Restitution, Fines, and Fees: Advocacy for Juvenile Clients. Richard Braucher, First District Appellate Project Corene Kendrick, Youth Law Center PJDC Defender Roundtable November 6, 2010. Why should we care?.
Richard Braucher, First District Appellate Project
Corene Kendrick, Youth Law Center
PJDC Defender Roundtable
November 6, 2010
Welf. & Inst. Code § 730.7 provides that parents or guardians are presumed to be jointly and severally liable with the minor for restitution, fines, and penalty assessments.
A parent has the right to appeal from a juvenile court financial obligation order against a minor.
In re Jeffrey M. (2006) 141 Cal.App.4th 1017, 1021
In re Michael S. (2007) 147 Cal.App. 4th 1443, 1448
Minors can be fined up to the amount that could be imposed upon an adult for the same offense, if the court finds that the minor has the financial ability to pay.
§ 730.5; In re Steven F. (1994) 21 Cal.App.4th 1070
TIP: Argue that 730.5 and 730.7 require that the court make separate fact-findings as to whether the youth or the parent can pay the fine.
Summary of types of fines at www.capcentral.org/criminal/crim_fines.asp
Fines do not apply to:
Ex: $100 fine additional $120 ($100 + $20) to state and $70 to county = $290 to actually pay
ALWAYS advise youth and families about the compounding penalties on fines.
ALWAYS argue for reduced fines because of onerous penalties.
APPELLATE ALERT!Imposition of these penalties are mandatory, so any failure to impose them can be corrected on appeal.
People v. Talibdeen (2002) 27 Cal.4th 1151, 1157
In setting the restitution fine, the court shall consider factors including:
NOTE: Express findings by the court on these factors are not required.
§ 730.6(d)(1), (e)
In re Brian K. (2002) 103 Cal.App.4th 39, 44
G.C. v. Sup. Ct. (2010) 183 Cal.App.4th 371, 378
In re S.S. (1995) 37 Cal.App.4th 543, 550
The minor has a right to a hearing on the amount of restitution.
The court must advise the youth of his/her right to a restitution hearing.
Imposition of a victim restitution order without a reasonable opportunity to challenge the order violates Constitutional rights of due process.
P. v. Resendez(1993) 12 Cal.App.4th 98, 114 & fn. 11
APPELLATE ALERT – Always demand a hearing!
Failure to request a restitution hearing or contest the ordered amount forfeits the issue on appeal, if the order does not exceed the probation report’s recommendation.
P. v. Foster (1993) 14 Cal.App.4th 939, 949
Does not require formalities of a trial, therefore:
Welf. & Inst. C. 730(h)
Penal Code 1202.4(f)(3)
P. v. Rubics(2006) 136 Cal.App.4th 452, 462
In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017
P. v. Fortune (2005) 129 Cal.App.4th 790, 794-795
TIP: Given the new graffiti statute and county budget woes, be ready for assertions that public agencies are “direct victims” of the offense.
They will try to argue this!
Caselaw says that public agencies are not directly victimized merely because they investigate crimes, arrest criminals, or fight a fire.
TIP: Thus, for this particular offense, file a motion requesting a modification of the graffiti restitution amount on the grounds that neither the youth nor the family are able to pay it.
In re Tommy A. (2005) 131 Cal.App.4th 1252, 1254
In re Michael S. (2007) 147 Cal.App.4th 1443, 1457
In re Anthony M. (2007) 156 Cal.App.4th 1010, 1018-1019
TIP: Always make sure that the victim has submitted the final settlement between the medical provider and the insurance company, and not just the invoice, which is usually a much higher amount than the settlement.
Charles S. v. Sup. Ct. (1982) 32 Cal.3d 741, 751
In re T.C. (2009) 173 Cal.App.4th 837, 843
YES, IT IS POSSIBLE!
However, probation will not be revoked for failure to pay restitution unless the court determines the youth has “willfully failed to pay or to make sufficient bona fide efforts to legally acquire the resources to pay.” Welf. & Inst. C. §730.6(m)
TIP: Unequal treatment due to wealth is a denial of equal treatment, and it is impermissible to deny a youth informal probation due to his inability to pay restitution. (Charles S. v. Sup. Ct. (1982) 32 Cal.3d 741).
Argue DEJ is like informal probation and Charles S. applies.
TIP: Youth are not included in the list of people liable for probation and electronic monitoring fees – only parent/guardian.
Argue these fees not be included among the probation conditions for which probation can be extended or revoked.
TIP: Charges cannot be assessed unless the petition is sustained or the youth is supervised under §654.
In re Gregory K. (1980) 106 Cal.App.3d 164, 169
If the petition is dismissed or found not true, tell the family to keep copies of the court orders to avoid liability for the cost of detention.
Parents, guardians, or other persons (but not the youth) may be liable for up to $30 per day of “reasonable costs of support” while a child is placed, detained, or committed to any institution. (§903(c))
Our clients should be rehabilitated, not debilitated with debt!