IN RE: DAMIEN C.

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Court of Appeal, Fifth District, California.

IN RE: DAMIEN C., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. DAMIEN C., Defendant and Appellant.

No. F021115.

Decided: November 23, 1994

Barbara Ewing Walker, Sacramento, for appellant. Daniel E. Lungren, Atty. Gen., Maureen A. Daly, Deputy Atty. Gen., Sacramento, for respondent.

OPINION

Appellant has been the subject of numerous sustained petitions that alleged he came within the provisions of Welfare and Institutions Code section 602 because of violations of the Penal Code.   His most recent petition was filed by the Kern County District Attorney on October 5, 1993, and alleged a violation of Penal Code section 12020, subdivision (a) (possession of a concealed dirk or dagger) and a probation violation within the meaning of Welfare and Institutions Code section 777, subdivision (a).

On January 25, 1994, appellant admitted both allegations of the petition.   On February 8, 1994, the court committed him to the California Youth Authority (CYA) for a maximum term of four years eight months.   The court also ordered appellant to pay a restitution fine of $200.   Appellant's sole contention on appeal is the juvenile court improperly imposed the restitution fine without considering his ability to pay.

FACTS

Because of the nature of the issue raised by appellant, an account of the facts underlying his most recent sustained petition is unnecessary.   The pertinent facts derive from the disposition hearing held February 8, 1994.   Prior to the hearing, the juvenile judge read and considered the report of the probation officer.   The report noted appellant had been employed in the past as a laborer, a construction worker and as a babysitter.   Most of his high school credits were earned at Camp Erwin Owen.   His reading and math test scores showed he could perform at a level acceptable for a student at his grade level.

In addition to the new restitution fine of $200, the juvenile court ordered appellant to pay previously ordered restitution amounts.   These included a $100 restitution fine and $544.41 in restitution paid directly to a victim.   The court made no inquiry into appellant's financial circumstances and made no finding of his ability to pay the $200 restitution fine.   Following disposition, appellant filed this timely appeal.

DISCUSSION

Welfare and Institutions Code 1 section 730.6 provides in pertinent part as follows:

“(a) When a minor is found to be a person described in Section 602, in addition to any other disposition authorized by law, the court shall levy a restitution fine which shall be deposited in the Restitution Fund, the proceeds of which shall be distributed pursuant to subdivision (b) of Section 13967 of the Government Code.

“(b) The restitution fine imposed pursuant to this section shall be in the form of a penalty assessment in accordance with Section 1464 of the Penal Code.   In addition, if the person is found to be a person described in Section 602 by reason of the commission of one or more felony offenses, the court shall impose a separate and additional restitution fine of not less than one hundred dollars ($100), subject to the defendant's ability to pay, and not more than one thousand dollars ($1,000).   In setting the amount of the fine for felony offenses, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the minor as a result of the offense, and the extent to which others suffered losses as a result of the offense.   The losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the offense.

“(c) The restitution fine shall be imposed in every case in which a minor is found to be a person described in Section 602.   The restitution fine shall be in addition to any other disposition or fine imposed and shall be imposed regardless of the minor's present ability to pay.   Except as provided in this section, under no circumstances shall the court fail to impose the separate and additional restitution fine in felony cases required by this section.   This fine shall not be subject to penalty assessments pursuant to Section 1464 of the Penal Code.   In a case in which the minor is a person described in Section 602 by reason of having committed a felony offense, if the court finds that there are compelling and extraordinary reasons, the court may waive imposition of the restitution fine.   When a waiver is granted, the court shall state on the record all reasons supporting the waiver.”  (Emphasis added.)

Relying exclusively on our decision in In re Steven F. (1994) 21 Cal.App.4th 1070, 26 Cal.Rptr.2d 604 (hereafter “Steven F.”), the minor contends the matter must be remanded to the juvenile court because the record contains no discussion of his financial circumstances or express finding he was able to pay the $200 restitution fine under section 730.6, subdivision (b).  For reasons to be stated, we will hold the record does not support an implied finding of ability to pay;  rather than remand, we will reduce the fine to the $100 statutory minimum.

