmate at her high school. (Pen. Code, §§ 646.9, subd. (a),
242.) The evidence showed during a
period of several weeks in June and July 2011, M.M. telephoned E.L. approximately
90 times per day, came to her home uninvited, and left notes and gifts at her
home. One of the notes depicted a
drawing of two stick figures labeled M.M. and E.L., showing M.M. shooting a
gun. On July 26, 2011, M.M. hit E.L. in the face with her fist and
a water balloon. During the altercation,
E.L.’s acrylic nail was “pulled out from the nail bud.” Following a contested jurisdictional hearing,
at which both M.M. and E.L. testified, the court sustained both counts as
misdemeanors.

At
the dispositional hearing, the court
adjudged M.M. a ward of the court, found her welfare required she be removed
from her parents’ custody, and ordered her placed in a court-approved home or
institution in order to receive the mental health services she needed. The court also ordered she pay a restitution
fine of $50.

This
court granted M.M.’s request for relief from default in late filing of her
notice of appeal, and ordered the superior court to allow her to file the href="http://www.fearnotlaw.com/">notice of appeal.

>Discussion

M.M.
asserts the juvenile court abused its discretion in imposing a $50 restitution
fine under section 730.6. She
acknowledges her trial counsel made no objection to the restitution fine, but
contends counsel was ineffective in failing to do so.

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) Restitution to the victim or
victims, if any, in accordance with subdivision (h). [¶] (b) In every case where 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 .
. . .” (§ 730.6, subds. (a)(2),
(b), italics added.)

The
statute provides for two different ranges of fines depending on whether the
minor committed a felony or a misdemeanor.
“(1) If the minor is found to be a person described in Section 602 by
reason of the commission of one or more felony offenses, the restitution fine
shall not be less than one hundred dollars ($100) and not more than one
thousand dollars ($1,000). . . .
[¶] (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). . . .” (§ 730.6, subd. (b).)

Prior
to the disposition hearing, the probation department prepared a report in which
it recommended a restitution fine of $100.
The juvenile court instead imposed restitution of $50. M.M.’s counsel made no objection to either
the imposition or amount of the restitution fine.

A
defendant’s failure to object to a restitution fine, after having been apprised
of the possibility of such a fine in the probation report, forfeits an
appellate challenge to the fine. (>People v. McMahan (1992) 3 Cal.App.4th
740, 750; see People v. Scott (1994)
9 Cal.4th 331, 352-353, fn. 15.)
“The purpose of the waiver doctrine is to bring errors to the attention
of the trial court so they may be corrected or avoided. [Citation.]
The rule that contentions not raised in the trial court will not be
considered on appeal is founded on considerations of fairness to the court and
opposing party, and on the practical need for an orderly and efficient
administration of the law.” (>People v. Gibson (1994)
27 Cal.App.4th 1466, 1468.)
“[T]these considerations are fully applicable to hearings at which
conditions of juvenile probation are determined. In both adult and juvenile cases, the time to
object is at the pertinent hearing, not for the first time on appeal. [Citation.]
. . . Objection and waiver
principles ‘encourage prompt detection and correction of error, and . . .
reduce the number of unnecessary appellate claims.’ ”

(In re Abdirahman S. (1997) 58 Cal.App.4th 963, 971, quoting >People v. Scott, supra, 9 Cal.4th
at p. 351.) If “the order for
restitution was within the sentencing court’s statutory authority, and
defendant [did not raise] an objection to the amount . . . we do not decide
whether the court abused its discretion in determining the amount.” (People
v. Brasure (2008) 42 Cal.4th 1037, 1075.)

