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In Re C.J., A Person Coming Under the Juvenile Court Law. v. C.J

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


May 4, 2011

IN RE C.J., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
C.J., DEFENDANT AND APPELLANT.

(Super. Ct. No. 65565)

The opinion of the court was delivered by: Duarte , J.

In re C.J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The minor entered admissions to first degree burglary (Pen. Code, § 459) with a prior sustained petition for burglary (Welf. & Inst. Code,*fn1 § 726, subd. (c)) and grand theft (Pen. Code, § 487, subd. (a)). Additionally, he was found by the juvenile court to have committed a home invasion robbery. (Pen. Code, §§ 211, 213, subd. (a)(1)(A).) At the minor's dispositional hearing, he was ordered placed in a juvenile boot camp.

The minor appeals, claiming the juvenile court erred by ordering him to pay a fine without first making a determination of his ability to pay. As we will explain, he has forfeited this issue by failing to raise an objection in the juvenile court.

DISCUSSION

Because the facts of adjudication are irrelevant to the minor's claim on appeal, we proceed with a discussion of the relevant law. Section 731, subdivision (a)(1), gives the juvenile court discretion to impose various conditions on a minor who has been made a ward of the court under section 602, including imposition of a fine up to $250, "if the court finds that the minor has the financial ability to pay the fine." Pursuant to this provision, at the minor's dispositional hearing, the juvenile court imposed a $100 fine, plus penalties and assessments. Minor did not object. The juvenile court adopted the probation department's recommendation in imposing the fine, which was contained in the probation report prepared for the dispositional hearing.

The minor contends the juvenile court erred by imposing this fine without determining whether he had the ability to pay. We agree with the People that the minor has forfeited this claim by failing to object to the imposition of the fine in the juvenile court.

In People v. Scott (1994) 9 Cal.4th 331, 353, the California Supreme Court held that "the waiver doctrine . . . appl[ies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." This principle applies in juvenile cases. (See, e.g., In re Sheena K. (2007) 40 Cal.4th 875, 880-887, and cases cited therein.) Thus, this court has held that an objection must be made in the trial court to fines based on the defendant's ability to pay or any claim of error on this basis is forfeited for purposes of appeal. (People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 (Gibson).)

In Gibson, this court explained: "[B]ecause the appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine. Otherwise, the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court to support a finding that defendant has the ability to pay. [Citation.] A challenge to the sufficiency of evidence to support the imposition of a restitution fine to which defendant did not object is not akin to a challenge to the sufficiency of evidence to support a conviction, to which defendant necessarily objected by entering a plea of not guilty and contesting the issue at trial." (Gibson, supra, 27 Cal.App.4th at pp. 1468-1469, cited with approval in People v. Butler (2003) 31 Cal.4th 1119, 1130 (conc. opn. of Baxter, J. [ability to pay listed as one of many sentencing determinations that "may not be challenged for the first time on appeal, even if the defendant claims that the resulting sentence is unsupported by the evidence"]).)

Citing People v. Scott, supra, 9 Cal.4th 331, which was decided after Gibson, the minor asserts that imposition of the fine without a determination of his ability to pay was an unauthorized sentence. The minor is correct that an unauthorized sentence--i.e., a sentence that "could not lawfully be imposed under any circumstance in the particular case"--is reviewable on appeal even in the absence of an objection. (People v. Scott, supra, 9 Cal.4th at p. 354.) This is so "because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid.) Here, however, imposition of the fine at issue was not unlawful per se. Rather, it depended on a determination of the minor's ability to pay, which requires resolution of factual issues. Consequently, no unauthorized sentence resulted. (Cf. People v. Burnett (2004) 116 Cal.App.4th 257, 261 [failure to impose fine under Pen. Code § 290.3 not an unauthorized sentence because "factual issues come into play in determining whether a defendant has the ability to pay"].)

We addressed this very issue in a different procedural context in People v. Turrin (2009) 176 Cal.App.4th 1200. In that case, the defendant attempted to challenge a restitution fine in the trial court, after the court had lost jurisdiction over the matter, by claiming it was an unauthorized sentence because the court failed to determine his ability to pay.*fn2 We held that a trial court's failure to determine a defendant's ability to pay a fine does not constitute an unauthorized sentence. (People v. Turrin, supra, 176 Cal.App.4th at p. 1207.) We noted: "'The unauthorized sentence exception is "a narrow exception" to the waiver doctrine that normally applies where the sentence "could not lawfully be imposed under any circumstance in the particular case," for example, "where the court violates mandatory provisions governing the length of confinement." [Citations.] The class of non-waivable claims includes "obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings."'" (Id. at p. 1205, citing People v. Brach (2002) 95 Cal.App.4th 571, 578.)

The minor also cites People v. McMahan (1992) 3 Cal.App.4th 740 (McMahan) and urges that the imposition of the fine is reviewable on appeal because his ability to pay is a "condition precedent" to imposing a fine under section 731, subdivision (a)(1). In the McMahan opinion, the court concluded that the wording of Penal Code section 290.3--requiring an additional fine in sex offense cases "unless the court determines the defendant does not have the ability to pay"--puts the burden on the defendant to object on this basis because the ability to pay is not a "condition precedent" to imposing the fine. (McMahan, supra, 3 Cal.App.4th at p. 749.) Thus the trial court was not required to make a sua sponte determination of the defendant's ability to pay. (Id. at pp. 749-750.)

The minor argues that, as ability to pay is a "condition precedent" to imposing a fine under section 731, subdivision (a)(1), the juvenile court was required to make a determination in order to impose the fine. However, the issue in this case is not whether the juvenile court was required to make a determination regarding his ability to pay before imposing the fine, but rather whether the minor forfeited the issue by failing to raise it in the juvenile court. The McMahon court noted that "even if the [trial court] were required to initially determine the defendant's ability to pay, his failure to object or present contrary evidence waived the right to complain on appeal." (McMahan, supra, 3 Cal.App.4th at p. 750.) This portion of McMahon was noted by the California Supreme Court in People v. Scott. (People v. Scott, supra, 9 Cal.4th at p. 353, fn. 15, citing a reference to McMahan and other cases in People v. Neal (1993) 19 Cal.App.4th 1114, 1123-1124.)

The minor attempts to sidestep the waiver discussion contained in McMahon by citing In re Steven F. (1994) 21 Cal.App.4th 1070 (Steven F.), a remand for determination of a minor's ability to pay a restitution fine under section 730.6, subdivision (b). A footnote in Steven F. notes the language in McMahan regarding forfeiture of the issue in the absence of an objection in the trial court and states: "For reasons that will appear, we do not apply that rule in this case." (In re Steven F., supra, 21 Cal.App.4th at p. 1073, fn. 2.) Thereafter, however, neither McMahan nor forfeiture is addressed, and it is not otherwise apparent why the rule was not applied. In any event, any implicit suggestion in Steven F. that the issue of ability to pay a fine may be raised for the first time on appeal under certain circumstances must be rejected in light of People v. Scott, which was decided by our Supreme Court post Steven F.

In sum, as the minor did not object in the juvenile court to the imposition of a fine under section 731, subdivision (a), he has forfeited the issue for purposes of appeal.

DISPOSITION

The judgment of the juvenile court is affirmed.

We concur: ROBIE , Acting P. J. BUTZ, J.


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