STEVEN F.

We first clarify Steven F.   There, the juvenile court imposed a $150 restitution fine pursuant to section 730.6.   The core appellate issue concerned the subdivision under which the court had acted.   The minor argued the fine was imposed under subdivision (b), which fine was subject to his ability to pay, the court did not consider this issue, and remand was required.  (Id. at p. 1076, 26 Cal.Rptr.2d 604.)   The People argued the fine was imposed under subdivision (a), which fine was not subject to the minor's ability to pay.   However, the People argued remand was required for imposition or waiver of a subdivision (b) fine.  (Ibid.)

At the outset, we noted:  “In People v. McMahan (1992) 3 Cal.App.4th 740, 750 [4 Cal.Rptr.2d 708] ․, this court held that failure to object to the imposition of a fine which may be imposed only when the defendant has the ability to pay constitutes a waiver of the issue on appeal.   For reasons that will appear, we do not apply that rule in this case.”  (Steven F., supra, 21 Cal.App.4th at p. 1073, fn. 2, 26 Cal.Rptr.2d 604.)

After a detailed analysis of section 730.6, we concluded subdivision (a) was inapplicable, but the minor “was subject to the restitution fine mandated by subdivision (b).   However, the restitution fine was imposed without any discussion of his financial circumstances or a finding by the court of his ability to pay.   Therefore, the matter must be remanded to the juvenile court so that it may consider Steven's ability to pay the fine, as well as any other relevant factors, or waive imposition of the fine in accordance with section 730.6, subdivision (c).”  (Steven F., supra, 21 Cal.App.4th at pp. 1079–1080, 26 Cal.Rptr.2d 604.)

A casual reading of Steven F. might support three propositions:  1) a section 730.6, subdivision (b) restitution fine requires an express ability to pay finding;  2) failure to object to the fine does not waive this requirement;  3) where a court imposes a section 730.6, subdivision (b) restitution fine without the requisite express finding, the matter must be remanded for further proceedings.   In fact, the briefing in that case did not require we decide any of these propositions.

 As noted, the People sought to uphold the section 730.6 fine under subdivision (a) and requested a remand for consideration of an additional fine under subdivision (b).  (Steven F., supra, 21 Cal.App.4th at p. 1076, 26 Cal.Rptr.2d 604.)   Thus, we did not discuss whether 1) an implied finding of ability to pay will suffice;  2) failure to object to the absence of an express finding waives this requirement, if such a requirement exists;  3) a remand must invariably occur where the record does not support an ability to pay finding.   Cases are not authority for propositions not decided.  (People v. Toro (1989) 47 Cal.3d 966, 978, fn. 7, 254 Cal.Rptr. 811, 766 P.2d 577.)

We briefly turn to the issues left undecided by Steven F.

EXPRESS VERSUS IMPLIED FINDING

People v. Frye (1994) 21 Cal.App.4th 1483, 27 Cal.Rptr.2d 52 considered whether a trial court must expressly find a defendant's ability to pay a restitution fine imposed pursuant to Government Code section 13967, subdivision (a), as amended in 1992.   The court concluded “the statute imposes no such requirement and we will not do so by judicial fiat.  [Citation.]  Rather, we shall apply the usual presumption that official duty has been regularly performed.  (Evid.Code, § 664.)”  (Id. at pp. 1485–1486, 27 Cal.Rptr.2d 52;  fn. omitted.)

Section 730.6, subdivision (b) closely parallels Government Code section 13967, subdivision (a), both in its language and its legislative history, including the 1992 amendment of both statutes to include the “ability to pay” requirement.   Because the statutes are virtually identical, Frye provides a strong analogy for the present case.