M.M.
acknowledges failure to object to a restitution fine ordinarily forfeits the issue
on appeal, but maintains her trial counsel was ineffective in failing to
object. “ ‘It is a defendant’s
burden to demonstrate the inadequacy of trial counsel. [Citation.]
. . . “ ‘In order
to demonstrate ineffective assistance of counsel, a defendant must first show
counsel’s performance was “deficient” because his “representation fell below an
objective standard of reasonableness . . . under prevailing professional
norms.” [Citations.] Second, he must also show prejudice flowing
from counsel’s performance or lack thereof.
[Citation.] Prejudice is shown
when there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” ’ ” [Citation.]’ ” (People
v. Vines (2011) 51 Cal.4th 830, 875.)

“ ‘Reviewing
courts defer to counsel’s reasonable tactical decisions in examining a claim of
ineffective assistance of counsel [citation], and there is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”
[Citation.] Defendant’s burden is
difficult to carry on direct appeal, as we have observed: “ ‘Reviewing courts will reverse convictions
[on direct appeal] on the ground of inadequate counsel only if the record on
appeal affirmatively discloses that counsel had no rational tactical purpose
for [his or her] act or omission.’ ”
[Citation.]’ [Citation.] If the record on appeal ‘ “ ‘sheds no
light on why counsel acted or failed to act in the manner challenged[,] . . .
unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation,’ the claim on appeal
must be rejected,” ’ and the ‘claim of ineffective assistance in such a
case is more appropriately decided in a habeas
corpus proceeding.’ ” (>People v. Vines, supra, 51 Cal.4th
at p. 876.)

A
“satisfactory explanation” for counsel’s failure to object is readily
apparent. The juvenile court reviewed
the probation department’s recommendation that the fine be $100, and reduced it
by half. The juvenile court also gave
M.M. one year to pay the $50 restitution fine.
It was entirely reasonable that M.M.’s attorney would to choose to focus
on challenging other probation conditions, rather than one in which the court
had already shown lenience. M.M. has
failed to demonstrate ineffective assistance of counsel.

Since
we conclude M.M. has waived her challenge to the amount of the restitution fine
by failing to object in the court below and there was no ineffective assistance
of counsel in failing to object, we need not reach her constitutional objection
to the fine. But even if we were to
consider it, we would reject it. M.M.
claims section 730.6 unconstitutionally abrogates her equal protection rights
because it does not include a provision for waiver of the restitution fine for
a misdemeanor offense, as the statute does for a felony offense (§ 730.6,
subd. (g)), and as the statute relating to restitution fines for adults does
for both misdemeanor and felony offenses (see Pen. Code, § 1202.4, subds.
(b)-(c)). A rational basis for this distinction
is apparent from the differing statutory provisions.

As
we have noted, there is both a floor and ceiling for a juvenile restitution
fine for a felony, namely the fine cannot be less than $100, but cannot exceed
$1,000. In contrast, there is no floor
for a restitution fine for a misdemeanor offense, there is only a ceiling of
$100. (§ 730.6, subd.
(b)(1)-(2).) It is understandable,
given that the statute imposes a $100 floor on a felony restitution fine, that
the Legislature would provide for a waiver of the fine in exceptional
cases. Where a misdemeanor is involved,
there is no floor, and the juvenile court can essentially abrogate the
restitution fine by reducing it to $1.
The California Judges Benchguide notes this point in discussing section
730.6: “The restitution fine cannot be
waived for misdemeanors, probably because there is no statutory minimum fine
with respect to them.” (Cal. Judges
Benchguide (CJER 2012) Restitution, § 83.8, pp. 83-13 to 83-14.) As for waivers of adult restitution fines,
Penal Code section 1202.4 sets floors and ceilings for both misdemeanors and
felonies. Thus, there is no ability, as
there is under section 730.6, for the court to effectively abrogate the fine in
either instance by ordering only a nominal amount. Accordingly, it is again understandable, given
the statutory floors, that the Legislature would provide for a waiver of both
misdemeanor and felony adult restitution fines in exceptional cases.

>Disposition

The
order is affirmed.





_________________________

Banke,
J.





We concur:





_________________________

Margulies, Acting P. J.





_________________________

Dondero, J.