In re O.A.
Filed 2/6/13 In re O.A. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
In re O. A., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
O. A.,
Defendant and Appellant.
C070847
(Super. Ct. No. 69040)
Following a
contested jurisdiction hearing, the juvenile court found that the minor O. A.
committed robbery and two counts of attempted robbery. At the disposition hearing, the juvenile
court adjudged the minor a ward of the court, set a maximum term of confinement
of six years four months, and placed the minor on probation with 120 days in
juvenile hall. Among the probation
conditions was that the minor pay a $100 general fund fine.
On appeal,
the minor contends there was insufficient
evidence of the minor’s ability to pay the general fund fine and its
attendant penalty assessment. We
affirm.
We dispense
with the facts of the minor’s offenses, as they are unnecessary to resolve this
appeal.
When a
minor is adjudged a ward of the juvenile court, the court may order the minor
to pay a fine of up to $250 to “the county treasury if the court finds the
minor has the financial ability to pay the fine, or to participate in
uncompensated work programs.†(Welf.
& Inst. Code, § 731, subd. (a)(1).)
This court
has previously held that if a defendant does not object in the trial court to
the imposition of a fee or fine, the issue is forfeited. (People
v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine --
Pen. Code, § 1202.5, subd. (a)]; People
v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [jail booking fee -- Gov.
Code, § 29550.2]; People v. Gibson
(1994) 27 Cal.App.4th 1466, 1467, 1468-1469 [restitution fine -- Gov.
Code, former § 13967, subd. (a)].)
We have applied the forfeiture rule even when the defendant claims on
appeal that there is not sufficient evidence to support the imposition of the
fine or fee. (Gibson, at pp. 1467-1469.)
The Sixth
Appellate District, however, has concluded that appeals challenging the
imposition of fines and fees based on claims of insufficient evidence “do not
require assertion in the court below to be preserved on appeal.†(People
v. Pacheco (2010) 187 Cal.App.4th 1392, 1397, citing
134 Cal.App.4th 1186, 1217.) This
holding created a conflict between Pacheco
and the cases cited above. The
California Supreme Court has agreed to resolve the conflict. (See People
v. McCullough (2011) 193 Cal.App.4th 864, review granted June 29,
2011, S192513, will be argued on Feb. 6, 2013.)
Until the
California Supreme Court issues further guidance, we continue to adhere to our
holding in People v. Gibson,
that a failure to object to a fee or fine in the trial court forfeits the
issue, even where the statute contemplates a judicial finding of ability to pay
and the defendant challenges the sufficiency of the evidence to support such a
finding. (Id. at pp. 1467, 1468-1469.)
“As a matter of fairness to the trial court, a defendant should not be
permitted to assert for the first time on appeal a procedural defect in
imposition of a restitution fine, i.e., the trial court’s alleged failure to
consider defendant’s ability to pay the fine.
[Citation.] Rather, a defendant
must make a timely objection in the trial court in order to give that court an
opportunity to correct the error; failure to object should preclude reversal of
the order on appeal. [Citations.]†(Id.
at p. 1468.)
Accordingly,
we conclude that the minor’s failure to object to the general fund fine
forfeits his contentions regarding the fine and its attendant assessment.
DISPOSITION
The
judgment is affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
DUARTE , J.