Cases decided under an earlier version of Government Code section 13967 requiring an ability to pay held the statute did not require an express finding.  (People v. Goulart (1990) 224 Cal.App.3d 71, 84–85, 273 Cal.Rptr. 477.)   These cases furnish additional analogous authority.

 We hold that where, as here, the court imposes a section 730.6, subdivision (b) restitution fine in excess of $100, the statute does not require an express ability to pay finding.2

WAIVER OF EXPRESS FINDING

 Assuming, arguendo, section 730.6, subdivision (b) does require an express finding, the question arises whether a minor's failure to object in the trial court waives an express finding.

A survey of analogous cases reveals a distinction between procedural errors and acts exceeding a court's statutory powers.   Thus, in People v. Blankenship (1989) 213 Cal.App.3d 992, 262 Cal.Rptr. 141, the court held the defendant had waived his right to challenge the lack of specificity of a direct restitution order.  (Id. at p. 998, 262 Cal.Rptr. 141.)   But in People v. Zito (1992) 8 Cal.App.4th 736, 10 Cal.Rptr.2d 491, the court held the defendant had not waived his right to argue the direct restitution order violated the ex post facto prohibition and the restitution fine exceeded the statutory limit.  (Id. at pp. 741–743, 10 Cal.Rptr.2d 491.)

An express finding requirement under section 730.6, subdivision (b), if it exists at all, is manifestly a procedural rule.   By analogy to the cases discussed above, we hold the minor waived any right to an express finding.

 The requirement a section 730.6, subdivision (b) restitution fine be subject to the minor's ability to pay, however, is a substantive limitation on the court's statutory powers.   The imposition of such a fine where the record does not show an ability to pay exceeds the court's statutory powers.   Thus, we will review the present record to see whether it supports an implied finding of ability to pay.

IMPLIED FINDING

 In the instant case, the juvenile court imposed a new $200 restitution fine and ordered appellant to pay a previously imposed $100 restitution fine as well as $544.41 in restitution to be paid directly to a victim for a total of $844.41.   The most recent probation officer's report states that appellant has not completed high school.   He finished the 11th grade but has not attended school since September 1993.   However, his test scores showed he would perform at the 12th grade level in both reading and mathematics.   The report states appellant had worked as a laborer, construction worker and baby-sitter, but the report did not state his earnings at these jobs.   Appellant's household included his mother, stepfather, two siblings, and his then-pregnant girl friend, all of whom subsisted on $1,302 per month.

Under all the circumstances, we conclude the record does not support the juvenile court's implied determination that appellant can pay the instant $200 restitution fine.

REMEDY

 Having found the present record does not support an implied finding to pay a $200 restitution fine, we turn to the question of remedy.  Section 730.6, subdivision (b) mandates a fine between the narrow range of $100 and $1,000.   As stated in People v. Walker (1991) 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861, adopting a remedy of reducing restitution fines to the statutory minimum where they exceed the parties' plea bargain, a remand could cause “the anomaly of restitution fines costing more money than they generate, and causing more harm than benefit to victims․”  (Id. at p. 1029, 1 Cal.Rptr.2d 902, 819 P.2d 861.)   Moreover, as noted above, the present record involves a $200 restitution fine.   The question becomes whether we should remand for further proceedings or reduce the fine where the difference between the imposed fine and the statutory minimum is $100.   On a cost-benefit analysis, to ask the question is to answer it.   We will reduce the fine from $200 to $100, the statutory minimum.

DISPOSITION

The judgment is modified to reduce the instant $200 restitution fine imposed pursuant to section 730.6, subdivision (b) to the statutory minimum of $100.   As modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

2.   Nor does section 730.6, subdivision (b) require an express ability to pay finding when the court imposes a fine in the statutorily prescribed minimum amount of $100.  (In re Enrique Z. (1994) 30 Cal.App.4th 464, 36 Cal.Rptr.2d 132.)

THE COURT.** FN** Before ARDAIZ, P.J., MARTIN, J., and STONE, J.

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